S. ABDUL JABBAR KHAN (CHAIRMAN).-Messrs Mian Muhammad Hanif. Ahsan Akhtar Mir, Muhammad Khurshid and Aftab Ahmad Khan have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, against the Seniority/Gradation List in respect of all the officers of Grade-18 and above of the Communication and Works Depart--ment (Highway and Buildings) as it stood on 1-9-1981, whereby the appel--lants have been shown junior to the respondents.
Messrs Muhammad Hanif, Ahsan Akhtar Mir and Muhammad Khurshid have impleaded Secretary to Government of the Punjab, Communication and Works Department, Lahore Messrs Muhammad Ashraf Khan, Superintending Engineer (Mechanical) Highway, Lahore and Sardar Ghulam Jaffar Khan, Superintending Engineer Provincial Building Circle, Rawalpindi and 4 to 7 pro forma res-- pondents, 4 to 8 pro forma respondents and 4 to (?) pro forma respondents, as respondents while Aftab Ahmad Khan has impleaded Secretary to Government of the Punjab, Communication and Works Department, Lahore Muhammad Ashraf Khan, Superintending Engineer (Mechanical)
Highway. Lahore, Sardar Ghulam Jaffar Khali, Superintending Engineer, Provincial Building Circle, Rawalpindi, Manzoor Ahmad, Superintending Engineer on deputation to Lieah Sugar Mills and 5 to 12 pro forma respondents as respondents.
2. By virtue of these appeals they have contended that while deter--mining the seniority of the appellants vis-a-vis contesting respondents, the respondent No. 1 has not kept in view their seniority in Class II. They have also made grievance of the fact that the seniority of the appellants has not been fixed in accordance with the prescribed manner as laid down under rule 15 (2) of the West Pakistan Civil Engineers Service (Class II) Rules, 1967. In view of the above it has been prayed that the impugned seniority list of 1981, in so far as it relegates the appellants junior to the contest-- ing respondents, may be set aside.
3. As the point of law involved in all these four appeals being common as well as the principle enunciated under rule 15 (2) of the West Pakistan Civil Engineers Service (Class I) Rules, 1967, being the same with a little variation of facts with regard to the dates of induction into Class II, Class I Jr.
And Class I Sr. Service which will be given against each and every appellant, we proceed to decide these appeals with this single judgment. It may also be mentioned at this stage that the respondents in this case have only confined themselves to the preliminary objection common to all the appeals, invoking the principle of res judicata against them, therefore, all the more reasons for us to dispose of these appeals by a one single judgment as indicated above.
4. In case of Mian Muhammad Hanif, he joined service as a temporary Assistant Engineer on 10-4- 1951, whereas the contesting respondents Nos. 2 and 3 Messrs Muhammad Ashraf Khan and Sardar Ghulam Jaffar Khan, were B & M Engineers who also joined service as Temporary Assistant Engineers. The Government of West Pakistan introduced the West Pakistan Civil Engineers Service (Class II) Rules, 1967 on 25-3-1967, under which all the existing Temporary Assistant Engineers were inducted as Assistant Engineers in Class II in consultation with the Public Service Commission against the then existing vacancies. Undex the said rules seniority of the appellant and the contesting respon--dents in Class It, was determined by the Government in Class II while seniority list notified vide notification dated 28-11-1974. In that case all the contesting respondents were duly shown junior to the appellant. The appellant and the contesting respondents were promoted as officiating Executive Engineers as under :-
1. Muhammad Hanif (appellant)21-10-1959.
2. Muhammad Ashraf Khan (R. No. 2) 21-2-1959.
3. Sardar Ghulam Jaffar (R. No. 3) 17-5-1958.
Since the Seniority list of 1974 was also a subject-matter of dispute before respondent No. 1, no further seniority list was issued despite repeated directions of the Punjab Civil Services (Appellate)
Tribunal as well as of the present Tribunal:
5. In case of Ahsan Akhtar Mir, he joined service as Temporary Assistant Engineer on 13-4-1954, and the contesting respondents also started service as T.A.E. And later on were inducted into Class II.
