1. ' SAHIBZADA MUHAMMAD FARIDUN KHAN (MEMBER).-- The appellants were employees of the ex- State of Swat serving as Lecturers. After merger of Swat State they were absorbed as Lecturers in BPS-17 in the Education Department of N.-W.F.P. They were promoted as Assistant Professors with effect from 1-2-1978, and since then were serving as such in the Education Department.
2. ' Learned Counsel for the appellants while pleading the case referred to para. 6 of the integration scheme order of 1st January, 1971 wherein it had been laid down that "for purposes of seniority the States' employees shall be determined with reference to the date of continuous appointment, substantive or otherwise, to a particular grade. Service both before and after the date of integration will be taken into account. The seniority of the former employees of the States' shall be fixed vis-a-vis the Provincial Government's employees on the same basis. In case two officers are bracketted together, owing to their appointment taking effect from the same date, the older official shall be given seniority over the other. The orders in this paragraph are subject to the proviso that inter-se seniority of officials belonging to the same integrating Unit shall not be altered".
3. ' The aforesaid paragraph 6 of the order of 1st January, 1971 was very much clear about the determination of seniority of the former State officials which was to be fixed with effect from their continuous appointment to a particular grade. The appellants Sher Ali, Abdul Wadood and Amir Ahmad were appointed to the service on 1-9-1965, 19-9-1965 and 1-11-1965 respectively while appellant Bakhtiar Ahmad was appointed on 20-9-1963. The Service Tribunal in Appeal No,31 of 1979 had already declared appellants Sher Ali, Abdul Wadood and Amir Ahmad senior to respondents who were challenged in that appeal but the respondents Nos.3 to 14 and 25 to 27 who had recently been promoted to BPS-19 in the impugned order dated 30-5-1988 were not challenged as respondents in the earlier appeal. So far Bakhtiar Ahmad was concerned his name was nowhere reflected in the aforesaid appeal. Similarly Bakhtiar Ahmad also appeared nowhere in service Appeal No,49 of 1989 and Appeal No,56 of 1987.
4. ' The respondents Nos.1 and 2 prepared a seniority list in 1976 which was challenged by Mirza Rashid Ahmad and subsequently by the appellants in the Peshawar High Court, Peshawar in Writ Petition No,55 of 1977 and 387 of 1977 respectively. In Writ Petition No,55 of 1977 representatives of respondents Nos.1 and 2 Mr. Muhammad Sharif, Assistant Director (Colleges), Mr. Said Noor Badshah, Section Officer (Colleges), and Mr. M. Sardar Khan, Advocate-General, N.-W.F.P., in their recorded statement dated 25-9-1978 stated before the High Court that the Provincial seniority list had been superseded and the objections of the petitioner were duly considered and he had been given due place in the seniority list which was prepared and sent to Government for publication. On the assurance of the learned Advocate-General and the two representatives of the concerned department, the case was dismissed as withdrawn on 25-9-1978. The case in Writ Petition No,367 of 1977 being identical to Writ Petition No,55 of 1977 was also dismissed as withdrawn on 25-9-1978.
5. ' Seniority list of the Lecturers BPS-17 of Collegiate Branch (Male Section) was prepared as it stood on 2-12-1978. In that way the names of those Lecturers who were promoted by that time were excluded from the seniority list in BPS-17. In fact the provisional seniority list prepared in 1976 should have been corrected and made the base for determining seniority in BPS-17 which had not been done in spite of the commitment made in the High Court Peshawar on 25-9-1978. Though the respondents Nos.1 and 2 had prepared seniority list of the Assistant Professors (BPS-18) as it stood on 18-11-1986 under endorsement No,SO(Colleges)1-37/78/86, dated 22-11-1986 which also appeared to be incomplete as the sanctioned posts in BPS-18 had been shown 202 permanent plus 113 temporary made a total of 315, whereas the seniority list included the names of only 47 Assistant Professors against a sanctioned strength of 315. The respondents Nos.1 and 2 have not yet corrected the provisional seniority list of 1976 earlier prepared for Lecturers (BPS-17). Instead of doing away with the provisional seniority list of 1976 of the Lecturers (BPS-17) the respondents should have invited the objections from all contesting parties and in the light of the proposals/suggestions/objections prepared the final seniority list 1976. The respondents Nos.1 and 2 were also bound to prepare the seniority list of the Lecturers in the light of integration scheme order of 1st January, 1971 with effect from 1-1-1971.
