Asim Akram, Member. The titled appeal and the Appeal No. 119(K)CS/2017 are identical in their characteristics i.e. having similar facts and involving common questions of law, we intend to dispose them off jointly through this single judgment.
2. Through these appeals the appellants have prayed. that Revised Seniority List dated 21.04.2017 (Impugned Seniority List) along with departmental appeal order dated 30.08.2017 be set aside with further prayer for issuing direction to the respondents to prepare a fresh seniority list on the basis of principle of older in age.
3. The learned counsel for the appellants has stated that appellants, along with their batchmates, were appointed Patrolling Officer vide notified dated 10.03.2001. Impugned Seniority List of IP/SPO was issued on 21.04.2017 wherein the appellants have been given seniority on the basis of merit determined by the Selection Authority. He alleges that the respondents do not have the merit list on the basis of which the seniority has been given and in the absence of the merit list the appellants should have been given seniority, to the direct recruits, on basis of age as all of them joined the service on the same date. The counsel further argues that the appointment of the appellants along with the batch mates was done in absence of any recruitment rules and in such case laws and rules of civil servants are applicable. In the absence of merit list the Impugned Seniority List regarding direct recruits should be set aside.
4. The department as well as private respondents have vehemently opposed the appeal inter alia on the grounds that the appellants along with their batchmates (private respondents) were appointed through a notification dated 10.03.2003 and were assigned the seniority at the relevant time however, the appellants have not raised the objection at the relevant time nor challenged the same within prescribed time limit. Moreover, the recruitment of the appellant as well as Respondent No. 5 and other batchmates were challenged through a Writ Petition No. 4530/2010 in the Islamabad High Court and vide its decision dated 25.03.2016 the recruitment of the appellants as well as the private respondents was validated in the same sequence of merit on which basis the impugned final seniority has been prepared. The respondents have further argued that the Impugned Seniority List has been prepared in compliance of the judgment of the Hon'ble Supreme Court of Pakistan vide judgment dated 16.01.2017. It is also controverted by he respondents that seniority of the recruited officers was determined in accordance with the provisions of Civil Servants Seniority Rules, 1993 purely on merit and as such the prayer of the appellants regarding re-assigning the seniority on the basis of "Older in AGE" is illogical and contrary to the spirit of the Civil Servant Act, 1973. On this score, it is prayed by the respondents that the instant appeals may be dismissed being filed without any cogent footings and evidence.
5. We have heard the arguments of both the sides in detail as well as perused the record with the able assistance of the parties.
6. The controversy involved in these appeals is that the 222 posts of Senior Patrol Officer were advertised on 02.11.2000 in leading newspaper of Pakistan. According to the said advertisement, the qualification for senior Patrolling Officer was i, Graduate (Second Division) ii. Law Graduate (preferred). In the age group of 20 to 27 years. The appointments were to be made on written test, physical test and interview. Last date for submission of application was 25.11.2000. The individuals who qualified two tests and the interview were given offer letters issued on 23.08.2001 and upon acceptance of the offer final appointment letters were issued on 26.11.2001. The individuals who were given appointment letters were subject to Training Course at Police Training College Sihala and after passing the Training Course the batch was notified on 10.03.2003. The patrolling officers were assigned seniority on the basis of the narks (number) obtained .in the Training Course.
7. The appointment of the Patrolling Officer including the appellants and the respondents were challenged before Islamabad High Court in Writ Petition No. 4530/2010 titled `Mumraiz Khan vs. Federation of Pakistan and another' on the ground that initial appointments were made through Federal Public Service Commission (the Commission) but in May, 1999 the Commission informed the Federal Government that no further appointment could be made against the post of Inspector/Patrolling Officer in BS-16 in absence of recruitment rules. With the change of Government, the Chief Executive took the control pursuant to the Provisional Constitutional Order No. I of 1999. The Motorway Police again forwarded a summary dated 10.06.2000 to the then Chief Executive of Pakistan which was revised on 29.08.2000 wherein it was proposed that the appointment upto BS-16 be made by a Board headed by Inspector General of Motorway Police. The revised summary was approved by the Chief Executive on 04.09.2000. After the approval of the summary recruitment process was initiated and the advertisements referred above were published in the newspaper. The recruitment rules were framed in 15.03.2007. The Hon'ble High Court in its judgment dated 25.03.2016 held that Provisional Constitutional Order No. 1 of 1999 (PCO) was validated by the August Supreme Court in its judgment `Zafar Ali Shah vs. Pervaiz Musharraf, Chief Executive of Pakistan' (PLD 2000 SC 868). The Court further held that Chief Executive derived his authority from the validated instrument i.e. PCO No. I of 1999. The summary dated 29.08.2000 regarding proposed recruitment of Inspectors/Seniors Patrolling Officers was approved by the Chief Executive on 04.09.2000. The process was initiated by inviting applications from the eligible candidates through advertisements published in leading daily newspapers. A Board was constituted headed by Inspector General of Motorway Police for the purpose of recruitments. The process of recruitment was completed in January, 2002. The Court further held that (clause 4) of Article 270-AA explicitly protects all orders made, proceeding taken, appointments made, and acts done by any authority, or by any person which were done between 12.10.1999 and 30.12.2003 in exercise of powers derived from any authority or law mentioned in clause (2). The proceedings taken, orders and appointment made, act done etc. have been declared as deemed to be valid.
