MR. JUSTICE (RTD.) MUNAWAR ALI KHAN, J.- This appeal has been filed Mr. Hakim Ali Shaiekh who has since retired from service, as Superintending Engineer (SE) Education Works Circle, Mirpurkhas. His prayer as stated in the same of appeal is as under: " The applicant therefore prays the honourable Service Tribunal to call for the record and proceedings regarding my seniority from the respondent No. 1 and 2 and I may kindly be assigned the seniority as Super intendeing (BPS-19) with effect from 24-5-1987 the date from which my juniors were promoted and 1 may also kindly be allowed the full consequental financial benefits from the date of original seniority i. e. 24-5-1987 onwards on account of fixation of pay etc" The background of the appellant's case from which the above prayer has arisen is that he was senior to all the five private respondents: namely, M/s Nisar Ahmed Memon, Abdul Qadir Shaikh, Muhammad Rafiq Malik, Abdul Ghaffar Dada and Aijaz Hussain Mughal in the cadres of Assistant Engineers (BPS-17) and Executive Engineer (BPS-18). Consequently he was assigned correct position in the seniority lists of the said cadres. However in the seniority list of Superintending Engineers (BPS-19) issued on 9-9-1989, he was shown junior to the said respondents and his name appeared at S.No.24, below the names of the said respondents. The appellant made two representations, one for correction of his seniority, position and another for allowing his the benefit of rule 13 of Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975, herein after referred as the seniority rules, but both of the were turned down. Thereafter seniority list reflecting the seniority of Superintending Engineers as stood on 1-8- 1992 was issued on 11.8.1992. Since the appellant's seniority position in the said list remained un-altered he preferred appeal dated 15-9- 1992. In reply to his appeal, he was intimated vide letter of the C&W Dept, dated 19-12-1992 that he was superseded by the said respondents as he was not cleared by the Department Promotion Committee for two persons: namely, first that he was rated as unfit for promotion in the ACR of 1983 and two that his ACR for 1984 was adverse. He once again preferred appeal to the Chief Secretary but the same was rejected vide C&W Dept's letter dated 16-6-1993. Hence the present appeal which was filed on 21-7-1993. During pendency of the appeal the appellant retired from service w.e.f. 27-10-1993.
2. We heard arguments of the learned counsel for the parties, Mr. Naimatullah Qureshi for the appellant, Mr. Abdul Latif Ansari, AAG for the official respondents and Mr. Abdul Sattar for the private respondents, Messrs Abdul Qadir Shaikh, Abdul Ghaffar Dada and Aijaz Hussain Mughal. The private respondents Nisar Ahmad Memon and Muhammad Rafiq Malik were exparte. With the help of above learned counsel, we also went through the relevant record.
3. The appellant's prayer reproduced hereinabove clearly shows that he has grievance against the seniority position assigned to him in the cadre of S.Es. Although he admittedly ranked senior to all the five private respondents in the lower cadres of Assistant Engineers and Executive Engineers, yet he was shown junior to them in the seniority list of SEs, first issued on 9.9.1989 and subsequently issued on 11.8.1992 and 4-2-1993. Thus this appeal arose from the dispute over seniority. It was contended by both the learned AAG and the learned counsel for the private respondents that since the appellant retired from service during pendency of the appeal, the appeal stood abated and therefore it should be dismissed accordingly. In this connection the learned counsel placed reliance on Supreme Court authority reported as Muhammad Aslam Khan-Vs-Secretary Ministry of Defence (1985 PSC 1246) wherein it was, inter alia, held: "In any case the three officers having retired from service, the issue of the petitioner's seniority our then in no longer a live issue". It would appear that the Supreme Court took the view that consequent upon retirement of the officers with whom the petitioner had dispute over seniority, the issue of seniority was no longer alive. That is to say that with their retirement, the issue of seniority was finally closed. In the instant case, the appellant himself retired from service while the appeal was still pending. In our opinion the appellant's retirement created a situation which was far worse than that of the reported case. Because even if he succeeded in his appeal, all the relief that he could get would be that his into" se seniority vis-a- vis the private respondents would be redetermined in the cadre of SEs to which both the parties have already been promoted. It is not the appellant's case that any higher post (higher than SE's post) was lying vacant since before his retirement, so that in case of his becoming senior to the private respondents, he would be promoted to that post retrospectively, coming thereby the monetary benefits. Even otherwise such higher posts fall within the category of selection posts which are invariably filled purely on the basis of merit. Therefore seniority would not help the appellant in getting him the promotion which, in fact, did not exist at the time of the appellant's retirement. Since he has gone out of service, the question of his being considered for future promotions even on merits would not arise. On top of all this, as provided in Sub-section (1) of (he Sind Civil Servants Act 1973, seniority is not a vested right. As such the appellant can not be permitted to pursue the case of his seniority even after his retirement from service. Looking at the case from all the above angles, it would be sheer waste of time and energy to keep the present appeal alive even after the appellant's retirement from service. We are therefore in agreement with the view that seniority by itself would not being any benefit, monetary or otherwise, to the appellant after his retirement from service and therefore his appeal with prayer for determination of his correct seniority in the cadre of SEs would be inconsequential and was liable to be dismissed on this sole ground.
