MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant joined the Embarkation Headquarters, Karachi, as L..D. C, on 8-3-1949. He was promoted as U. D. C. On 10-1-1953 and was confirmed as such were. f. 12-5-1952. He was transferred with effect from 14-6-1963 to General Headquarters, Rawalpindi, where he was promoted as Assistant on 18-9-1976. On 24-9-198.0 a draft seniority roll (Provisional Seniority List) of Assistants was circulated inviting ` objections thereon, if any, by 31-12- 1980. The appellant lodged his objection dated 30-10-1980 represent--ing that his seniority as Assistant should be determined on the basis of counting his seniority as U. D. C. With effect from 12- 5-1952. His plea was rejected vide C. A. O.'s letter dated 7-12-1980 wherein it was held that the seniority of the appellant in G. H. Q. Had already been considered and decided vide Office Note dated 8-6-1970. He then preferred a departmental appeal on 3-1-1981 mainly contending that he is entitled to the determination of his seniority as U. D C. With effect from 12-5-1952, the date of his confirmation as U. D. C. In the E. H. Q. Inasmuch as he was posted in G. H. Q. In the interest of service and not at his own request and as such he was eligible to his seniority as U. D. C. Which had accrued ' to him for the services rendered in E.H.Q. The Chief Administrative Officer, however, struck to his guns and while withholding his departmental appeal wrongly terming it as an unauthorised representation, issued the final seniority list which was communicated to the appellant on 22-2- 1981. He then instituted the present appeal on 8-3-1981 whereby he prayed that the orders be issued directing the respondent - "(a) to allow him seniority in the grade of U. D. C. Were. f. 12-5-1952 ;
(b) to allow him seniority in the grade of Assistant-on the basis of his correct seniority in U. D. C's Grade.
(c) to antedate his promotion as Assistant on the basis of his correct seniority as determined above, and
(d) to pay him arrears of pay and allowances on the basis of readjust--ment of his seniority and promotion.
Respondents Nos. 2 to 96 should have been the principal contestants but they have neither filed any objection/written statement nor made any appearance. In view of the well-settled legal position that a claim not disputed may be deemed to have been admitted, it may be presumed that all those respondents have admitted the claim of the appellant.
3. The case was however, strenuously contested on behalf of the Department mainly depending on the so-called decision contained in the Assistant Chief Administrative Officer's letter dated 8-6- 1970 which is reproduced below "Subject : Absorption of Mr. Muhammad Magsood, U. D. C, in A: F. H. Q.
Reference:-Your No. 3606/213/M Q-2 B, dated 28-8-1969.
Transfer of lower formation staff to A. F. H. Q. Is not permissible under the existing rules. However, in view of your recommendations, it has been decided, as a very special case, to absorb Mr. Muhammad Maqsood, U. D. C. In A. F. H. Q. While serving in A. F. H. Q. He will continue to hold lien on his substantive appointment of U. D. C. In his parent formation till such time as he is confirmed in an equivalent or a higher appointment in A. F. H. Q. With reference to his seniority, vis-a-vis the other serving U. D. C.'s of A. F. H. Q.
(2) His seniority in the grade of U. D. C. In A. F. H. Q. Will be determined from 14-6-1963 the date on which he was taken on the strength of G. H. Q. (Q/M and Q Dte) on transfer from Embarkation H. Qr.
He will not have any benefit of seniority in A. F. H. Q. For the service rendered by him in lower formation (Embarkation H. Qr. Karachi.
(3) The service rendered by him in the lower formation will, how--ever, count towards fixation of pay/protection on his existing pay, and he will have the benefit of his previous service towards pension, gratuity, and leave."
A 'plain reading of the above letter would ''Show that the service rendered by the. Appellant in the E.
H. Q. Was allowed to be counted towards fixation of pay, protection on his existing pay, determination of pension, gratuity and leave, yet the benefit of seniority accrued to him for the service such rendered was denied for which, however, no reason whatsoever has been given and indeed there could be none. For, we are of the considered view that the transfer of the appellant from E. H. Q, Karachi, to G. H. Q. Rawalpindi, being for administrative reasons and in public interest, could not deprive him of counting his whole continuous service rendered in E. H. Q. For the purposes of seniority and he could not lose the benefit of his previous service by reason of his transfer. After all, basic seniority being normally dependent on the date of regular continuous officiation in a grade/post is not to be lost by the incident of transfer/appointment to another formation of the same organization, otherwise, the entire concept of seniority would be a meaningless affair. The impugned decision, there--fore, is not based either on any provision of law or any notion of justice.
4. It, however, transpired that a note dated 11-8-1972 was addressed by the Q. M G.'s Branch to the C. A. O. Which is reproduced as under :- "Your Note No. O. 117/6032/A-2b dated 3 Aug. 1972 refers.