The recruitment of the appellant as well as the private respondents were made pursuant to the approval dated 04.09.2000 and have been validated. The Writ was dismissed vide order dated 25.03.2016.
8. This is the second round of litigation against the seniority list of Inspectors/Patrolling Officers recruited in 2001. In the first round of litigation the appellants filed Appeal No. 1889(R)CS/2010, accompanied with four other appeals on the issue, wherein they challenged the tentative seniority list dated 27.03.2007 issued by the respondent-department on the ground that the individuals who were firstly taken on deputation by National Highway and Motorway Police (NH & MP) and later on absorbed by the respondents were given seniority from the date of their deputation. The appellants were of the view that seniority could only be assigned from the date of confirmation/permanent absorption and not from the date the officers joined NH & MP on deputation. The stance was accepted by the Federal Service Tribunal (Tribunal) vide its judgment dated 29.10.2015. The said judgment of the Tribunal in Appeals No. 1889(R)CS/2010 along with other appeals were challenged before the Hon'ble Supreme Court in Civil Appeals No. 709 to 717/2016 and CMA No. 981/2016. The Civil Appeals and CMA was disposed of by the Supreme Court vide its order dated 16.01.2017 with direction to the respondent department to re-fix the seniority as per given directions. The relevant portion of the said Order is reproduced as under:
3. We have called the AIG (HRM), NH&MP, and after hearing him and with the consent of the learned counsel for the parties as well as the learned Additional Attorney General for Pakistan, intend to dispose of the appeals in the following terms: "The seniority of the Police Officials in the NH&MP shall be re-fixed. The deputationists (Police Officials) who were inducted in NH&MP by extending the benefit of one step higher than their substantive rank in the parent department, shall be assigned seniority from the date they were permanently absorbed in the department by the notification issued by the competent authority and their seniority shall be placed at the bottom. The one step promotion cannot be equated as out of turn promotion in terms of judgments of this Court reported as Contempt Proceedings against Chief Secretary Sindh (2013 SCMR 1752) and Ali Azhar Khan Baloch vs, Province of Sindh (2015 SCMR 456). In fact, the principles which this. Court has enunciated in the case of Ch. Muhammad Akram vs. The Registrar. Islamabad High Court, Islamabad (PLD 2016 SC 961), would be attracted in the case in hand where the issue of the nature was dealt with by this Court. The seniority of all the Police Officials shall be finalized in the above terms from the date when they were permanently absorbed in the department, placing them at the bottom of the seniority as concluded hereinabove."
4. The process of re-fixation, of the seniority shall be completed within one month from today, as suggested by the A.G (HRM), NH&MP. These Appeals are disposed of with the modification in the impugned judgment in the terms contained in paragraph 3, of this order.
9. That in pursuance of the Supreme Court direction referred above the seniority list dated 2007 was revised with a tentative revised seniority list was issued and objections were called thereon.
The appellants filed objections, on 16.02.2017 claiming that the result of obtained marks in final examination of recruitment, with the due signature of the then recruitment committee was neither published nor delivered to the appellant. He prayed that seniority list according to original merit list be made. After deciding the objections, a revised seniority list IP/SOP (BS-16) was issued on 21.04.2017. While filing the appeals at hand, the appellants have alleged that the respondents do not have the merit list made on the basis of marks obtained at the stage of recruitment whereas no such objection was taken on seniority list of 2007 or the tentative seniority list to this effect.
10. That the seniority list of 2007 which was challenged by the appellant in the first round of litigation referred above the appellants were bearing the same seniority number in the list of direct recruits. The appellant challenged the seniority of those individuals who were taken on deputation and later on absorbed in NH& MP in 2003. These deputationists were placed prior to the direct inductees in the 2007 seniority list. This issue has been settled as per direction of the Hon'ble Supreme Court as referred to above. The merit of direct inductees is similar in both the seniority lists i.e. 2007 & 2017 among themselves and the other seniority lists issued in between. The seniority lists issued in between 2007 and 2017 are of, no value as the list of 2007 was challenged and revised seniority list, 2017 was issued thereafter in accordance with directions of the Apex Court. The issue of the marks list was never raised before the departmental authority, the Tribunal or the Supreme Court. It is settled principle of law that if the appellant chooses to omit any right or claim in the initial litigation then he is barred to agitate the same at the later stage in a new round' of litigation.
