' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---Mr. Syed Shaukat Hussain is presently working as Additional Secretary (BPS-21) in the Planning Division. He joined Pakistan Audit and Accounts Service on 18th November, 1963 and was promoted to BPS-20 in the Accounts Group on 17th July, 1979. He served as AGPR till 31st August, 1982, whereafter his services were transferred under section 10 of the Civil Servants Act, 1973 to the Secretariat Group and was inducted in the Secretariat Group as Joint Secretary with effect from 1-9-1982 vide Establishment Division Notification No, 39/519/88- E.I., dated 7-12-1988. While he was inducted in the Secretariat Group, he gave an undertaking that his seniority was to be fixed from the date of joining against a Secretariat post in BPS-20 and not from the date of promotion to BPS-20. The appellant accepted this offer and was inducted as Joint Secretary and in due course of time his case was placed before the Central Selection Board in October, 1990, and he was promoted to BPS-21 as Additional Secretary with effect from 25-6-1991.
According to him, he was given seniority in the Secretariat Group without considering the fact that he had served for more than three years in B-20 as AGPR in Accounts Group prior to his posting in the Federal Secretariat.
2. In the year 1989, Mr. Manzoor Hussain, who is respondent No, 2 in this appeal, challenged his seniority by filing Appeal No, 265(R)/89 before this Tribunal and his appeal was allowed by judgment dated 30-7-1990. The Federation of Pakistan went in appeal before the Supreme Court against the judgment of the Tribunal and filed Civil Appeal No, 54/1991 but the same was dismissed by judgment dated 11th November, 1992. The case of the appellant, in brief, is that in view of the judgment in the case of Mr. Manzoor Hussain, he may also be given benefit of fixation of seniority as Joint Secretary (B-20) from the date of his promotion in BPS-20, i.e, 17-7-1979 with subsequent adjustment in the seniority position in BPS-21. He has prayed that the judgment in the case of Mr. Manzoor Hussain has already been implemented by the Establishment Division, therefore, he may be assigned correct place in the seniority above Mr. Manzoor Hussain. In brief, the appellant wants seniority over and above 42 respondents.
3. Mr. Syed Alamdar Raza, the learned counsel for the appellant vehemently argued that the undertaking obtained by the Establishment Division at the time of his induction was illegal and void and should not operate to his disadvantage. It is argued that the appellant's case is based on the judgment of the Supreme Court in the case of Mr. Manzoor Hussain, because the facts and circumstances of appointment and induction are more or less the same who was allowed seniority in the Secretariat Group B-20 from the date of his promotion in BPS-20, as the appellant was promoted earlier in B-20.
4. The Establishment Division, respondent No, 1, has filed objections and has raised legal objections that the appellant has no cause of action and that the appeal is time-barred. On merits, it has been stated that the appellant never challenged his seniority as Joint Secretary (B-20) and when he has been promoted to B-21, he now seeks ante-dated seniority in BPS-20 as Joint Secretary, and that the judgment in Mr. Manzoor Hussain's case is not applicable in his case and that his seniority in B-21 has been fixed under section 8(4) of the Civil Servants Act, 1973.
5. Respondent No, 2, Mr. Manzoor Hussain has filed comments wherein legal objections have been raised that the appellant has no legal cause of action and it is also time-barred, and furthermore it is also hit by the principle of estoppel. On merits, it has been stated that respondent No, 2 in pursuance of the judgment of the Tribunal and the Supreme Court was granted seniority as Joint Secretary with effect from 24-7-1979, but the appellant never challenged his seniority as Joint Secretary and at this belated stage, he cannot get the benefit of judgment in favour of respondent No,
2. Dr. G.S. Khan, the learned counsel appearing on behalf of respondent No, 2 argued that several seniority lists of BPS-20 were issued but the appellant did not challenge those lists in time and has now come before the Tribunal on the basis of Mr. Manzoor Hussain's case and in case the appellant is granted relief, the entire structure shall be upset and he cannot get the benefit of Mr. Manzoor Hussain's decision as he failed to bring his grievance in time. He argued that it is a matter of 12 years old and cannot be reopened at this stage. It is contended that the appellant had himself chosen to join the Secretariat Group and under the rules if the transfer is not in the public interest, a civil servant cannot get the benefit of seniority earned by him and his seniority will be reckoned from the date of appointment/regular induction. It is argued that the undertaking was given voluntarily and not under compulsion and on the basis of which he got induction. It is submitted that the appellant made representation on 14-41993 but the same was rejected on 25-10-1993 and as such he was supposed to file appeal before the Tribunal within 30 days and he filed this appeal on 20-3-1994. It is argued, that there is no provision of second appeal/representation in the rules, and the appeal filed on the basis of second representation/appeal is not competent.
