' TASSADUQ HUSSAIN JILLANI, J.---This judgment shall dispose of Civil Appeal No,1288 of 2008 filed by Ch. Liaquat Ali and Civil Appeal No,1289 of 2008 filed by Amjad Saleem as they are directed against the same judgment dated 7-4-2008 vide which the. Learned Tribunal dismissed three appeals including those of the appellants. The appellants in those appeals had assailed the order of the Appellate Authority/Chief Secretary, Punjab dated 24-10-2006 vide which their service appeals against the final seniority list of BS-18 officers of Water Management Wing of Agriculture Department (dated 30-9-2003), were dismissed.
2. Facts giving rise to these appeals briefly stated are that in Civil Appeal No,1288 of 2008, appellant Chaudhry Liaquat Ali was recruited as Agricultural Economist on temporary basis and he joined service on 19-8-1987 on the recommendation of the Punjab Public Service Commission. The Department issued and circulated a provisional seniority list dated 30-9-2003 where he was placed at serial No,22 (circulated on 12-1-2004).
Appellant filed objections which were turned down on 1-10-2004; his representation dated 27-10-2004 remained un responded; he filed appeal before the Service Tribunal (Appeal No,429 of 2005) which was disposed of on 24-5-2005 and the case was remanded to the Chief Secretary to decide the matter in his capacity as Appellate Authority. The Chief Secretary dismissed the appeal on 24-10-2006 vide a consolidated order wherein he also dismissed similar appeal against the same seniority list filed by appellant in the connected Civil Appeal No,1289 of 2008. This order was challenged by both the appellants before the learned Punjab Service Tribunal, which stands dismissed vide the impugned judgment.
3. In Civil Appeal No,1289 of 2008 appellant Amjad Saleem was appointed as Assistant Agriculture Engineer (BS-17) vide the order dated 23-7-1981; he was promoted in BS-18 on 5-10-1992 as Project Director (Engineering) under Second Barani Area Development Project and was placed at Sr. No,40 of the seniority list of respective cadre. After closure of this .Project on 30-6-1997, the post he was holding was abolished and he was adjusted against an equivalent cadre post. On the issuance of final seniority list of Grade-18 officers of Water Management Wing of Agriculture Department as corrected up to 30-9-2004, appellant raised certain objections and his representation having remained abortive, he also, like appellant in Civil Appeal No,1288 of 2008, filed appeal before the Service Tribunal, which was disposed of in terms of the aforementioned remand order and the Chief Secretary was directed to decide the issue and the Chief Secretary dismissed his appeal along with the appeal of the appellant in the connected appeal, which order was assailed before the Tribunal and his appeal was also dismissed vide the judgment dated 7-4-2008.
4. Learned counsel for the appellants Uafiz S. A. Rehman made following submissions as the issues raised in both these appeals are similar:--
(i) that neither the Departmental Appellate Authority nor the Service Tribunal has adverted to the substantive issues raised in the appeals and therefore, the orders passed are not sustainable in law;
(ii) that the Departmental Appellate Authority as also the learned Service Tribunal have not appreciated that in the Water Management Wing of the Agriculture Department, Government of Punjab, 'development side' meant that there were certain Water Management Projects of temporary nature which were launched on 1-7-1981 and those were named as On-Farm Water Management Projects, which were of temporary nature and were for a fixed period. The employees appointed on those temporary projects including the private respondents were recruited against temporary posts and their salaries/emoluments were paid from contingency/foreign monetary assistance and not from the Government of Punjab as such all those employees were neither civil servants in view of section 2(i)(b) of the Punjab Civil Servants Act, 1974 nor they could claim seniority or confirmation against temporary project posts. In support of the submission, learned counsel relied on sections 6 and 7 of the Civil Servants Act read with Rule 7(i) of the Punjab Civil Servant (Appointment and Conditions of Service) Rules, 1974;
(iii) that the On-Farm Water Management Projects were closed in the year 1999-2000 and 444 permanent personnel were ordered to be adjusted against permanent posts on the basis of their length of service under the temporary projects which is reflected from letter dated 12-4-2000 issued by Director-General Agriculture (Water Management) Punjab, Lahore. Those employees were accordingly adjusted but there is nothing on record to indicate that those were adjusted against permanent posts and therefore, they could not be placed senior to the appellants in the seniority list;
(iv) that the observation/finding of the Tribunal to the effect that mere switching over of posts from 'development' to 'non-development' side did not alter the regular nature of appointments, terms and conditions of service or nature of Functional Unit/cadre and seniority of parties underpins a miscomprehension of law. The finding to the effect that the terms 'non-development' and 'development' only indicate the budgetary procedure and source from which the civil servants draw their pays but would not control or govern the seniority of the employees, is not sustainable in law;
