' IHSANUL HAQ CHAUDHRY (CHAIRMAN).--The relevant facts of the decision of this appeal are that the appellant was appointed D.F.C. o 8-7-1976. The appointment was on temporary basis in relaxation of rules as well as post was taken out of the purview of Punjab Service Commission. So thereafter country was put under Martial Law and all such appointments became subject-matter of review under Martial Law Instruction No,
21. The appellant was accordingly referred to Punjab Public Service Commission, which cleared hi subject to relaxation of age by the competent authority. The authority refused t allow relaxation in age. The result was that the service career of the appellate came to an end w,e,f, 13-11-1977. The appellant continued his effort to get the job back and was ultimately taken back in seventh vide notification dated 8-2-1982. Was ordered that the appellant be considered in service throughout and the intervening period of 4 years 2 months and 26 days was to be treated an extraordinary leave without pay.
2. The appellant was senior to respondents Nos. 7 to 12 as D.F.C. He w appointed as Assistant Director vide order dated 24-3-1985 on acting charge basis. The respondent No, 1 issued a provisional seniority list of the Assistant Directors where appellant was shown junior to the contesting respondents an ultimately final seniority list was issued on 13-8-1986. The grievance of the appellant is that in all the seniority lists issued on 6-3-1977, 5-5-1982 an 22-4-1984, he was shown senior to the contesting respondents but all of a sudden he was made junior to them without any justification. The appellant decided t assail the seniority list through present appeal under section 4 of the Punjab Service Tribunals Act. The appeal came up for preliminary hearing on 17-6-1987 The same was admitted to regular hearing and notices issued to the respondents The respondents 1, 8 and 10 have contested the appeal, filed written objection and prayed for its dismissal.
3. We have heard the learned counsel for the appellant as well as th learned District Attorney and the learned counsel for the respondents Nos. 8 an 10. The learned counsel for the appellant in support of the appeal raised th following points:-- #TBS (i) #TBE Firstly, that the appellant was made junior because the period of about years was considered as break in service and not taken into consideration. This is illegal and in clear violation of notification data 8-2-1982 according to which this period was to be treated extraordinary leave and the appellant was to be considered in serve throughout;
(ii) Secondly, that according to leave rules the period of extraordinary le is to be treated as period on duty. In this behalf the learned counsel referred to 1982 PLC (C.S.) 200; and
(iii) Thirdly, that the appellant was throughout shown senior in the senio lists 1977, 1982 and 1984, therefore, his seniority could not be leg changed.
4. On the other hand the learned District Attorney has argued that the reference to the seniority lists for 1977, 1982 and 1984 is irrelevant because the same pertained to D.F.Cs. And not the cadre of Assistant Directors. It is added that the appellant was never regularly promoted as Assistant Director as is clear from the note appended at the foot of the impugned seniority list. It is further added that the reference to Federal Leave Rules and the case of Mr. Abdul Qadir Hayee v. Secretary Establishment Division, Rawalpindi, is also irrelevant because the Provincial Leave Rules are quite different and clause 9 of the Punjab Leave Rules shall govern the case of the appellant. It is argued in the end that the appellant having failed to challenge the promotion of the respondents in time could not claim seniority and in that garb impugned the promotion of the said respondents Nos. 8 and 10.
5. Now we take up the arguments of the learned counsel for the appellant with reference to the counter-arguments of the learned District Attorney. The sum and substance of all the three points raised by the learned counsel for the appellant is one and the same. The claim of the appellant in nut-shell is that the breakup of 4 years 2 months and 26 days should have been taken into consideration, and period should have been treated on duty. The argument is clearly irrelevant and misconceived for the purpose of relief claimed in the appeal. The prayer clause is to the effect that the original seniority be restored. There is no dispute with the proposition that the appellant was senior to the A respondents in the cadre of D.F.Cs. As is clear from the seniority lists of 6-3-1977, 5- 5-1982 and 22-4-1984, but the appellant while claiming seniority overlooked material and relevant factor i,e, the cadre. All these seniority lists pertained to the cadre of D.F.Cs. While the appellant has impugned the seniority list of the cadre of Assistant Directors. The reference to previous lists and the computation of his period during which he remained out of job are immaterial.
6. On the other hand respondent No, 1 has categorically taken up the plea that the appellant was posted as Assistant Director Food, on Acting charge basis as is clear from Annexures III and IV attached with the written statement as well as appendix to Annexure VI. It is interesting to mention here that this Annexure VI is appended by the appellant with the memo. Of appeal as Annexure D, but strangely enough the note appearing at the foot of appendix is missing from the Annexure D.
The note reads as under:-- "The officers at serial Nos. 11 to 15 are appointed on Acting charge basis."
' These remarks make the whole difference. The learned District Attorney in support of the arguments has referred to the cases reported as 1987 SCMR 78, 1985 SCM R 699 and 1983 PLC 230.
7. The question and mode of determining seniority has been dealt with by section 7 of the Punjab Civil Servants Act, 1974 and rule 8 of the Punjab Civil Servants Act (Appointment and Conditions of Service Rules, 1974. The relevant portion of the section 7 reads as under:- Set_ 7(1)................................
(2) Seniority in a post, service or cadre to which a civil servant is promoted shall take effect from the date of regular appointment to that post: ' Provided that civil servants who are selected for promotion to a higher post in one batch shall, on their promotion to the higher post, retain their inter se seniority as in the lower post." ' while clause b of Rule 8 reads as under:- "8.The seniority inter se of persons appointed to posts in the same grade in a Functional Unit shall be determined:-
(1) (a) .............................................
