MALIK ZAWAR HUSSAIN (MEMBER).--Syed Iftikhar Hussain Forester, Shahpur Forest Division at Jaubarabad, District Sargodha has filed this appeal against Province of Punjab through Secretary Forests, Government of Punjab under section 4 of the Punjab Service Tribunal Act, 1974 whereby he has prayed that the impugned order dated 9th February, 1981 be set aside and the respondent be directed to count the appellant's service from 25th March, 1952 to 31st March, 1958 towards seniority and pension etc, as Government service and give him all other benefits which are likely to accrue to him because of such addition in the length of his service.
Brief facts of the case are that a propose to an advertisement publish--ed in the newspapers by the Conservator of Forests, Multan Circle, the appellant made an application for appointment as Forester. He was interviewed and selected. The appellant was sent to Ghoragali for training and executed a security bond in favour of the Governor of the Punjab on 20th March, 1952 binding himself for service for a minimum period of six years. During the training at Ghoragali, Forest School his expenses, pay and allowances etc. Were paid by the Thal Development Authority. After he had passed his training he was posted in Leiah Forest Division vide order dated 16th April, 1952 issued by the Chairman, Thal Development Authority appointing him as a Forester in T. D. A. The Forest Wing of the T. D. A. Was provincialized in 1958 and his services were terminated on 31st January, 1958.
However the Forest Department re-appointed him on 1st April, 1958 vide order No. 88/TR, dated 19th November, 1958. It appears that the appellant was satisfied with his re-appointment and after about seven years de filed a representation which was rejected vide order dated 21st June, 1965.
The appellant was not satisfied and he filed an appeal against this order which was turned down on 31st July, 1976. Thereafter the appellant filed an appeal before this Tribunal bearing No. 255/886 of 1976 in which he prayed that the period of his service between 25th March, 1952 to 31st March, 1958 be counted as service for the purpose of seniority and pension and he be declared as a Government servant, although he was serving with T. D. A. His appeal was rejected by this Tribunal vide its judgment dated 11th October, 1979. However, before parting with the judgment, this Tribunal observed that the Government should re--examine the case, in view of the fact that the appellant applied in response to the advertisement of the Conservator of Forest Multan and he was originally employed by him for a job under the Government Department and that the appellant executed a bond on 20th March, 1952 in favour of the Government of the Punjab. After announcement of the judgment the appellant submitted a representation to the Govern--ment alongwith a copy of the judgment. The Department in view of the directions of the Tribunal, re-examined the case and rejected his represen--tation vide its order issued vide letter No. SOE-11-2/26/80, dated 9th February, 1981. Hence this appeal.
3. We have heard the learned counsel for the appellant as well as the District Attorney on behalf of the respondents. It has been argued on behalf of the appellant that originally the appellant was appointed as Forester by the Conservator of Forests Multan and he is to be treated as a Government servant for all intents and purposes. He has also stated that notwithstanding the fact that the appellant was appointed by the Chairman T. D. A. And has served under him from 25th March, 1952 to 31st March, 1958 that service should be counted towards seniority and pension etc. As a Government service spent under the Government. On the other hand the learned District Attorney has submitted that these very arguments were addressed by the learned counsel on behalf of the appellant when his appeal was earlier rejected by this Tribunal vide its judgment dated 11th October, 1979. He has submitted that the present appeal regarding the grievance, is barred by the principles of res judicata. He has also submitted that appeal is also not competent in view of the bar contained in section 4 (i) (c) of the Punjab Service Tribunals Act, 1974 as the relief claimed is against the decision of a Departmental Authority made before 1st July, 1969, in that, that the appel--lant has requested to count his service from 25th March, 1952 to 31st March, 1958 and his representation was rejected on 21st June, 1965. He has also submitted that the appeal is also not competent for non-joinder of necessary parties as required under the mandatory provision of rule 7 of Punjab Service Tribunal (Procedure) Rules, 1975, because the appellant is claiming the seniority, while he has not impleaded the persons who are likely to be affected in the event of the acceptance of this appeal. He has also submitted that the appellant accepted the offer of appointment in the T. D. A. Voluntarily without any protest as a fresh entrant and he remained satisfied with the same for a number of years. He is thus estopped to claim that service as a service spent under the Government and to count it for the purpose of seniority and pension.
4. We have given our anxious thoughts to the arguments addressed by the parties and have also gone through the record of the case. We have also gone through the judgment dated 11th October, 1979 of this Tribunal given in the appeal No. 255/886 of 1976. It has been observed by us that the relief which the appellant is claiming in the present appeal was also claimed by him in the earlier appeal on the same arguments which he has advanced before us now. Thus, the appeal is not competent in view of the section 11 of the Civil Procedure Code, which is reproduced hereunder :- "11. Res judicata.-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 such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I.-The expression `former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.-For the purpose of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from decision of such Court.
Explanation III.-The matters above referred to must in the former suit have been alleged by one party and ether denied or admitted, expressly or impliedly, by the other.
Explanation IV.--Any matter which might and ought to have been made ground of defence of attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section be deemed to have been refused.
Explanation VI.-Where persons litigate bona fide in respect of a public right or' of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating."
We have noticed that this issue was directly and substantially in issue in the earlier appeal of the appellant and it was between the same parties, and all other ingredients of section 11 of C.P.C.
Reproduced above apply with full force in the present case. In view of the above we hold that the present appeal is not competent in view of section 11 of C.P.C. The other arguments of the appellant that he had applied for a post of Forester, advertised by Forest Department, was selected for it and had executed a bond in favour of the Governor of the Punjab is not of any avail to the appellant because the Department had been issuing the seniority lists from time to time which were published in 1959, 1965, 1966, 1967, 1969, 1970 and 1972 in which he was shown to have entered Government service on 1st April, 1958 and he did not raise any objections against these seniority lists or entries made therein. Be that as it may, the appellant accepted the appointment given to him by the Chairman, Thal Development Authority on 16th April, 1951 without any protest for a number of years. Thus, we cannot escape from the fact that the appellant accepted the appointment made by the T.D.A. And never protested against the entries in the various seniority lists showing his date of entry into Government Service as 1st April, 1958. Thus, the appellant is estopped to claim now that he entered by Government service on 25th March, 1952 and as such the appeal has no force in it.
5. We have carefully gone through the file which culminated into the impugned order dated 9th February, 1981. We have noticed that the Tribunal has dismissed his appeal on merits but considering background of his appointment in T. D. A, made some observations in favour of the appellant, calling upon the Government to re-examine the case. The Government has reexamined the case and gave very just and legal reasons for rejection of his representation.
6. With regard to the preliminary objection regarding the bar contained under section 4 (i) (c) of the Service Tribunal Act and rule 7 of the Punjab Service Tribunals Act (Procedure) Rules, 1975 we do not consider it necessary to adjudicate on these issues because we have already observed that - the appeal has no merits and is liable to be rejected.
7. In view of the above analysis, we dismiss the appeal as being without any merits. There will be on orders as to costs.