(v) that the learned Service Tribunal did not appreciate that delay in challenging the seniority list could not have non-suited the appellants as the relegation of their seniority position being violative of law and the rules was a recurring cause of action and could be challenged at any time;
(vi) that the learned Service Tribunal fell in error in not appreciating that any person who is appointed against a project post on year to year basis and for a specific assignment/project cannot be assigned seniority vis-a-vis the appointees on regular basis against permanent posts or against 'non-development' posts, which otherwise are permanent in nature and that it is well settled law that even an ad hoc employee who is appointed against a permanent post cannot have his ad hoc service counted towards seniority as laid down by this Court Sabir Zamir Siddiqui v. Abdul Malik (PLD 1991 SC 226), Ahsanullah A. Memon v. Government of Sindh (1993 SCMR 982) and Abdul Rashid Khan v. Muhammad Saleem Akhtar (1996 SCMR 1163);
(vii) that the learned Tribunal has not examined as to whether respondents were in the regular cadre of Agriculture Department or whether they were regular appointees in the Project and what was the effect of abolition of posts, their merger and adjustment in the regular cadre.
5. In support of the submissions made, learned counsel relied on Muhammad Younas Jaffar v. Government of Pakistan (PLD 1996 SC 86) and Din Muhammad v. Director-General Pakistan Post Office (2003 SCMR 33 at page 338).
5. Learned counsel for the private respondents Mr. Shoaib Shaheen defended the impugned judgment and made following submissions:--
(i) that the appellant in Civil Appeal No,1288 of 2008 was appointed against a temporary vacant post sanctioned for On-Farm Water Management Development Project; he joined on 19-8-1987 and that a bare reading of his order of appointment dated 14-7-1987 would indicate that his appointment was on temporary basis and he had accepted the post on terms and conditions stipulated in the said order. Prior to his appointment against the afore-referred post, he was offered and appointed Water Management Specialist in the "On Farm Water Management Development Project" in NPS-17 vide the order dated 5-2-1981. This appointment was made under the special rules titled as 'On-Farm Water Management Development Project Service Rules, 1977' read with Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 and all such posts were temporary. In terms of the afore-referred Rules, he added, all the appointments were to be made through Punjab Public Service Commission and those, which were to be filled by promotion were filled on the recommendation of the appropriate Departmental Promotion Committee. Since the appellant is beneficiary of those rules, he cannot turn around and challenge their vires.
(ii) that respondent No, 4 in both the appeals (Muhammad Ashraf) was directly recruited as Assistant Agriculture Engineer (BS-17) on 1-4-1980; that on his selection by the Punjab Public Service Commission, he was also offered temporary post of Water Management Coordinator in BPS-18 vide letter dated 17-4-1985 which he accepted and joined on 8-5-1985 and since then he is in service. Thus his date of appointment is earlier to that of the appellants and he has correctly been placed as senior to the appellants;
(iii) That appellant in Civil Appeal No,12.89 of 2008 namely Amjad Saleem was also directly recruited as Assistant Agricultural Engineer (BS-17) against temporary post and he joined as such on 23-7-1981. The appellant's contention that it was a permanent post is absolutely incorrect, which is evident from the appointment order bearing No,SO(Mech) Estt.14(8)/79 dated 23-7-1981. This appointment like that of appellant in the connected appeal was made under On Farm Water Management Development Project Service Rules, 1977, as amended in terms of notification dated 19-9-1992 and it was in consequence of those amended rules that this appellant was promoted as a Project Director (Engineering) in BS-18 with effect from 5-10-1992 on regular basis against a temporary post.
(iv) That seniority list of BS-18 had been issued from time to time by the Department wherein the respondents had always been shown senior to the appellants and the appellants never objected to the same and it is rather late in the day for them to challenge it now.
6. Learned Additional Advocate-General Mr. Jawwad Hassan while defending the impugned judgment submitted as follows:--
(i) That ever-since the appointment of appellants in the Department, 9 lists were published by the Department on various dates prior to the one which is subject matter of these appeals and those were never challenged by them. This, according to him, reflects acquiescence and they cannot now raise any objection to the final seniority list issued on 30-9-2003. Appellants have made grievance against the seniority list after a lapse of 15 years which besides reflecting contumacious conduct is indicative of the fact that they accepted the list as correct.
