1. ' BASHARAT AHMAD SHAIKH, J.- -Respondent No, 1, Aziz-udDin Qureshi, filed an appeal before the Service Tribunal against the Government order, dated 5th of December, 1985, by which Rehmatullah Zia, appellant before us, and respondents Nos. 2 to 5, who were Overseers at that time, were promoted as Sub-Engineers in BPS-16. In his appeal before the Tribunal Aziz-ud-Din Qureshi narrated different stages of his career which may be summarized as below:--
(i) He was appointed as Draftsman on 1-6-1972 in the P.W.D. On temporary basis in pay scale of 175--350;
(ii) on 28-5-1974 he was appointed by the Director of Education as Overseer in the Education Department in the pay scale of 225/480 on temporary basis and on a probation of one year;
(iii) in 1975 some post of Overseers fell vacant in the P.W.D. And Aziz-ud-Din applied for appointment against one of the vacancies. A Selection Committee drew up the following merit list in order of preference:
(1) Dil Khurram, respondent before the Service Tribunal;
(2) Aziz-ud-Din Qureshi, Appellant before the Service Tribunal;
(3) lshtiaq Ahmad, respondent before the Service Tribunal;
(4) Muhammad Shafi Farooqi, respondent before the Service Tribunal;
(5) Rehmatullah Zia, respondent before the Service Tribunal; and
(6) Muhammad Shafiq, respondent before the Service Tribunal.
(iv) The Chief Engineer, P.W.D. By his order dated 19-8-1975 appointed five other persons out of the aforementioned list as Overseers but did not appoint Aziz-ud-Din Qureshi;
(v) Aziz-ud-Din Qureshi represented against the order of the Chief Engineer upon which the Secretary of the Works Department amended the order of the Chief Engineer on 2-9-1975 and ordered that appointment of Rehmatullah Zia (the present Appellant) who was at No, 5 was to be substituted by the appointment of Aziz-ud-Din Qureshi. The Secretary also ordered that the Director Education may be asked to appoint Rehmatullah Zia against the post to he vacated by Aziz-ud-Din Qureshi. This order was issued by the Section Officer of the Works Department (It may be noted that in the seniority list Muhammad Shafiq was at the bottom but the Secretary in his order did not disturb him);
(vi) After being relieved from the Education Department Aziz-udDin Qureshi reported for duty in the Chief Engineer's Office on 3-9-1975; he remained present in the office of the Chief Engineer during the rest of the month as well as during the whole of October but was not paid his salary upon which he represented to the Chief Engineer;
(vii) On 30-10-1975 Chief Engineer, P.W.D. Issued an order by which he appointed Aziz-ud-Din Qureshi as Overseer against a post which had fallen vacant due to the promotion of Muhammad Shafiq, Overseer as S.D.O. This order according to para. 7 of the memo. Of appeal was illegal without jurisdiction, against the recommendation of the Selection Board, violate of the order of the Secretary Works Department passed on 2-9-1975 and also had the effect of causing a break in Aziz-ud-Din's service from 3rd of September, 1975 (when he left the Education Department) to 30th of September (when, he was appointed as Overseer). Aziz-ud-Din Qureshi sent numerous representations and applications to the authorities of the Public Works Department as well as to the Minister/Advisor for Works. By an order issued on 16th of May, 1984 the Secretary of the Works Department condoned the break in service, indicated above, for the purpose of pension; (viii)Against the order of 16th May Aziz-ud-Din Qureshi submitted a representation on 11th June, 1984, to the Advisor for Works;
(ix) He submitted another representation on 9-9-1985 before the Minister Works that the respondents before the Service Tribunal were being promoted as Sub-Engineers and justice may be done to him; and
(x) No action had been taken on this representation when the respondents before the Service Tribunal were promoted as Sub-Engineers on 5-12-1988 by the order challenged before the Service Tribunal.