4. The next point that was debated at the bar was the limitation. The learned counsel for the respondents were of the view that the appeal was hopelessly time-barred. We have given our best thought to their arguments on this point. Prima facie the appellant filed the present appeal against the C&W Dept's order dated 16-6-1993, whereby his departmental appeal dated 2nd Jan. 1993 was rejected. The perusal of the departmental appeal would reveal that the appellant had called in question the correctness of C&W Dept's Communication dated 18- 12-1992, informing him that he was not promoted because he was not cleared by the Provincial Selection Board-II in its meetings held on 5-3-87 and 19-3-1987 for two-fold reasons: namely, one that he was rated as "not fit for promotion in ACR 1983 and second that his ACR for 1984 contained adverse remarks. By the said communication, the Administrative Dept. (C&W Dept.) had disposed of the objections filed by the appellant against the seniority list of SEs issued on 11-8- 1992, reflecting the seniority position of the said Engineers as it stood on 1-8-1992.
It was argued before us that the appellant would not get the benefit of the time he had wasted firstly by filing objections against the said seniority list and secondly after his objections were over- ruled be filed the departmental appeal. According to the respondent's learned counsel the appellant should have straightaway filed departmental appeal against the seniority list. The said learned counsel seemed to have over looked the language of the covering letter of the C&W Dept.
Accompanying the impugned seniority list. It clearly showed that while publishing the said seniority list It not only objections were invited but also 15th Sept. 1992 was fixed as the out-off date by which the objections against the seniority list were to be submitted. By fixing the date for submission of the objections, the departmental authorities had obviously indicated the status of the seniority list.
In our opinion the seniority list until disposal of the objections. As such it was a provisional seniority list though it was not so described. The appellant could not straightaway file departmental appeal against the provisional seniority list.
5. It was next contended by the respondents' learned counsel that although the seniority position reflected in the impugned seniority list was already with the knowledge of the appellant through the seniority list issued earlier on 9- 9-1989, yet he failed to bring the matter before this Tribunal at that time. Therefore in their opinion the present appeal was time-barred. In this connection reliance was also placed on the Supreme Court authority reported as Pevaz Ijaz Shaikh V. Secretay Establishment Division, Government of Pakistan (PU 1994 SC 346) wherein it was held as under: II The. Petitioner made no representation against the gradation list issued by the Department in 1990 and kept whiting for decision on the appeal of some of his colleagues preferred before the Tribunal. The petitioner on the on showing made representation on 6-6-1993 claiming seniority from 13.8.1983 on the basis of judgment of this Court in Civil Appeal No. 54/1991 {Federation of Pakistan V. Manzoor Hussain and others) which was already time-barred. The petitioner could not claim start of a fresh period of limitation by preferring an appeal on 6.6.1993 against list issued in 1990 in which the petitioner was assigned seniority from 23.9.1984 and which he failed to challenge."
In the instant case the earlier seniority list issued on 9.9.1989, reflecting the same seniority position of the appellant vis-a-vis the private respondents as mentioned in the later seniority list issued on 11.8.1992 was not challenged. Therefore in view of the dictum laid down in the above reported case, the appellant could not be held to have filed this appeal within time.
