1. ' SAIDUZZAMAN SIDDIQUI, J.---Leave was granted in the abovementioned five appeals to consider the following questions of law:-- "3. We grant leave to examine firstly whether it was necessary to join the petitioner as necessary party in the proceedings before the Service Tribunal and secondly whether decisions of Service Tribunal impugned before us are judgments in rem or in personam. We leave open question of limitation to be determined at the time of hearing of appeals."
2. ' The impugned judgments in the abovementioned appeals are of different dates but as the appellant and the leave granting order in all the cases is the same, it will be convenient to dispose of these appeals by a consolidated judgment. However, before considering the common legal questions arising in these appeals, we would like to state the relevant facts in each case separately, which are as follows:- C.A. 1071/95 ' This appeal arises out of Service Appeal No,451/94 filed before Punjab Service Tribunal, Lahore (hereinafter to be called as 'the Tribunal' only) by respondent No,3 (Saeed Ahmed Khan', D.S.P.). This appeal was filed against Inspector-General of Police (I.-G. Police), Punjab Lahore, Mian Ghulam Muhammad Kilyar, DSP, Ch. Mushtaq Ahmed, DSP Iftikhar Pirzada, DSP and Ahmad Khan Chaddar, DSP. Respondent No,3 in his service appeal claimed right of confirmation as Inspector w,e,f, 22-3- 1980 on account of acts of gallantry. The learned Tribunal by judgment dated 16-6-1994 accepted the appeal of respondent No,3 and allowed him ante-dated confirmation as Inspector w,e,f, 22-3- 1980.
3. C.A. 1072/95 ' This appeal arises out of Service Appeal No,351/94 filed before the Tribunal by respondent No,5 (Mukhtar Hussain Shah) against respondents Nos.1 to 4 and 6 to 10 in this appeal. Respondent No,5 claimed before the Tribunal that he was entitled to be confirmed as Inspector w,e,f, 24-12-1979 and consequently he was entitled to be declared senior to private respondents in the appeal before the Tribunal. The learned Tribunal accepted the appeal on 24-8-1994 and issued the following directions:-- "(1) Respondent No,5 was directed to be placed on the F' list between Muratib Ali and Falak Sher.
(2) He was confirmed as Inspector w,e,f, 24-12-1979 when his junior, namely, Muhammad Raza was confirmed.
(3) He was directed to be placed as DSP above Muhammad Raza in the seniority list dated 30-12- 1993; and
(4) He was directed to be regularised as DSP in the seniority list dated 2-1-1994 placing him above Muhammad Raza at S.No, 14 and below Muhammad Bashir at S.No,13.
4. C.A. 1073/95 ' This appeal arises out of Service Appeal No,918/94 field before the Tribunal by respondent No,5 (Zulfiqar Ahmed Malik) against respondents Nos. 2, 6, 8, 10 and 11 herein. Respondent No,5 who was confirmed as Inspector w,e,f, 1-7-1984 in the ordinary course, claimed before the Tribunal that he was entitled to confirmation against the post of Inspector w,e,f, 16-1-1978 on account of various acts of gallantry during his service. The appeal was accepted by the learned Tribunal on 14-3-1995 and respondent No,5 was held entitled to confirmation w . e f. 16-1-1978.
5. C.A. 1074/95 ' This appeal arises out of Service Appeal No,1224/93 filed before the Tribunal by respondent No,4 (Muhammad Aslam Sahi) against I.G.P. And 5 others. Respondent No,4, who was confirmed as Inspector on 27-9-1980 claimed confirmation as Inspector w,e,f, 5-8-1979 on the basis of his acts of gallantry for which he was recommended accelerated promotion by his superiors. The learned Tribunal allowed the appeal on 26-6-1994 and directed the department to confirm respondent No,5 as Inspector w,e,f, 5-8-1979.
6. C.A. 1075/95 ' This appeal arises out of Service Appeal No, 118/92 filed before the Tribunal by respondent No,9 (Syed Irshad Hussain Shah) against I.G.P. And others. Respondent No,9 was denied promotion by the departmental authority as he was found junior to various officers in his cadre. He, therefore, submitted a representation on the basis of his extraordinary service record and 'acts of gallantry.