Seniority list as mentioned in the earlier part of our judgment was notified vide notification dated 28-11-19.'4, in which the appellant was shown senior to the contesting respondents. As no seniority list was later on formulated by respondent No. 1, despite directions of the Civil Services (Appellate)
Tribune l as well as of this Tribunal the matter remained in the melting pot Ad the impugned seniority list came into field, by which the appellant has been shown junior to Messrs Muhammad Ashraf Khan and Sardar Ghulam Jaffar Khan, contesting respondents.
6. Appellant Muhammad Khurshid joined service as Temporary Assistant Engineer on 27-10-1951.
Similarly the contesting respondents Messrs Muhammad Ashraf Khan and Sardar Ghulam Jaffar Khan started as T.A.E. And were later on inducted into Class 11 from various dates. The claim of the appellant is almost identical with the claim of other two appellants that he being senior in Class II would remain senior in Class I Junior as well as in Class I senior.
7. Aftab Ahmad Khan who has impleaded Manzoor Ahmad respondent No. 4 besides Muhammad Ashraf Khan and Sardar Ghulam Jaffar Khan as respondents Nos. 2 and 3, also joined service as a Tem--porary Assistant Engineer on 30-10-1959 and in the seniority list notified on 28-11-1974, all the respondents were shown junior to him. However, when the seniority list of 1981, came into field the appellant has been shown junior to the respondents.
8. We have heard the learned counsel for the appellants as well as learned counsel for the respondents alongwith learned District Attorney who is representing respondent No. 1 and have perused the record of this case carefully with their assistance.
9. Learned counsel for the appellant has submitted that as all the appellants namely Mian Muhammad Hanif, Ahsan Akhtar Mir, Muhammad Khurshid and Aftab Ahmad Khan were enjoying basic seniority in Class 11 as against all the respondents, therefore, according to Class II Rules of 1967, they had to be given seniority in the next grade of Class I Junior and. On the strength of this principle they had to remain senior to the contesting respondents in Class I senior also as they were never superseded by them.
10. Learned counsel for the appellants have also challenged the status of E & M Engineers Messrs Muhammad Ashraf Khan and Sardar Ghulam Jaffar Khan, who according to him, would be of different category of Engineers and should not have been grouped with Civil Engineers and according to the learned counsel, if at all they had to be amalgamated with the Civil Engineers, it was necessary to formally induct them into Class II and to promote them in Class I in accordance with their seniority and service record. It was vehemently argued that it was the seniority in Class I Junior which was the material for the operation of the explanation under sub-rule (2) of rule 15.
Reliance has been placed by him in this matter on the observation of the Civil Service (Appellate)
Tribunal in case of Aftab Ahmad Khan decided in appeal No. 105/74 of 1973, dated 19-12-1973. The main stress laid down in these cases by the appellants through their learned counsel, is that once the appellants were senior in Class II and stood inducted in Class I junior from the same date viz. 22-7-1971, therefore, they maintained their Class II seniority in Class I Junior, and in equal position in Class I Senior, they would be for all purposes senior to the contesting respondents.