6. The other authority cited by the said learned counsel in support of their arguments was Government of Pakistan -v-Bashir Ahmed Khan (PLD 1985 Supreme Court 309) wherein it was held as under: "He challenged his first compulsory retirement through a review application filed on 23rd of October 1974, which was decided on. 3-6- 1975. This was the final order passed on review. It could be challenged within 30 days before the Service Tribunal under Section 4 of the Service Tribunals Act. If the appellant chose not to file an appeal but' only to repeat representation before the same authority who had decided the review, that by itself would not give him another' cause of action to file an appeal under Section 4. The period spent in making representation this second or any other representation after the decision of the review application could not be excluded as of right in counting the period of limitation." It is an admitted position that the appellant came to know his seniority position in the SEs' cadre for the first time through seniority list of the said cadre issued on 9-9-1989. We have come across the C&W Dept's communication dated 26-9-1990 addressed to the appellant intimating him that his appeal for assignment of correct seniority position in the seniority list circulated on 9-9-1989 had no merit and was therefore obviously turned down. He was however advised to save application for the benefit of rule 13 of the Seniority Rules. As per said advice he made the application but that too was rejected vide C&W Dept's intimation dated 2-11- 1991 addressed to the appellant. From the chain of the facts described above, it was clear that the appellant get the first opportunity to agitate for notification of his seniority position when the seniority list of SEs cadre was made public on 9-9- 1989. But his departmental appeal against the said seniority list which was undoubtedly final seniority list was belated. He was supposed to file the departmental appeal within 30 days Of its communication to him. That is to say that it was to be filed same time in October 1989, but it was actually filed after lapse of nearly one year in August 1990, as was indicated in the C&W Dept's letter dated 26-9-1990 whereby the appellant was informed that his departmental appeal was without any merit. Despite such delay the appellant did not approach this Tribunal on the basis of the aforesaid intimation but instead in pursuance of the C&W Dept's advice he moved another application, this time for the benefit of rule 13 of the seniority rules. Even though him that application also met with failure. Yet the appellant did not deem fit to come to this Tribunal for the desired relief. He was informed about the failure of his' last mentioned application on 2- 11-1991 and as such he could file the present appeal before this Tribunal latest by 1-12-1991. But he slept over the matter until the next seniority had no justification to lose the opportunity of filing appeal before this Tribunal by and of 1991, his present appeal filed after more than 2 years could not be held to be in time.
7. Apart from above legal flaws, the appellant has no case even on merits. As provided in rule 10(1) of the Seniority Rules 1975, the seniority of a civil servant shall be reckoned from the date of his regular appointment. It is true that the appellant was senior to all the private respondents in the lower cadres of Assistant Engineers and Executive Engineers. But it is appellant's on case that following his clearance by the Provincial Selection Board II, he was inducted in the cadre of SEs by way of promotion on 26-11-1988, later than the promotion of the private respondents to that cadre which took place on 24-5-1987. Thus the respondents' entry is the said cadre being earlier than that of the appellant, they became senior to him in that cadre. The appellant's repeated representation for assignment of correct seniority had all failed. However in response to his representation dated 15-9-1992, the appellant was informed vide C&W Dept's letter dated 10-12-1992 that he was not cleared for promotion by the Provincial Selection Board-II in its meetings held on 5-3-1987 and 19- 3-1987 in which all the respondents were approved for promotion, because of his ACRs. In the ACR of 1983 he was rated a not fit for promotion' whereas the ACR of 1984 contained adverse remarks.
The argument of the appellant's learned counsel was that since the said ACRs were never conveyed to the appellant, they could not provide the basis for withholding of his promotion. The appellant has also taken such plea in para 14 of his memo of appeal In their written statements the respondents, private as well as official have vehemently denied the appellant's above allegations.
Even otherwise the ACR containing the Reporting Officer's assessment "not fit for promotion" has never been treated as adverse firstly because promotion cannot be claimed as a matter of right and secondly because the officials/officers with average service record are generally not considered for promotion. As Average ratings are not treated as adverse, similarly the assessment based on such ratings can not assume the shape adverse remarks. As for adverse report of 1984, unless the appellant has furnished satisfactory proof to successfully rebut the respondents' denial of communicating the said ACR to him, it would continue to remain as one of the reasons for ignoring him for promotion at the time when the private respondents were approved for promotion. Now that the appellant has already retired from service and consequently, as has been held above, his seniority was no longer alive, the appellant had obviously no other option but to consider the chapter of his seniority and consequent promotion as permanently dosed. For above reasons the appeal is dismissed with no order as to costs.
8. Given under our hands and the seal of this Tribunal this 3rd day of August, 1994 at Karachi.