' QAZI QAMARUDDIN (MEMBER-I).--- These appeals having similar facts, grounds and the prayer are disposed of by this single judgment. Out of the pleadings in all the appeals except one of Syed Irfan Ahmed (Appeal No,163 of 2009, which has though, different case but the same is heard along with other appeals on the request of learned counsel for the appellant on the pretext of similarity and with the consent of other side. This appeal, however, will be discussed in subsequent part of the judgment).
2. Facts in brief are that the appellants were initially appointed as Sub-Engineers against the qualification of Diploma on different dates and their names appeared in the Seniority list dated 1- 9-2004 at different Sr. Nos. During their service, appellants had improved their qualifications and acquired B.Tech (Hon.) degrees with the permission of the department. However, in spite of submission of such information and request to the department, their names were not included in the Seniority list of Sub-Engineers B.Tech. (Hon.). In the meantime one of their colleague namely Abdul Qayyum Shaikh filed S.A.No,159 of 2005 before this Tribunal, which was allowed vide this Tribunal's judgment dated 4-12-2008. Said judgment was called in question by some of their colleagues before honourable Supreme Court in Civil Petitions Nos.137-K to 139-K of 2009 which were dismissed by Honourable apex court's Order dated 30th April, 2009 and so also the Civil Review Petitions Nos.21 and 22-K of 2009 were dismissed vide Order dated 9-7-2009.
3. In compliance to the judgments (supra) fresh seniority list was issued by the respondent department vide letter dated 10-7-2009 with the title "2. FRESH SENIORITY LIST OF SUB- ENGINEERS B- TECH. (HON.)(CIVIL, AND ELECTRICAL) OF EDUCATION WORKS, AS STOOD ON 8-11-2004". Said Seniority was in accordance with law and the relevant rules. All of a sudden said Seniority List was again annulled after 20 (twenty) days unlawfully and without any notice to the appellants and superseded by another list of 30-7-2009, wherein names of appellants were excluded. Appellants, being aggrieved filed departmental appeals which remained unresponded and after lapse of statutory period, they have filed above appeals.
4. In S.As. Nos.163, 165, 167, 168 and 169 of 2009, two of the colleagues of the appellants filed applications under Rule 10 to be read with section 151, C.P.C., as INTERVENERS, said applications were allowed after hearing parties vide this Tribunal order dated 27-5-2010. Subsequently INTREVENERS were allowed to be impleaded as respondents Nos.4 and 5 vide amended title page of appeals.
5. We have heard parties at length, given anxious consideration to the contentions of their learned counsel and perused material placed before us and the law.
6. At the outset, after admission of the appeals, in response to the notice of this Tribunal, respondent No,1 (Chief Engineer Buildings) has filed separate statements through learned Addl. A.- G. Wherein revised Seniority Lists as stood on 31-1-2010 (E/M) and as on 23-4-2010 (CIVIL) were issued vide letters dated 15-3-2010 and 23-4-2010 respectively, showing names of all the appellants except of Syed Irfan Ahmed (S.A.163 of 2009), in supersession of impugned Seniority List issued vide letter dated 30-7-2009. The seniority positions shown therein per rules framed therefor i,e, in accordance with the date of passing of the examination of B.Tech. (Hon.). Below given table provides the details of the appellants' positions in order of seniority; SUB-ENGINEERS B.TECH(HON.) E/M {{TABLE}} S. Appeal No.Name Sr. No. in listDate of B. Tech. (H)
164 of 2009Tahir Iqbal Sr. No.1 24-8-2002 166 of 2009Mushtaque Ahmed Sr. No.2 10-6-2003 168 of 2009Ahmed Sharif Sr. No.3 12-6-2001 167 of 2009Atiq-ul-Hassan Sr. No.9 10-6-2003 165 of 2009Muhammad TaufiqueSr. No.13. 29-5-2004 169 of 2009Aamir Sr. No.14 29-5-2004 {{TABLE}} ' Keeping into consideration, above position_ to which learned counsel for the appellants agreed.
The grievance of the appellants in the above mentioned 6 (SIX) appeals have been redressed.
