SHAFIUR RAHMAN, J.----Leave to appeal was granted under Article 212(3) of the Constitution to examine the following questions of law:-- "(1) Whether the parawise comments submitted in the High Court qualify as final order to justify appeal to tribunal?
(2) Whether decision in Manzoorullah's case has any bearing on the question raised by the petitioner in his service appeal?
(3) Whether the regularization of the respondents of the ad hoc appointment from a retrospective date is legally in order?"
2. The appellant was directly recruited on 1-11-1974 as Assistant Food Technologist (Processing), Ayub Agricultural Research Institute, Faisalabad. Mian Abdul Malik, respondent No,1 started as Assistant Technologist (Rice) on ad hoc basis on 25-10-1973 but the Governor by an order passed in 1980 regularised his appointment from 24-10-1973 on a summary submitted on the basis of a decision rendered in Civil suit No,285 of 1974 to the following effect (the plaintiff therein being Mr Abdul Malik and the date of decision being 18-3-1975:--- "The plaintiff is, therefore, granted a decree against the defendants for declaration to the effect that the plaintiff is exclusively entitled to be promoted as Class-II officer (Now designated as Class- I Junior Officer under the purview of Scale-17). In the cadre of Punjab Agriculture Service (Rice Research Institute Service) no Research Assistant from any other cadre, as for example the Punjab Agricultural Institute, Lyallpur, is eligible to be promoted against the vacancy occurring in Class-II Service, Rice Research Institute, Kala Shah Kaku. Defendant No,1 is hereby restrained for ever from promoting Class-I Junior Officer from the other cadre till the plaintiff is promoted. The plaintiff is also entitled to the costs of this suit."
' But, for this dispensation the respondent No,1 (Mian Abdul Malik) would have been junior to the appellant. Dr. Muhammad Aslam Mian was promoted in the same grade on regular basis on 9-9- 1976 but he was shown in the seniority list senior to the appellant allegedly on an erroneous basis that his junior Ghulam Hussain Shaheen on account of earlier promotion had become junior to the appellant thereby depressing the seniority of the appellant. The appellant also claimed seniority against respondent No,3 (Dr Abdul Hague) who was a direct recruit competing in the same selection with the appellant but who had taken over the appointment earlier when no merit inter se was assigned by the Commission. The_ fourth,,,-respondent (Mr.Manzoor Ullah) whose review application has also been dismissed by the Supreme Court, had also become senior to the appellant but that controversy is no longer live issue as Manzoor Ullah's seniority had been depressed and brought to its correct legal level by the decision given by this Court in Inayat All and another v. Manzoor Ullah and another (1987 SCM R 407). The appellant represented against the incorrect allocation of seniority and on getting no response at all, insituted a Costitution Petition in the High Court and on the parawise comments by the Department, the High Court passed the following order:-- "Grievance of the petitioner is that his appeals and subsequent representations regarding his seniority have not been disposed of till today. Departmental representative present in Court states that the comments now submitted in this Court on 13-7-1987, which have been duly approved by the Secretary Agriculture, wherein the petitioner's stand about seniority has not been accepted, should be treated as disposal of his appeals and representations. In view of this statement of the departmental representative, no further action is called for in the writ petition, which stands disposed of in limine."
3. This prompted the appellant to approach the Service Tribunal in the matter which narrated the facts and the arguments and disposed of the whole case by making the following observations:-- "Having heard the parties and their learned counsel at some length and perused all record, we find much force in the counter-arguments advanced on behalf of the Respondents, as reproduced in para-5 above which are fully borne out from the relevant record."
The appeal was held not competent or maintainable under the law and dismissed.
4. This appeal was heard along with Civil Appeals Nos.190/1988 and 191/1988 as they all relate to the same service. The disposal of this appeal is taking place separately because the leave granting order is somewhat differently worded and the respondents arrayed and the background of their claim is also somewhat different. However, even for this appeal, the two questions already resolved, one, in Mr. Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab and 2 others PLD 1991 SC 35 that seniority is a vested right in B Punjab and cannot be overridden even by the Governor except in accordance with the law and the other, that allocation, seniroity and eligibility by reference to the I r redesignated groups in the service to which the parties belonged was against the law, are relevant and form the foundation of this judgment too.