' Learned Law Officer has placed on record a breakup of seniority lists of the BS-18 officers of Water Management Wing of Agriculture Department circulated/finalized and issued from 30-5-1985 to 30-9.-2004 which are being placed on record as Annex. 'A' and relied on Wazir Khan v. Government of N.-W.F.P. (2002 SCMR 889) and Rashida Asif v. Aasia Gondal (2010 SCMR 450).
7. We have considered the submissions made by learned counsel for the parties as also learned Law Officer and have also gone through the precedent case-law to which reference has been made at the bar.
8. The issue raised in these appeals would require examination of the terms and conditions of initial appointments of both the parties, the effect of abolition of certain posts after the completion of projects in the Water Management Wing of the Agricultural Department and the criteria of adjustment of the incumbents on the posts so abolished (which included the respondents) and its effect on inter se seniority. A comparative study of the terms and conditions stipulated in the offer of initial appointment in BS-17 of appellants Ch. Liaquat Ali (In C.A. 1288 of 2008) and Amjad Saleem (In C.A. 1289 of 2008) and respondent No,4 in both the appeals would indicate that notwithstanding the difference in nomenclature of the posts, appointment of both the parties were in BS-17, both were temporary, both were appointed pursuant to the recommendations of the Punjab Public Service Commission and against sanctioned posts. The same is reproduced hereunder:-- ' Ch. Liaquat All ' Appellant in Civil Appeal No,1288 of 2008 "REGISTERED ' No, SO (Mech) Estt. 14(2)/79 ' GOVERNMENT OF THE PUNJAB AGRICULTURE DEPARTMENT.
' Dated Lahore, the 1-1-81 ' To ' Mr. Liaqat Ali son of Ghulam Rasool, ' Chak No, 519/GB, Post Office same Toba Tek Singh, District, Faisalabad.
' Subject: RECRUITMENT TO THE POST OF WATER MANAGEMENT SPECIALIST IN ON FARM WATER MANAGEMENT DEVELOPMENT PROJECT ' On the recommendation of the Punjab Public Service Commission, you are offered the post of Water Management Specialist in the On Farm Water Management Development Project in NPS-17 i,e, Rs,900-50- 1150/60-1750 plus Rs,150 Special Pay and such other allowances as may be sanctioned by the Government from time to time for this post, on the following terms and conditions:--
(i) The post which is being offered to you has been sanctioned by Government on temporary basis but is likely to continue.
(ii) Your employment will be temporary and your services may be terminated at any time without any reason being assigned, irrespective of the fact that you may be holding a post other than this. In case you want to resign at any time, one month's notice will be necessary or in lieu thereof one month's pay may be forfeited. Sd/- UNDER SECRETARY (MECH) for Secretary to Government of the Punjab, Agriculture Department."
' Ch. Muhammad Ashraf Respondent No, 4 in both the appeals "REGISTERED ' No, SO (Mech) Estt. 12(7)/79 ' GOVERNMENT OF THE PUNJAB ' AGRICULTURE DEPARTMENT.
' Dated Lahore, the 12th January, 1980 ' To ' Ch. Muhammad Ashraf, son of Ch. Nisar Hussain, ' House No, 1239/7, Street No,' 92, Bengali Mohallah, Sadar, Lahore.
' Subject : RECRUITMENT TO THE POST OF AGRICULTURAL ENGINEER IN ON FARM WATER MANAGEMENT DEVELOPMENT PROJECT ' On the recommendation of the Punjab Public Service Commission, Lahore, you are offered the post of Assistant Agricultural Engineer in the Agriculture Department in NPS-17 i,e, Rs,900-50- 1150/60-1750 plus such other allowances as may be sanctioned by the Government from time to time on the following terms and conditions:--
(i) The post which is being offered to you has been sanctioned by Government on temporary basis but is likely to be extended further;
(ii) Your employment will be temporary and your services may be terminated at any time irrespective of the fact that you may be holding a post other than the one to which you were originally recruited. In case you want to resign at any time, one month's notice will be necessary or in lieu thereof one month's pay may be forfeited.
' Sd/- ' UNDER SECRETARY (MECH)
' For Secretary Agriculture."
