' S. ABDUL JABBAR KHAN (CHAIRMAN).-Ch. Muhammad Isa, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in Which he has impleaded Province of the Punjab through the Inspector-General of Prisons, Punjab, Lahore and Messrs Ch. Falahuddin Muhammad Yusaf Langah, Ahmad Shuja Khan and Raja Nisar Ahmad, as Respondents.
2. By virtue of this appeal he has prayed that the appellant be declared as senior to Respondents Nos, 2 to 5 in the Seniority List of Deputy Superintendents Jails, published by the Government.
3. Brief facts of the case are that the West Pakistan Public Service Commission selected the candidates for recruitment as Assistant Superintendents Jail in the order of merit on 14th December, 1957, subject to their medical fitness, which included the appellant as well as respondents Nos, 3, 4 and 5. The appellant and respondent No, 4 were recruited for Central Range while respondents Nos, 3 and 5 for Northern Range. In the said list the appellant was shown at serial No, 6 while respondent No, 4 was shown at serial No,
11. Similarly Muhammad Yusaf Langah Respondent No, 3 and Raja Nisar Ahmad respondent No, 5, were shown at serial Nos, 2 and 3 of the list of the Northern Range. However, respondent No, 2 was included in the list of Central Region, who was working against a temporarily created post of Assistant Superintendent Jail and was shown above Shaukat Mahmood at serial No,
1. After the selection by the Commission, the appellant and the respondents were directed to undergo medical examination__ in their respective Range. After completion of necessary training the appellant and respondents were put to examination in which appellant and Respondent No, 3 failed in one paper of Financial Rules while Respondent No, 2 failed in the paper of Jail Manual. The failed candidates passed the examination in August, 1958 and were informed of the results of the same on 10th October, 1958. Respondents Nos, 4 and 5 had passed in the first attempt as such persons passing the examination in the first attempt were placed above to the persons declared successful in the second attempt, in their respective regions. On dissolution of One Unit the Central Region and Northern Region, were merged together and respondents and appellants were brought at common seniority list on Punjab basis, in which the appellant was shown as junior to the contesting respondents. The appellant submitted a representation to the Inspector-General of Prisons, claiming that he being senior, according to the list on merits, published by the Public Service Commission, he ought to have been shown senior to the respondents, but this representation remained pending and was not disposed of. Thereafter respondent No, 1 published another seniority, of Deputy Superintendents Jails as stood on 1st December, 1978, sowing the appellant junior to the contesting respondents, which was circulated by the Inspector-General of Prisons, Lahore, vide No, 2351/78, dated 21st January, 1979:The appellant filed a representation against the said list on 8th February, 1979, which remained undisposed of.
Hence this appeal.
4. We have heard learned counsel for the appellant as well as learned counsel for the respondents and the learned District Attorney and have perused, the record of this case carefully with their assistance. It has been argued on behalf of the appellant that he being the selectee of the Public Service Commission and had earned the order of merit from that of the contesting respondents, he should have been shown as senior to the respondents. It has also been submitted that the method of fixation of seniority vis-a-vis para. 1165 of the Punjab Jails Manual was illegal and unwarranted because the sole purpose of the said provisions contained in the Jails Manual was to impart training of practical working to the candidates selected for appointment as Assistant Superintendent. Jails and had nothing to do with the fixation of the seniority and other terms and conditions of service of the appellant. Learned counsel for the appellant has also assailed the gradation list issued by the then Inspector-General of Prisons in the year 1965 and has submitted that this list had also remained a subject of controversy within the Department itself. To substantiate this point, he relied on letter No, 16887, dated 19th April, 1965, from the Director of Prisons, Central Range, Bahawalpur to the Secretary to Government West Pakistan, Home Department, Lahore. Learned counsel has streneously argued that the appellant being senior according to the merit list prepared by the Public Service Commission in the rank of Assistant Superintendent Jails, he would carry his seniority of the lower rank to the higher rank according to the accepted principle of law enunciated by this Tribunal on this issue.
5. On the other hand learned counsel appearing on behalf of Respondents and the learned District Attorney have raised three preliminary objections against the maintainability of the appeal viz, :
(1) That the appeal is hopelessly barred by time.