6. Respondent No, 4, Mr. Hamid Ahmed Qureshi, has filed objections and it has been stated that the appeal is time-barred as there is no provision of second appeal. On merits, it has been stated that the appellant was inducted into Secretariat Group on 7-12-1988 and had also given undertaking not to claim the benefit of his earlier service in B-20. He was given seniority as Joint Secretary but he did not challenge and on the basis of that seniority as Joint Secretary, he was promoted to B-21 as Additional Secretary and as such he cannot agitate the grievance for seniority as Joint Secretary. It has been further stated that the appellant as well as respondent No, 2, Mr. Manzoor Hussain both were not eligible for induction and their induction is wrong. Mr. Farrukh Karim Qureshi, Advocate appeared on his behalf and reiterated the same pleadings as stated in the comments.
7. Respondent No, 30, Mr. Ghazanfarullah Khan, has also filed comments. He has supported the contentions of the appellant and has no objection if the claim of the appellant is accepted as he also has a grievance against Mr. Manzoor Hussain, respondent No, 2, as the appellant has. At the time of hearing, he reiterated the same stand.
8. Respondent No, 33, Mr. Muhammad Zafar Iqbal, has also filed objections and has supported the case of the appellant with the prayer that he is also entitled to get the relief in view of decision in Mr. Manzoor Hussain's case.
9. Mr. M. Javid Aziz Sandhu, the learned Standing Counsel for the Government adopted the arguments of Dr. G.S. Khan, and submitted that the appeal is liable to be dismissed.
10. We have considered the arguments and perused the record. The admitted facts are that the appellant was promoted to BPS-20 in the Accounts Group on 17-7-1979. He was inducted into the Secretariat Group as Joint Secretary (BPS-20) with effect from 1st September, 1982 vide Establishment Division Notification No, 39/519/88.EI, and in induction, he was to remain posted in the Finance Division till further orders. The competent authority vide Establishment Division O.M. No, 39(516)/88-E.I., dated 9-12-1988 approved the induction of the appellant as Joint Secretary into the Secretariat Group ' from the date he started officiating as Joint Secretary, and on induction he was to reckon his seniority from the date of regular appointment as Joint Secretary, and he was required to submit his acceptance within 15 days. He accepted the offer vide letter dated 7-12-1988 and it reads as under:-- "Sub: Induction as Joint Secretary in the Secretariat Group -- Offer of Appointment.
' Kindly refer to your Office Memorandum No, 39(516)/88-E.I., dated 6th December, 1988, I was promoted on regular basis to Grade-20 in Accounts Group on 17th July, 1979. I was appointed Joint Secretary in Ministry of Finance from 1st September, 1982 and have been continuously working as regular Joint Secretary from that date. Under your letter the seniority is to be reckoned from 1st September, 1982.
2. I accept the offer of induction unconditionally."
This undertaking given by the appellant was not forcibly obtained but it was given by him at his own volition for his own benefit otherwise he has no reason to come to Secretariat Group and this fact goes to prove that his induction into the Secretariat Group as Joint Secretary was made at his request and not in the public interest, otherwise there would have no necessity of furnishing such undertaking. In these circumstances, the seniority of the appellant was to be determined under section 8(4) of the Civil Servants Act, 1973 and he was rightly given seniority in the Secretariat Group as Joint Secretary (B-20) from the date of regular appointment in that Group, viz. 1-9-1982.