11. The Federal Service Tribunal is created under Section 3 of Service Tribunals Act, 1973 (the Act).
Section 5 of the Act empowers the Tribunal with the authority of Civil Court, as vested in Code of Civil Procedure, 1908, while. deciding the service appeals. Relevant Section 5 is reproduced as under;
5. Powers of Tribunals.--(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of- (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; and (c) issuing commission for the examination of witnesses and documents.
(Emphasis made)
12. While deriving authority from the Code, the Tribunal has to follow the procedures laid down in the Code. Reference may be made to this effect to the case of Imran Raza Zaidi v. Government of Punjab' (1996 SCMR 645). Relevant portion therefrom is reproduced herein below: "12 Service Tribunal in the instant case is established under Section 3 of the Punjab Service Tribunals Act and appeal thereto is provided under Section 4 while the powers conferred on it are reflected in Section 5 .................Under sub-section (2) of Section 5, Service Tribunal is, deemed to be a Civil Court having all the powers which are vested in the Civil Court under C.P.C. Such powers would include the jurisdiction of the Civil Court under Order XXXIX, Rules 1 and 2, C.P.C. to grant temporary injunction and that of the appellate Court under Order XLI, Rule 5, C.P.C. to stay the execution/operation of the decree/order appealed from."
13. Similar stance has been upheld by the Supreme Court in its land mark judgment in civil appeal titled 'Sheikh Riaz-ul-Haq v. Federation of Pakistan and others' (PLD 2013 SC 501) wherein it has been further held that the Tribunal has judicial powers as the same has been provided by the under Article 212 of the Constitution.
14. The Code of Civil Procedure, 1908 articulates in Order II Rule 2 that whenever a suit is instituted the plaintiff has to include all known rights and claims in his prayer and if he chose to pray for one and omit the other he is barred to file a second suit for the right or claim so omitted in the first suit.
The same principle is applicable to the defendants in filing of their written statement. This omission or choosing of the right to be claimed or defence to be taken amounts to constructive res-judicata and the party so omitting to claim such right or defence shall be debarred to claim the same in another suit or take the defence at a different forum. The principle of constructive res-judicata is in dictum applicable to appeals before the Tribunal as it derives authority for the Code, as argued above. To meet the ends of justice the Order II Rule 2 is reproduced as under:
2. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall, not afterwards sue in respect of the portion so omitted or relinquished claim.
(Emphasis made)
15. The Hon'ble Supreme Court while settling the issue of claiming the omitted right in second suit held in civil petition titled `Jubilee General Insurance Co., Karachi v. Ravi Steel Company, Lahore'
(PLD 2020 Supreme Court 324); "Like Order II Rule (2), CPC mandates the Plaintiff to include the whole claim and seek all reliefs in a suit to which he is entitled, where a plaintiff omits to sue in respect of the portion so omitted to claim any relief to which he may be entitled, he Cannot, except by leave of the Court, afterwards sue for any relief so omitted. Cumulative effect of Order VI Rule 4, CPC read with Order VIII Rule 2 and other enabling provisions, by same stroke requires that the "defendant must raise" in written statement and specifically and particularly plead "all matters, which show that the suit not to be maintainable or that the transaction is either void or voidable in point in law, and all such grounds of defence as, if not raised, would be likely to take opposite party by surprise or would raise issues of facts not arising out of the plaint as for instance fraud, limitation, release, payment, performance or facts showing illegality. "(Order VIII Rule 2, CPC) plea of misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other cases in which particulars may be necessary" (Order 6 R? 4 ibid). These rules of prudence require both the plaintiff and defendant to plead all facts that may constitute cause of action for any relief and for the defendant which may constitute a defence to specifically refute any claim on merits as well raising specific defense denouncing claim on the assertions of fraud, limitation, release, payment, performance or facts showing illegality. Unless such particulars are specifically pleaded in the plaint or in written statement as a defence other party may it be plaintiff or defendant would have no opportunity to controvert the same, as neither the issue could be framed nor, evidence could ordinarily be allowed to be raised or led at trial or attended in further appeals or revisions as the case may be.
Failure to raise such plea at the first opportunity (either in plaint or written statement as the case may be) to assert any right or claim any relief where such rights and relief is founded on such assertion or raising such plea as a defence to contest and or controvert any such claim may well amount and be successfully be defeated on doctrine of constructive res-judicata, in subsequent proceedings (see Explanation IV to Section 11, CPC and Mst. Kulsoom and 6 others vs. Mrs. Marium and 6 others (1988 CLC 870, para 5)."
