ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Appellant Mr. Muhammad Shamim Akhtar was appointed as UDC by way of direct recruitment through open competition alongwith other candidates. He was selected alongwith 46 candidates and accordingly the appointment order was issued in favour of the appellant vide letter dated 21-3-1984 and he was to report for duty on or before 6-4-1984. He joined on 26-3-1984. According to him, his seniority vis-a-vis other colleagues was to position assigned by the Selection Committee where position in order of merit. A provisional seniority list was issued of the UDCs working in the Appraisement, Preventive and Export Departments of the Customs House as on June, 1993, wherein the appellant was shown at S.No. 51 and the respondents were placed junior to him. However, objections were invited and thereafter a revised seniority list of UDCs was issued vide office order dated 4-9-1993 and the appellant was relegated to lower position and he was placed at S.No. 50, while the respondents were placed above his name. Being aggrieved, the appellant filed appeal before the Collector of Customs (Appraisement) Karachi on 9-9-1994 which remained unresponded. He then filed his Tribunal on 5- 1-1994
2. Mr. Sabihuddin Ahmad, the learned counsel appearing for the appellant argued that the appellant and his counterparts were selected by way of direct recruitment in one batch and according to rule their seniority was to be fixed according to merit assigned by the Selection Committee where he got 4th position, and not from the date of joining service as has been done in this case, and it is violative of the law laid down by the Supreme Court in the case reported in 1991 SCMR 1632. He also relied on PLD 1990 SC 672 (Nek Muhammad Ruppal) on the point that periodical seniority lists issued from time to time give fresh cause of action to be agitated before the Tribunal.
3. Mr: S. Abrar A. Bukhari, Advocate appearing on behalf of private respondents 5, 17 and 18, argued that the appeal is barred by limitation and also by law of estoppel. On merits, it is contended that the appellant was appointed as temporary UDC alongwith other batch-mates vide office order dated 12-4-1984 (Annexure A to the objections filed by private respondents 5, 17 and 18) wherein the name of the appellant appeared at S.No. 20 showing his date of appointment as 26-3-1984, while the private respondents appeared above him from the date of appointment earlier than the appellant. He also argued that in the year 1984 a final seniority list of UDCs was prepared and circulated wherein the name of the appellant appeared at S.No. 273 and the respondents were shown above him. He did not object to this list arid not filed any appeal and as such he cannot agitate the same issue at such a belated stage in the year 1984, and the seniority list in the year 1984 by the competent authority could not be rescinded on the principle of locus poenitentiae.
4. Mr. Niaz Ahmad Khan, the learned Standing Counsel argued that under section 8 of the Civil Servants Act, 1973, seniority is not a vested right. According to him, all the appointments were made in 1984 and a final seniority list of UDCs was prepared and circulated wherein the appellant was shown junior to the respondents but he never challenged that list and as such he cannot agitate his grievance in view of the case reported in 1994 PLC (C.S.) 629 (Abdul Hamid Khan v. Secretary, Establishment Division).
5. The appellant has based his claim on the ground that he had secured 4th position according to merit assigned by the Selection Committee and his seniority was to be determined on that basis vis-a-vis his colleagues, but he has not produced any document to substantiate his claim. On the other hand, the learned counsel for private respondents 5, 17 and 18 has placed on record copy of office order dated 12-4-1984 showing date of appointment of the appellants as well as the respondents wherein the appellant's name appeared at S.No. 20, and respondents were placed above him. Finally, a seniority, list of UDCs was prepared and was circulated vide circular dated 1- 11-1984 for objections, according to the respondents' names appeared much above the appellant who was placed at S.No. 278. He did not file objections nor made any representation or appeal before the competent authority and as such accepted that position. Several developments took place between this period when a provisional seniority list of UDCs was prepared and circulated wherein the seniority position of the appellant was improved and he was shown at S.No. 51, but since it was a provisional one and objections were invited from the aggrieved' persons, and after settlement of the objections, the list was made final and it was issued vide office order dated 4-9- 1993 whereby the appellant was relegated to lower position and this gave him cause of action, but the fact is that since he had not challenged earlier seniority list of UDCs issued in 1984 and remained contented with his placement in that list, the subsequent provisional list issued on 3-7- 1993 cannot and should not be taken into account being provisional in view of the reported case PLD 1981 SC 612 (S.H.M.Rizvi and others v. Maqsood Ahmad and others) because appeal against provisional seniority list is not maintainable before the Tribunal, and the subsequent final seniority list issued on 4-9-1993 is not open to exception as the appellant had not challenged the final seniority list issued in 1984. On this, we rely on the decision of Supreme Court reported in 1994 PLC (C.S.) 629 (Abdul Hamid Khan v. Secretary, Establishment Division and others).
6. It was vehemently argued on behalf of the appellant that in the provisional seniority list issued in 1993, appellant was rightlys shown senior. With regard to this assertion, in the comments it has been stated as under :-- "The factual position is that while he was posted in Establishment Branch (Appg) a provisional seniority list of UDCs was prepared by himself. Thus he availed the opportunity to disturb the seniority list issued previously vide this Office Circular No. S-40-1/84-ESTT(A), dated 1-11-1984 (Annexure C) and showed his name above the UDCs who were senior to him according to the above-referred seniority list dated 1-11-1984. It is added that he did not file any objection against the aforesaid seniority list. The perusal of the Office Order No.134/93-ESTT(A), dated 4-7-1993 '
(Annexure D) shows that it bears his name at the bottom of the office order "Shamim" which is sufficient to prove that he had availed the opportunity to disturb the actual seniority list with mala fide intention: Apart from the above facts, it is also the case of official respondents that appellant being party in preparing provisional seniority list manoeuvred to mention himself senior but on the representations of private respondents, the correction was made. The appellant has not filed any counter-affidavit in rebuttal of these submissions.
7. The appeal fails on legal points as stated above and as well as on merits as there is nothing on record that he was assigned merit at S.No. 4. We have no reason to disbelieve the respondents when appellant failed to pursue his matter and remained satisfied with his seniority since 1984.
Consequently, we dismiss appeal with costs.
8.Before parting with the judgment, it may be observed that Mr. Sabihuddin Ahmad, the learned counsel for the appellant, while arguing the appeal made an application for summoning of record.
On the last date of hearing viz.. 1-6-1994, a copy of the comments filed by the official respondents was supplied to the learned counsel. He did not make any such prayer earlier, but today when all the parties were present and there were allegations against the appellant that he had manoeuvred the provisional seniority list, and the position of his seniority was finally determined in 1984 and he remained silent and satisfied therefore, it is irrelevant to call for the record at such a belated stage when the appeal was set for regular hearing and all the parties were ready for arguing the appeal. As such we reject the application accordingly.