6. ' Learned Government Pleader argued that seniority of respondents was never challenged earlier by the appellants when provisional seniority list of Lecturers was published on 10-4-1976 and later on when final seniority list of Lecturers was published on 2-12-1978. He further argued that seniority of the respondents was neither challenged in BPS-17 nor their promotion in BPS-18 was challenged by the appellants. Moreover, respondents were not made parties in the earlier appeals. He also stated that the respondents belong to the batch of 1963 whereas the appellants were appointed on 1-9-1965, 1-9-1965, 1-11-1965 and 20-9-1963.
7. ' Learned counsel for respondent No,7 argued that provisional seniority list of Lecturers was published on 10-4-1976 and appellants approached the Service Tribunal in 1979 and as such he was of the view that the case was time-barred. The other point raised was that the appellants were in possession of third class MA/MSc. Degree and as such were not qualified for the post of Lecturers till such time their qualifications were relaxed by the Government.
8. ' We have heard the learned counsel for the appellants, learned counsel for respondent No,7 and the learned Government Pleader. We also examined the relevant record of the case. Provisional integrated seniority list of Lecturers was circulated to all the Principals of Government Colleges (Male Section) in N.-W.F.P. Including FR Colleges by the Director of Education N.-W.F.P. Peshawar on 10-4-1976. Objections if any thereon were invited on or before 15-4-1976 and it was clarified that no representations etc. Would be considered after the prescribed date. Obviously it was not possible to make representations etc. Within the stipulated period of time. In fact the aforesaid provisional integrated seniority list reached office of the Principal, Government Jehanzeb College, Swat on 15- 4-1976 which was the last date for filing objections for those who felt themselves wrongly placed.
9. However, twelve Lecturers of Government Jehanzeb College, Swat including the appellants made a common representation to the Director Education N.-W.F.P., through the Principal Government Jehanzeb College Swat on 5-5-1976 for fixation of their seniority in accordance with paragraph 6 of the integration scheme order of 1st January, 1971. The aforesaid representation was forwarded to the Director of Education by the Principal, Government Jehanzeb College, Swat on 5-5-1976. The appellants alongwith eight other Lecturers filed Service Appeal No,55 of 1976 on 1-9-1976 against the integrated seniority list of Lecturers of the Education Department N.-W.F.P., dated 10-4-1976 but in view of the statement of appellants' counsel the appeal was dismissed in limine as withdrawn.
10. ' The appellants alongwith seven other Lecturers filed a Writ Petition No,367 of 1977 in the Peshawar High Court, Peshawar under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for an order directing respondent No,1 to prepare and publish the final seniority list of Lecturers of the Department of Education, Government of N.-W.F.P., and, until the preparation of such final seniority list, enjoining respondent No,1 from promoting any one junior to the petitioners including respondents Nos.3, 4 and 6 to the grade of Assistant Professor in the Department.
11. ' In an identical writ petition No,55 of 1977 filed in the Peshawar High Court, Peshawar by Mirza Rashid Ahmad, Principal, Government Intermediate College, Yakka Ghund Mehmand Agency, a statement in writing duly authenticated by Justice Shah Nawaz Khan and Justice S. Usman Ali Shah, was recorded in the Court on 25-9-1978 by Said Noor Badshah, Section Officer Education Department N.-W.F.P. Peshawar, Muhammad Sharif, Assistant Director, Directorate of Education Department, N.-W.F.P. That "on the information supplied to the Advocate-General by the representatives of the concerned department present in. Court and the two representatives of the department present state that the provisional seniority list on the basis of which the petitioner came to this Court for remedy has since been superseded by Notification No,SO(Colleges)
12. 10/47/72, dated 14th September, 1978 of the Government of N.-W.F.P. Education Department and that the objections of the petitioner were considered and he has been given due seniority in the list which has been prepared and has been sent to the Government for publication in the official gazette, and it is expected that it shall be published within a month's time". On the basis of assurance given to the petitioner by the learned Advocate-General and the two representatives of the concerned department, counsel for the petitioner did not like to proceed further with the petition and requested that the writ petition may be dismissed as withdrawn. The petition was accordingly dismissed as withdrawn.