This position as Joint Secretary was reflected in the Gradation List of Secretariat Group of BPS-20 officers as on 1-4-1990 and the appellant's name finds mention at S.No, 50 and his date of appointment as such has been mentioned as 1-9-1982, while the name of respondent No, 2, Mr. Manzoor Hussain, was mentioned at S.No, 44, and the date of appointment has been given as 12- 81981, and according to this list the appellant is far junior to respondent No, 2, and that was the appropriate time that he should have challenged his seniority position as Joint Secretary (B-20), but he remained satisfied with this position. He had neither filed departmental appeal nor come to Tribunal against Seniority list of Joint Secretary, B-20. The same became final in 1990. According to the prayer clause, the appellant seeks ante-dation of his seniority as Joint Secretary from back viz. 17-7-1979 when he was actually promoted in BPS-20 and we are not inclined to accept this claim because he never challenged this grievance in time, or even at the time when he was Joint Secretary, but now when he has been promoted as Additional Secretary (BPS-21), it is regretted to observe, that it is too late now to lay claim after a decade for the grievance .Which has already become past and closed chapter. It is a settled law that seniority is to be reckoned from the date of regular induction into the Secretariat Group and there is no cavil about this proposition. He was promoted as Additional Secretary in BPS-21 with effect from 25-6-1991; and his name appears at S.No, 68 of the Gradation List of BPS-21 officers as on 15-2-1993, while respondent No, 2 had been promoted as Additional Secretary (BPS-21) much earlier than the appellant, and therefore, the appellant cannot regain his seniority over the respondent No, 2 as Joint Secretary or Additional Secretary, on the basis of judgment of this Tribunal and the Supreme Court in the case of Mr. Manzoor Hussain. Moreover he should not have grievance against Mr. Manzoor Hussain as he was inducted in Secretariat Group in 1981 much earlier than appellant but claims relief on the basis of judgment of Tribunal in Mr. Manzoor Hussain's case.
11. Similar question came up for consideration before this Tribunal in Appeal No, 407(R)/1993 filed by Mr. Pervez Ijaz Sheikh, Joint Secretary, wherein he also claimed seniority on the basis of judgment of this Tribunal and the Supreme Court in the case of Mr. Manzoor Hussain, but the appeal was dismissed by judgment dated 23-1-1994. He filed CPLA No, 145 of 1994 before the Supreme Court against the judgment of the Tribunal and the Supreme Court after considering in detail various provisions of law, dismissed the petition by judgment dated 11-5-1994, and the relevant paragraph of the judgment is reproduced below:-- "From the above statements made by the petitioner in his memo. Of appeal and the application under section 5 of Limitation Act filed before the Service Tribunal, it is quite clear that in spite of his representation dated 14-9-1989 the petitioner was shown junior to 23 other officers who were junior to him in the gradation list issued by the Department in 1990. The petitioner made no representation against the gradation list issued by the Department in 1990 and kept waiting for decision on the appeal of some of his colleagues preferred before the Tribunal. The petitioner on his own 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. The contention of the petitioner's counsel that the representation made by his client on 14-9-1989 was decided by the Authorities on 27-10-1993 is belied by the categorical statement made by the petitioner in his memo. Of appeal and the application filed under section 5 of the Limitation Act, before the Tribunal.
The learned counsel for the petitioner has relied on two unreported decisions of this Court Civil Appeal No, 220 of 1993 (Federation of Pakistan v. M. Roshan All Mangi), decided on 22-6-1993 and Civil Appeal No, 586 of 1992 (Syed Firdous Ali v. Secretary, Establishment and others), decided on 30-11-1993 to contend that in similar circumstances, this Court granted relief to the aggrieved Civil Servant irrespective of the period of limitation. In Civil Appeal No, 220 of 1993 (supra), the question of limitation was not at all gone into by this Court. The contention of the Government in the above case that the respondents in the above appeal had not agitated his claim before 2-5-1991, was found to be incorrect and it was in this context that this Court observed that the technical plea of this kind did not behove a party like, the Federation of Pakistan to raise in a service matter. In Civil Appeal No, 586 of 1992, the appellant was aggrieved with the order passed in respect of his seniority on 4-11-1984. He filed departmental appeal against the order on 29-11-1984. However, the Tribunal in that case took the view that immediately after filing departmental appeal he should have come to the Service Tribunal within 120 days available to him. This observation of the Tribunal was overruled as the departmental appeal was disposed of on 2-5-1990 and the appeal filed by the appellant before the Tribunal on 30-5-1990 was held to be within time. In the case Chairman, Pakistan Railways, Lahore v. Muhammad Latif and others (1984 SCMR 286), it was agitated before this Court that the respondents in the above-cited case not being party to the case in which the Service Tribunal has laid down the rule for fixation of the seniority, the benefit of that case could not be extended by the Tribunal to the respondents who were not party in that case. Leave was refused in the case with the observation that the benefit could not be denied to respondent on the sole ground that he was not party to the litigation because it was declaratory and the rule of seniority applicable to the establishment and the respondent had sought only correction of the seniority in accordance with the rules. In this case also there was no question of limitation either raised or decided by this Court. The case of Government of Pakistan through Establishment Division v. Bashir Ahmad Khan PLD 1985 SC 309 relied by the learned counsel for the petitioner is also not of any assistance to the petitioner in the present case. The result of the above discussion is that the order passed by the Federal Service Tribunal does not suffer from any infirmity. The petition is, accordingly, dismissed and leave to appeal is refused."