2. ' In his memo. Of appeal after narrating these facts Aziz-ud-Din Qureshi submitted in para. 11 of the memorandum of appeal that a comparison of the service particulars of the appellant and respondents before the Service Tribunal would show that due to the length of his service and the recommendation of the Selection Board for the post of Overseer (held in 1975) he (Aziz-ud-Din Qureshi) was senior and on the basis of seniority entitled to be promoted as Sub-Engineer as against the respondents. In the I ight of these submissions he made the following prayers:--
(a) the order of 5th of December, 1985 be set aside and the departmental authority be directed to promote him as Sub-Engineer;
(b) it be declared that in light of the order passed on 2-9-1975 he was continuously from 19-8-1975 an Overseer in the Public Works Department without any break; and
(c) the Public Works Department be ordered to pay him the salary of months of September and October, 1975; and
(d) any other relief which the Tribunal may deem appropriate may also be granted.
3. ' The Service Tribunal accepted the appeal filed by Aziz-ud-Din Qureshi and amended the order of 5-12-1985 by which respondents before the Service Tribunal had been promoted as Sub-Engineers and ordered that Aziz-ud-Din Qureshi shall be deemed to have been promoted as Sub-Engineer from the date of that order in place of junior-most official Rehmatullah Zia, the appellant before us, who was found to have been illegally promoted. The Tribunal also held that Aziz-ud-Din Qureshi would be entitled to all the back benefits ensuing from the retrospective promotion thus ordered. In reaching that result the Tribunal gave the following finding:--
(i) the order of 2-9-1975 passed by the Secretary Works by which he amended the order of the Chief Engineer, P.W.D. And substituted the name of Rehmatullah Zia with the name of Aziz-ud-Din Qureshi was a valid order and the right which thus accrued to Aziz-ud-Din Qureshi still subsisted because that order had not been set aside by any competent Authority;
(ii) the list of Overseers which was furnished to the Selection Board for the posts of Sub-Engineers was not signed by the Chief Engineer, therefore, it could not be said that a proper seniority list had been drawn up. (This list did not include the name of Aziz-ud-Din Qureshi);
(iii) Sub-rule (2) of rule 8 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, provides that if in case a group of persons is selected for initial appointment at one time the earliest date on which any one out of the group joined service will be deemed to be the date. Of appointment of all persons in that group. Therefore, Aziz-ud-Din Qurush's date of appointment would be the same as those of the other five contestants;
(iv) under section 8 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, seniority is to be determined in accordance with order of merit assigned by the Selection Authority. Aziz-ud-Din Qureshi was assigned 2nd position in the list drawn up by the Selection Board in 1975 for the posts of Overseers. Thus, Aziz-ud-Din would be deemed to be at No, 2, junior only to Dil Khurram out of the contesting civil servants; and
(v) the Tribunal's own judgment in case reported as Muhammad Ashraf Kiyani v. Azad Government and others (1986 PLC 528) provided support to the conclusions in the present case.
