' ZIA MAHMOOD MIRZA, J.---This order will govern C.P. 272 of 1994 and the connected Petition C.P.
273 of 1994 as in both the petitions, parties are the same and the grievance agitated therein is also inter-connected.
2. Facts forming the 'background of the dispute between the petitioner Ch. Abdul Rashid and respondent No, 3, Mr. Muhammad Riaz, both civil servants are as follows:- ' Petitioner joined Pak. P.W.D. As Assistant Engineer (Civil) on 27-4-1960 while respondent No, 3 joined as Assistant Engineer (E & M) on 16-11-1963. The respondent was, however, promoted as Executive Engineer (E&M) on 18-3-1968 before the petitioner who was promoted as Executive Engineer (Civil) on 7-6-1970. Subsequently, their names were sent for promotion to the post of Superintending Engineer, Central Selection Board in its meeting held on 17-3-1980 cleared the petitioner for promotion but the respondent was not considered as the Board was informed that he was "absent 1 without leave and had already been charge-sheeted". Having been cleared by the Central Selection Board, petitioner was appointed as Superintending Engineer (B-19) vide order dated 25-4-1981.
3. It appears that the respondent No, 3 was also cleared for promotion by the Central Selection Board in its meeting held on 19-8-1982 and was promoted on 25-11-1982 but vide order dated 28-3- 1984, he was given seniority over petitioner as Superintending Engineer. A seniority list of the officers of Pak. P.W.D. Including Superintending Engineers was also circulated on 14-5-1984 showing the respondent senior to the petitioner. Petitioner is stated to have filed a representation against the order dated 28-3-1984 claiming that since he had been promoted as Superintending Engineer earlier to the respondent, he was entitled to be placed senior to him. He also took the plea that the seniority of the officers of Civil and E & M Engineering was to be maintained separately and could not be combined. It is stated by the petitioner that in the meantime, new rules were promulgated providing for the promotion upto the level of Superintending Engineers from their own cadres which set the controversy regarding the seniority at rest. Petitioner, therefore, did not pursue his representation. A combined seniority list of the officers in BPS-17 and above of Pak. P.W.D.
(Engineering Group) was again circulated on 30-11-1988 showing the respondent as senior to the petitioner. The latter made a representation against it to the Secretary, Works Division on 26-12- 1988. This representation, it is stated, was rejected after about five years and the decision was conveyed to the petitioner on 23-3-1993. He then took the matter before the Federal Service Tribunal in an Appeal No,71(R)/93 which he filed on 10-3-1993.
4. While the petitioner's abovementioned representation regarding his seniority was pending before the departmental authorities, the matter of promotion to the post of Chief Engineer came up before the Central Selection Board which in its meeting held on 11-2-1991 cleared the petitioner for promotion but recommended the supersession of respondent No,3. However, before the competent authority could pass any order on the recommendation of the Central Selection Board, the respondent approached the High Court in its Constitution jurisdiction making a grievance that the Selection Board has acted on his Annual Confidential Reports recorded mala fide by a Countersigning Officer. It appears that the respondent had also made a departmental representation on which the Establishment Division after obtaining fresh advice from the Central Selection Board and the Works Division submitted a summary to the Prime Minister who being the competent authority approved both the petitioner and the respondent for promotion to BPS-20 on 11-3-1992, whereafter, two notifications promoting both of them were issued on 14-5-1992. Feeling aggrieved, petitioner challenged the promotion order of respondent No, 3 in BPS-20 before the Federal. Service Tribunal in Appeal No, 359(R)/92 on the ground, inter alia, that the respondent had not yet achieved the required threshold of 70 marks and, therefore, could not be considered for promotion.
5. The Tribunal heard both the appeals of the petitioner together and dismissed the appeal directed against the respondent's promotion on the short ground that the controversy raised by the petitioner involved the question of fitness and not eligibility and, therefore, the appeal was not competent by virtue of proviso (b) to subsection (1) of section 4 of Service Tribunals Act, 1973.
' As regards the appeal in the matter of seniority, there was difference of opinion between the two members of the Tribunal. One Member (Mr. Misbah Ullah Khan) held that the appeal was time- barred and that it also deserved to be dismissed on merits. Mr. S.M. Ishaq, the other Member, however, found in favour of the petitioner both on merits and the question of limitation. He took the view that since the petitioner had been cleared/selected as Superintending Engineer and had also taken charge against a clear vacancy before the respondent's selection/promotion in the year 1982, he was senior to the respondent. As regards limitation, his view was that the petitioner justified in not pursuing his representation in 1984 as the relevant rules were amended clarifying that Civil Engineering and E & M Engineering were separate cadres upto the level of Superintending Engineer and that the petitioner's representation against the seniority circulated on 30-11-1998 was filed within time and so was his appeal before the Service Tribunal which he filed on 10-3-1993 well within one month from the date of rejection of his representation in February, 1993.
6. In view of the difference of opinion between the two members, the matter was placed before the Chairman of the Tribunal who agreeing with the member favouring dismissal of the appeal held that the appeal/representation before the appellate authority was within time but "it was time- barred before the Tribunal". In his view, the petitioner was not supposed to wait for an indefinite period for obtaining final order on his departmental appeal and that he should have approached the Service Tribunal within 120 days of his filing the departmental appeal/representation. On merits, the Chairman expressed the view that the question of seniority stood settled in the year 1984; petitioner did not challenge it before the Service Tribunal and the seniority of respondent No, 3 was maintained throughout which could not be re-opened. With reference to the petitioner's contention that the seniority in the two cadres viz. Civil and E & M is separate, the Chairman observed that this matter too was settled by the Tribunal vide its judgment dated 26-4-1984 in another appeal of the petitioner. Petitioner's Appeal No, 71(R)/93 was thus dismissed by the Tribunal on merits and also on the ground of limitation in terms of the opinion of the Chairman.
7. Aggrieved of the dismissal of his appeals by the Service Tribunal, petitioner has filed these two petitions for leave to Appeal. C.P. 272/94 is directed against the order of the Tribunal in the matter of promotion of respondent No, 3 while C.P. 273/94 seeks leave in the matter of seniority.
8. We have heard the learned counsel for the petitioner as also the learned counsel appearing for the respondents. It is contended by the learned counsel for the petitioner that the petitioner had challenged the promotion of respondent No,3 mainly on the ground that he having failed to achieve minimum eligibility score of 70 marks was not eligible to be considered for promotion. The Service Tribunal, however, misdirected itself in holding that the question raised involved fitness of a person to be promoted to higher post and, therefore,the matter lay outside its jurisdiction.
9. In the seniority matter, on the question of limitation, it has been argued by the learned counsel for the petitioner that his client having preferred a departmental appeal/representation within time was within his rights to await its disposal before approaching the Service Tribunal and the long time taken by the authorities in deciding his appeal could not be pressed against him for the purpose of limitation. According to the learned counsel, section 4 of the Service Tribunal Act has conferred a right on a civil servant to appeal against the original or appellate order of a departmental Authority. On merits, it has been contended that as the petitioner was cleared/selected for promotion and was in fact promoted as Superintending Engineer before respondent No 3 was selected/promoted to that post, he was entitled to be placed senior to the respondent moreso for the reason that the seniority of Civil and E & M Engineers upto the level of Superintending Engineers was to be kept/maintained separately.
' Finally, the learned counsel relying upon 1991 SCM R 1674 also sought to contend that as even the members of the Tribunal are divided on the issue, matter does require further consideration by this Court.
10. The contentions raised by the learned counsel for the petitioner need consideration by this.
Court. Leave is accordingly granted in both the petitions to examine the above-noted contentions.