7. The representation of respondent No,9 was accepted by the departmental authority and he was confirmed as Inspector w,e,f, 16-12-1981. Respondent No,9 who was dissatisfied with the confirmation order of the departmental authority, made a second representation for ante-dating his confirmation from 20-1-1980 on the basis of his extraordinary service record. This was not acceded to whereupon he filed service appeal before the Tribunal which was accepted on 28-4- 1993 and he was allowed confirmation as Inspector w,e,f, 20-1-1980.
8. ' The appellant, M.A. Rashid Rana, who claimed that his interest was adversely affected by the judgments of learned Punjab Service Tribunal, impugned in the above appeals, challenged the judgments of Tribunal before this Court through five separate petitions for leave to appeal in which leave was granted subject to the decision on the question of limitation at the time of hearing of appeals. Since all the above appeals are time-barred and there are applications for condonation of delay in filing these appeals, we will first of all take up the applications for condonation of delay.
9. ' Condonation of delay in filing these appeals is sought by the appellant on the ground that the appellant was not impleaded as party in the service appeals filed before the Tribunal and therefore, he was not aware of the judgments of the Tribunal. That the appellant came to know the impugned judgments of Tribunal when the department started implementing the same and accordingly, he obtained copies of the judgments and filed appeals in this .Court. It is contended that the appeals are within time from the date of knowledge of the appellant about the impugned judgments. It is not disputed by the learned counsel for the respondents that the appellant was not impleaded as party in the service appeals before the Tribunal. It is, however, contended that no cogent ground has been made out for condonation of long delays in filing these appeals as the appellant was aware of the orders of Tribunal much 'before the dates mentioned in the applications for condonation of delay. The appellant claimed knowledge of the judgments of Tribunal from the date of notification issued by the department giving pro forma promotions to the private respondents in the cadre of Deputy Superintendent of Police. This notification is dated 20- 9-1995 while the appeals were filed on 10-10-1995. Therefore, if the period of limitation is reckoned from the date of knowledge i,e, the date on which notification was issued, the appeals are in time.
10. The respondents have not been able to establish from the record before us that the appellant became aware of the judgments passed by the Tribunal in the above cases before 20-9-1995. In the case of Imam Bakhsh v. Deputy Commissioner (1992 SCM R 365) this Court in similar circumstances condoned the delay in filing of appeal before this Court where the appellants were not made party to the proceedings before the High Court in the writ petition. We, accordingly, condone the delay in filing the above appeals.
11. ' The two points noted in leave granting order are (i) whether the appellant was a necessary party to the proceedings before the Tribunal and (ii) whether the decisions of the Tribunal impugned before this Court are judgments in rem or judgments in personam.
12. ' We will first take up the point, whether the judgments, delivered by the Service Tribunal in the above cases are judgments in rem or judgments in personam. In the case of Pir Bakhsh v.
13. Chairman, Allotment Committee PLD 1987 SC 145, this Court pointed out the difference between a judgment in rem and judgment in personam as follows:- "The High Court in dislodging the appellants held that the judgment of the Supreme Court was not a judgment in rem, but in personam. The terms ' in rem' and ' in personam' are of Roman Law used in connection with action that is, action in rem and action in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms ' in rem' and ' in personam' got tagged with the word judgments to denote the end-products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was an action in rem and the judgment pronounced in such action was a judgment in rem and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personan and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them."
14. ' Monir in his "Principles and Digest of the Law of Evidence " at page 563, gives the import of these terms as under:-- "The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing but ipso facto renders it such as it is declared; thus, a decree of divorce not only annuls the marriage, but renders the wife feme sole: adjudication in bankruptcy not only declares; but constitutes the debtor a bankrupt; a sentence in a prize Court not merely declares the vessel prize, but vest it in the captor."
15. ' Section 41 of the Evidence Act does not use the term "judgment in rem" but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely.
16. ' Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of justice unless he or those under whom he claims were parties to the proceeding in which it was given. This rule of law is referable to the maxims of Roman Law namely, "Res inter alias judicata nullun inter alias prejudicium facit", or "Res inter alias acta alteri nocere non debit". Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. The reason why a judgment should not be used to the prejudice of a stranger is that he is denied the fundamental right to make a defence, or to examine or cross-examine witnesses or to appeal from a judgment which aggrieves him. This is the requirement of most manifest justice and good sense."
