ABDUL MAJID KHANZADA (CHAIRMAN).--The appellant by this appeal has challenged the impugned Seniority List of the Social Security Officer circulated by the Commissioner, Sindh Employees Social Security Institution (S. E. S. S. I.) respondent No,2 vide No, SS-ADMN-37/70/83-3273 , dated 10th October, 1983, whereunder the appellant was placed at Serial No,3 as against the private respondent viz. Muhammad Usman Memon who was placed at Serial No,1. The appellant had objected to it in view of the decision of the Hon'ble High Court of Sindh in Revision Application No,143 of 1985 wherein the Revision Application of the private respondent viz. Muhammad Usman Memon, was dismissed having 'no merit' as well as on the ground of limitation and requested for refixation of seniority vi& his appeal dated 21-4-1986 followed by the legal notice dated 21-5-1987 by his Advocate Mr. Manzoor Ali Khan, which was rejected by the respondent No,1 vide their No, SS- ADMN-15296, dated 16th June, 1987. The appellant thereafter filed Suit No, 537 of 1988 in the Court of the find Senior Judge/A.S.J. East, Karachi wherein it was held that:-- "that suit is not barred under section 56(d) of Specific Relief Act or . under sections 9(1) and 21 of the Sindh Employees Social Security Institution (Revised) Services Regulation, 1986."
The private respondent filed Civil Revision Application No,56 of 1989 in the Court of VIlth Additional and Sessions Judge (East), Karachi which was dismissed. During the pendency of the suit, Act No, XXXI of 1994 was promulgated whereby the said suit abated. Thereafter, the appellant has filed the present appeal before this Tribunal.
The case has a long history of litigation between the appellant, private respondent and the official respondents.
The 'brief facts of the case are that the appellant as well as the private respondent viz. Muhammad Usman Memon were both working as Assistants in the said Institution (SESSI). Both were promoted as Awarding Officer in the scale of Rs,350--35--525/EB--40--925 vide orders bearing No,SS- ADMN-(280)/70-449, dated 10th October, 1970. In this order the appellant was placed at Serial No,1 whereas the private respondent was placed at Serial No,3. The post of Awarding Officer was later redesigned as that of Social Security Officer and a Provisional Seniority List bearing No, SS-ADMN- 3553, dated 4th August, 1973 was circulated. In this list the appellant was placed at Serial No,20 whereas the private respondent was placed at Serial No,22. Again, in 1977 Provisional Seniority List of Social Security Officer was circulated vide No, SS-ADMN-37/70/77-6328, dated 28-7-1977 where under the appellant was placed at Serial No,7 while the private respondent was placed at Serial No,9. The objection filed by the private respondent was rejected by S.E.S.S.I. on 11-6-1979.
Having lost his case departmentally, the private respondent filed Civil Suit No, 2 of 1980 v. S.E.S.S.I. and the appellant which was decreed in his favour. However, this judgment and Decree of the Civil Judge, Kotri was reversed in Civil. Appeal No,1 of 1982 by the Additional District Judge, Kotri on 30th April, 1985. The private respondent thereafter filed Revision Application No,143 of 1985 against the appellant and S.E.S.S.I. which too was dismissed on 6-4-1986 'having no merit'.
It is evident from the record produced in the appeal before this Tribunal that while the matter was subjudice before the Additional District Judge, Kotri and in the Hon'ble High Court of Sindh, the S.E.S.S.I. in 1983 appointed a Committee to scrutinize the objections relating to the seniority of Social Security Officers and on the recommendations of that Committee approved by the Commissioner the impugned Seniority List bearing No,SS-ADMN-37/83-3273, dated 10th October, 1983 was circulated and where under the private respondent was placed at Serial No,1 and the appellant was placed at Serial No,3.
The Tribunal observes that the impugned Seniority List was based on the recommendations of the Scrutiny Committee approved in routine by its Commissioner. Prima facie it appears that the competent Authority did not apply his own mind in the matter inasmuch as, the respondents had themselves accepted the appellant being senior to the private respondent for a long period of 13 years i,e, from 1970 to 1983 and had jointly contested Civil Suit No, 2 of 1980 filed by the private respondent against the appellant. The respondents were also a party to Civil Appeal No, 1 of 1982 before A.D.J., Kotri as well as Revision Application No,143 of 1985 in the High Court of Sindh and their joint stand was that the appellant was senior to the private respondent. It is, therefore, noted with regret that despite the fact that while the matter of seniority between the appellant and the private respondent was sub judice and had not attained finality the respondents went back on their past stand of the last 13 years, and reversed the seniority of the appellant placing him junior to the private respondent. Even when the matter of seniority between the appellant and the private respondent attained finality in Revision Application No,143 of 1985 before the High Court of Sindh the respondents refused to honour the same. It is the established principle of civil-law that if the parties are same, the questions of fact and law are same and if the matter is (sub judice before a competent Court or) when decided by a competent Court and has attained finality it cannot be re-opened in any subsequent litigation at any forum and all subsequent litigations are barred in the matter, under the principle of res judicata. In our opinion the matter of seniority between the appellant and the private respondent had attained finality in Revision Application No, 143 of 1985 whereunder the Hon'ble High Court of Sindh had dismissed the plea of the private respondent regarding his seniority over the appellant.