' Amjad Saleem ' Appellant in Civil Appeal No,1289 of 2008 "REGISTERED ' No, SO (Meth) Estt. 14(8)/79 ' GOVERNMENT OF THE PUNJAB AGRICULTURE DEPARTMENT, ' Dated Lahore, the 23-7-1981 ' To ' Mr. Amjad Saleem ' House No, 9, Street No, 6, ' New Dharampura (Mustafabad), Lahore. Subject: RECRUITMENT TO THE POST OF ASSISTANT AGRICULTURAL ENGINEER GRADE-17 On the recommendation of the Punjab Public Service Commission, you are offered the post of Assistant Agricultural Engineer in the scale of Rs,900-50-1150/60-1750-Certified that there is no audit/advance/printed para against the officer-2250 @ Rs,900 p.m. Plus such other allowances as may be sanctioned by the Government from time to time for this post, on the following terms and conditions:--
(i) The post which is being offered to you has been sanctioned by Government on temporary basis upto 31-5- 1982.
(ii) Your employment will be temporary and will stand automatically terminated on 31-5-1982 irrespective of the fact that you may be holding a post other than this. In case you want to resign at any time, one month's notice will be necessary or in the lieu thereof one month's pay may be forfeited. Sd/- UNDER SECRETARY (MECH) for SECRETARY AGRICULTURE, PUNJAB"
9. Even subsequent appointment of appellant Ch. Liaquat Ali (in C.A. No,1288 of 2008) as Agricultural Economist in BS-18 was against a temporary post and on the same terms and conditions as reflected in his initial appointment. In the first seniority list issued after his appointment in BPS-18 (circulated on 30-6-1988), he was placed at Sr. No,22 and shown junior to the respondents.
10. As mentioned earlier, appellant in Civil Appeal No,1289 of 2008 (Amjad Saleem) was initially appointed as Assistant Agricultural Engineer in terms of the order bearing No, SO(Mech) Estt. 14(8)/79 dated 23-7-1981 and subsequently promoted to BS-18. In the comments submitted by the Secretary Agriculture in his appeal before the Service Tribunal, while explaining how he was promoted and against which post, it was averred that "factually, he was promoted in BS-18 on 5-10-1992 as Project Director (Engg.) under "Second Barani Area Development Project (Water Lifting Devices Component) and was placed at S. No,40 of seniority list of the respective cadre. After closure of this project/scheme on 30-6-1997, the said post was abolished and the appellant had been adjusted against equivalent cadre post." It is not denied that in the first seniority list issued after that i,e, on 30-4-1993 he was placed at Sr. No,40. Another periodical inter se seniority list was issued on 10-8-1997 wherein he was placed at Sr. No,39. Both these lists were never challenged and it was only the list issued on 30-9-2004, which was made subject of dispute.
11. The argument of the appellants' learned counsel that since the respondents were appointed against certain projects, which were abolished and were adjusted against certain posts after abolition of the earlier posts which they held and therefore, their seniority should be reckoned from the date of adjustment is neither borne out from the nature of posts on which respondents were initially appointed nor it was so provided in the criterion of adjustment issued by the competent authority in the Provincial Government after abolition of posts. The said criteria are given in the letter placed on record by the appellants from the office of Director General to Secretary Agriculture (in Civil Appeal No,1288 of 2008 at page 144), which reads as follows:-- "No, 4776/DGA/WM/5-2-1I/Estt: ' DIRECTORATE GENERAL AGRICULTURE (WATER MANAGEMENT) ' PUNJAB, LAHORE. Dated Lahore, the 26-2-2004.
' To ' The Secretary ' Government of the Punjab, ' Agriculture Department, Lahore.
' SUBJECT: RE-DESIGNATION OF POSTS UNDER WATER MANAGEMENT WING OF AGRICULTURE DEPARTMENT.
' Kindly refer to Government of the Punjab, Agriculture Department letter No, S. O. A(B)1/420/2000 dated 17-1- 2004 on the subject noted above.
' Annotated reply of information asked vide above mentioned letter is submitted for perusal and further necessary action.