16. In another civil appeal the Hon'ble Supreme Court while adjudicating upon a judgment of the Tribunal, titled 'Dr. Pakiza Raza Haider v. Ministry of Health and other' (2010 SCMR 501) made the following observations: "10. Petitioner in her 1995 appeal omitted to sue Respondent No. 2 on the ground of his purported lack of qualification/eligibility to promotion wherefore she was debarred from suing Respondent No. 2 in the present appeal on the basis of the omitted claim under the provisions of Order II, Rule 2, C.P.C. We do not find any merit in the submissions of the learned Advocate Supreme Court for the petitioner that a new cause of action had arisen to her on Ministry's letter of 2007."
Reference may also be given to CPLA titled 'Mian Muhammad Iqbal vs. Mir Mukthar Hussain'
(1996 SCMR 1047) wherein the Hon'ble Supreme Court has reiterated the same stance as mentioned above.
17. The case at hand is fully covered on all fours by dicta laid down in a case reported as 'Trading Corporation of Pakistan vs. Devan Sugar Mills Limited and others' (PLD 2018 Supreme Court 828), wherein the Apex Court expounded 'doctrine of election of remedy' and concluded that when out of multiple available remedy one of the remedy is invoked and exhausted a party cannot be allowed to hop and shop another remedy which may be available. Challenging the merit list created at the time of appointment i.e. 2001 in the appeal at hand, which is second appeal on the issue, that too after 16 years is a belated 1) thought. Also, when the issue was omitted from the claims of the appellants in first appeal challenging the seniority list of 2007 it can not be sued for in second round of litigation.
18. During the course of arguments, the counsel for the appellant have highlighted that few individuals have failed the departmental training course and are continuing with the service and have been given seniority as per the marks obtained during appointment. To this extent we would like to refer the latest judgment of the Hon'ble Supreme Court dated 31.03.2022 passed in Civil Appeals No. 1531 to 1545 of 2021 titled as Federation of Pakistan through Secretary, Ministry of Industries and Production, Islamabad vs. Rana Muhammad Osama along with others regarding the individuals who fail the departmental exam but were continuing the service. The Hon'ble Supreme held that a last chance be given to them for clearing the required examination. The relevant paras of the said judgment is reproduced hereunder:
4. We are afraid the contention of the learned counsel for the respondents seeking refuge on the basis of discrimination for not fulfilling the essential qualifying criteria by the respondents for their appointment to the post of Stenotypist (BPS-14) is legally unsustainable. If some other unqualified persons, whose case, is not before us, have also been appointed in service against the provisions of the relevant service laws, this fact does not confer any right on the respondents to claim the equal treatment in violation of such law. The one who comes to Court to be granted a relief that he prays for, must base his claim on his own legal right, and not on the wrongful gains of others.
Article 25 of the Constitution guarantees the equal protection of law, and not the equal protection of lawlessness. The respondents thus cannot defend the impugned judgment on the ground of alleged discrimination, Any person aspiring for appointment to a post in the civil service has to pass the qualifying criteria laid down under the service laws for that post, and cannot be absolved from this, essential requirement merel on the ground that some other persons too do not meet the set criteria.
5. We have examined the impugned judgment and noted that the crucial issue regarding the respondents' failure to pass the essential test to qualify for appointment to the post of Stenotypist (BPS-14), and the fact of their non-appearance in the second test offered by the appellants to pass such test, have not been attended to by the Federal Service Tribunal and thus, a patent error of law has been committed, which warrants interference by this Court for correction of that error.
However, in the peculiar facts and circumstances of the present case, we think it just and equitable that the respondents may be provided with an opportunity, as a last and final one, to pass the essential test to qualify for appointment to the post of Stenotypist (BPS-14).
6. Accordingly, for the reasons stated above, we dispose of the instant appeals in the following terms: i) The impugned judgment of the Federal Service dated 20.04.2021, is set aside. ii) The appellants shall arrange for a test to be held at N.T.S. Islamabad on 10.05.2022, where the respondents shall be tested to fulfill the essential qualifying requirement of a minimum speed of 80140 w.p.m. in shorthand /typing in English respectively, for appointment to the post of Stenotypist (BPS-14). iii) If the respondents pass the above stated test, the orders terminating their service shall be recalled, and they shall be reinstated in sendee with all back benefits, by the competent authority. If they do not pass the test, the said orders shall remain intact.
(Underlined to provide an emphasis)
19. In light of the discussion made above, the appeals at hand hit the provision of Order II R.2 Code of Civil Procedure Code, 1908 are not maintainable and are hereby dismissed with the direction to the respondents to provide last chance to the officers who failed the required departmental training course in furtherance of the Supreme Court ruling as mentioned above.