' ZIA MAHMOOD MIRZA, J.---Petitioner seeks leave to appeal against the judgment of Federal Service Tribunal dated 31-1-1996 dismissing his appeal wherein he had sought a direction to be issued to the respondents (Auditor-General of Pakistan and Accountant-General, N.-W.F.P.
Peshawar) "to comply with the Presidential Order and consider the appellant for promotion to the post of Accountant (BPS-16) with effect from 1-7-1983".
2. Petitioner joined service in the office of Accountant-General, N.-W.F.P. As U.D.C. (BPS-7), later designated as Auditor, on 18-8-1964. He was promoted as Selection Grade Clerk, re-designated as Audit Assistant (BPS-11), on 25-8-1967. It appears that since before the enforcement of Civil Servants Act, 1973, Audit Department maintained two seniority lists, one for Selection Grade Clerks and the other a combined list of U.D.Cs. And Selection Grade Clerks. In the combined seniority list, seniority counted from the date of entry in the cadre of U.D.Cs. Notwithstanding the promotion in Selection Grade while in the list of Selection Grade Clerks, their seniority was reckoned from the date of their regular appointment as Selection Grade Clerks with the result that the senior amongst U.D.Cs. Who joined the Selection Grade later were placed junior to the junior U.D.Cs, who had joined the Selection Grade earlier.
' Promotion to the higher post of Accountant (BPS-16) was made from the combined seniority list and in accordance with the seniority position in that list. Memo. No,822-NGE.I/84-73, dated 8-9- 1977 (at page 58 of the paper book), however, shows that it was decided in consultation with the Establishment Division that as from 10-8-1977, the posts of Auditors and Audit Assistants would be treated as belonging to separate cadres and separate seniority lists for Auditors and Audit Assistants would be maintained. It was also decided that promotion to the posts of Accountants against 33% quota would henceforth be made from the seniority list of Audit Assistants. The matter was challenged before the Service Tribunal. The Tribunal held that from the very beginning, the promotion to the post of. Accountant (BPS-16) should have been made from those in BPS-11 omitting the Auditors altogether. Petitioner relying on the decision of the Service Tribunal claimed retrospective promotion making a grievance that some officials junior to him as Audit Assistants were promoted as Accountants on 29-5-1980 on the basis of a wrong seniority list. It appears that the petitioner was later promoted as Accountant on 21-8-1984 on the basis of his seniority as Audit Assistant but was reverted to the post of Senior Auditor BPS-13 (Selection Grade of Audit Assistant BPS-11) with effect from 26-5-1987 in pursuance of a decision of this Court in the case of Muhammad Umer Malik reported in PLD 1987 SC 172. Petitioner challenged the promotion of his juniors made on 29-5-1980 and his own reversion before the Service Tribunal and ultimately in this Court in C.A. 244(P) of 1990 and C.A. 247(P) of 1990. Both these appeals together with two other connected appeals were dismissed by this Court vide judgment dated 22-5-1991 with the observation "Fida Muhammad Sanai and Ahmad Ali want to derive benefit from the judgment of the Service Tribunal which stands removed from the scene. This cannot be allowed to happen.
Independently of the Service Tribunal's judgment, if they have any right under the Supreme Court judgment, then they have to represent to the Department and claim it. We find that neither Fida Muhammad Sanai nor Ahmad Ali have claimed any benefit under the Supreme Court judgment, in Muhammad Umer Malik's case". It was further observed in para.12 of the judgment that the benefits derived under the judgment of Service Tribunal which had been set aside "have to follow the principle of restitution and no vested right can be claimed in respect of such an implementation".
3. After the dismissal of his appeals by this Court, petitioner approached the Accountant-General with a representation (copy at pages 54-55 of the paper book) against his reversion and claiming promotion as Accountant with effect from 29-5-1980. The representation was turned down by the Accountant-General vide Memo. Dated 13-8-1991 stating that the judgment of the Supreme Court in Muhammad Umer Malik's case "has already been implemented by Auditor-General of Pakistan".
Petitioner then moved a Miscellaneous Application in this Court which was disposed of on 27th June, 1993 with the observation that he should seek departmental relief and if not satisfied should take the matter to the Service Tribunal. Instead of filing a regular service appeal, petitioner moved a Miscellaneous Application No,17 of 1994 before the Service Tribunal seeking implementation of the judgment of this Court in his Civil Appeals Nos.244(P)/90 and 247(P)/90 with further prayer that the orders of his reversion may be withdrawn and the Accountant-General N.-W.F.P. And Auditor- General of Pakistan be directed to consider him for promotion as Accountant with effect from 29- 5-1980 i,e, the date of promotion of his juniors. This application was dismissed by the Service Tribunal vide judgment dated 28-6-1994 with the following observation:-- "From the aforementioned facts the position that emerges is that the appellant filed Appeal No,172(P)/83 which was dismissed by this Tribunal by judgment dated 30-6-1987 relying on the judgment of the Supreme Court in Muhammad Umer Malik's case. Consequent to his reversion from the post of Accountant which was made in compliance to the judgment of the Supreme Court, he again filed Appeal No,419(P)/87 before this Tribunal and that too was dismissed. He took his grievance to the Supreme Court against the judgments of this Tribunal in the aforesaid two appeals, by way of Civil Appeals Nos.244-P/90 and 247-P/90, but could not succeed and both the Civil Appeals were dismissed by judgment dated 22-5-1991. His appeals before the Tribunal as well as the Supreme Court failed, of course, on the interpretation of the judgment in Muhammad Umar Malik's case, and we fail to understand as to what remains there for implementation of a judgment which was not at all in his favour."