7. As the appellants have already sought relief as prayed in accordance with the Judgment of this Tribunal (supra), therefore these appeals are dismissed being infructuous. No order as to cost.
8. APPEAL NO,163 OF 2009 (SYED IRFAN AHMED)
The case of appellant is different to those of above six appeals. However, some relevance to the extent that he was appointed as Sub-Engineer against the qualification of Diploma in Civil Engineering on 30-3-1987 and like-wise maintained his seniority position in the cadre of Diploma HoldeRs, Similarly, appellant improved his qualifications during service period with the permission and approval of the Competent Authority. Consequently, acknowledging improvement of academic qualification of B. Tech (Hon) in the year 1992, B.E. (CIVIL) and the M.Sc. (CIVIL), appellant was allowed advance increments vide Order dated 28-2-2001 (Annexure-A) on his own request vide his application dated 8-3-2000 addressed to the Project Director Engineering Works Education Department.
10. Initially on the basis of B.Tech. (Hon.) qualification in the year 1992, appellant was allowed seniority in the cadre of B.Tech. (Hon.) and placed in the Seniority List dated 1-1-2001 at Sr.No,2 to which appellant filed more than one representations to the authorities for placing his name over and above the respondent No,4 namely Aftab Ahmed on the basis of earlier date of qualifying B.Tech. (Hon.) Examination. However, on the basis of qualifications of B.E. (CIVIL) and M.Sc. Degrees acquired by the appellant and subsequent financial benefit of 8 (Eight) advance increments allowed to him on his written request, his name was struck-off from the Seniority List of Sub- Engineers B.Tech. (Hon.) and included in the Seniority list of Sub-Engineers [(B.E. (civil) Graduates].
Such status of appellant continued, till 2010 as spelled out in the below given chronology.
(I) Final Seniority List of Sub-Engineers B.E. Civil graduates as stood on 1-9-2004 issued on 8-11- 2004, appellant at Sr.No,66.
(II) Seniority list as stood on 1-1-2005 issued on 24-2-2005, appellant at Sr.No,66.
(III) As Stood on 1-9-2008 issued on 12-9-2008 appellant at Sr.No,65.
(IV) As stood on 31-1-2010 issued on 15-3-2010, appellant at Sr. No,66.
[Above facts were not disclosed by the appellant)
1. The record reveals that the appellant continued pursuance of his seniority position for the list of Sub-Engineers B.Tech. (Hon.) over and above respondent No,4 on 10-1-2003 and 4-10-2004 where as his name was already struck-off on his own request after seeking the financial benefits of 8 (Eight) advance increments of higher qualifications of B.E. And M.Sc. Vide Order, dated 28-2-2001, by that time 1st Seniority list of sub-Engineers B.E. (Graduates) had already surfaced on 8-11-2004 as stood on 1-9-2004. Responding to the representations of appellant, the respondent No,1 namely Chief Engineer Buildings department wrote him a letter on 17-2-2005. Said letter is reproduced hereunder having significance;--- "No,CE(B)/Edu: Works/Estt/PF/529 Office of the Chief Engineer, Building Department, Government of Sindh Hyderabad dated 17-2-2005.
To, Syed Irfan Ahmed son of Tanweer Ahmed, Sub-Engineer (Civil), District Officer, (Edu: Works- ), Works and Services, City District Government, Karachi.
Subject: SENIORITY LIST (TENTATIVE) OF SUB-ENGINEER (GRADUATE AND NON-GRADUATE (CIVIL, ELECTRICP1L AND MECHANICAL) OF EDUCATION WORKS WING AS STOOD ON 1-9-2004.
' On passing B.E (Civil) in 1994 and M.S. In 1999, and in view of consideration of your written request dated 8-3-2000 for grant of Higher Qualification increments all the legitimate financial benefits as permissible under rules were granted to you under order No, PD(EDU)/Estt:/F5/940, dated 28-2-2001 and as per standing rules, law, orders and instruction your name was correctly imputed in the list of the Sub Engineers, as stood on 1-9-2004.