17. "The allotments under the Schemes related to the evacuee agricultural land and until acquired and transferred under the Displaced Persons (Land Settlement) Act, 1958, no one could claim the ownership of the parcels of land allotted to them. There was, therefore, no adjudication in regard to the status of res so as to render the proceedings an action in rem, that is, to make it a determination conclusive as to whether any person was entitled to a specific thing not as against any specified person, but absolutely. The controversy, however, centered on the scaling down of the areas of the sitting allottees as a result of the revision of allotments. The grievance was individual and related to the satisfaction of claims in full or in part. Therefore, the proceedings were actions in person against definite persons arrayed as respondents and the determination a judgment in personam. So, long this determination was not set aside in appeal, the judgment remained in the field irrespective of the quality of determination as to whether it was incorrect on question of fact or law. The rights of the parties thereunder assumed finality and took the colour of a "past and closed transaction". The fact that the Supreme Court in an appeal, titled Abdul Hafiz v.
18. Rahabilitation Commissioner and others, against the judgment of the High Court set aside the same judgment in another writ petition would not reopen the concluded rights of the parties under the decision of the High Courts against which no appeal was filed nor could the appellants who were respondents in that writ petition avail the benefit of the law laid down by the Supreme Court under Article 189 of the Constitution. They can have, therefore, no grievance if the settlement authorities maintained the earlier allotments of the respondents by cancelling the allotments of the appellants to the extent of the lands sliced down from their holdings. The fact that the law laid down by this Court is prospective also cannot be doubted. In this connection this Court had the occasion to consider its earlier decision namely, Jalal Din v. The Chief Settlement "Commissioner etc. PLD 1965 SC 261 in Muhammad Yousaf v. C.S.C. Pakistan Lahore PLD 1968 SC 101 and the question was as to from what point of time it was effective."
19. ' The case of Pir Bakhsh v. Chairman, Allotment Committee supra was referred with approval in a recent case reported as Muhammad Sohail v. Government of N.-W.F.P. (1996 SCM R 218) and after quoting the relevant passage from Pir Bakhsh case, supra, it was observed by this Court as follows:-- "A perusal of the second extract from the aforesaid judgment indicates that the concept of judgment in personan and judgment in rem was originated under the Roman Law in connection with actio i,e, actio in rem and actio in personam to denote the nature of actions and that the disappearance of Roman forms of procedure each of the two terms ' in rem' and ' in personam' got tagged with the judgments to denote the end products of actions in rem and actions in personam.
20. Whereas Monir in his book 'Principles and Digest of the Law of Evidence' has distinguished the above two types of judgments by stating that the point adjudicated upon in a judgment ' in rem' is always as to the status of the res and is conclusive against the world as to the status, whereas in a judgment ' in personam' the point whatsoever it may be which is adjudicated upon, it not being as to the status of the res is conclusive only between the parties or privies.
21. ' It is also evident from the above passage that section 41 of the Evidence Act (now Article 55) of the Order though incorporates the principles of a judgment in rem but does not use the above term ' judgment in rem'. The judgments in the rem are exception to the rule of law that no man should be bound by the decision of a Court unless he or those under whom the claims were parties to the proceedings in which it was given.
10. It seems that Article 55 of the Order restricts the application of the principle of judgment in rem to the judgments, orders or decrees rendered in the exercise of jurisdiction pertaining to four types of jurisdictions, namely, probate, matrimonial, admiralty and insolvency, in respect of the legal character of the matters referred to therein, whereas the definition for the above term given in Black's Law Dictionary and the above commentary by Monir in his above book have not restricted the application of the above principles of judgments in rem to the judgments orders or decrees rendered in the exercise of above four types of jurisdictions referred in Article 55 of the Order. We are inclined to hold that in the absence of any well-established principle of jurisprudence, we cannot enlarge the scope of above Article 55 of the Order as to include a final judgment, order or decree passed by a Court or Tribunal in the exercise of any other jurisdiction than any of the four types of jurisdiction referred to in the above Article. We are of the view that the judgment rendered by the Tribunal in the appeal filed by Mubarik Ali and which was upheld by this Court by refusing leave to appeal is not a judgment of the nature covered by the above four types of jurisdiction referred to in Article 55 of the Order but it falls in the categories of judgments referred to in Article 56 of the Order. In other words, it is relevant for the controversy in issue but is not conclusive proof against the appellants as to what it states."