(2) Please confirm if our above presumption with regard to the inser--tion of Mr. Maqsood's name in Annexure 'A' (seniority roll of perma--nent U. D. C.'s) as mentioned above is correct. Incidentally, it may be pointed out that Mr. Maqsood was transferred from Embaraka--tion Headquarters to A. F: H. Q, (this Dte) alongwith him work in the interest of the State and as such his absorption in A. F. H.
Q. With attendant benefits was recommended vide this Dte Note No. 3606/213/M Q-2B dated 28-8- 1969. This recommendation may please be implemented in letter and spirit.
(Sd.)
Brig.
D Log (Mervyn Cardoza)."
The C. A. O. Replied as follows : --"Reference : Your No. 3606/213/Log-5 dated 11-8-1972.
The case for determination of seniority inter se of Mr. Muhammad Maqsood in the grade of U. D. C.
Has been re-examined carefully and it is found that the position notified vide this office even No. Dated 3-8-1972 is correct except that the Annexure 'A' quoted in para. 1 of our above mentioned note may be amended to read as `B' which is a typographical error.
(2) As regards para. 2 of your above note, Mr. Muhammad Maqsood was not transferred from Embn. H.Q. Karachi to M and Q Dte (now Log Dte) as a result of conscription or alongwith the post and his work. One post of U. D. C. In Log Dte was made tenable by a U. D. C. From Embn. H. Q. Not exclusively for Mr. Maqsood. Anyone else who had the experience of the job could be transferred in place of him. There are several other cases of lower formation employees who have been absorbed in A. F. H. Q. On permanent basis and their seniority in the respective grades has been assigned were. f. The date they joined A. F. H. Q.
3. In this connection kindly also refer to this office No. 0117/522/1 A2b, dated 8-6-1970 and the position notified therein warrants no review."
It thus appears that the impugned decision was based only on the considera--tion that the appellant was not transferred from E. H. Q. Karachi, to G. H. Q. Rawalpindi, as a result of conscription or along with the post and his work. This reasoning, for depriving the appellant of his due seniority, is altogether fallacious. For; it was absolutely irrelevant whether the appellant was transferred alongwith his post or he was allowed to hold a lien on his post in E. H. Q. Till he is confirmed in G. H.
Q. In fact the conduct of the C. A. O. In this respect, is self contradictory inasmuch as he allowed the appellant-seniority as U. D. C. With effect from 14-6-1963, while he was confirmed in G. H. Q. With effect from 3-9-1977, when, most presumeably, a clear post became available in G. H Q. For confirmation of the appellant. Be that as it may, the factum of the confirmation of the appellant in G. H. Q. Does not at all relate to the fixation of his seniority. We are, nevertheless, quite aware of a prevailing view that if a civil servant is transferred from one office to another at his own request, he may lose the benefit, for the purpose of seniority, of the services rendered in the former office but if he is transferred in the public interest, he will be entitled to the full benefit of the services rendered by him in the former office. It is established beyond an iota of doubt that the appellant was permanently transferred' in the public interest and for administrative reasons. In this connection it may be advantageous to reproduce the following note of Q. M. G's. Branch;------ "Mr. Muhammad Maqsood was originally employed as U. D. C. In Embarkation Headquarters, Keumari, Karachi. As M & Q Dte (MQ-2B) required the services of a trained clerk in connection with clearance defence stores, submission of claim for shorthanded/damaged stores, employment/department and reservation of seats on aircrafts, a case was initiated for the transfer of above named clerk to M & Q Dte. After a detailed examination by Ministry of Defence/Finance, C.P Dte., S.D. Dte. The proposal was finally accepted by the C,A.O. On the condition that this transfer should be effected as a permanent measure. Extracts of relevant noting from G. S. Branch File No. 6257/444/S D-7 are attached as Annexure to this note. The establish--ment of this Dte was finally amended vide Ministry of Defence letter No. 6257/444/S D-7/6910 D-1 (A) dated 4th June, 1963 by adding Note (f) to the effect that "one appointment will be held by a U. D. C.. From Embarkation Headquarters, Karachi. The above U.D.C. Was thereafter permanently transferred to M & Q Dte. M Q- -2B) on 14th June, 1963.
2. Mr. Maqsood is well-versed in his job and due to his practical experience in Embarakation Headquarters, Karachi, he has become an asset to this Section. His efficient performance of duties noted in para. 1 above has resulted in smooth running of the work and elimination of considerable complications and expeditious disposal of daily business. It is, therefore, strongly recommended that in order to have permanent advantages of the services of the professional experience of Mr. Muhammad Maqsood, Pt (U. D. C.) he may please be absorbed in the establishment of A. F. H. Q. In the regular cadre of U. D. C. This is considered to be in the interest of the efficient running of the section concerned where he is employed."