' On your request made to the Works and Services Department, Government of Sindh, thereunder it has been offered by you for the withdrawal of all financial drawn benefits/increments for consideration and inclusion of your name in the Seniority List of Sub- Engineers, B.Tech: (Hons)
(Civil), and score out your name from the Seniority List of Sub-Engineers (Graduate) (Civil) already issued under No,CE(B)/S..List/S.Eizgr/ Edu:WorksE(ii)/ 822, dated 8-11-2004, based on the rules and law. You are therefore advised in your interest to arrange to deposit all the drawn financial benefits and got it entered in your Service Book and furnish to this office for consideration of your request.
' You are also directed to deposit the valid document with clear undertaking that "you will never claim any sort of benefit throughout in your services to be rendered in future on the basis of B.E.
(Civil) and M.S. So as to consider / finalize the subject matter in accordance to the rules, acts and administrative order (NEEZAR ALI KHUWAJA) CHIEF ENGINEER, BUILDING DEPARTMENT SINDH, HYDERABAD."
12. The summersault of the appellant and the offer of the respondent No,2 on the cost of others were, prima facie, arbitrary, out of ambit of law and fell under the doctrine of 'approbate and reprobate' on the part of appellant for such frequent shift. It is also settled law that nobody is allowed to approbate and reprobate as law laid down by the Honourable Supreme Court in much celebrated case of Ghulam Rasool PLD 1971 SC 376. Reliance is further .Made on Overseas Pakistanis Foundation and others v. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah and another (2007 SCMR 569) and also on 2001 PLC (C.S.) 1037 (FEDERATION OF PAKISTAN v. AMIR HAMZA) SC 1997 SCMR 15; Chairman Selection Committee/Principal, King Edward Medical College, Lahore v. WASIF ZAMIR AHMED and another. As a result thereof this appeal fails on this score, alone.
13. There are 6 (six) categories of Sub-Engineers in the Education Works Directorate, the seniority list of each category is maintained separately in accordance with rule 9 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules,1975. Said categories are as under;---
(i) Sub-Engineers Graduate (Civil)
(ii) Sub-Engineers Graduate (E/M)
(iii) Sub-Engineers Non-Graduate (Diploma) (Civil)
(iv) Sub-Engineers Non-Graduates (Diploma) (E/M)
(v) Sub-Engineers B.Tech. (Hons.) (Civil)
(vi) Sub-Engineers B.Tech. (Hons.) (E/M) Rule 9(1) (ibid) postulates; "In each cadre in a department there shall be a separate seniority list of a group of civil servants doing similar duties and performing similar functions and for whose appointment same qualifications and experience have been laid down."
' It was none else than the appellant who showed his smartness to get benefit of his higher qualifications of B.E. And M.Sc. (Civil) in shape of 8 (Eight) increments through his written request dated 8-3-2000. Said letter is placed as annexure-V of the written statement of respondent No,1, and is reproduced below having significance in the matter; "To, The Project Director, Directorate of Engineering Works, Education Department, Government of Sindh, Karachi.
"THROUGH PROPER CHANNEL"
Subject: REQUEST FOR GRANT OF (8) EIGHT ADVANCE INCREMENTS ON ACQUIRING M.Sc. CIVIL ENGINEERING DEGREE.
Respected Sir, Most respectfully it is submitted that I have passed M. Sc. Civil Engineering in November, 1999, from N.E.D University of Engineering and Technology Karachi. In this connection it is requested kindly refer the Finance Department Circular No,FD(SR-IV)-43/87 Karachi, 7th July, 1987 and office memorandum No,FD (SR-IV) 1-116/91/ Karachi 10th July, 1991. In view of the Finance Department circulars, I am entitled for (8) Eight advance increments.
' It is therefore requested to kindly grant me (8) Eight advance increments as admissible under rules and oblige.
' Thanking you in anticipation. Your's Obedient dated March 8, 2000.
