1. HAMZO KHAN M. KURESHI (CHAIRMAN).-This appeal was originally filed before the West Pakistan Civil Services (Appellate) Tribunal, Lahore on 10-4-70 and was transferred to Sind Civil Services (Appellate) Tribunal Karachi, in February 1973. It was still pending there when this Tribunal was established in December 1973. The appeal stood transferred to this Tribunal under section 6 of Sind Service Tribunals Act, 1973. The appellant claims seniority over respondent No. 2, Dr. K. Y. Ansari, in Health Service Class-I. He was promoted to Class-11 on 18-4-1948 and was subsequently confirmed in the said post from the same date. He was promoted to Health Service Class-I with effect from 18- 6-1953 by the Government of Sind and was confirmed with effect from the same date in consultation with the Public Service Commission. Respondent No. 2 was appointed as direct recruit in Class-I1 on 26-12-1.947. He was confirmed in the said post on 18-2-1948. In February 1952 this respondent (Dr. Ansari) went abroad for higher studies on Central Government Scholarship and after obtaining the degree of FRCS (Eng.) he returned to Pakistan in August 1954. He was appointed to Class-I through Public Service Commission on 12-10-15154, and was confirmed in Class-I with effect from 19-10-1954. On his representation the then Government of West Pakistan by their letter dated 8th July 1965 (Annexure F) called for the remarks of the appellant Rating that if Dr. Ansari (respondent No. 2) had not gone on deputation for higher training he would have ranked above the appellant in Class-I because he was confirmed in Class-II two months earlier than the appellant. After considering the reply of the appellant the Governor of West Pakistan vide his mutilation dated 13-10-1965 directed that the Officers on promotion to Class-I will retain their inter se seniority as in Class-IL irrespective of their dates of promotion. In the light of this order Dr. Ansari got his original seniority over the appellant. Thereafter the seniority list was published by the department in 1967 in, which Dr. K. Y. Ansari, was placed senior to the appellant. The appellant therefore made representation to the West Pakistan Government, which was rejected vide their order dated 17th September 1969. The appellant therefore approached the Civil Service (Appellate)
2. Tribunal for his seniority. In the meantime respondent No. 2 was promoted as Director Health Services, HyJerdbad. The appellant urges that respondent No. 2 was not qualified to be promoted as Director Health earlier than him. The appellant claims that he may be placed above respondent No. 2 in the seniority list as the latter has been illegally made senior to him, which has affected his vested rights, promotions and prospects. It maybe pointed out that the appellant has since retired in 1973 or early 1974 and does not hold any civil post in connection with the affairs of the Province. It may further be pointed out that respondent's promotion as Director, Health Services involves the question of fitness to a particular post which is beyond the jurisdiction of this Tribunal. The determi- -nation of the question of seniority after the retirement of the appellant would not be of any material given to him. However, we would dispose of the appeal on merits.
3. Both the respondents i. e. the Government of Sind and Dr. K. Y. Ansari, have seriously contested the appeal. The Government have fully supported the case of Dr. K. Y. Ansari. The case of Dr. Ansari is that he was appointed as direct recruit in Class-1I on 26-11-1947 and was confirmed with effect from 18-2-1948. There is no dispute about the above dates. The appellant was appointed in Class-11 on 18-4-1948 and confirmed in the same post with effect from the same date. It is an admitted position that Dr. Ansari was senior to the appellant in Class-II. The dispute is regarding seniority in Class-1. The appellant was promoted to Class-1 on 18.6-1953 when Dr. Ansari was in U. K. doing his F.
4. R. C. S. His case was not sent by the department to the Public Service Commission along with the case of the appellant because he was outside Pakistan on deputation for higher studies. He continued to be in Class-I1 service and his case could not be ignored. If he were in Pakistan and all things equal, he would have certainly been promoted to Class-I earlier than the appellant. 'I he Government had sent him abroad on scholarship for higher training and he successfully accomplished it within the prescribed period. The period of his absence for higher training was counted as duty and it could not be used to his disadvantage regarding his seniority pit his F, turn to Pakistan on 23-8-1954 Dr.- Ansari reported for duty but was not given any posting order. On the advice of the then Secretary Health, he applied to the Sind Public Service Commission and was selected in Class-I in October 1954. This he says was done in order to prevent the reversion of the appellant. After his selection by the Public Service Commission, the respondent made representation to the Government for seniority. The then West Pakistan Government after careful consideration in consultation with the West Pakistan Public Service Commission declared the respondent senior to the appellant vide notification, dated 13th October 1965 which is on record.
5. This notification is a complete reply to all the contentions of the appellant. It would be of advantage if we quote it fully. It reads as under: "In consultation with the West Pakistan Public Service Commission, the Government of West Pakistan is pleased to approve the promotion for the following WPHS Class-II Officers of Group Sub- cadre 'B' to WPHS Class-I with effect from the dates mentioned against each. The Officers on promotion to Class-I will retain their inter se seniority as in Class-if irrespective of their dates of promotion: 1.Dr. K. Y. Ansari19-10-1954.
6. 2.Dr. Ghulam Ullah Awan29-8-1957.
7. 3.Dr. A. G. M. Barakzai18-6-1953.
8. (Dr. Amir Mohammad Khan), S. K.
9. Secretary Health."
10. The above order would show that not only Dr. K. Y. Ansari (respondent No. 2) but also one Dr. Awan were placed senior to the appellant because both of them had gone abroad when the appellant was promoted to Class-I in 1953. In the light of the above notification the name of Dr. Ansari was placed above the appellant in the civil list published on 1-7-1967. The representations made by the appellant to the Government of West Pakistan were rejected. The respondents state that this Tribunal was not competent to re-open the issues of seniority as it had been finally decided by the Government as far back as 1965.
