' MIR HAZAR KHAN KHOSO, J.---Petitioner Saleem Ullah in Civil Petitions Nos. 277/94 and 278/94 has challenged the order dated 26-1-1994 passed by the Federal Service Tribunal, Islamabad, whereby his two Appeals Nos. 3(R)/1990 and 338(R)/1991 claiming seniority over the respondents herein before us in the above said two petitions were dismissed.
2. The bio-data of the petitioner and the respondents in respect of their jobs in the Police Department of Pakistan is as under:- {{TABLE}} Saleem Ullah (Petitioner)
(i) A.S.P. (B-17) 24-12-1971 (joined).
S.P. (B-18) 24-12-1976 (promoted). deferred. 2-1-1985 (C.S.B.) considered. 10-9-1985 (C.S.B.) approved. 6-10-1986 (competent authority)
D.I.-G. (B-19) 11-11-1986 (promoted).
Haji Muhammad Arif Chaudhry (respondent).
S.P. (B-18) 9-8-1975 (inducted from Army) deferred. 26-12-1982 (C.S.B.)
Superseded. 12-6-1983 Superseded. 11-12-1983 Not considered 16-5-1984 Superseded. 2-1-1985 Considered 10-9-1985 Approved 6-10-1985 (competent authority)
D.I.-G. (B-19) 27-2-1986 (promoted).
Sultan Ali Mehmood (respondent) (deceased).
(i) S.P. 31-10-1976 (inducted from Army)
Superseded. 11-12-1983 (C.S.B.)
Not considered 16-5-1984 Superseded. 2-1-1985 13.
14. {{TABLE}} Considered 10-9-1985 Approved 6-10-1985 (competent authority)
D.I.-G. (B-19) 30-10-1986 (promoted).
Muhammad Habib Khan (respondent)
(1) S.P. 31-10-1976 (inducted from Army)
Superseded. 16-5-1984 (C.S.B.)
Superseded. 2-1-1985 "
Considered 10-9-1985 .
Approved 16-10-1985 (competent authority)
D.I.-G. (B-19) 11-11-1985 (promoted).
Habib Ullah Khan Niazi (respondent)
15.
S.P. , 4-10-1976 Superseded. 16-5-1984 (inducted from Army) (C.S.B.)
Superseded. 2-1-1985 "
Deferred 10-1-1985 "
Considered 9-4-1986 "
(vi), Cleared D.I.-G. (B-19) 30-4-1986 21-9-1988 (competent authority) (promoted).
Muhammad Akram Chaudhry (respondent)
S.P. 4-10-1976 (inducted from Army)
Superseded. 16-5-1984 (C.S.B.)
Superseded. 2-1-1985 "
Deferred 10-9-1985 "
Considered 9-4-1986 "
Approved 30-4-1986 (competent authority)
(vi) D.I.-G. (B-19) 4-6-1986 (promoted).
Mukhtar-ul-Mulk Raipoot (respondent)
(i) S.P. 1-10-1976 (inducted from Army) {{TABLE}} Superseded 16-5-1984 (C.S.B.)
Superseded 2-1-1985 Deferred 10-9-1985 Considered 9-4-1986 Approved 30-4-1986 (competent authority)
D.I.-G. (B-19) 16-7-1986 (promoted).
3. Chart reflects that petitioner Saleem Ullah, respondents Muhammad Arif Chaudhry, Sultan All Mehmood and Muhammad Habib Khan were cleared by the Central Selection Board on the same day 10-9-1985. They were also approved by the competent Authority simultaneously on 6-10-1985.
Habib Ullah Khan Niazi, Muhammad Akram Chaudhry and Mukhtar-ul-Mulk Rajpoot were considered on 9-4-1986 and approved on 30-4-1986. Muhammad Habib Khan was promoted as D.I.-G. On 11-11-1985, Muhammad Arif Chaudhry on 27-2-1986, Muhammad Akram Chaudhry on 4- 6-1986, Mukhtarul-Mulk Rajpoot on 16-7-1986, Sultan All Mehmood on 30-8-1986 and Saleem Ullah on 11-11-1986. Conversion of supersession to deferment of the respondents was made on:-- {{TABLE}} Muhammad Arif Ch. 24-12-1990.
Sultan Ali Mehmood. (deceased).
Muhammad Habib Khan. 28-2-1988 Habib Ullah Khan Niazi 30-8-1990.
Muhammad Akram Ch. 23-4-1990.
Mukhtar-ul-Mulk Rajpoot 15-9-1990
4. Chart further reflects that the respondents were senior to the petitioner as S.Ps. There is indeed no dispute in respect of the period. The chart is supplied and relied upon by the petitioner himself.