5. There is no requirement of law provided anywhere as to how a final order is to be passed in a departmental proceeding. In the present case, not only the representative of the competent authority considered the comments offered in the High Court to be the final order but the High Court itself acted on such representation thereby inducing the appellant to seek further relief in accordance with law. The appellant could, in the circumstances, approach the Service Tribunal for the relief.
6. The decision in Manzoor Ullah's case and the other two cases referred to above lay down the law that ad hoc appointment could not be regularised in a manner to adversely affect the seniority right of others which had become vested. Such a dispensation was forthcoming in the case of Mr. Abdul Malik respondent No,1. This dispensation in favour of respondent No,1 was without lawful authority and of no legal effect for two reasons. Sub-Article (2) of Article 212 of the Constitution provides as hereunder:- "Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shall abate on such establishment: ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal."
7. In the Punjab, the Civil Servants Act was enforced on 4th of June, 1974 and the Punjab Service Tribunal was established also the same year. Section 8 of the Punjab Service Tribunals Act, 1974 provided for abatement of all suits, appeals and applications pending in any Court regarding any matter within the jurisdiction of a Tribunal. The relief procured by respondent No,1 was with regard to his eligibility for promotion under the Rules and these related to or concerned his terms and conditions of service. This decree had no legal value as such in view of the compulsive constitutional provisions. Secondly, independently of it, Governor had no power to so regularise the period as to adversely affect the seniority of others. The respondent No,1 may avail of that Order of the Governor but not for the purposes of seniority as laid down by this Court in the case of Mr. Muhammad Iqbal Khokhar PLD 1991 SC 35.
8. As regards respondent No,2, in the comments the Department stated as hereunder:-- "Dr.Muhammad Aslam Mian had gone on study abroad to Australia for Ph.D. And in absentia he could not be considered for promotion and on his joining back the Department he was promoted as Assistant Food Technologist w,e,f, 9-9-1976. He was given seniority by the Departmental Promotion Committee in its meeting held on 29-6-1981 over Mr. Ghulam Hussain Shaheen with effect from the date who was junior to him and was promoted/adjusted against the post of Assistant Agricultural Chemist (Micro Biology) i,e, 29-3-1974. Thus Mr. Sabir Zameer Siddiqi has no case to claim seniority above Dr. Muhammad Aslam Mian."
9. We find from the record that in the seniority list as it stood on 31-7-1971, Mr. Ghulam Hussain Shaheen was shown to have entered into Government service and remained in continuous service since 4-2-1966 but for determining his seniority he was made junior to Mr. Muhammad Aslam Mian by changing his date from 4-2-1966 to 17-2-1969 (which is also the date of entry of Mr. Muhammad Aslam Mian into Government service) by taking him to be a recruit by transfer. The Service Rules of 1963 make no provision for transfer nor was it a case of transfer as envisaged by the Appointment Rules of 1974 which could have retrospective operation. Hence, the denial of seniority to the appellant on the ground that Mr. Ghulam Hussain Shaheen, a junior to Mr. Muhammad Aslam Mian had become senior to appellant is based on an erroneous view of the law and is not supported by any rule.
10. As regards the claim of the appellant against Dr.Muhammad Abdul Hague (respondent No,3) is concerned, it cannot prevail because the advertisement was one, the selection was one, the interview held in the morning or in the evening would make no difference and the Commission having not assigned seniority inter see those selected and there being nothing in the general principles of seniority to regulate this situation the decision of Supreme Court in Khushi Muhammad and 3 others v. General Manager (now Vice-Chairman), Pakistan Western Railways, Headquarters Office, Lahore and 27 others PLD 1970 SC 203 will govern the situation.
11. The result of the above discussion is that the appeal is allowed to the extent that the appellant shall have seniority over respondents Nos.1, 2 and 4 as claimed by him but not against respondent No,3. The appeal is allowed to this extent that the claim against respondents Nos.1, 2 and 4 succeeds but fails against respondent No,3. No order is made as to costs.