S. No.Documents requiredReply 1.Copy of orders wherein the posts were abolishedOn promulgation of Local Government Ordinance, 2001, the Directorates (Field), Lahore and Multan functioning under Water Management Wing of Agriculture Department were closed and posts of Directors (BS-19) and Technical Officers (BS-18) wereabolishedvideGovernmentofthePunjab, Agriculture Department notification No.SOA (B)1(420)/2000 dated 3-9-2001 (Annexure "A") with effect from 1-9-2001 In addition, posts with following nomenclature were discontinued on the completion of different OFWM projects:--
1. Project Director in BS-18
2. DeputyDirector(IrrigationAgronomy)in BS-18
3. Deputy Director (Engineering) in BS-18
4. Assistant Director (Liaison) in BS-17
5. Assistant Director (Engineering) in BS-17
6. Assistant Director (Monitoring and Evaluation) in BS-17
7. Agricultural Officer in BS-17 AsadvisedbytheGovernmentvideorder No.SO(A-III)3- 1/2000dated30-11-2001(Annexure "B"), the incumbents appointed/promoted against the above-mentioned posts have been adjusted as per given criteria.
(a) In the light of the notified seniority lists officials/officers in WM Wing, the senior most officials/ officers would be adjusted against budged posts as on 1-1-2002 corresponding to the basic scale qualifications as explained below:
(i) The posts comprise of various categories like Water Management Coordinator/District Officers OFWM, Agricultural Economist etc. for filling of which, prescribed set of qualifications have been laid down under Punjab Agriculture Department, OFWM Development Project Recruitment Rules, 1977. Adjustment against these posts would be made from senior most officers/officials who qualify for the same. Where the post would not be available in the higher scale, the officer/official would be adjusted in the lower scale against the post from which he was promoted.
(ii) Those recruited directly in thehigher scale would not be reverted to a lower scale/post. They would be adjusted against the post corresponding to their qualification. If no such post will be available, they would be placed on redundant staff list, which are to be laid off: (Emphasis is supplied)
(b) The adjustment as per a(i) would be made against1,372postsavailableonthenon-development side and other project posts, which shall continue after 1-1-2002.
(c) The names of the officers/officials reflected in the notified seniority list, who have since expired, retired or dismissed from service, would be deleted.
No. of posts for each category sanctioned on permanent side and strength of officers for each are indicated below Sr.No. BS Post Sanctioned Officers Available 1. 18 43 41 2.
17+sp 134 127 3. 17 88 222(*)
Perusal of above would indicate that all available officers selected/recruited in BS-18 and BS-17+sp can be adjusted against the available vacancies. Their posts are, however, required to be redesignated accordingtothenewrecruitmentrulesframed by thegovernmentforWaterManagementwingof the Agriculture Department as requested vide this office letter No.15931/DGA/OFWM/5-2-II/Estt: dated 19-7-2003.
(*) There are 222 regular Water Management Officers and Agricultural Officers working in SNE and different projects. The post of Agricultural Officer is going to abolish on the closure of NDP Project on 30-6-2004. Only post of Water Management Officer will exist in SNE and newly commissioned projects from 1-7-2004. The Agricultural Officers have same qualifications as those of Water Management Officer. They can, however, be adjusted against these posts after their redesignation. This requires re-designation of post of Agricultural Officer also as Water Management Officer.
2.Copy of orders wherein the posts of Water Management Coordi-nator and Water Management Specialist were re- designated.The posts of Water Management Coordinator and WaterManagementSpecialistwere re-designated bytheFinanceDepartmentandconveyedvide Government of the Punjab, Agriculture No.SO(A-III)I(4)/98 dated 18-9-2001 (Annexure"C")andNo.SO(A-III)I(4)/98 dated18-9- 2001(Annexure"D") respectively.
3.Copy of order wherein the posts were adjusted against SNEs post.The incumbents were appointed/recruited on regular basis by the Punjab Public Service Commission / Provincial Selection Board/Departmental Promotion Committee etc. As posts of the same nomenclature were not sanctioned under SNE, their incumbents were adjusted against the available posts having same qualifications as already explained in Sr. No.1.
4.Reasons as to why these post were adjusted against SNEs post.As explained in para-1 above.
5.Total number of posts.Total number of posts are given below.