(SYED IRFAN AHMED)
SUB-ENGINEER EDUCATION WORKS DIVISION CENTRAL KARACHI D/A Enclosed reference copies"
' As a result thereof, his name was correctly imputed in the Seniority List of Sub-Engineers Graduate (Civil) as stood on 1-9-2004, 1-1-2005, 1-9-2008 and 31-1-2010, as a result, it attained finality and the issue could never be resurrected. Matter relating to the seniority of the parties having attained finality would be deemed as past and closed transaction and the same could not be re-agitated after lapse of a period of about 7 (seven) yeaRs, Reference may be made to the case of WAZIR KHAN v. GOVERNMENT OF N.-W.F.P. IRRIGATION (2002-SCMR-889). Such view was followed in this Tribunal's case in Service Appeal No,33 of 2009 of Abdul Rab v. Secretary Works and Services Department and others decided on 30-3-2010.
14. This appeal has no relevance with that of Abdul Qayoom Shaikh v. Government of Sindh and others (S.A. No,159 of 2005) duly upheld by the Honourable Supreme Court. Said judgment of this Tribunal pertained to the sole question of improving qualification without permission of the department. Surprisingly, appellant was an earlier utmost beneficiary of his qualifications of B.Tech.
(Hon.), B.E. (Civil) and M.Sc. Much before the above-mentioned judgment, therefore his contention is a misperceived notion. Similarly, the dictum laid down by the Hon'ble apex court in case of Hameed Akhtar Niazi v. Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) as relied upon by the learned counsel for the appellant, has no applicability to the instant appeal.
15. Mere perusal of record shows that it was first time after 2001 when appellant's name appeared in the Seniority List of Sub- Engineers B.Tech. (Hon.) issued on 10-7-2009 as Fresh Seniority list stood on 8-11-2004 in compliance to this Tribunal's judgment in case of Abdul Qayoom (supra). It is noteworthy that by that time (8-11-2004) appellants name was already struck-off from the B.Tech.
(Hon.) and arrayed with B.E. Graduate Sub-Engineers in the list, as stood on 1-9-2004 issued on 8- 11-2004. Since appellant had no relevance with the list of B.Tech. (Hon.) group of 2004, so also in the said fresh list as issued on 10-7-2009. However, when authorities came to know about their mistake, they rescinded said list and issued revised list dated 30-7-2009 (After 20 days), impugned in the appeal. Learned counsel for the appellant raised this issue under the principle of locus poenitentiae, however it was vehemently rebutted by the respondents. Principle of locus poenitentiae as settled in case of Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407, which is constantly being followed by all the Courts and Tribunals. The right of locus poenitentiae i,e, powers of receding till a decisive step is taken, is available to the authority if the previous order passed by it has not been acted upon (Rel: case of AZFAR KHAN, ASSISTANT MANAGER, FINANCE AND ACCOUNTS, AKLASC, MUZAFFARABAD and others v. MANAGING DIRECTOR, AKLASC, MUZAFFARABAD and another 1999 PLC (C.S.) 1485.
16. Appellant had filed earlier appeal before this Tribunal on 16-7-2009 numbered as 90 of 2009 even after issuance of the fresh seniority list (above) dated 10-7-2009. Subsequently two applications were filed by the appellant one of ante dating of the appeal and other for withdrawal of appeal with permission to file a fresh appeal. Said applications were allowed by order dated 24- 12-2009.In the aforesaid appeal the prayer pertained to the restoration of the educational qualification increments and refund of already paid amount Rs,37,470 which was paid erroneously by the appellant and also praying to set aside seniority and promotion of the respondents 4 and 5.
17. What we understand and there are material reasons thereof that; in the backdrop of issuance of above fresh list of 2004 on 10-7-2009 and rescinded after 20 days, appellant attempted clumsily to withdraw his previous appeal and filed a fresh one to be arrayed with other appeals to make his case identical to those of his other colleagues to seek benefit in group. It seems dexterous that, in spite of knowing the fact about his position he opted swinging to and for to get benefit from either side, two wrongs can never make one right. We have also noted that, the appellant due to either of his feigned ignorance or for the eagerness of quick career elevation had himself taken wrong decisions in the past, though for which none else but he himself was responsible. Therefore, at this belated stage no any cartwheel could benefit him. Any way in the instant case appellant fails squarely on the four corneRs,
18. The upshot of the above discussion is that, the appeal is devoid of merit, therefore dismissed. No order As to costs.