This being the position, there was no justification whatsoever for depriving the appellant of the benefit of the seniority accrued for the services rendered by him in E. H. Q.
5. A plea though does not appear to have been taken into considera--tion while taking the impugned decision is raised on behalf of the Respondent-Department in the written objection filed before us that the appellant has lost the benefit of seniority for the services rendered by him in E. H.
Q. By his own undertaking which reads as under :- "CERTIFICATE I, Mtuhammad Maqsood (U. D. C.) hereby certify that I will not claim my seniority towards my further promotion on transfer to General Headquarters, Rawalpindi, from Embarkation Headquarters, Karachi.
I clearly understand that on my transfer to General Headquarters, I will be deemed as on deputation but no deputation allowance will be admissible to me nor will I claim same.
(Sd.)
Muhammad Maqsood (U. D. C.)'
Dated : 19th September, 1962.
A plain reading of the above-document, however makes it abundantly clear that the appellant undertook not to claim his seniority towards his further promotion on transfer. To G.H.Q. Rawalpindi, in case he was deemed as on deputation. Perusal of the record shows that in September, 1962, when the appellant executed the above document, a proposal relating to his transfer to the G.H,Q.
On deputation, was being considered but the same was not accepted and it was ultimately decided that one U. D. C. Should be permanently transferred from E.H.Q. Karachi, to G.H.Q.
Rawalpindi, and as a consequence whereof the appellant was transferred with effect from 14-6- 1963 on permanent basis. The above said undertaking given by the appellant, therefore, no longer remained valid and was to be totally disregarded and ignored simply because he was not transferred as on deputation but on permanent basis. Therefore, the said undertaking also does not at all advance the case of the respondent-Department.
6. The question of limitation has also been raised before us on behalf of the respondent- Department. It was contended that the present appeal is hopelessly barred by limitation in view of the fact that it was decided vide C. A. Os ' letter dated 8-6-1970, that the appellant Will not have any benefit of seniority in G. H. Q. For the services rendered by him in E. H. Q., Karachi. The contention is found to be devoid of any substance.. It is well-known that before promulgation of new service laws (Civil Servants Act, 1973, and the Service Tribunals Act, 1973) the issue of seniority was not a sueable claim and was not justiciable in the Court of law. Indeed a Government Servant had no vested right to institute any legal proceedings to enforce his claim of seniority through Courts. So much so that even after the promulgation of new service laws the Sind Service Tribunal adopted 'a view in a judgment announced by it in July, 1979, that the Service Tribunal had no jurisdiction to adjudicate upon the seniority cases, It is a fundamental principle o C law of limitation that it always applies to an existing cause of action and that unless the cause of action for instituting a legal proceeding has arisen, limitation for suing cannot begin to run. In other words, where there is no cause of action there can be no limitation and cause of action arises only when some statute provides that it accrues. Since the appellant's claim was not legally enforceable through Courts of law at the relevant time, limitation at that time did not begin to run and as such the question of the appellant's claim being time-barred, does not arise. Again, it is also a universally accepted principle that limitation bars the remedy but does not extinguish the right. The rule of limitation is a rule of procedure, a branch of the adjective law and does not either create or extinguish right.
Under the law of limitation it is only the remedy by way of legal proceedings that is barred, but the right itself continues to exist ; and if at any time some remedy is made available by any statute, the delay in seeking relief cannot come in the way. It is to be seen that after promulgation of new service laws, senio--rity became a term and condition of service adjudicatable by the Service Tribunal. In the instant case when objections to the Provisional Seniority List were invited by the Department in September, 1980, a right was accrued to the appellant to file his objection which he did ; and when his objection was not accepted a right had again accrued to him to file a departmental appeal. It was. Only on the failure of his departmental appeal that a cause of action accrued to him to prefer an appeal to this Tribunal within thirty. Days of the communication of the appellate order of the departmental authority to him. Since on accrual of the cause of action e appellant filed the present appeal within the prescribed period of limitation, it is considered to be well in time and the objection of the respondent-Department, being wholly untenable is, therefore, overruled.
7. The upshot of above discussion is that the appeal succeeds, and we set aside the impugned order and direct that the appellant be allowed seniority in the grade of U.D.C. With effect from 12-5- 1952 and on that basis his seniority as Assistant be also determined. Regarding the prayer of the appellant to antedate his promotion as Assistant and to pay him arrears of pay and allowances accordingly, we would leave it open for the competent departmental authority to pass appropriate orders in this respect.
8. No order as to costs.