13. ' In view of decision made in Writ Petition No,55 of 1977 and as the facts of the Writ Petition No,367 of 1977 filed by the appellants were identical it was also dismissed as withdrawn on 25-9-1978.
14. ' The appellants Sher Ali Khan, Abdul Wadood and Amir Ahmad Khan filed Service Appeal No,30 of 1979 in the N.-W.F.P. Service Tribunal, Peshawar. While deciding Service Appeal No,31 of 1979 the Service Tribunal disposed of four appeals particularised below as those were out of the same facts and the seniority list and the same law points were involved:
1. Muhammad Ilyas and two others v. Government of N.-W.F.P. And others (Appeal No,28 of 1979).
2. Akbar Hussain v. Government of N.-W.F.P. (Appeal No,29 of 1979).
3. Sher Ali Khan and two others v. Government of N.-W.F.P. (Appeal No,30 of 1979).
4. Shah Alam Khan and two others v. Government of N.-W.F.P. (Appeal No,31 of 1979).
15. ' In paragraph 22 of the order of the Service Tribunal Appeal No,30 of 1979 viz. Sher Ali Khan and two others v. Government of N.-W.F.P. And others it was decided that "The appellants Sher Ali, Abdul Wadood and Amir Ahmad were appointed to the service on 1-9-1965, 1-9-1965 and 1-11-1965 respectively, while the respondents 3 to 39 were appointed after those dates. Hence, their appeal is accepted and they are held senior to, the said respondents namely 3 to 39". The aforesaid decision was announced on 10-1-1990. However, seniority of none of the respondents Nos.3 to 14 promoted to BPS-19 under Government of N.-W.F.P. Notification No,SO(Colleges)III-28 of 1984, dated 30-5-1988 was challenged by the appellants.
16. ' Against the judgment of Service Tribunal N.-W.F.P. Peshawar dated 10-1-1980 Habibullah and other Lecturers filed Civil Appeal No,148 of 1980 v. Government of N.-W.F.P. Through Secretary Education Department and others in the Supreme Court of Pakistan. The Supreme Court of Pakistan dealt with Civil Appeals Nos. 147 and 148 of 1980 and Civil Appeal No,156 of 1981 collectively on the understanding that the question of law requiring examination in all the three appeals is the same.
17. In the judgment dated 9-3-1986 it was clarified that "those recruited under the order cannot make their seniority to a date earlier than 1-1-1970. Under the order the date of taking over is immaterial, for in the case of those recruited under the order, date of induction is 28-2-1970 but seniority has been allowed from 1-1-1970. In the case of the recruits under the Rules, the date of appointment in service may be subsequent to 1-1-1970 but if the recommendation is relatable to 1967 or 1968 selection then they take back their seniority to those selections. In this manner there remains no conflict to be resolved for seniority will follow the batches in order, 1967, 1968, 1970, there being none for 1969, the requisition having been recalled".
18. ' The Supreme Court of Pakistan ordered that "All the three appeals are accepted, the impugned judgments of the two Service Tribunals set aside. The seniority list as notified in Punjab, is restored, that of N.-W.F.P. Is partially set aside in so far as 1968 batch selectees were relegated to a position lower than those recruited under the order. After resettling the seniority list the N.-W.F.P.
19. Government shall take steps to extend the appropriate benefit of resettled seniority, to those who were deprived of it due to its incorrect fixation of their seniority".