5. The seniority between the incumbents before us for the first time was disturbed in April, 1987, when in gradation list the petitioner was shown at No, 59, respondents Muhammad Arif Ch., 62, Sultan All Mehmood, 63, Muhammad Habib Khan, 65, Habib Ullah Khan Niazi, no number, Muhammad Akram Chaudhry, 69 and Mukhtar-ul-Mulk Rajpoot 68. There is no material on the record to justify this change. Seniority list by itself confers no vested right. "Hamid's case". Petitioner, however, based his seniority over respondents on letter dated 1-11-1987 issued by the Cabinet Secretariat, Establishment Division, Government of Pakistan (Annexure A, page 69 of C.P.LA. No, 277 of 1994) whereby on account of his junior Muhammad Iftikhar, 60, having assumed charge of higher post on 5-2-1985, his seniority as D.I.-G. Was also reckoned. From 5-2-1985 (actual date 11- 11-1986). The letter reads as under:-- "I am directed to refer to your letter No,GA.VIII/PF/AR/OSD/ESTT, dated 28-10-1987, on the captioned subject and to clarify that in accordance with the general principles of seniority, Mr. Saleemullah, will count his seniority in BPS-19 of the Police Service of Pakistan alongwith the batch of officers with which he was initially considered but deferred. He was initially considered by the Board in its meeting held on 2-1-1985 and deferred. He was cleared and approved for promotion on ? And 6- 10-1985, respectively.
2. His immediate junior, Mr. Iftikhar All Isani assumed charge of the higher post on 5-2-1985. As such Mr. Saleemullah will reckon seniority as D.I.-G. Of Police with effect from the same date i,e, 5-2- 1985."
6. It is grievance of the petitioner that by subsequent gradation list dated 1-1-1989 and 1-4-1990 arbitrarily the respondents were shown seniors to him. The petitioner claims to have filed representation against gradation list dated 1-1-1989 with the Secretary, Establishment Division on 4-9-1989. It reads as under:- "In the Gradation list of Police Service of Pakistan published by the Establishment Division on 12-4- 1987 my name had been shown at Serial No, 59 of BPS-19. Likewise, the names of Maj. (Retd.) Haji Muhammad Arif Ch., Maj. (Retd.) Sultan All Mehmood and Maj. (Retd.) Muhammad Habib Khan had been shown at Serial Nos. 62, 63 and 65 respectively.
' I have now come to know that in the Gradation List presently being maintained and relied upon in the Establishment Division these officers have been shown senior to me by placing Maj. (Retd.)
Sultan All Mehmood at Serial No,40 between Maj. (Retd.) Israr Muhammad Khan Serial No,39 and Abdul Rauf Malik Serial No,41. Maj. (Retd.) Muhammad Arif Ch. And Maj.(Retd) Muhammad Habib Khan have been placed at Serial Nos.49 and 50 of the said Gradation List between Asad Jehangir Khan Serial No,48 and Shahid Hasan Qureshi Serial No,51, while I remain at Serial No,54.
' I was promoted to Grade-19 on 5-2-1985, whereas, the above mentioned officers i,e, Maj. (Retd.)
Sultan All Mehmod, Maj. (Retd.) Muhammad Arif Ch., and Maj. (Retd.) Muhammad Habib Khan were promoted to Grade-19 on 30-10-1986, 27-2-1986 and 11-111985, respectively. They had, likewise, been shown as junior to me in the Gradation List of 12-41987. Hence, all of these three officers stand junior to me in BPS-19.
' My seniority vis-a-vis these officers had been disturbed with a mala fide intent, to my detriment and to unduly benefit the said officers, without even notifying me of this drastic and harmful change in the Seniority List of which I have now come to know quite suddenly and by mere chance.
' I, therefore hereby, request that my seniority as per Gradation List of 12th April, 1987 may very kindly be restored by declaring the three officers named above as junior to me."
' The Secretary, Establishment Division has denied it in his objection to para.
5. It reads as under:- "The representation, dated 4-9-1989 neither appears to have been received in the Establishment Division nor the appellant has shown that it was forwarded by the proper channel to the respondent No,1 for consideration. Hence the appeal appeared to be barred by provisions (b) to subsection (1) of section 4 of the Service Tribunal Act, 1973. It is also barred by section 4(1) (b) of Service Tribunal Act."
7. There is nothing on the record to show that any representation was made by him against the upgradation list of 1-41990. It may be seen that this is the latest seniority list. The record, however, confirms that the unofficial respondents had made representations in respect of their seniorities before the relevant authority. Their request was entertained and. Accepted by the competent authority. Resultantly their supersession was converted into deferment. In reply to paras 3 and 4 of the appeal filed by the petitioner, the Secretary, Establishment Division has said:- "The respondents Nos. 2-4 were superseded in the earlier different meetings dated 26-12-1982, 12- 6-1983, 11-12-1983, 16-5-1984 and 2-1-1985. However, on reconsideration of their cases, their supersessions were converted into deferment by the competent authority and hence they rank senior to the appellant under the General Principles of Seniority as they were senior to the appellant in the lower post of S.P. And have been given seniority with the original batch with whom he was considered in first meeting of the CSB."
