ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --The facts of this appeal are that the appellant joined service under the former East Pakistan, now Bangla Desh, as Agronomical Assistant on 31-10-1966 and was declared as Gazetted Class-I Officer with effect from 30-9-1969. After the fall of Dacca, he came to Pakistan in 1974 and joined service in a non-gazetted position with the Atomic Energy Agricultural Research Centre, Tandojam. In pursuance of the Provisions of ex-employees of the Former Government of East Pakistan (Appointment to Federal Posts) Ordinance, 1983 (hereinafter referred to 1983 Ordinance) and approval of the Establishment Division contained in its O.M. Dated 26-2-1986, the appellant joined as Seed Certification Officer (BPS-17) in the Department of Seed Certification under the Ministry of Food and Agriculture, on 20th March, 1986, and according to the appellant this is the date of his absorption. The case of the appellant is that under the provisions of Article 4 of 1983 Ordinance, his Class-I service rendered in the former East Pakistan from 30-9-1969 is to be counted for determining his seniority in Grade-17. It appears that the matter of fixation of his seniority remained under correspondence between his administrative Ministry of Food and Agriculture and the Establishment Division and the Establishment Division gave its opinion vide O.M.
Dated 23rd September, 1989 that service rendered under the former Government of East Pakistan by an employee shall count towards seniority if he is appointed to the scale of the same post he was holding in East Pakistan. As regards counting of the period from 17-3-1974 to 16-12-1974 it was to be treated as extraordinary leave without pay. A copy of the Establishment Division dated 23-9- 1989 was supplied to the appellant vide letter dated 18-10-1989. He agitated the matter with his department and the matter was taken up by the Ministry of Food and Agriculture with the Establishment Division and finally it was decided vide O.M. No. 2/16/72-- RC(Estt) Vig dated 1-12- 1991. The department of Federal Seed Certification prepared the seniority list on the basis of the Establishment Division advice and the same was issued on 31-12-1992 wherein the name of the appellant was mentioned at S.No.15, instead of 20. He was still not satisfied with this position and accordingly filed an appeal on 10-11-1993 to the Secretary Ministry of Food & Agriculture. However, the Deputy Director, Department of Federal Seed Certification, Islamabad vide letter dated 26-1- 1994 addressed to the Deputy Director, Hyderabad that the case of the appellant had already been decided by the Establishment Division vide O.M. Dated 1-12-1991. Treating this letter as final rejection order, the appellant has filed this appeal before this Tribunal on 14-2-1994, for fixation of his seniority from 30-9-1969 and pension from 31-10-1966 as well as promotion with retrospective effect.
2. We have heard the appellant at length. It is contended that he is entitled to seniority according to section 4 of the Ordinance. The Department of Federal Seed Certification (respondent No. 1) has filed comments and the learned counsel representing the respondent-department, Mr. Niaz Ahmed Khan, argued that the appellant earlier also filed Appeal No. 16(K)/91 wherein similar relief was sought but in view of the statement of the learned counsel for the appellant, appeal was accepted to the extent of payment of salary from the date he arrived in Pakistan, and the Tribunal by order dated 12-12-1992 directed the respondent-department that the pay of the appellant be fixed in B--17 with effect from 18-3-1974 but he will not be entitled to any arrears. The Government filed appeal before the Supreme Court against the aforesaid decision of the Tribunal and the Supreme Court in Civil Petition for Leave to Appeal No. 70-K of 1993, by order dated 21-3-1993, refused leave. Appellant also filed Civil Petition for Leave against that order of Tribunal for the reliefs which were not granted by the Tribunal but according to him he had withdrawn the same. It is argued that the same question cannot be agitated again. On merits, he submitted that the appellant's seniority has rightly been determined m view of the Establishment Division's advice.
3. We have carefully considered that submissions of the parties and perused the record. The appellant had earlier filed Appeal No. 16(K)/91, wherein more or less the same relief as prayed in this appeal was sought, which was partly allowed by this Tribunal by order dated 12-12-1992, with the direction that the pay of the appellant be fixed in B-17 with effect from 18-3-1974 but the appellant was not entitled to arrears. The Government went in appeal against the judgment of this Tribunal before the Supreme Court, but leave to appeal was refused. As such, the judgment of the Tribunal attained finality. Accordingly, this appeal for the same cause of action is not competent.
4. The appeal also fails on two legal points--firstly non-joinder of necessary parties, because if the appeal succeeds and the appellant is allowed seniority, then there will be so many persons who will be affected by the decision and under the rules they are necessary party and no order can be passed against them behind their back. The contention of appellant is that his seniority be fixed at S. No. 1 upsetting seniority of fourteen others. In view of the decision of the Supreme Court reported in 1986 SCM R 680 (Muhammad Iqbal Rafi and others v. Province of Punjab and others) and Rule 7 of the Service Tribunal (Procedure) Rules, 1974, this appeal is not maintainable.
5. The question of fixation of seniority of the appellant on his representations made from time to time was pending since 1989 and stood finally decided by the Establishment division in consultation with the Law and Justice Division vide Office Memorandum No. 2/16/72-RC/Estt) Vig.
