SYED ALLY MADAD SHAH (CHAIRMAN).--Appellant Mr. Muhammad Nabi has preferred this appeal for determination of his seniority as Assistant Executive Engineer, P.W.D., Northern Areas.
2. The appellant's case is that he is an Engineering Graduate from the University of Engineering, Lahore. He was appointed as a work-charged Overseer in P.W.D., Northern Areas on 23-7-1973. In October, 1973, the work-charged staff employed in the P.W.D., Northern Areas, were allowed financial terms and conditions as were admissible to regular temporary Government servants. In December, 1973, all the posts in various offices under the control of Resident Commissioner for Northern Areas, Gilgit paid out of development budget, as existing on 16-10-1973, were placed on permanent footing with effect from 16-10-1973. In January, 1974, the appellant and eight other persons which included the respondents Nos, 6, 7 and 8 (M/s. Muzaffar Abbas, Ali Ahmad Jan and Muhammad Yaqoob) belonging to the Engineering Service were appointed as ad hoc Assistant Executive Engineers (B-17) with effect from 1-1-1974. Their services were regularised through the Federal Public Service Commission in 1980 with retrospective effect from 1-1-1974. In the Gazette notification issued on 23-12-1981, the appellant's name was notified at S.No, 22 while the names of the respondents 6, 7 and 8 were mentioned at S.No, 26, 27 and 25 respectively. In a seniority list, the appellant's name was placed at S.No, 1, while the names of respondents 6, 7 and 8 were mentioned at S.Nos, 5, 6 and 4 respectively. The respondent No, 6 made representation that he was initially appointed as Assistant Executive Engineer with effect from 1-4-1973 and his seniority may be reckoned from that date. He even filed a writ petition in the Lahore High Court, Rawalpindi Bench.
The respondents 6, 7 and 8 succeeded in getting the seniority list revised in March, 1987 wherein their names were placed at S.Nos, 1, 2 and 3 respectively and the appellant's name appeared at S.No,
4. The appellant challenged the revised seniority list by way of departmental appeal made on 30th March, 1987. Failing to get any orders on his appeal, he preferred this appeal on 1-7-1987. .
3. The appellant's contention is that there were three categories of work-charged staff who were serving in the Northern Areas P.W.D. as enlisted below:--
(i) those who were appointed as regular temporary work-charged staff for annual repairs and maintenance, usually called R.T.E. charged against Head 34 F.R. 8 Works;
(ii) those who were appointed against properly created duly sanctioned posts for which provision was specifically made against the development budget in Head 63-A Development; and (iii)work-charged staff who were purely temporary ad hoc appointees against no specific posts taken on casual labour duty daily paid works for certain specific projects.
The appellant's grievance is that the revised seniority list impugned by him was prepared on wrong premises as the respondents 6, 7 and 8 have been given benefit of their earlier service which was of casual nature whereas the seniority is reckoned from the date of regular appointment and the seniority list issued under the advice of the Establishment Division under their letter dated 1-2-1987 is against the rules and orders.
4. The respondents have resisted the appeal. The contention of the department is that the appellant as well as the respondents 6, 7 and 8 had entered the service as temporary Overseers and their services were regularised with effect from 1-4-1973 and their inter se seniority was ultimately determined on the basis of their initial entry in the service after obtaining opinion of the Justice Division and it was done in accordance with the relevant rules/orders. They have challenged the maintainability of the appeal on legal grounds as well. Similar stand has been taken by the respondents 6 and 8 in their written objections. They have also raised legal pleas that the appeal is time-barred and also not maintainable as no departmental appeal was filed. The respondent No, 7 has not filed written objections.
5. The determination of the question of seniority agitated by the appellant and the respondents No, 6, 7 and 8 needs reference to the nature of the service they were appointed to and the nature of their initial appointments and subsequent developments in the service set up. These facts are outlined in the memo. of appeal and the written objections filed by the Government and there is reference to several documents. The facts picked up from the pleadings of the parties are that there were two categories of work-charged staff in the Northern Areas P.W.D.; one consisting of those employees who were appointed against annual repair and maintenance works (Head 34- FR-B-Works); and another comprising those who were appointed against development budget (Head 63-A-Development). The appellant and the respondents 6 to 8 were appointed in category
2. According to the department, the work-charged establishment of Northern Areas P.W.D. were brought on regular/permanent footing with effect from 16-10-1973 as per Kashmir Affairs Division Endorsement No, E-II-1/19/73, dated 10-11-1973 and No, DNA-16(2)/73, dated 15-12-1973. Accordingly, following office order of appointment of the appellant and the respondents 6 to 8 and some other incumbents was issued on 16-1-1974 (Annexure 'F' to the written statement by the Government):-- No, Res-26(7)/73 Government of Pakistan Office of the Resident Commissioner NAs Gilgit, dated the 16th Jan. 1974.
Office Order The following persons are appointed on ad hoc basis in Grade-17 against the ten sanctioned posts of Assistant Executive Engineer/Assistant' Engineer and posted to officiate as Assistant Executive Engineer to the places noted against each with effect from 1-1-1974 (F.N.) subject to their being declared fit by competent medical authority:-- Sr. No. Name of Person Remarks
1. Mr. Ali Ahmed Jan, Assistant Executive Engineer (Survey and Investigation). Transferred and appointed in newly created circle, Office Baltistan.
2. Mr. Muzaffar Abbas, Assistant Executive Engineer (Survey and Investigation).Transferred and appointed in newly created E & M Division of Water and Power Division, Gilgit.