4. ' It is clear from the facts, as averred by Aziz-ud-Din Qureshi respondent No, 1 himself, that he owes his present appointment in the Public Works Department to an order passed by the Chief Engineer on 30th of October, 1975, which was as order of fresh appointment. The other civil servants with whom he is contesting his seniority were appointed as Overseers on 19th August, 1975, while he himself was appointed on 30-10-1975. Aziz-ud-Din Qureshi was given the benefit of service he had earlier put in as Overseer in the Education Department by Secretary Works on 16th May, 1984, only for pensionary benefit which does not count for seniority. The grievance of Aziz-ud-Din Qureshi clearly is that he should have been appointed as an Overseer on 19th of August, 1975, along with the other Overseers with whom he is now in contest, because his name had been recommended by the Selection Board and that the order of the Secretary of Works Department passed on 2-9- 1975 by which the Secretary purported to substitute the appointment of Rehmatullah Zia with the appointment of Aziz-ud-Din Qureshi should have been acted upon. The claim of Aziz-ud-Din Qureshi is that his appointment should be considered valid from 19th of August, 1975, and he should be paid the salary for the months of September and October, 1975. In substance the claim of Aziz- ud-Din Qureshi for promotion to the post of Sub-Engineer is based on the sole ground of seniority which he seeks to establish. His seniority can be established only if his prayer that he should be deemed to have been in service from 19th of August, 1975, is accepted and also if it is ordered that he be paid salary for the months of September and October, 1975. It is the case put up by Aziz-ud- Din Qureshi himself that the order, dated 30th of October, 1975, was illegal, without jurisdiction, against the recommendation of the Selection Board, violate of the order of the Secretary Works passed on 2-9-1975 and also caused a break in his service. It is contended by Aziz-ud-Din Qureshi that he submitted a representation against this order which was followed by numerous representations and applications to higher authorities including Minister and Advisor of Works, but all his efforts went in vain and the date of his appointment was not changed in light of the order of Secretary Works passed on 2nd of September, 1975. This controversy ended there and Aziz-ud-Din Qureshi did not approach the Service Tribunal in order to seek relief which he had failed to obtain from the departmental authorities. That being so the matter became closed and the order of 30th October, mentioned above, remained unchanged. It, therefore, attained finality.
5. ' The position with regard to the order of 2nd September, 1975, is not different. This order was not acted upon by the Chief Engineer and Aziz-ud-Din Qureshi's efforts to have it implemented did not bear fruit. When the fresh order of his appointment was issued on 30th October, as mentioned above, it contained an implicit refusal to implement the order of 2nd September. Having failed in his efforts it was for Aziz-ud-Din Qureshi to bring his complaint to a Court of law but he did no such thing. The order thereby continued to be a dead letter till the Service Tribunal tried to bring it back to life by the order under appeal.
6. We have no hesitation in reaching the conclusion that the Service Tribunal had no authority to implement the order of 2nd September. When Aziz-ud-Din Qureshi's efforts to get that order implemented failed, he did not bring that controversy 'to the Service Tribunal or any other Court. It, therefore, became a matter past and closed. The appeal before the Service Tribunal was filed against the order passed on 5-12-1985 and not in relation to the order of 2-9-1975 there is no legal warrant for re-opening that past and closed matter. Therefore, the Service Tribunal has acted illegally. In implementing the aforesaid order which is nothing but a dead letter in the eye of law. A Tribunal set up under the Service Tribunal Act is only authorized to set aside an order in respect of which an appeal is brought before it and it has no suo motu powers to re-open past and closed transactions.
7. ' In this connection it would be useful to reproduce the law expressed by the Supreme Court of Pakistan in case reported as Muhammad Wasim Warsi v. Shamsuddin Shah and others PLD 1990 SC 851.
8. "15. An examination of the judgment of the Tribunal shows numerous defects in it. Firstly; the' only proceedings challenged before the Service Tribunal did not at all those of the Departmental Promotion Committee The tribunal did not at all examine the record of the Departmental Promotion Committee nor did it inform itself or find fault with the policy and the principle adopted by the Departmental Promotion Committee is making the recommendations. Secondly, the Tribunal set aside a promotion order of 1981 whereby those in service were given seniority on promotion for a back date, the promotion order made in 1981 antedating their promotion to 1978.
9. This order was not under challenge either before the Departmental Authority or Service Tribunal.
10. Thirdly, the Tribunal adopted too readily a principle of justice and fair play and did not care to look into the law applicable to the case as if justice and fair play transcend and control the law as such.