(b) in the case of persons appointed otherwise, with reference to the dates of their continuous appointment in the grade; provided that if the date of continuous appointment in the case of two or more persons appointed to the grade is the same, the older if not junior to the younger in the next below grade, shall rank senior to the younger person.
' It is clear from section 7 read with Rule 8 that to claim seniority in a specific cadre one has to fulfil following qualifications:-
(i) Regular appointment to the post in that grade;
(ii) Date of one's continuous appointment; and
(iii) Age is the determining factor if the date of continuous appointment is th same subject to the further qualification that the older shall not be joy 'or to the younger in the next below grade.
8. We have gone through the precedent cases relied on behalf of the parties. The learned counsel for the appellant in support of his appeal has relied on the case of Abdul Qadir Hayee v. Secretary Establishment Division, Rawalpindi and 24 others reported as 1982 PLC (C.S.) 200. In this case appellant was deprived of seniority to higher post due to fault of Government, therefore, learned Federal Service Tribunal rectified the error after referring to the judgment of Nasim Hassan Shah as his Lordship then was reported as PLD 1973 Lah.
42. The relevant portion of the judgment reads as under:- "If a civil servant is deprived of serving on a higher post, for no fault of his own, but that occurs due to the fault or mistake of the Government and subsequently it is found that the civil servant was, in fact, entitled to serve on the higher post, he would be entitled to salary of the higher post because he has been deprived of rendering service in the higher post for no fault of his own."
' This is not the case here. Therefore, the judgment of the Federal Service Tribunal is not relevant.
9. On the other hand the learned District Attorney has rightly referred to case of Khizar Haider Malik and others v. Muhammad Rafiq Malik and others reported as 1987 SCMR 78. It was held by the Hon'ble Supreme Court that until respondent No, 1 was promoted and appointed to the post, mere eligibility does not entitle him to seniority. The Hon'ble Supreme Court in this view of the matter allowed the appeal. The contention of the appellant in the present appeal is the same as that of respondent No, 1 in the precedent case. Therefore, the learned District Attorney has rightly relied on this case to defend his argument.
10. Then comes the case of Government of Pakistan v. Muhammad Sadiq reported as 1985 S CM R
699. The learned District Attorney referred to the observation of their Lordships of the Supreme Court to the effect that question of suitability and fitness arises amongst eligible and not amongst ineligibles. The precedent case has no bearing on the matter in the hand.
11. Now finally coming to the case of Ch. Naimat Ullah v. Secretary to Government of the Punjab, Labour Department and two others reported as 1983 PLC (C.S.) 230. In this case the appellant claimed that he is senior to respondents Nos. 2 and 3, who had been promoted to the rank of Assistant Directors and then Deputy Directors vide notifications dated 7-1-1970 and 11-6-1973 respectively while the appellant was not found eligible and remained serving as Labour Officer. The appellant was promoted as Assistant Director and then Deputy Director on 19-4-1973 and 13-5-1976 after acquiring the prerequisite qualifications for the promotion. Once he was promoted as Deputy Director he claimed seniority over the respondents Nos. 2 and 3. The appeal was dismissed. The respondents took up the defence that since the respondents Nos. 2 and 3 were promoted as Assistant Directors on 7-1.1970 as against the appellant, who was promoted in 1973, similarly respondents Nos. 2 and 3 were promoted to the rank of Deputy Directors on 11-6-1973 while appellant was so promoted on 13-5-1976, therefore, he had lost seniority. The Tribunal held that appellant was deprived of his seniority at the stages on promotion as Assistant Director and then.
As Deputy Director. In this view of the matter the appeal was dismissed. In the present case the appellant has yet not been promoted and is seeking seniority against respondents who had already earned regular promotion. The claim is clearly misconceived.
12. Extraordinary leave is dealt with by Rule 9 of the Punjab Leave Rules issued by Punjab Finance Department's Notification dated 1981. Even according to this rule period of extraordinary leave cannot be excluded while computing the length of service. The service will be deemed to be without break. Therefore, this provision also supports plea of the appellant but this point is besides the issue and irrelevant. The appellant being not in the cadre of Assistant Director cannot claim seniority in that cadre.
13. The learned District Attorney has also raised two-fold preliminary objection to the effect that the appeal is time-barred and incompetent because respondents were promoted as Assistant Directors vide notifications dated 31-3-1985 and 28-5-1985 which orders were not assailed by the appellant in any forum. Therefore, he cannot impugne this order indirectly in the garb of seniority.
The appeal against the said orders is clearly time-barred. It is argued that the appeal is incompetent because seniority has been fixed on the basis of these orders which the appellant did not care to impugn at the relevant time.
' On the other hand the learned counsel for the appellant has argued that the appellant is only claiming seniority and in this behalf he has referred to the prayer clause.
14. we have given our anxious considerations to the preliminary objection and reply thereto. We are of the considered view that appellant has failed to spite the promotion orders of the respondents and with it, also, lost seniority in the next cadre and conversely speaking if this appeal is directed against the order of promotion then it is hopelessly time-barred. The appellant while putting forward the plea that the period of 4 years, 2 months and 26 days has not been eluded in his service meant that he was also entitled to promotion as Assistant director. There is not only considerable delay. The respondents were promoted but the appellant had also accepted the order of the promotion of respondents by his conduct. It is too late in the day now to get the promotion orders set aside through collateral attack. The plea which is not available directly cannot be allowed to be raised indirectly in a round-about manner. This will not only set at naught the law of limitation but will also be against the policy and spirit of law.
15. Now if we consider the appeal, as per argument of the learned counsel for the appellant, against seniority list alone then the same is rendered incompetent because the same cannot be interfered until the promotion orders in favour of the respondents are set aside.
16. The result is that we do not find any merit in this appeal. The same is, therefore, dismissed with costs.