3. Mr. Muhammad Ghazi Khan, Assistant Executive Engineer, B.Sc.
Gilgit. Transferred and posted to (B&R)
Gilgit Division No, II Gilgit vice Mr. Attiqullah transferred to the newly created Bunji Sub-Division.
4. Mr. Muhammad Yaqoob B.Sc.
(Mech.) resident of Gilgit. Promoted and posted to the newly created Circle Office Baltistan.
5. Mr. Muhammad Nabi, B.Sc. (Z/N), resident of Yasin Gilgit. Promoted and posted to the newly created Water Supply and Sanitary Division, Gilgit with Headquarter at Gupis.
6. Mr. Abdul Amir, B.Sc. (E&M) resident of Gupis. Promoted and posted to the newly created Circle of the Baltistan.
7. Mr. Gohar Aman, B.Sc. Engineering (Civil) resident of Nagar. Promoted and posted to the (B&R)
Division No, II, SKD.
8. Mr. Ruhullah, B.Sc.
(Elect.) resident of Baltistan.Appointed and posted to the newly created Circle Office Baltistan, Skardu.
9. Mr. Ghulam Hussain Mir, B.Sc.
Engineering (Civil) resident of Gilgit. Appointed and posted to Sub- Division in B & R, Baltistan Skardu.
Sd/- IJLAL HUSSAIN Resident and Commissioner for Northern Areas, Gilgit.
Thereafter, a seniority list of Assistant Engineers (B-17) was issued wherein the appellant's name appeared at S.No, 1 and those of the respondents 6, 7 and 8 at S.No, 5, 6 and 4 respectively, on the basis of their ages, the older having precedence over the younger. Later, by notification No, 2398/81, dated 23-12-1981 (Annexure 'G' to the written objections by the Government), the appointment of 36 Assistant Executive Engineers/Assistant Engineers was regularised from the dates shown against their names. The appellant's name appeared at S.No, 22 and date of regularisation of his appointment was mentioned as 1-1-1974, whereas the names of the respondents Muzaffar Abbas, All Ahmad Jan and Muhammad Yaqoob were respectively shown at S.No, 26, 27 and 25 and the date of regularisation of their service was mentioned as 1-1-1974. It was, however, mentioned in the order that the names of the incumbents were not arranged in the order of their respective seniority.
Some of the Assistant Executive Engineers previously employed in the development scheme work- charged service, the appellant and the respondents initially entered into, made representation on the basis of the Government of Pakistan, Kashmir Affairs Division O.M. No, DNA-10(2)/73, dated 15- 12-1973 that the President had been pleased to bring on permanent footing the work-charged service they were holding prior to 16-10-1973. This fact is indicated in the letter dated 23-10-1983 addressed to the Ministry of Defence from HQ Force, Northern Areas (Annex. `H' to the written objections filed by the Government). The matter was referred to the Establishment Division. The Establishment Division advised under their O.M. No, 1/44/86.R.4, dated 1-2-1987 (Annexure T to the written objections) that work-charged service when followed by specific order of competent authority under section 23 of the Civil Servants Act, 1973 became regular in service and, therefore, the work-charged posts holders in Northern Areas P.W.D. on 16-10-1973 made regular as per Kashmir Affairs and Northern Affairs Division letter No, DNA-10(2)/73, dated 15-12-1.973 and letter No, E-II.7/22/73, dated 10-10-1973 would count their earlier service. Similar advice was rendered by the Justice Division also vide their U/O dated 3-12-1987 and the seniority list of the Assistant Executive Engineers (E&M) was revised accordingly (Annexure 'K' to the written objections) under Chief Engineer's office letter No, E-1/100/6/84-11I, dated 3-3-1987. The appellant and the respondents were placed in the seniority list on the basis of the dates of their initial entry in the service and the respondents were placed above the appellant. Since all the posts in various offices under the control of the Resident Commissioner for Northern Areas, paid out of development budget, as they were existing on 16-10-1973, were brought on permanent footing from that date, as aforesaid, the appointment of the appellant and the respondents against some of those posts stood regularised.
In that eventuality they could count their previous service for all purposes including seniority. It follows that the respondents who were appointed as Assistant Engineers earlier than the appellant were rightly allowed seniority over the appellant and he has no case to succeed.
6. The legal objections advanced by the Government are that the appeal is not maintainable as the appellant did not have locus standi to file appeal and the appeal was also barred by section 10 of the C.P.C. as a writ petition in respect of the same matter was pending before the Lahore High Court and the appeal was also bad for non-joinder of necessary parties. The respondents 6 and 8 have raised the legal pleas that the appeal is time-barred and is also incompetent as departmental remedy was not availed of. The appellant did have locus standi for presenting the appeal as his seniority was disturbed. The pendency of the writ petition before the Lahore High Court did not stand in the appellant's way to file this appeal before the appropriate forum and section 10, C.P.C. did not apply. The appellant has disputed his seniority vis-a-vis that of the respondents 6, 7 and 8 and they have been impleaded in the appeal and none else was to be impleaded as party. The appellant has preferred appeal against the seniority list issued on 3-3- 1987. He made representation against it on 3-3-1987. He awaited decision thereon, but he did not get order within the statutory period of 90 days and he filed the appeal on 1-7-1987 i,e, well within the period of limitation of 120 days. Thus, there is no force in the legal pleas raised by the respondents.
7. For the reasons recorded above that the appellant does not have a ease I on merits, the appeal is dismissed with no order as to costs.