11. On the other hand learned counsel for the respondents Mr. D. M. Awan has submitted that the merits of these appellants are absolutely irrelevant as their appeals are hit by principle of res judicata, under section 11 of the Code of Civil Procedure of 1908 and the appeals areliable to be dismissed on this score alone. According to the learned counsel Messrs Mian Muhammad Hanif, Ahsan Akhtar Mir, Muhammad Khurshid and Aftab Ahmad Khan filed Appeal No. 112/80 of 1973, namely Muhammad Hanif v. Secretary, Government of the Punjab, Com--munication and Works Department, Lahore and others in which Ahsan Akhtar Mir was also a co-appellant and the same appeal was disposed of vide judgment dated 23-8-1973. In the said appeal of Muhammad Hanif, Sardar Ghulam Jaffar Khan appeared as respondent No. 6, Muhammad Ashraf Khan respondent No. 7, whereas in the present appeal of Mian Muhammad Hanif and Ahsan Akhtar Mir they are figured as respon--dents Nos. 2 and 3 respectively. Similary in Case No. 110/65 of 1973. Ch Muhammad Khurshid was appellant and Sardar Ghulam Jafar Khan and Muhammad Ashraf Khan figured as respondents Nos. 6 and 7 whereas the same persons are now respondents in the present appeal of Ch Muhammad Khurshid, as respondents Nos. 2 and 3.. In the Appeal No. 105/74 of 1973, Aftab Ahmad Khan was appellant and he impleaded Sardar Ghulam Jaffar Khan as respondent No. 6 Muhammad Ashraf Khan as respondents No. 7 and Manzoor Ahmad as respondent No. 8, while in the present appeal, the same respondents figure as Nos. 2, 3 and 4 respectively. According to the learned counsel the very principle now agitated before the present Service Tribunal, was agitated and adjudicated between the parties and thus the matter so decided in the year 1973, cannot' be re-opened again as section 11 of the Civil Procedure Code forbids this sort of exercise. He has also placed reliance on the case titled "W. C. Austin v. Punjab Civil Services Tribunal and others (1981 SC. M R 554) decided by the Supreme Court of Pakistan According to learned counsel for the respondents in view of the aforesaid judgment of the Supreme Court of Pakistan, the decision taken by the Civil Services (Appellate) Tribunal, was binding on the present Punjab Service Tribunal and the same cannot be re-opened. He has also placed reliance on:----- PLD1965SC171.
AIR1961.5C1457.
PLD 1956 Dacca 1.
AIR 1960 SC 941. in which the principle of res judicata has been explained and confirmed.
12. We have given our anxious thought to the arguments so advanced by the parties and would reproduce section 11 of C.P.C. Which deals with the principle of res judicata :- "Section 11.-No court shall try any suit or issue in which the matter directly and substantially in issue, has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try the subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
"The matters decided by the Civil Services (Appellate) Tribunal before the promulgation of the Punjab Administrative Tribunal Act, 1974, assumed finality under section 12 (4) and to all intents and purposes the determination became past and closed transaction which could not be re-agitated either before the Tribunal under the Punjab Administrative Tribunals Act, 1974, or under the writ jurisdiction of the High Court.
The reference to section 12 (4) by their Lordships of the Supreme Court of Pakistan, in fact is a reference to Punjab Civil Services (Appellate) Tribunal Ordinance (Punjab Ordinance IV of 1970), which bars the jurisdiction of this Tribunal as well as of the High Court to look into the matters so decided by the former Appellate' Service Tribunal. While going through the judgment delivered in the case of Messrs Muhammad Hanif and Ahsan Akhtar Mir similar proposition of law, which is now before us, in the present case, was taken into consideration by the learned Appellate Tribunal. It was held by the said Tribunal vide , its judgment dated 23-8-1975 as under:--- "It is also claimed by the appellants that as the two appellants were appointed as temporary Engineers earlier than the appointment of the respondents 2-4 as Assistant Engineers, the two appellants are entitled to seniority over them in Class II and if they were senior in Class 11 then they are entitled to be senior to these as Officiating Executive Engineer by the operation of Explanation No.1 and III to Rule 15 (2) of 1967 Rules. In this connection reliance is also placed on para 14 of the Integration Circular. But we are unable to hold in view of our interpretation of rule 4 (1) (a) that the two appellants were senior to respondents No. 2-4. The dates of appointments of respondents No. 2-4 as officiating Executive Engineers are earlier than the dates of promotion of the appellants as Executive Engineer. As such, the two appellants cannot be declared senior to respondents 2-4 in the rank of officiating Executive Engineer .By the operation of sub-rule (2) of rule 15. Explanations Nos.1 and III do not operate in their case. Therefore, there is no force in the claim of the two appellants of seniority over respondents 2-4 in the grade of officiating Executive Engineers. The two appeals are dismissed against them also."