We have heard Mr. Ch. Rasheed Ahmed for the appellant and Mr. Khalid Habibullah for official respondents Nos. 1 and 2 and Mr. Sirajul Haq Memon for private respondent as well as Mr. Zaidi, A.A.-G. on Court notice. We have perused the citations quoted by them as mentioned below:--
(1) Ch. Rasheed Ahmed, Advocate for the Appellant.
(i) 1985 PLC (C.S.) pages 694 and 631
(ii) 1972 PLC page 208.
(iii) 1983 PLC (C.S.) 200.
2. Khalid Habibullah, Advocate for respondent No,1 .
(i) 1989 SCMR page 441.
(ii) PLD 1992 SC page 207.
We have also examined the record of the case minutely. The entire case_ of the appellant and the respondent reveals about the question whether the post of the Awarding Officers to which they were appointed on 10-10-1970 (later redesigned as Social Security Officer) was a selection or a 'promotion' post. We have called for the minutes of the D.P.C. held on 30-94970 of the Selection Board headed by the then Commissioner/Chairman, S.E.S.S.I. with two Meml?ers. It appears from the minutes that the Selection Board interviewed 31 applicants and selected the following six persons for the post of Awarding Officers:
(1) Syed Muhammad Ali Naqvi
(2) Mr. Kazi Lateefullah
(3) Mr. Muhammad Usman Memon
(4) Mr. Muhammad Aslam
(5) Mr. S.A. Hussain Zaidi, and
(6) Mr. Atta Muhammad.
On the face of it, it appears to be a merit list. All the persons selected were appointed as Awarding Officers irrespective of their seniority as Assistant. Further, it also appears from the salary scale of the Awarding Officers i,e, 350--35--525/EB--40--925 that it was a Gazetted Class H post which existed prior to the introduction of National Pay Scale in 1973. Naturally appointment from a non- gazetted post to a Gazetted post cannot be termed as simple promotion in routine. It was undoubtedly appointment on Selection. This presumption also got strength from the arguments that the post of Superintendent still exists in between the post of Assistant and the Awarding Officer/Social Security Officer. The routine promotion of Assistant can only be to the next higher grade i,e, of Superintendent, therefore, it cannot be said that the appointment of the appellant and the private respondent as Awarding Officer was a routine promotion in the strict sense of the word but in fact it was a selection and in every selection the order of merit as fixed by the Selection Board is to be counted for the purposes of seniority in the new cadre or the post. The seniority of the private respondent over the appellant in the cadre of Assistant, therefore, has no relevance to his seniority in the new cadre of Awarding 'Officer/Social Security Officer which would naturally follow according to his placement and serial order assigned by the Selection Board in the selection order. This has also been the consistent stand of the respondents from 1970 to 1983 (for 13 long years). The establishment seniority of the appellant for the last 13 years, was toppled all of a sudden, on the basis of the recommendation of the so-called Scrutiny Committee. We have also gone carefully through the minutes of the said Scrutiny Committee which have been filed`by the respondents. While discussing the seniority of the appellant; at page No,2, the Committee incorrectly observes that the selection of Assistant as Awarding Officer was not made on merit basis because the appellant was appointed as Assistant on 19-8-1967 whereas the private- respondent was appointed as Assistant on 12-12-1966. Had the post of Awarding Officer not being a selection post but a promotion post the private respondent would have been placed at Serial No,1 and appellant would have been placed at Serial No,3 in the minutes of the Selection Board dated 30-9-1970. Similarly Mr. Kazi Lateefullah who was at Serial No,2 in the Selection of Awarding Officer was appointed as Assistant on 14-10-1969 only whereas the private respondent was appointed as Assistant on 12-12-1966. It is, therefore, obvious that the selection as Awarding Officer was not based on the consideration of 'seniority' but on 'merit' alone because it was a selection post as already stated, in the former Class-H Gazetted cadre. It is interesting to note that while discussing the case of Mr. Albert D. Massey the same Scrutiny Committee took a different view from that taken in case of the appellant. The said Committee rejected the claim of the said Mr. Albert D. Massey who had joined S.E.S.S.I. as Assistant on 1-12-1966 i,e, 11 days earlier to the private