' ABDUR REHMAN KHAN, J.---This appeal impugns the legality of the judgment dated 8-6-1994 of the learned Federal Service Tribunal; whereby, the appeal preferred by the appellant under section 4 of the Federal Service Tribunal Act, for fixation of his seniority from 30-9-1969 and promotion from retrospective effect, was dismissed.
2. The appellant approached the Federal Service Tribunal for his redress under the following factual background:-- The appellant was initially inducted in service on 31-10-1966 as Agronomical Assistant in the erstwhile East Pakistan and was given gazette class-I status by order dated 30-9-1969. However, after the fall of East Pakistan when he shifted to Pakistan in 1974 and got an assignment of nongazetted post on temporary basis in Atomic Energy Agricultural Research Centre, Tando Jam.
After the promulgation of Ex-employees of the former Government of East Pakistan (Appointment to Federal Posts) Ordinance, 1983 and on approval of the Establishment Division dated 26-2-1986, the appellant was appointed as Seed Certification Officer (B-17) which he joined on 20-3-1986.
3. The relief sought by the appellant under these proceedings is that the period from 30-6-1969 during which he remained as Class-I Officer in the former East Pakistan is countable towards the determination of his seniority in Grade-17. This claim of the appellant remained under consideration between the concerned Departments. On 23-9-1989 the Establishment Division gave opinion that the service rendered by an employee under the former Government of East Pakistan shall count towards seniority if he is appointed to the scale of the same post which he was holding while in the defunct East Pakistan. The period from 17-3-1974 to 16-12-1974 was treated as extraordinary leave without pay. A seniority list was issued in which the appellant was shown at serial No,15 instead of 20. But the appellant was not satisfied with this arrangement and he filed appeal before Secretary, Ministry of Food and Agriculture on 10-11-1993 and he was informed that the case has already been decided by Establishment Division vide M.O. Dated 1-12-1991. This order was treated by the appellant as final order of the Departmental Authority in the matter, therefore, he approached the Federal Service Tribunal in appeal.
4. The learned Federal Service Tribunal dismissed the appeal on the following legal grounds:--
(i) The appellant had before the present appeal approached the Federal Service Tribunal in Appeal No, 16(K) of 1991 decided on 10-12-1992, almost for the same relief as sought for in the instant appeal in which partial relief of directing to fix the pay from 18-3-1974, was granted but arrears were refused. The appellant filed petition for leave to appeal but he withdrew it while the petition for leave to appeal by the Government was refused by order dated 21-3-1993 in Civil Petition No,70(K) of 1993, therefore, the judgment of the Federal Service Tribunal obtained finality on this particular cause of action.
(ii) The appellant has not impleaded in the appeal those officers who will be affected in case the relief prayed for is allowed. Therefore, in absence of the necessary parties no order could be passed affecting their rights adversely. The appeal was thus held not maintainable.
(iii) The appeal was held to be time-barred as the question of seniority of the appellant on his representation was decided by the Establishment Division on 1-12-1991. The appellant could agitate his grievance through appeal before the Tribunal within 30 days under section 4(1) of the Service Tribunal Act which he failed to do. The reliance of the appellant on the order dated 26-1-1994 of the Deputy Director as a final order is misplaced as it was addressed to another office intimating it that the matter has already been finally disposed of. The appeal on 14-2-1994 was, therefore, patently time-barred.
(iv) The appeal is hit by the principle of res judicata as the relief sought for in this appeal was prayed for in the earlier Appeal No,16(K) of 1991.
5. On merits the case of the appellant was also found without substance by the Tribunal. Sections 3 and 4 of the Ordinance and Memo. No,2/16/77-RC (Establishment), dated 1-12-1991 were commented upon and it was observed that the period from 30-9-1969 to 16-12-1971 in which the appellant served as Class-I Officer in former establishment was counted towards his seniority in the present post. The other period' in which he was non-gazetted officer was only countable towards pension but not seniority.