11. The Government have supported the case of respondent No. 2. Their version is that respondent after obtaining Foreign Degree from U. K. on Government Scholarship returned to Pakistan in August 1954 and joined the Health department but no posting orders were given to him because his case was under examination by the Public Service Commission in respect of his suitability to hold Class-I. They state that the appointment of respondent No. 2 in Class-1 made in October 1954 was actually a promotion as he was already in service in Class-11-and his visit abroad for purpose of higher study did not affect his seniority: The period utilized for higher studies by the respondent was treated as duty. The Government further state that the civil list in which the name of the appellant happened to appear above the name of respondent No. 2 was not a seniority or a gradation list hence the entries therein did not confer any right of seniority on the appellant.
12. According to them the civil list indicated only the history of service and postings of various officers at various places but not the inter se seniority of the officers concerned. The Government further asserts that the copy of the Notification dated 13-10-1965 was sent to the appellant and he had the knowledge in 1965 that he was placed junior to respondent No. 1 but he kept Quiet till 1969 when the seniority list was finally published on the strength of the said notification. The contents of the notification show that its copy was forwarded to the appellant. The Government further state that the promotion or respondent No. 2 in 1970 as Director Health was according to his seniority fixed in I S'65 and his suitability for the post hence the appellant should have no grievance against it and his appeal has no force. They also attack the appeal on the point of limitation saying the departmental order was passed prior to 1-7-1969.
13. This last plea will have great force because proviso (C) to section 4 of Sind Service Tribunals Act, 1973 (hereafter called the Act) lays down that subject to the provisions of section 6, no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time bef. re IA July 1969." The above proviso shows that exception is made only in case of suits, appeals or applications which were pending in any Court immediately before the extension of clause 2 of Article 212 of the Constitution and which abated on the commencement of such law as laid down by section 6. The present appeal was pending before the Tribunal established under section 5 of the West Pakistan Civil Services (Appellate) Tribunals Ordinance, 1969 and stood automatically transferred to this Tribunal under section 7 of the Act. Since the matters transferred under section 7 are not protected by proviso (C) to section 4 of the Act, and the order regarding the seniority of the appellant was made before 1-7-69, his appeal would not be maintainable.
14. We have fully heard Mr. Niamatullah Qureshi for appellant, Mr. Abdul Salam Ansari for respondent No. 2 and the learned Assistant Advocate-- General for the Government. The A. A.-G. has supported the case of respondent No. 2. The only contention of the appellant is that he should be considered senior to respondent No. 2 in Class I because he was promoted earlier on 18-6-1953 whereas respondent No. 2 was promoted to the same post on 12-10-1954. It is an admitted position that respondent No. 2 was senior to the appellant in Class 11 as the appellant was promoted and confirmed on 1E-4-1948 whereas respondent No. 2 was promoted and confirmed on 18-2-1948. It is ah o an admitted position that respondent No. 2 was sent on deputation for higher studies abroad from February 1952 to August 1954. The respondent No. 1 (Government) clearly states that the period spent by respondent No. 2 for higher studies was treated as duty as he was sent abroad by the Government. The Government further contends that the case of respondent No. 2 was sent to the Public Service Commission in respect of his suitability to hold Class I post. The Public Service Commission approved him for the post hence he was actually promoted in Class I post as he was already in service in Class 11 and his visit abroad for the purpose of studies did not under mine his seniority. Since the elevation of respondent No. 2 from Class II to Class I was by way of promotion and his original seniority was right given a to him by the Government, we find no reason to interfere. It is obvious if the appellant had not gone abroad for higher studies he would have been promoted to Class I earlier than the appellant. We perfectly agree with contention of respondent No. 1 that the deputation of respondent No. 2 for higher studies abroad could not affect his promotion. The notification, dated 3-10-1965 quoted above has made the position of the parties regarding their seniority perfectly clear and according to us it is a just and proper order. In this notification the appellant is made Junior to respondent No. 2 and also to one Dr. Ghulamullah Awan who is not made a party in the present appeal. Since the appellant had accepted his position viz-a-viz Dr. Ghulamullah Awan, his dispute with Dr. K. Y. Ansari, who was placed even above Dr. Ghulamullab, has no meaning. The appellant did not file deft- rtmental appeal against the seniority mentioned in the above-said notifica--tion till April 1970. Before this date the appellant took no steps to get his due seniority. He also took no steps regarding his seniority when the list was published in 1967. It appears he opened his eyes after Dr. Ansari was promoted as Director Health in 1970. By this time his departmental appeal c had become time-barred. Therefore his appeal before the Tribunal would also be time-barred.
15. The admitted dates would show that the present appeal is hit by the Law of Limitation. The appeal was filed before the West Pakistan Civil Service (Appellate) Tribunal on 10-4-1970. Section 4 of West Pakistan Civil Service (Appellate) Tribunal Ordinance, 1969 lays down that "the aggrieved Government servant may prefer an appeal before the Tribunal concerned within three months of the publication of the latest list of the seniority. Tne seniority list was published in 1967. The West Pakistan Appellate Tribunal, wh--re the appeal was originally filed, came into existence in October 1969. At the most the appeal could be filed within three months from the establishment of the Appellate Tribunal. In this case the appeal was tiled 6 months after the establishment of the West Pakistan Appellate o Tribunal. There is no application under section 5, Limitation Act for condo nation of delay. Each day of delay is to be explained by the appellant. In this appeal no such grounds are set forth to explain the causes of 3 months delay. The appeal is therefore hit by the above-said law of limitation and must be dismissed.
16. In the light of the above observations on merits and also on the point of limitation, we have come to the conclusion that the appeal must fail. It is accordingly dismissed with no order for costs.