Sr. No.Nomenclature of post with BSNo. of Posts 1.Project Director in BS- 184 2.Technical Officer in BS- 184 3.Deputy Director (Irrigation Agronomy) in BS-183 4.Deputy Director (Engineering) in BS-182 5.Assistant Director (Liaison) in BS- 173 6.Assistant Director (Engineering) in BS-172 7.Assistant Director (Monitoring and Evaluation) in BS-171
8. Agricultural Officer in BS-80 17 6.Self-contained reference with full justificationsSelf contained note is enclosed at Annexure "E"
7.Intimate as to whether all these posts were of project or not and if so the tenure of project for which these were sanctioned may also be indicated along with sanctioned of the Finance Department for continuation of these posts.All OFWM staff were appointed/recruited on regular basis by the Punjab Public Service Commission/Provincial Selection Board/Departmental Promotion Committee etc., as per "On- Farm Water Management Development Project Recruitment Rules, 1977". On closure of various projects, their staff/assets were utilized in the subsequently commenced schemes. Now on provision of different posts under SNE at district and provincial levels the incumbents recruited/promoted against these posts have been posted/adjusted against the available vacancies as per criteria mentioned in para 1 above. (Emphasis is supplied)"
12. The afore-quoted letter is a report on the implementation of the criteria (for appointment of incumbents of posts which stood abolished) prescribed by the competent authority in the Provincial Government in terms of which the incumbents of the project posts (which were abolished) were duly adjusted. The report broadly spells out the following:--
(i) On promulgation of Local Government Ordinance, 2001, the Directorates (Field), Lahore and Multan functioning under Water Management Wing of Agriculture Department were closed and posts of Directors (BS- 19) and Technical Officers (BS-18) were abolished with effect from the notification referred to above dated 1-9- 2001 and the incumbents appointed/promoted against the posts, which were abolished were adjusted in terms of the criteria.
(ii) In the light of the notified seniority lists, officials/officers in Water Management Wing, the senior most officials/officers would be adjusted against budgeted posts as on 1-1-2002 corresponding to their qualifications.
(iii) Those recruited in the higher scale would not be reverted to a lower scale/post. They would be adjusted against the posts corresponding to their qualification.
(iv) All Water Management Staff was appointed/recruited on regular basis by the Punjab Public Service Commission/Provincial Selection Board Departmental Promotion Committee as per On farm Water Management Development Project Recruitment Rules, 1977". Now on the provision of different posts under SNE on district and provincial level, the incumbents recruited/promoted against those posts have been posted/adjusted against the available vacancies as per the above criteria.
13. The Chief Secretary, Government of Punjab had rightly dismissed appellants' appeals on 24-4-2006 on the ground as under:- "the rule does not distinguish between the persons appointed on development side from those appointed on (non development side). In fact their seniority starts even before their appointment in accordance with the merit assigned by the PPSC. This seniority cannot be changed even on promotion unless a person has been considered by the DPC/PSB and categorically superseded.
14. Learned counsel for the appellants has not referred to any order of the competent authority in the Provincial Government, which could warrant an inference that the appointments of the respondents were against project specific posts and on the completion of those projects their services could not be continued or which provides that the seniority of such officers would reckon from their adjustment. He has not referred to any rule or statutory provision which has been violated or contravened in upholding the impugned seniority list wherein appellants have been placed junior to the respondents. At this stage a reference to section 7(1) of the Punjab Civil Servants Act, 1974 (VIII of 1974) would be in order, which provides that "Seniority on initial appointment to a service, cadre or post shall be determined in the prescribed manner." Rule 8 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 relates to the inter se seniority of persons appointed to posts in the same grade in a Functional Unit, which reads as follows:-- "8. (1) the seniority inter se of persons appointed to posts in the same grade in a Functional Unit shall be determined:
(a) In the case of persons appointed by initial recruitment in accordance with the order of merit, assigned by the selection authority: Provided that, persons selected for appointment to the grade in an earlier selection shall rank senior to the persons selected in a later selection; and
(a) In the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade: (Emphasis is supplied)
' Provided that, if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person:"
15. Admittedly both the initial appointments in BS-17 and the subsequent promotion in BS-18 of the respondents are of earlier dates as against the appellants and both the parties are in the same Functional Unit.
It is further not denied that at no stage, the Departmental Promotion Committee or Provincial Selection Board varied their seniority nor were they superseded. In Din Muhammad v. Director General, Pakistan Post Officer (2003 SCMR 333), the seniority of an official in the transferee department was directed to be reckoned from the date of his initial induction and the Court allowed the appeal by holding at page 337 as follows:-- "The appellant being on deputation was retained as permanent employee of the Office of Post Master General, Northern Circle, Rawalpindi and he has been performing his functions to the entire satisfaction of his superiors, therefore, upon permanent absorption in the Office of Post Master General, Northern circle, Rawalpindi, obviously he would become regular employee in the said department with effect from the date of initial induction as envisaged under rule 4 of ibid rules and not from any subsequent date. We find that the Service Tribunal has not considered the case of appellant in the light of the rule relating to the determination of seniority of civil servant in such circumstances.