8. Being aggrieved the petitioner vide Appeal No,3(R)/1990, firstly challenged seniority of respondents Muhammad Arif Ch., Sultan All Mehmood and Muhammad Habib Khan and then by Appeal No,338(R) of 1991 challenged seniority of Habib Ullah Khan Niazi, Muhammad Akram Ch. And Mukhtar-ul-Mulk Rajpoot. By single order dated 264-1994 the Federal Service Tribunal dismissed both the appeals with the following observation:- "After going through the facts and merits of the case and after hearing the parties, we find that both the appeals are hit by limitation factor and incompetent as these had been submitted without any valid point of grievance. Secretary Establishment was competent to convert the supersession of the private respondents into deferment and assign them seniority over the appellant, is the private respondents had either been facing enquiries or some of the A.C.Rs, and other record were awaited by the respondent Department and Board at the time of earlier clearance promotion of the appellant. The cases of the private respondents had rightly been settled and given seniority over the appellant along with pay fixation and increments etc. There had been no point of agitation or practical grievance with the appellant to submit both the Appeals No,3(R)/1990 and 338(R)/1991 which are accordingly dismissed."
9. Against this Order the petitioner has come before this Court and sought for leave to appeal. The petitioner appeared in person. Respondents Muhammad Habib Khan and Habib Ullah Khan Niazi also appeared on Court notice.
10. The petitioner in support of his petitions inter-alia, contended:-
(i) Seniority List of 1-4-1987 was issued and circulated amongst the incumbents but none challenged which attained finality and was acted upon. Thus on the principles of 'locus poenitentiae' and `audi alteram partem' it could not have been altered by the respondent No,l.
(ii) D.I.-G. Is selection post. It is made on merit based on comparative merit, qualifying service, experience, qualification of work and output. A.C.Rs, are not the sloe criteria. Thus, not putting thereof before the C.S.B. Is of no consequence. The respondents did not challenge their supersession before the competent authority, it as such attained finality, the Secretary Establishment has no authority to convert it into deferment, its order as such is illegal and void and can extend no benefit to the respondents.
(iii) The Seniority Committee does not figure in any law, it could not have surpassed the decision of the C.S.B. And also that of the seniority of the petitioner which had attained finality in the year 1987.
Its decision as such is Coram non-judice and thus is of no effect.
(iv) The Secretary Establishment has no authority to convert supersession into deferment, his action as such is illegal and of no consequence.
11. In support of his contentions the petitioner relied upon Estacode page-8, and its rule 7. Besides he relied upon the case reported in PLD 1981 SC 531. In paras. 26 and 28 this Court has held:- "26. The objection of the respondent to the functioning of the Selection Board, and his own exclusion from subsequent selections, also does not take into account the rules, the instructions and the practice in the matter. Selection Boards and the Departmental Promotion Committees are the substitutes for and an alternative to Public Service Commission. Their recommendations are entitled to greatest respect and utmost consideration. Government orders with regard to the sanctity of such recommendations are to be found on page 126 of (Esta Code) in the following words:- "Government have decided that there should be a convention whereby the advice of the Selection Board should be accepted quickly save in exceptional cases; and that if the Prime Minister or the Minister concerned disagrees with the view of the Selection Board, the case should be returned to the Board for further consideration, and a decision taken by the Prime Minister only after the further views of the Board have been placed before him."
(v)
28. The directions to the Selection Board to take into consideration the Confidential Reports of past five years before the selection are only advisory and directory. The power and jurisdiction of the Selection Board to assess the suitability of the Officer from his overall performance remains unabridged. The amplitude of this power of selecting suitable persons can be somewhat gathered from a decision of this Court in the Punjab Public Service Commission, Lahore v. All Gul and 4 others. It is a decision within the exclusive competence of the Selection Board and the power had to be manifestly exercised to select the respondent for the post. There is no question of implying, inferring or deeming promotion and substituting such an inference for the selection. The Tribunal in any case, could not substitute its own decision with regard to suitability of the respondent for that of the Selection Board. The fact remains that the Selection Board at no particular time cleared the respondent for promotion as D.I.-G." Obviously this authority is not relevant for decision of these petitions.
