S. ABDUL JABBAR KHAN (CHAIRMAN).-Mrs. Talat Musharaf and 17 others have filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Director-General, Social Welfare, Punjab, Lahore, Secretary to Government of the Punjab Social Welfare and Zakat Department, Lahore and Messrs Nazir Ahmad II and 74 others, as respondents.
2. By virtue of this appeal, it has been prayed that the impugned seniority list dated 1.1-1981 and final order dated I-10-1981, be set aside is so far as these relegate the appellants junior to the contesting respon--dent as well as appellants be declared - senior to the contesting respondents Nos. 3 to 71, as per list attached.
3. Brief facts of the case are that the appellants Nos. 1 to 9 were selected as Social Welfare Officers by direct recruitment by the Selection Board on 10-2-1969. Similarly appellants Nos. 11 to 18 were selected by the Selection Board for direct appointment as Social Welfare Officers on 11-11-1969. As far as respondents Nos. 3 to 71 are concerned they were originally appointed as Social Welfare Officers on ad hoc basis on various dates ranging between the years 1963 to 1969 and were approved for appoint--ment as Social Welfare Officers on 11-5-1970, their appointments as such were regularised from the dates of their original appointments vide notifi--cation dated 13-5-1970.
The respondent No. 1 issued first seniority list on 20-2-1974. In the said seniority list the contesting respondents were assigned seniority as Social Welfare Officer front original date of their ad hoc appointments from which their services were regularised. The appel--lants submitted representation on 30-9-1980 to respondent No. 1 that since the case of the appellants was on all fours as that of Mr. Zahid Aziz Khan, their seniority vis-a-vis the contesting respondents, be also revised. How--ever, the representation was rejected by a letter dated 1-10-1981. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney alongwith Syed Jamshed Ali learned counsel for the respondents, and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellants has submitted that the services of the contesting respondents, have been regularised by the Government vide notification dated 28-2-1970, and according to the said notification seniority had to be given w.e.f. 1-1-1970 and not from.The original date of ad hoc ap--pointments. According to the learned counsel under this special notification, all the contesting respondents were entitled to count their seniority from 1-I-1970. For this claim learned counsel for the appellants has placed reliance on the West Pakistan Social Welfare Department (Gazetted Posts) Recruitment Rules, 1964, rule 8 (1) (a). He has challenged the order of respondent No. I by which the seniority of the contesting respondents has been fixed from the date of their original ad hoc appointments. He has also relied on Article 240 of the Constitution of Pakistan and section 3 of the Punjab Civil Servants Act, '.974 and has argued that as seniority being one of the terms and conditions of service of civil servants, have to be fixed either in accordance with the aforesaid notification dated 28-2-1970 or the Service Rules of 1964. In this way he has made a grievance that respondents No.1 has violated the provisions of the said notification as well as Service Rules so quoted above. He has also placed reliance on Zahid Aziz Khan's case, a judgment delivered by this Tribunal and has claimed that the principle laid down in the case of Zahid Aziz Khan, was fully appli--cable to the case of the appellants.
6. On the other hand learned counsel for the respondents has taken preliminary objection against the present appeals as being barred by time. According to the learned District Attorney as well as learned counsel for the respondents, seniority list was notified on 1-1-1981, whereas the appeal has been filed on 18-10-1981, without any reasons for the delay of whatsoever. It has been submitted that the appellant No. 8 did make a representation against the seniority list, but as the list was issued under the orders of the Government, no representation, against the Secretary was competent as the Director-General cannot be termed as higher authority within the meaning of section 21 of the Punjab Civil Servants Act, 1974. In this way it has been argued that even to the extent of appellant No. 8, the appeal was time-barred.
7. An objection to the misjoinder of the appeal has also been taken by submitting that the combined appeal has not so far been contemplated by Punjab Service Tribunals Act, 1974, or the rules framed thereunder.
8. Learned counsel for the respondents have pointed out that the impugned seniority list or the earlier seniority lists dated 20-2-1974 and 5-6-1978, were never challenged by the appellants except appellant No. 8, whose appeal against seniority list dated 20-2-1974, was dismissed by the Tribunal, In, view of the above, it was vehemently argued that the appellants are estopped to question the seniority list of 20-2-1974, which was never challenged earlier.