' In view of the authoritative judgment of the Supreme Court, the appellant cannot succeed on merits in getting his seniority ante-dated on the grounds of that seniority. The contention of the learned counsel for the appellant is that undertaking taken from the appellant being inconsistent with the terms and conditions of service is void and is not binding on him. We have given our consideration to this argument, but the fact is that the appellant came to the Secretariat Group, as per record on his own volition and therefore, his seniority in that Group is to be reckoned under section 8(4) of the Civil Servants Act, 1973, i.e, from the date of regular appointment and cannot be retrospective. Therefore, leaving aside the undertaking, he has no case as he was not regularly absorbed in the Secretariat Group from the date of his promotion in BPS-20 as Accountant- General, Pakistan Revenues, and could not get benefit of this promotion to count it towards seniority as Joint Secretary. Moreover, he cannot escape the rider of time bar. If the undertaking given by him was void, then it was open to him that he should have challenged the same within time before the departmental authority and in case of failure to get redress, he should have come to the Tribunal in the year 1982 which he failed to do. On this, we rely on a judgment of the Supreme Court reported in PLD 1994 SC 1033 (Muhammad Arshad Saeed, DIG v. Secretary, Establishment Division and others) that even if the order is void, the question of limitation cannot he circumvented. The relevant paragraph is reproduced as under:-- ' As regards the order of appointment being void and the avoidance of period of limitation, the same reported case was reconsidered as Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another (1978 SCMR 367). Even assuming the voidness of the order the bar of limitation could not be avoided in the case of the appellant as there was no satisfactory explanation for it and the equities were against it. Hence, the decision of the Service Tribunal does not call for interference in this appeal (Civil Appeal No, 446 of 1990) and maintained."
12. The appeal also fails on the point of limitation. According to the appellant, he made an appeal to the Establishment Secretary on 14-4-1993 wherein he reiterated the same facts and prayer as has been made in this appeal, but the same was rejected by the competent authority vide Memorandum dated 25-10-1993. He did not come to the Tribunal but instead made another appeal to the Prime Minister on 21-11-1993 which was not responded and after the expiry of 90 days waiting period, he filed this appeal and according to him the appeal is within time. Under the rules, there is only one appeal provided by law and there is no provision of second representation, and in such circumstances, the appellant after rejection of his appeal vide Memorandum dated 25-10- 1993 was supposed to file appeal before the Tribunal but instead he chose to avail of second appeal just to gain time and as such made his claim time-barred. On this we rely on the decision of the Supreme Court reported in 1989 SCMR 1267 (Mian Shah Muhammad v. Khurshid Alam Bhatti and others), and similar view taken by the Supreme Court in a recently decided case C.P. No, 203 of 1994, decided on 7-6-1994 (Ayaz Ahmad Qureshi v. Federation of Pakistan through Secretary, Establishment Division and others), and paragraph 7 of the judgment, which is apt to the facts of this case, is reproduced below: "7. Strangely enough, the petitioner did not file an application for condonation of delay before the Service Tribunal. There is no explanation for not seeking redress earlier in point of time when cause of action accrued to the petitioner. In any case, after rejection of his representation, the petitioner could have filed an appeal before the Service Tribunal and instead of doing so he filed a departmental appeal which was not competent."
' Similar view has been taken by the Supreme Court in the case reported in 1994 PLC (C.S.) 629 (Abdul Hamid Khan v. Secretary, Establishment Division and others). In this case also, the appellant has not filed application for condonation of delay and as such the question of condoning the delay, if any, does not arise.
13. Both on merits and legal points, the appeal fails and is accordingly dismissed with costs.