12. The respondents contended that under ESTA CODE (page 245 and 246) the competent Authority is authorised to convert supersession to deferment; the order of the Secretary, Establishment Division, therefore, does not suffer from any infirmity, the order of the Federal Service Tribunal as such be maintained. Besides they contended that Hamid Aslam Malik had also challenged their seniority before the Service Tribunal which was dismissed on 13-4-1993. He challenged the same before this Court which was also declined on 15-12-1993. They contended that the petitions in hands are of identical nature, which as such be dismissed. The petitioner, however, disputed that case of Hamid Aslam Malik is identical with these petitions.
13. Before dilating upon the petitions we feel it necessary to reproduce the observations of this Court made in Civil Petition for Leave to Appeal No, 386 of 1993 (Hamid Aslam Malik v. Secretary, Establishment Division and 4 others). It reads as under:-- "The seniority list by itself confers no vested right unless the position in the seniority list is backed by an order competently passed. Reference to the seniority list is not material at all for the purposes of establishing seniority."
14. It may be pertinent to observe that the unofficial respondents were inducted as S.Ps. In 1976 when the petitioner was A.S.P. They as such were senior to the petitioner. As already observed that for no reason seniority of the respondents behind their back was disturbed and the petitioner was shown as senior to them but subsequently the respondents were placed as senior to him and injustice rectified. It may be seen that case of respondent Muhammad Arif Chaudhry for the first time was considered by the C.S.B. On 26-12-1982, that of Sultan All Mehmood on 11-12-1983, Muhammad Habib Khan, Habib Ullah Khan Niazi, Muhammad Akram Chaudhry and Mukhtar-ul- Mulk Rajpoot on 16-5-1984. But the petitioner's on 2-1-1985.
15. It may be noted that on 10-9-1985 the petitioner, respondents Muhammad Arif Chaudhry, Sultan All Mehmood (deceased) and Muhammad Habib Khan were considered by the C.S.B. They were approved on 6-10-1985. Muhammad Habib Khan was appointed as D.I.-G. On 11-11-1985, Muhammad Arif Ch. On 27-2-1986, Sultan Ali Mehmood on 30-10-1986 and the petitioner on 11-11- 1986. Even by appointment as D.I.-G. Muhammad Habib Khan and Muhammad Arif Ch. Stood senior to the petitioner. Their supersession obviously did not come in their way. Objection of the petitioner regarding their conversion of supersession to deferment is of no consequence. Resultantly the petitioner cannot claim seniority over Muhammad Habib Khan and Muhammad Arif Ch. Cases of Habib Ullah Khan Niazi and Mukhtar-ul-Mulk Rajpoot were deferred on 10-9-1985 and in the next meeting i,e, 9-4-1986 their case was cleared, approved and then they were promoted as D.I.-G.
Immediately they regained their seniority over the petitioner. On conversion of the respondents' supersession to deferment they acquired the same seniority with their other batch-mates i,e, Hamid Aslam Malik, who is senior to the petitioner. He challenged seniority of the respondents before the Federal Service Tribunal and failed. His petition before this Court was also dismissed.
Objection of the petitioner regarding conversion of their supersession to deferment is also of no effect. The petitioner as such cannot also claim seniority over these respondents. No doubt the competent Authority under the General Principles of Seniority had reckoned petitioner's seniority from 5-21985 but actually he shall be deemed to be promoted on 11-11-1985. This contravention the respondent No, 1 before the Service Tribunal has explained as under:-- "The appellant was promoted as D.I.-G. Of Police (BPS-19) with effect from 11-11-1986 and was allowed seniority alongwith his batch under the General Principles of Seniority as his case was deferred in the earlier meeting held on 2-1-1985.
' The appellant has been assigned seniority under the General Principles of Seniority with effect from 5-2-1985, the date his immediate junior was promoted. However, he was actually promoted as D.I.-G. (BPS-19) with effect from 11-11-1986, which has to be his date of promotion under section 8(4) of the Civil Servants Act, 1973."
16. In view of the facts discussed herein above the contentions raised by the petitioner in all respects loose its value.
17. The doctrine of 'Locus poenitentiae' is not attracted in this case. If it is attracted, it can be used against the petitioner as the respondents were senior to him earlier and they would continue to be so. Petitioner cannot approbate and reprobate simultaneously. The process of legal battle cannot be circumcised by this doctrine indeed.
18. It may be seen that under the ESTACODE, the Secretary, Establishment is authorised to convert supersession to deferment. In the instant case he has exercised his powers. It is not the competency of the C.S.B. The objections raised in that respect by the petitioner are devoid of force and repelled.
19. Well-settled principles for fixation of the seniority have been followed by the respondent No, 1.
We do not find any defect therein which may call for the interference of this Court. The Federal Service Tribunal has considered the same properly. We do not find any defect therein. The authority relied upon by the petitioner do not come to his help. There is no merit in the petitions which as such are dismissed. Leave to appeal is refused accordingly.