6. At the outset when we asked the learned counsel that would it not affect the interest of other officers of the Department if the seniority as claimed in these proceedings is given to the appellant.
He submitted that it would have the affect of disturbing seniority of the other officers. He was, however, unable to satisfy us about the maintainability of the appeal before the Service Tribunal without impleading those officers whose presence was necessary before the Tribunal. We, are, therefore, of the view that the Tribunal has taken correct view and the appeal was not maintainable for non-impleadment of necessary party. The learned advocate was also unable to controvert the factual position that the Establishment Division by Memo. No,2/16/77-RC (Establishment), dated 1-12-1991 had decided the case of seniority of the appellant in this way.
"Subject: Fixation of pay of Mr. Shamsul Huda, formerly Sub-Divisional Agricultural Officer (Class-I) of the Erstwhile Government of East Pakistan, now Seed Certification Officer, Hyderabad.
' The undersigned is directed to refer to your U.O. Note No,F.1-6/84/S.II (FSCD), dated 7th September, 1991, on the subjects noted above and to say that the appointment of Mr.Shamsul Huda, as Seed Certification Officer with effect from 20-3-1986 is governed under the ex-employees of Former Government of East Pakistan (Appointment to Federal Posts) Ordinance No,XI of 1983. His seniority, therefore, is to be determined in terms of section 4 of the Ordinance.
2. Mr. Huda joined the service in former Government of East Pakistan on 31-10-1966 against the non- gazetted post till 30-9-1969 when it was declared Gazette Class-I, where he served till surrender of East Pakistan on 16-12-1971. He migrated to Pakistan on 18-3-1974 and worked against non-gazette post in PAEC from 18-12-1974 to 19-3-1986. He was appointed under section 3 as Seed Certification Officer (BPS-17) in the Ministry of Food and Agriculture on 20-3-1986. He rendered Class-I service in former Government of East Pakistan from 30-9-1969 to 16-12-1971, therefore, only that period can be counted towards his seniority in the present post. The exact date of seniority can be determined by adding that period backward from 30-3-1986.
3. The service rendered by Mr. Huda before 30-9-1969 and after 18-12-1974 to 19-3-1986 may he counted towards his pension but not towards his seniority.
4. This has the approval of Law and Justice Division."
' It is, thus, clear that the cause of action had accrued to the appellant on 1-12-1991 and, thus, the appeal before the Tribunal on 14-2-1994 was clearly time-barred.
7. The learned counsel for the appellant was required to have placed on record copy of the grounds of appeal and other relevant documents from the record of the earlier Appeal No,16(K) of 1991 to controvert the finding of the Tribunal that the relief in that appeal and in the present appeal was the same but he failed to do so. We reserved the judgment for that purpose and directed the office to requisition that file; but the office instead of sending for that file requisitioned another file.
However, the matter cannot be kept pending for more time and the controversy in this respect can be resolved by referring to the judgment of the earlier Appeal No,16 (K) of 1991, decided on 10-12- 1992. It has been observed in that judgment, "The appellant applied for fixation of seniority and pension. He was allowed seniority and period from 17-3-1974 to 16-12-1974 was treated as extraordinary leave without pay. He requested that his pay in B-17 be fixed from 1974 the date he migrated to Pakistan. That request was turned down. He, therefore, filed this appeal".
In the said judgment as well as in the present impugned judgment while considering the accumulative effect of sections 3 and 4 of the Ordinance the period of service which the appellant performed as gazette officer in the former East Pakistan was counted towards his seniority but not the period during which he rendered his duty on non-gazette post. This conclusion appears to be in line with the said provision of the Ordinance. It is obvious, that in presence of decision in the earlier appeal the appellant could not agitate the matter further.
' For all the above reasons, on legal points as well as on merits, this appeal is found without merit and is, accordingly, dismissed but with no order as to costs.