Dated 1st December, 1991. In case he was aggrieved, he had to approach the Tribunal within thirty days as required under section 4(1) of the Service Tribunals Act. 1973 but he failed to do and made his appeal time-barred. He has treated the letter dated 26-1-1994 issued by the Dy. Director, from Islamabad as final rejection order, but it cannot be treated as final order as it was simply a reply to another officer and was not addressed to the appellant wherein it was clearly stated that the matter had already been settled by the Establishment Division. As such, the appeal filed on 14-2- 1994 is patently time-barred and there being no application for condonation, the appeal is liable to be dismissed on this score as well.
6. The appeal is also hit by the principle of res judicata as the appellant for the same cause of action, had sought relief by filing Appeal No. 16(K)/91 which was partly allowed by order dated 12- 12-1992 to the extent that pay of the appellant be fixed in B-17 with effect from 18-3-1974 but without arrears, in that judgment there is no reference of fixation of seniority of appellant which has been fixed in 1991 and now he wants to open this chapter afresh. The decision of the Tribunal was maintained by the Supreme Court in Civil Appeal No. 70-K of 1993 filed by the Government.
Similarly, the miscellaneous application No. 64/93 made by the appellant was also disposed of by order-dated 23-8-1993. As such, this appeal for the same cause of action is not competent in view of the decision of the Supreme Court reported in 1993 SCM R 2340 (Zafar Hussain v. Government of Pakistan, through Secretary, Ministry of Law & Justice). Moreover, appellant cannot be allowed to seek remedies piece-meals. He ought to have agitated that point in earlier appeal before the Tribunal or the Supreme Court.
7. Coming to the merits of the case, it maybe observed that Section 4 of 1983 Ordinance regulates seniority of employees of the former Government of East Pakistan, and it reads as under: "4.Seniority.---The service rendered under the former Government of East Pakistan by an employee shall count towards seniority in the Grade of the post to which he may be appointed under section 3."
Section 3 of the Ordinance which deals with `Appointments` is also important for the purpose of this appeal, and it is also reproduced as under:- "3. Appointment.---An employee may, with the approval of the competent authority, be appointed to an existing or supernumerary post in the Grade, as far as practicable, equivalent to the scale of the former post of such employee from the date he holds such post."
The case of the appellant was thoroughly examined and considered by the Establishment Division and the matter was decided with the concurrence of the Law and Justice Division, by the Establishment Division vide Office Memorandum No. 2/16/77-RC (Estt.) Vig., dated the 1st December, 1991 and it is also reproduced hereunder:- Subject: Fixation of pay of Mr. Shamsul Huda, formerly Sub-Divisional Agricultural Officer (Class- I) of the Earstwhile Government of East Pakistan, now Seed Certification Office. , Hyderabad.
The undersigned is directed to refer to your, U.O. Note No. F. 1-6/84--S11 (FSCD) dated 7th September 1991, on the subject noted above and to say that the appointment of Mr. Shamsul Huda, As Seed Certification Officer with effect from 20-3-1986 is governed under the ex-employees of Former Government of East Pakistan Appointment to Federal Posts) Ordinance NOJQ of 1983. His seniority, therefore, is to be determined in terms of section 4 of the Ordinance.
(2) Mr. Huda joined the service in former Government of East Pakistan on 31-10-1966 against the non-gazetted post till 30-9-1969 when it was declared gazetted Class-I where he served till surrender of East Pakistan on 16-12-1971. He migrated to Pakistan on 18-3-74 and worked against non-gazetted post in PAEC from 18-12-1974 lo, 19-3-1986. He was appointed-under section 3 as Seed Certification Officer (BPS- 1 7 in the Ministry of Food and Agriculture on 20-3-1986. He rendered Class-I service in Former Government of East Pakistan from 30-9-1969 to 16-12-1971, therefore, only that period can be counted towards his seniority in the present post. The exact date of seniority can be determined by adding that period backward from 30-3-1986.
(3) The service rendered by Mr. Huda before 30-9-1969 and after 18-12-1974 to 19-3-1986 may be counted towards his pension but not towards his seniority.
(4) This has the approval of Law & Justice Division.
(Sd.) Rustam Ali Section Officer (Vig)
Food and Agriculture Division, (Mr. Shakir Ali Mirza), Section Officer, Islamabad.
From the above quoted Office Memorandum, it is clear that appellant only served in former East Pakistan Class-1 service from 30-9-1969 to 16-12-1971. On migration to Pakistan, he was appointed against a non-gazetted post in the Pakistan Atomic Energy Commission where he served from 18- 12--1974 to 19-3-1985, and this period could not be counted for the purpose of seniority as it was a non-gazetted service, and moreover the service under the Pakistan Atomic Energy Commission was service under a semi-Government, and that service could also not be reckoned towards service under the Federal Government. As such the advice tendered by the Establishment Division was acted upon by the department where under his position in the seniority list issued in 1992 was improved from S.No. 20 to 15, and he has rightly been assigned seniority.
8. For the reasons recorded above, the appeal fails on legal points as well as on merit and is accordingly dismissed with costs.