4. It' appears that by order dated 10-1-1995, Accountant-General, N.-W.F.P. Awarded Selection Grades B-13 and B-15 to a number of Audit Assistant/Senior Auditors BPS-11 with effect from 1-7- 1983 and 1-4-1988 and by yet another order dated 26-1-1995, Muhammad Shabbir Bangash was granted promotion as Accountant (B-16) with effect from 31-5-1983 on pro forma basis (the date from which his junior Mr. Gul Anwar Jan was promoted as Accountant B-16). Petitioner relying upon a Presidential Order contained in Office Memo. Dated 18-8-1983 made a representation to the Auditor-General of Pakistan on 6-2-1995 wherein he requested that "my promotion as Accountant BPS-16 may kindly be considered from 1-7-1983 on the basis of my seniority". Getting no response to his representation, petitioner filed an appeal before the Service Tribunal on 6-5-1995 seeking a direction to the respondents to consider him for promotion to the post of Accountant BPS-16 with effect from 1-7-1983. The Tribunal dismissed the petitioner's appeal mainly on the ground that he had not mentioned that there had been two grounds of litigation earlier in which his claim for promotion to the post of Accountant with effect from 1-7-1983 on the basis of seniority in B-11 had not been accepted. It was observed by the Tribunal "The issue of seniority in B-11 had been sub judiced in earlier two rounds of litigation. His Appeal No,172(P)/83 and Appeal No,419(P)/87 followed by Miscellaneous Petitions Nos.117/93 and 17/94 in Appeal No,419(P)/87 has been dismissed by this Tribunal. Whereas his Civil Appeals Nos.244-P/90 and 247-P/90 followed by C.M.P. No,219/91 in C.A.
244-P/90 has been dismissed by the Supreme. Court. All this litigation, by the present appellant, was directed toward the same end i,e, promotion as Accountant (BPS-16) on the basis of seniority as Audit Assistant in BPS-11 w,e,f, 1-7-1983. In accordance with the law declared by the. Honourable Supreme Court in Umar Malik case (reported in PLD 1987 SC 172), the matter of determination of seniority of Auditors and the Audit Assistants has been settled and cannot be re-agitated again.
The provision contained in the O.M. Dated 18-8-1983 has been merged in the said verdict of the Supreme Court, and shall be read and interpreted in the light of the said verdict". It was further observed by the learned Tribunal that although the petitioner in his appeal made a grievance against the order dated 26-1-1995 whereby Muhammad Shabbir Bangash who was junior to him as Audit Assistant was given promotion with effect from 31-5-1983, but he had not challenged the said order in ,any departmental appeal or representation as required by section 4 of the Service Tribunals Act, 1973. Reference was particularly made to the petitioner's representation dated 6-2- 1995 which made no mention whatever of the promotion of Muhammad Shabbir Bangash.
Petitioner's appeal was accordingly held to be not maintainable.
5. We have heard the petitioner who has appeared in person, at considerable length. He has not been able to controvert any of the findings 'recorded in the impugned judgment of the Service Tribunal. As discussed above, question of the petitioner's seniority as Audit Assistant in BPS-11 stands concluded by virtue of the judgments of the Service Tribunal as also of this. Court referred to in the impugned judgment of the Service Tribunal. He could not, therefore, be .Permitted t% re- agitate the same issue all over again with reference to O.M. Dated 18th August, 1983. Needless to observe that the said O.M. Has all along been in the field when the petitioner was pressing his claim for promotion to the post of Accountant with effect from 29-5-1980 in the previous litigation. The learned Tribunal is also right in holding that the petitioner having failed to file any departmental appeal or representation against the order dated 26-1-1995, his appeal was not maintainable in view of the provisions of section 4 of the Service Tribunals Act. We would also like to point out that although the petitioner took exception to the order promoting Muhammad Shabbir Bangash, he did not implead the said promote as a respondent in his appeal which was thus not properly constituted. Thus, viewed from whatever angle, petitioner has no case for the grant of leave to appeal against the impugned judgment of the Service Tribunal.
6. Upshot of the above discussion is that we find no merit in this petition which is accordingly dismissed.