(2) That the appeal is not maintainable being barred by section 4 (1) (c) of the Punjab Service Tribunals Act, 1974, because the orders passed prior to 1st July, 1969, have been challenged in this appeal.
(3) That the appellant and the contesting respondents are no longer holding the posts of Assistant Superintendents Jail, inasmuch as they have been promoted to higher rank and confirmed as such, therefore, no cause of action is available in favour of the appellant at this belated stage.
6. With regard to the merits of the case, it has been argued on behalf of the appellant that when the appellant and the contesting respondents were inducted into service, there were no rules which could make it obligatory that the selection to the posts in which they were promoted should have been within the purview of the West Pakistan Public Service Commission as laid down by the West Pakistan Public Service Commission limitation of Functions Regulation No, 57, promulgated on 14th October, 1957. According to the learned counsel for the respondents the posts of the Assistant Superintendent, Jail carried the pay scale of Rs, 130/200 and for these, Inspector-General of Prisons West Pakistan, was the only competent authority to fill the same. Thus the learned counsel for the respondents have concluded by submitting that the very basis from the bottom of the appellant's case, has nocked out the order of merit fixed by the Public Service Commission, cannot be considered the order for the purpose of fixation of seniority in any manner of whatsoever. It has been urged that according to para. 1165 (I) of the Punjab Jails Manual, the order of merit would be a fulfilment of prerequisite conditions with regard to the passing of examination and completion of training as laid down in this behalf.
7. With regard to the case of Falahuddin, Respondent No, 2, it has been submitted that he was selected as a candidate in extraordinary manner, keeping in view the meritorious services rendered by his father thus the point urged against him by the appellant do. Not in any manner relegate him in seniority. According to the Respondents, Respondent No, 2 was appointed as officiating Assistant Superintendent Jail vide I. G. Prisons letter No, 278, dated 6th June, 1958, for which he was fully competent and no exception can be taken. Thus the respondent has been serving the Department without any break since 17th January, 1957, first on temporary basis and later on permanent basis, in officiating capacity. The main brunt of the argument of this case given by the respondents is that as they had cleared the departmental examination earlier than the appellant they were entitled to be considered senior than him, according to the policy laid down by the S. & G. A. I. Deptt. Circular Letter No, 871- Integ-55,4471, dated 25th November, 1955.
8. On the other hand learned District Attorney while adopting the arguments addressed on behalf of Respondents Nos, 2 to 5, has submitted that the order of merit given by the Public Service Commission was neither of Gradation List nor seniority list and it has nothing to do with the same. It has also been submitted that purpose of para. 1165 of the Punjab Jails Manual has been grossly misinterpreted by the appellant because the training mentioned therein, is pre-service training for the purpose of not only imparting practical knowledge to the candidates for the posts of Assistant Superintendent, Jail but also is to determine their merits, as a result of examination for fixing the inter se seniority of the candidates. Learned District Attorney has taken great exception to the citation of correspondence by the appellant which took place between the Inspector-General of Prisons and Government, claiming it as strictly privileged and confidential in nature. It has also been reiterated by the learned District Attorney that according to para. 1167 ibid. Seniority of the pre-service counts from the date of their confirmation as Assistant Superintendent, Jail against permanent vacancies. While concluding the arguments, it has been submitted that any upset of the seniority list of Assistant Superintendents Jail and Deputy Superintendents. Jails which had stood the test of all times as long as of 24 years, the advantage acted upon both by the appellant and the respondents and by virtue of the same, they have been promoted as Deputy Superintendent, Jail and confirmed as such, would lead chaos and frustration in the administrative set up of the Prisons Department.
9. We have given our anxious thought to the arguments advanced by the parties and have also gone through the record of this case carefully with their assistance. The arguments and the facts of this case are identical with the appeal entitled Abdus Samad Khan v. Secretary to Government of the Punjab, Home Department and 11 others (Case No, 159/ 964 of 1981), which has been decided by us vide our judgment, dated 19th July, 1982. For the reasons and grounds recorded in our judgment of Abdus Samad Khan we hold that this appeal is hopelessly time-barred, not maintainable under section 4 (1) (c) of the Punjab Service Tribunal Act, 1974, and the same is without any merits, therefore, the appeal is dismissed. However there will be no order as to costs. To be communicated to the parties.