' For the foregoing reasons, we hold that the seniority of appellant would be reckoned from the date of his induction as UDC in the Office of Post Master General, Northern Circle, Rawalpindi though transfer on 4-8- 1978."
16. Admittedly the seniority lists published from time to time which remained unchallenged and in all those lists, appellants were placed junior to the respondents. The periodical issuance of lists and appellants having not challenged those lists is significant in the context of the instant case for three reasons. Firstly, in terms of the departmental construction of 1977 Rules, there was no distinction between 'development' and 'non development' side. Secondly, both the appellants and respondents besides being in the same cadre were in the same Functional Unit and thirdly, the anpellants- accepted the afore-referred departmental construction and the seniority lists which reflected acquiescence to their inter se seniority in the department. Having accepted the inter se seniority position, it is rather late in the day for the appellants to have challenged it after almost more than 15 years. In a similar case reported at Wazir.Khan v. Government of N.-W.F.P. (2002 SCMR 889), the Court had dismissed the appeal, repelled the argument of a continuous wrong and upheld the judgment of the Service Tribunal by inter alia holding that "the appellant having accepted the junior position assigned to him in the revised seniority list published in 1981, would be estopped to re-open the same and agitate it at the belated stage in 1997 and resultantly the appeal preferred by him before the Service Tribunal was rightly dismissed as hopelessly barred by time." A similar view was taken in Rashida Asif v. Aasia Gondal (2010 SCMR 450) where the acquiescence and contumacious conduct of the petitioner was inter alia found to be a ground to dismiss the petition. The Court observed at page 454 as under:- "The petitioner got up from a deep slumber after so many years for the reasons best known to her. It is too late in the day to reverse the existing seniority position which was determined in 1995. It is not discretion of the Competent Authority to change the seniority position assigned to a Government employee without and lawful justification. It is to be noted that "every officer in a graded service has a vested right to a proper place in the seniority list. That is of the highest importance to the officer, as well as to the maintenance of proper discipline and order within the service and consequentially to the public interest which is deeply involved in the maintenance of a proper spirit of order and discipline within the service."
17. The argument that since the respondents' earlier appointment was on a project, which was being funded by a foreign donor, they could not be classified as civil servants has no substance. A similar argument was raised in Ahmed Khan v. Secretary to Government (1997 SCMR 1477) and that too by a Law Officer of the Federal Government. The precise objection taken was as follows:-- "The learned Deputy Attorney-General for Pakistan, raised a preliminary objection, to the effect, that, the appellant and other employees of the Afghan Refugees Organization were not Government servants as their salaries were not paid from the annual Federal Budget. Elaborating his submission he pointed out that even if their salaries and allowances are reflected in the Annual Budget of the Government of Pakistan, the net expenditure incurred, is later on reimbursed by the United Nations High Commission for Refugees."
' The Court repelled this argument by holding as follows:-- "Precisely the same objection was raised in Civil Appeal No,22(P) of 1988, Commissioner, Afghan Refugees, N.-W.F.P. And others v. Fazli Hakim, and this Court vide judgment dated 3-12-1990, held as under:-- "Another ground which was raised during the course of the hearing of the appeal but not noted in the leave granting order was that the respondent could not be treated as a Federal Government employee and had to be dealt with under the Provincial Law being for all purposes governed by the Civil Servants Act of the Province of N.-W.F.P. We find at page 21 of the Service Tribunal's record a determination of the Government of Pakistan, States and Frontier Regions Division, dated 21st March, 1982, wherein it was made clear that the posts were civil in nature, were connected with the affairs of the Federation and were to be paid from the Federal Budget and the employees were to be 'Federal Government employees, and governed by rules applicable to the Federal Government employees'."
The Federal Service Tribunal itself in Appeal No, 123(R) of 1991 Messrs Muhammad Iqbal and Mr. Minollah, held, the employees of the Afghan Refugees Organization as civil servants within the meaning of Civil Servants Act, 1973."
18. for what has been discussed above, the impugned judgment of G the learned Punjab Service Tribunal is unexceptionable. Finding no merit, these appeals are dismissed with no order as to costs.