22. ' In view of the above discussed legal position it is quite clear that .The judgments pronounced by the Punjab Service Tribunal impugned in the above appeals, determined inter se the rights of the parties which were before the Tribunal in the above cases, and as such these judgments are judgments in personam and not judgments in rem. The judgments of the Tribunal impugned in the above appeals, therefore, did not bind the appellant who was not a party to the proceedings before the Tribunal. Our conclusion in this regard is also supported by the pronouncement of this Court in the case of Government of Sindh v. Saifullah Qureshi 1988 SCM R 620 and Khadim Hussain v. Government of Pakistan 1993 SCM R 1869.
23. ' The next point on which leave has been granted in these cases is, whether it was necessary to join the appellant as a necessary party in the proceedings before the Service Tribunal. The determination of this point in the present appeals necessarily implies an adjudication whether the appellant could maintain an appal against the decision of Service Tribunal if he was not a party to the proceedings before the Tribunal. It is not disputed by the learned counsel for the respondents that as a result of ante-dated promotion granted to respondents, under the impugned orders of the Tribunal, the seniority of the appellant qua respondents has been adversely affected. Since the orders passed by the learned Tribunal adversely affected the interest of appellant, he should have been impleaded as a respondent in the proceedings before the Tribunal. However, as held in the cases of Government of Sindh v. Saifullah Qureshi, supra, and Khadim Hussain v. Government of Pakistan supra, the judgments pronounced by the Service Tribunal being judgments inter se between the parties did not bind the appellant. In these circumstances, a further question arises whether the appellant who was adversely affected by the orders of the Tribunal could challenge the order of the Tribunal before this Court under Article 212 of the Constitution or he should raise the objection before the departmental authority at the time of preparation of seniority list and then go through the process of challenging the order of departmental authority before the Service Tribunal and before this Court. The right to appeal against the judgment of Service Tribunal is conferred under Article 212 of the Constitution, which reads as follows:-- "212--(1) Notwithstanding anything hereinfore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servants; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment: ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly in the form of a resolution Majlis-e-Shoora (Parliament) by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal "
24. ' The learned counsel for the respondents contended that the right of appeal of this Court under the above Article of the Constitution is confined to the parties to the proceedings and therefore, a person though may be affected adversely by the judgment of Tribunal, could not file appeal under the above provision of the Constitution, if he was not a party to the proceedings before the Tribunal. There is nothing in the language of Article 212 ibid to suggest that the right of appeal under this Article of Constitution is confined to the parties to the proceedings before the Tribunal. In fact, Article 212 ibid does not permit filing of appeal by a party as matter of right. The appeal under Article 212 ibid can be filed only with the leave of the Court and on a substantial question of law of public importance. Therefore, in an appropriate case, this Court may permit filing of an appeal by a person, who may not be a party before the Tribunal, if the Court is of the opinion that the interest of such party has been adversely affected by the judgment of the Tribunal and he is not able to seek effective remedy against the decision of Tribunal before any other forum. The learned counsel for the respondents, however, vehemently argued that as the appellant is not bound by the judgments of the Tribunal impugned in these appeals, could agitate the matter before the departmental authorities for redress. It is true that the judgments of the learned Tribunal impugned in the above appeals are not binding on the appellant as he was not made party to the proceedings before the Tribunal, but it cannot be ignored that the department was a party in all these cases before the Tribunal. The department, therefore, cannot bypass the judgments of the learned Service Tribunal which are binding on it. In these circumstances, it is unlikely that the appellant would be able to persuade the departmental authorities to take a view contrary to the decision of the Service Tribunal. Since the prospect for the appellant to get effective remedy before the departmental authority is remote in view of the judgments of the Tribunal which were passed in proceedings where department was a party. We are of the view that the appellant is entitled to maintain these appeals before this Court against the impugned judgments of the Service Tribunal. It is not disputed, before us that the impugned judgments in the above appeals adversely affected the seniority of appellant. It is also not disputed that the appellant was not made party in the service appeals before the Service Tribunal, wherein the impugned judgments were passed. The impugned judgments, therefore, cannot be upheld against the appellant. As a result of the above discussion, the appeals are allowed. The judgments of the Service Tribunal in all the above appeals are set aside and the cases are remanded to the Service Tribunal with the direction to rehear all these appeals after impleading the appellant as respondent in these appeals in accordance with law.
25. There will be no order as to costs in the circumstances of the cases.