20. ' The appellant Sher Ali Khan, Abdul Wadood and Amir Ahmad filed Service Appeal No,49 of 1987 versus respondents Nos.1 and 2 in the Service Tribunal N.-W.F.P. Which was combinedly decided alongwith four other Service Appeals Nos.46 to 48 of 1987 and 56 of 1987 as common question of law and fact was involved in all the 5 appeals.
21. ' In the judgment of Service Tribunal dated 9-6-1988 it was concluded that "instead of treating the seniority list dated 30-12-1986 as final, the respondents Nos.1 and 2 were bound to invite the objections from all the contested parties and then in the light of the proposals/suggestions/objections they should have prepared the final seniority list. Mere writing that the order of the Supreme Court was complied with by them would not be sufficient. At least on the record there must have been some objections/suggestions/proposals by the interested parties. At the same time respondents should also take into consideration the fact that earlier judgment in favour of appellants also holds the ground as none of the respondents have challenged the same in the Supreme Court. Over and above this the respondents were duty bound to prepare the seniority list in the light of the Merger Scheme". In the light of above conclusion the appeal was accepted, the impugned seniority list set aside and the case remanded to respondent No,2 with the directions to invite objections to the seniority list and then to prepare the final seniority list.
22. ' Provisional seniority list of 800 Lecturers BPS-17 of Collegiate Branch (Men's Section) Education Department as it stood on 2nd December, 1978 was prepared and objections/representations invited on 12-11-1988. The provisional seniority list appeared to have been haphazardly prepared as in some cases no data was incorporated therein. The same seniority list was declared as final seniority list. The names of those Lecturers in BPS-17 who were promoted as Assistant Professors in BPS-18 in officiating capacity and confirmed were also not included in the seniority list of Lecturers BPS-17, though till their confirmation in BPS-18 they should have been reflected in the seniority list as confirmed Lecturers in BPS-17. The seniority list of Lecturers BPS-17 is thus incomplete and is required to be prepared afresh complete in all respects.
23. ' Final seniority list of 47 Assistant Professors BPS-18 Collegiate Branch (Men's Section) Education Department as it stood on 18-11-1986 was prepared and published on 22-11-1986. This also appeared to be incomplete as the number of sanctioned posts in BPS-18 was 202 permanent plus 113 temporary making a total strength of 315. This is also required to be completed.
24. So far as the promotion of respondents Nos.3 to 14 to BPS-19 is concerned they were promoted earlier as Assistant Professors to BPS-18 on 28-5-1977 whereas the appellants were promoted later on as Assistant Professors to BPS-18 on 1-2-1978. The appellants have neither challenged seniority promotion of the respondents 3 to 14 in BPS-18 at any stage at the departmental A level nor in the Service Tribunal and thus impliedly admitted their seniority in BPS-18. After establishment of seniority in BPS-18 the respondents Nos.3 to 14 had a legal right for earlier promotion to BPS-19 than the appellants. Thus, respondents Nos.3 to 14 have correctly been promoted from BPS-18 to BPS-19 by the Government in consultation with the Provincial Selection Board.
25. ' We after hearing arguments of the learned counsel for the appellants, learned Counsel for respondent No,7, learned Government Pleader and having gone through all the record hereby direct respondent No,2 to review seniority list of Lecturers BPS-17 and include the names of those Assistant Professors BPS-18 B therein who have not been confirmed in BPS-18 on 2-12-1978. We also direct respondent No,2 to complete seniority list of Assistant Professors BPS-18 and include the left over names of the Assistant Professors BPS-18 as they stood on 18-11-1986.
26. ' The appellants had not challenged the seniority of respondents Nos.3 to 14 at any stage in their earlier appeal in the Service Tribunal. They have also not represented against earlier promotion and seniority in BPS-18 of respondents Nos.3 to 14 to the Department/Government. Therefore, the appeal is dismissed. Parties are left to bear their own costs. File be consigned to the record room.