11. Fourthly, the Tribunal went so far in retrospect as to create doubt even over the very appointment of some of the subordinate functionaries of the Central Board of Revenue when it took place in 1973, though it exercised admirable restraint in not upsetting it. Fifthly, the Tribunal sanctified the seniority list of 30th May, 1979, as if it was to govern all future promotions etc. Irrespective of its substitution by new seniority list or by new principle of promotion It is clear that the question of Aziz-ud-Din's seniority has to be determined in light of the fact that he was appointed on 30th October, 1975, while the other contestants were appointed on 19th August, 1975, the Service Tribunal has committed a patent mistake in applying rule 8 of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 to appointments made in 1975. In doing so the Tribunal did not record any reason as to how Rules made in 1977 could have the effect of destroying or altering the rights which had accrued at the time of appointment or the liabilities which had been in 1975. It is well-settled that the rights and liabilities in respect of the seniority have to be determined in light of law which was applicable when the appointments were made and not in light of the Rules which were framed many years later. When the contesting civil servants were appointed in 1975 they were governed by the Kashmir Civil Service Rules (K.S.R. Vol. II) and quite naturally their rights and liabilities flow from that law.
12. These Rules stood repealed by coming into three of 1977 Rules. It is elementary law that if a law is repealed the rights accrued and liabilities incurred under the repealed law continue in force as if the law had not been repealed and this is the principle applicable to the case in hand. If an authority is needed for this purpose we may refer to S. Abdul Ghaffar Wasti v. The Collector of Central Excise and Land Customs and others 1982 SCMR 888 and Zulfiqar Ali Toor and others v.
13. Additional Chief Secretary to Government of Punjab and others (1984 PLC (C.S.) 1242).
14. ' Aziz-ud-Din Qureshi became an Overseer on 30th October, 1975, while the appellant before us as well as respondents Nos. 2 to 5 were appointed to that post on 19th of August, 1975. According to rule 24 of the Kashmir Civil Service Rules the date of appointment determines the question of seniority, therefore, it is clear that Aziz-ud-Din Qureshi is junior to the five officials with whom he is now in contest. The names of those five persons were forwarded to the Selection Board as is admitted between the parties, on the ground of seniority and we can see no reason how that can be interfered with. In fact no reason has been recorded by the Service Tribunal other than the reason which we have noted .Above and found to be Muhammad Ashraf Kiyani's case relied upon by the Service Tribunal was set aside by this Court and judgment in that case is reported as 1989 PLC (C.S.) 561.
15. ' Before concluding we have to dispose of a technical objection raised by the learned counsel for the appellant that the appeal filed' by Aziz-ud-Din Qureshi in the Service Tribunal was time-barred.
16. It was contended that Aziz-ud-Din Qureshi took 148 days in filing the appeal from the date of knowledge of the order impugned before the Service Tribunal while the limitation for filing appeal is 120 days computed from the date when the departmental appeal or representation be filed. The learned counsel relied Federation of Pakistan v. Muhammad Azim Khan and others (1989 SCMR 1271). This argument has no force because as held by this Court in Khawaja Abdul Khaliq v. Azad Jammu and Kashmir Government (PLD 1984 SC (AJ&K) 9), the phraseology of section 4 of the Azad Jammu and Kashmir Service Tribunal Act was different from corresponding law made by the Federal Legislature of Pakistan and the period of limitation in Azad Jammu and Kashmir at the time when the appeal before the Service Tribunal was filed was the period allowed for filing of appeal or review plus 120 days. In this view of the matter the appeal could have been filed with 150 days and is, therefore, within time. We may also note that section 4 of the Service Tribunal Act has since been amended and has become part materia with the corresponding section of Pakistan Service Tribunal Act. Therefore, now the period of limitation for filing appeal before the Service Tribunal is 120 days commencing from the date when departmental appeal or representation is filed, as has also been held in a recent judgment of the Supreme Court of Pakistan reported as Fazal Ellahi Siddiqui v. Pakistan PLD 1990 SC 692.
17. ' The upshot of the above discussion is that the order of the Service Tribunal is set aside and the order of 5th December, 1985 is restored. However, there would be no order as to the costs.