This is an appeal of Mr. Gohar Rehman's Abbasi who is seeking seniority at serial No. 5 in the Integrated Seniority List of the Officers of Grade 18 of the School Cadre (Men's Section) published by the Secretary to the Government of N.-W.F.P., Education Department vide Notification No. S O (S) H- 8/78 dated 17-4-1979. The appellant also prays that the Noti--fications dated 13-11-1980, 18-10 1980 and 6-5-1981 issued by the respondent No. 1 whereby respondents No. 2 to 4 were promoted to Grade 19 on the basis of the impugned Seniority List may be set aside and the promo on of the appellant may be regularized with effect from the date of seniority.
2. The Integrated Seniority List was published on 17-4-1979 but the appellant came to this Tribunal by way of the present appeals on 13-6-1981 i. e. After a lapse of more than two years. There are other technical flaws in the appeal as well. The appellant has, called in question, the promotion of respondents Nos. 2 to 4. Under section 4 (b) (i) of the N.-W.F.P. Service Tribunals Act, 1974, promotion orders are not challengeable in the Service Tribunal. There is yet another flaw. The appellant's existing position in the Seniority List is at serial No. 32. He claims placement at serial No.
5. A In other words, the appellant is seeking seniority over 27 persons but he has impleaded only 11 persons including Secretary, Education.
3. The counsel for the appellant was confronted with the aforemen--tioned objections at the time of preliminary hearing. The counsel, while clarifying the objections, stated that the appellant had bona frdely filed a Writ Petition in Peshawar High Court, in April, 1979, which was admitted for full hearing. The appellant was, thus, persuing the matter in High Court, till it was resolved that the appellant should prefer an appeal before the Service Tribunal and hence present appeal was preferred before the Tribunal on 13th June, 1981. The counsel took refuge behind section 14 of the Limitation Act, and argued that while computing the period of limitation, the time spent on the proceedings in High Court is excludable.
4. As regards second and third objections, the counsel while drawing distinction between "promotion", and "right to be considered for pro--motion", argued that respondent No. 1, promoted respondents Nos. 2 to 4, without considering the suitability of the appellant for promotion. The counsel also maintained that the officers, who have since retired from service, have not been impleaded as respondents because they are no more in service and grant of seniority to the appellant would not make any material difference for them.
5. I have considered the clarifications furnished by the counsel for the appellant with regard to the objections, aforementioned, and I have come to the conclusion that objections Nos. 2 and 3 would become relevant only when the main question of limitation is settled. I, therefore, focus my attention on the question of limitation of the present appeal.
6. The counsel for the appellant has taken support of section 14 of the Limitation Act, which for the benefit of reference, is reproduced below:---- '(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due dili--gence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which, from defect of jurisdiction, or other cause of like nature, is unable to entertain it."
7. The simple reading of the above section of the Limitation Act, would indicate that the period spent in another court can be excluded for the purpose of limitation provided :-
(i) the suit is prosecuted with due diligence;;
(ii) the suit is against the same defendants) ; (i.e) the proceedings are founded upon same cause of action,
8. None of the aforementioned prerequisites seems to be relevant in the present case. Section 3 (2) of the N.-W.F.P. Service Tribunals Act, 1974, provides that the Tribunal shall have exclusive jurisdiction in respect of matters relating to terms and conditions of service of civil servants including disciplinary matters. This Tribunal has repeatedly maintained that in matters involving terms and conditions of service of the civil servants, the Tribunal has exclusive jurisdiction.
Peshawar High Court in several cases has also maintained that N.-W.F.P. Service Tribunal enjoys exclusive jurisdiction in matters involving terms and conditions of service of the civil servants. In view of the clear provision of the Act and the reported authorities of the Service Tribunals and other superior courts, it would be wrong to conclude that the counsel of the appellant had erred to approach the proper forum for the redress of his grievances.
9. Copy of the order of the High Court in the above-mentioned writ petition is available on the file which indicate that the said writ petition was directed against the seniority of Messrs Abdul Ghani, Mumtaz Khan, Sanaullah Khan and Muhammad Ishaq whereas the present appeal before the Tribunal is against the seniority of different respondent namely Messrs Habib-ur-Rehman's, Said Hassan, Fazal-i-Rehman's, Aziz Ullah Alizai, Jauhar Hassan, Nausher Khan, Abdur Rehman's, Qazi Abdul Qadus, Muhammad Aslam and Ghulam Qadir. It can, therefore, be safely concluded that the writ petition of the appellant in High Court was founded on different C cause of action against different respondents. The appellant, therefore, cannot claim benefit under section 14 of the Limitation Act for the condonation of delay which extends beyond two years.
10. The Peshawar High Court in their order dated 12-5-1981 had dismissed the said writ petition as withdrawn. The text of the judgment is reproduced below :- "The learned counsel for the petitioners stated that he wants to with--draw his writ petition as one of the petitioners has already been promoted. He also prays that this withdrawal may be without prejudice to the merits of the case if taken before some other forum or before the High Court.
Dismissed as withdrawn."
11. From the above orders of the High Court, it is apparent that the appellant had himself resolved to prefer appeal in the Tribunal and for this purpose, he had withdrawn the writ petition from High Court with attending consequences.
12. For the reasons given above, I have no doubt in my mind to conclude that the material brought before me do not justify to condone the delay of more than two years in preferring appeal against the impugned seniority list. The appeal is hopelessly time barred and is, therefore,' dismissed in limine.