It may be noted that the appellants in this case are Mian Muhammad Hanif and Ahsan Akhtar Mir and respondents are exactly Muhammad Khurshid and Sardar Ghulam Jaffar Khan. Learned Tribunal also took care of the arguments which have once again been made before us that the respondents Sardar Ghulam Jaffar Khan and Muhammad Ashraf Khan had no right to be placed in the impugned seniority list since there has been no merger of Electrical/Mechanical Engineers with the Civil Engineers, and a proper notification to that effect has not yet been issued by the Government. Learned Tribunal attended this argument carefully but came to the conclusion that this issue stood concluded by the judgment of Justice Attaullah Sajjad, as he then was, who dismissed the appeal of the appellant on 27-11-1972. According to the learned Tribunal, the learned Judge after 'reviewing the entire background of the case, reached the con--clusion that the Electrical/Mechanical Engineers formed part of the cadre of Civil Engineers and held that the merger had taken place and all that remained to be done was the drawing up of a seniority list.
13. We may also mention at this stage that there was no conception of the merger of Assistant Engineers in the services of Electrical/Mechanical Engineers, therefore, they were straightway inducted into Class I Junior a date which was much earlier than the date on which these two appellants Muhammad Hanif and Ahsan Akhtar Mir, were inducted into service. Similarly in the case of Mian Aftab Ahmad Khan (Case No. 105/74 of 1973), the appellant impleaded besides the present respondents Sardar Ghulam Jaffar Khan, Muhammad Ashraf Khan, also Mr. Manzoor Ahmad. He has also assailed the seniority of Nafees Akhtar Ansari and Muhammad Naeem in the said appeal. The learned Tribunal after taking into account the point of merger of Electrical/Mechanical Engineers as well as the consideration of seniority in the rank of Class I Junior, held that as final inter se seniority being dependent upon, assignment of dates of absorption in Class II and promotion to Class I Junior that matter had not yet been concluded by the Government, they were deemed to be the continuous appointment of the appellant as officiating Executive Engineers. The Tribunal when it found that the respondents were senior to the appellants as officiating Executive Engineers under serial No. 2 of rule 15 they declined to grant seniority to the appellants. In this manner the matter of seniority which is now being agitated before us by Aftab Ahmad Khan against the contesting respondents Messrs Muhammad Ashraf Khan, Sardar Ghulam Jaffar Khan and Manzoor Ahmad, has been concluded by the judgment of the Appellate Tribunal dated 19-12-1973 and. The same now cannot be re-opened before us.
14. Similarly in the case of Muhammad Khurshid this matter came before the Appellate Service Tribunal regarding merger as well as the seniority and it was held that the appellant cannot be declared senior to respondents 5, 6 and 7 and the appeal was disposed of accordingly.
15. We also find a practical difficulty in the way of the appellants besides the principle of res juta, that would be as Messrs Nafees Akhtar Ansari and Muhammad Naeem who were party in. The case and junior to Sardar Ghulam Jaffar Khan, have not been impleaded in the present appeal. They have been shown only as pro forma respondents against whom no relief has been claimed by the appellant. In view of the above, this difficulty for the appellant would be unsurmountable as to get themselves declared as senior to Sardar Ghulam Jaffar Khan by jumping his juniors Nafees Akhtar Ansari and Muhammad Naeem over them the law relied upon by the learned counsel for the respondents, as cited above fully supports his contention that the appellants who had unsuccessfully tried their luck in the year 1973, before the Appellate Service Tribunal, were positively barred by section 11 of the C. P. C. To agitate such matters once again before this Tribunal, which cannot sit in judgment over the matte so earlier decided.
16. The result is we dismiss all these appeals as hit by principle of res judicata. However, there will be no order as to costs.