9. With regard to the merits of the case, it has been submitted that likewise the case of Zahid Aziz Khan was misconceived as the appel--lants purposely concealed the judgment of this Tribunal in the case of Shafi Arshad Appeal No. 7/17 of 1974, against the same seniority list and said fact was not brought to the notice of this Tribunal. It has been further argued that on the basis of the case of Shafi Arshad, so mentioned above, this Tribunal was pleased to hold in Wajahat Hussain and others v. Province of the Punjab, (Appeal No. 79/893 of 1981) that once an issue has been determined by this Tribunal, the same cannot be reopened by the same Tribunal under any ground of whatsoever and clearly held that the seniority list of 1981, which was notified on 1-1-1981, was in accordance with law and in pursuance of the earlier judgment of this Tribunal and no exception could be taken to it.
It was vehemently urged that vide order contained in notification dated 13-5-1970, the answering respondents were regularised w.e.f. Different dates of the sonority lists impugned in this list so passed on the said order. As the said order has not been challenged by the appellants before any forum the same has attained finality. According to the learned counsel, the appellants are, therefore, estopped to challenge that order by way of collateral attack in the guise of raising an issue of seniority which had already b--en concluded. The respondents have based their case on the point that Government had regularised their appointments from the dates of their continuous officiation and have repelled the arguments of the appellants that the said competency could ever be challenged.
10. We have given our anxious thought to the objections so raised by the parties before us and have perused the record of this case as well as judgments delivered in the cases of Zahid Aziz Khan, Wajahat Hussain and others and Shall Arshad, in order to adjudicate the matter so in hand.
11. While looking into the judgment of Zahid Aziz Khan which is now subjudice before the Supreme Court of Pakistan we find that the case of Shafi Arshad decided in Appeal No. 7/17 of 1974, against the same seniority list was not brought to the notice of the Tribunal and thus, we delivered a judgment in Wajahat Hussain's case, which is, also a subject--matter of appeal before the Supreme Court of Pakistan. In Shad Arshad's case it was held as under "We do not think that the provision of paragraph (d) of sub-rule (I) ibid, could in terms be applied here. The said paragraph regulates , the seniority of officers appointed to the service by initial recruit--ment only. The expression initial recruitment' has been defined in clause ( f ) of rule 2 as meaning an appointment made otherwise than by promotion or transfer from another service, department or post. The contesting respondents were already holding offices as Social Welfare Officers under the Health Department when their services were placed at the disposal of the Social Welfare Depart--ment, thus, their appointments as Social Welfare Officers under the Social Welfare Department was through transfer from another service and a department, and not by way of initial recruitment within the meaning of clause (f ) ibid. The Administrative Depart--ment was, therefore, clearly in error in applying paragraph (a) of sub-rule (I) in fixing the inter se seniority of the appellants and the contesting respondents."
We while dealing with the case of Wajahat Hussain and others Appeal No. 79/893 of 1981, held :- "It is settled principle of law that the issue once determined by this Tribunal cannot be re-opened by the same Tribunal under any ground whatsoever, what the present appellant, requires us to do is, to take a divergent view from the view already held and to restore the seniority list of 1974 which was positively set aside on 8-10-1974 by a Full Bench headed by Justice S. S. Jan (Chairman). We are afraid, we cannot accept this proposition so propounded before us by the appellant."
While concluding the said judgment, it was held :--
12. In view of the above decision in Wajahat Hussain and others' case which was based on Shaft Arshad's case, so mentioned in the earlier part of our judgment, we have already declared that the seniority list so impugned before us through this appeal, was validly made and holds the field, therefore, we are not in a position to take a divergent view against the judgment so earlier delivered in Shaft Arshad's case as well as in Wajahat Hussain's case by this Tribunal and have no hesitation to ignore the judg--ment in Zahid Aziz's case, which was delivered on account of appellant's conduct by not bringing the facts of Shafi Arshad's case when the said case was being decided.
13. With regard to the point of limitation, we are fully satisfied that no appeal or representation was made against the seniority list of 1981 and thus the present appeal was time-barred. Even appellant No. 8 did make representation, was not competent to make such efforts as no representation was permissible against the order of the Government. Moreover the facts that the seniority list dated 20-2-1974 and 5-6-1978 were based on seniority list of 1981 and the same had not been challenged earlier, there--fore, the law of estoppel would come into play as well as law of limitation has the real injury which the appellants suffered pertains to 20-2-1974, e therefore, the present appeal, would be hopelessly time-barred.
14. As both the judgments of Wajahat Hussain and others and Zahid Aziz Khan are now before the Supreme Court of Pakistan, we will leave the matter to the said Court the High Court of the realm to decide the issue involving seniority and would maintain our earlier view taken in Shafi Arshad as well as Wajahat Hussain and others cases.
15. The result is we proceed to dismiss this appeal as hopelessly time-barred as well as being without any merit. There will be no order as to costs.