respondent and stated that since he was selected as Awarding Officer on 8th November, 1971 i,e, after the private respondent he could not claim seniority in that cadre and his seniority as Assistant was not relevant. Obviously the Scrutiny Committee's findings were partial and coloured. It adopted two different yardsticks while discussing the case of private respondent viz-a-viz the appellant and the said Mr. Albert D. Massey. It is, therefore, obvious that the findings of the so-called Scrutiny Committee were partial, biased and coloured and were contrary to the principle of natural justice fairplay and equity. The then Commissioner, S.E.S.S.I. and the Authority apparently, did not apply his own mind otherwise this injustice would not have been perpetuated. We are left with no other option but to set aside impugned seniority list of Social Security Officer bearing No, SS-ADMN- 37/70/83-3273, dated 10-10-1983. In our considered opinion, the matter of seniority between the appellant and the private respondent as Awarding Officer/later redesignated as Social Security Officer had attained finality, in the Revision Application No,143 of 1985 and any revision thereof is not permissible under the principle of res judicata. We, therefore, allow the appeal with no order as to cost.
Given under our hand and the Seal of this Tribunal this 27th day of November, 1997. (Sd.) ABDUL MAJID KHANZADA, CHAIRMAN.
ABDUL MAJID KHANZADA (CHAIRMAN).---The present appeal was heard by the Bench of two Members comprising of Chairman viz. Abdul Majeed Khanzada, and Member-II, Mt. Bahauddin Sirhindi on 31-10-1997 and the judgment was reserved. Since I had allowed the appeal for the reasons recorded in my judgment dated 27-11-1997 and the learned Member-II Mr. Bahauddin Sirhindi had dismissed the same for the reasons recorded in his judgment in detailed. The judgment could not be announced due to conflict between the Bench of two members as such on 27-11-1997 it was ordered in the diary sheet of the case that the appeal be fixed afresh before Full Bench when the third Member viz. Mr.. S. Nasim Haider who had gone for training to Lahore joins as provided by Rule 26 of the Sindh Service Tribunals (Procedure) Rules, 1974. The appeal was heard afresh by the Bench of three members on 30-4-1998. I have already given reasons in detail vide my judgment dated 27-11-1997 and the same are adopted and reiterated in the separate judgment, as nothing more is to be added as no fresh ground was agitated by either of the sides and the fresh arguments from all sides were a repetition. I have the opportunity to peruse the proposed judgment of Senior Member S. Nasim Haider who has written his judgment separately and in detail and has also covered almost all the points so also the judgment of Mr. Bahauddin Sirhindi, Member-II. The learned Senior Member, Mr. S. Nasim Haider has taken pain to refer the relevant documents and has recorded his findings to which I fully agree and for the sake of brevity it is not necessary to deal with the question at any further length.
Under these circumstances this appeal is allowed and impugned order dated 10-10-1993 is set aside with no orders as to cost.
Given under my hand and the seal of this Tribunal this 19th day of May, 1998 at Karachi.
Appeal is allowed in terms of the majority Judgment. (Sd.) ABDUL MAJID KHANZADA, CHAIRMAN. (Sd.) S. NASIM HAIDERS, SENIOR MEMBER.
S. NASIM HAIDER (SENIOR MEMBER).---This service appeal was originally fixed before and heard by a Divisional Bench (of Sindh Service Tribunal) comprising of the Honouable Chairman and Member
(II) On 30-10-1997. However, since there was a difference of opinion between the said two regarding the judgment, it was reheard on 30-4-1998, by the Full Bench, in accordance with the provisions of Rule 27 of the Sindh Service Tribunals (Procedure) Rules, 1974 and reserved for final judgment on the same date. Chaudhry Rashid Ahmad, Advocate for the appellant argued the case on behalf of the appellant.
Respondent No,1 viz. S.E.S.S.I. was represented by Mr. Khalid Habibullah, Advocate, while the respondent No,3 viz. Mr.Usman Memon was represented by Mr. Nishat Warsi.
I have gone through the judgments written by the Honorable Chairman and Member II) carefully, heard the arguments of the 3 (three) above said Advocate patiently and also examined the voluminous record/citations produced by either side.
In my humble opinion, there are only two basic issues in this appeal--one on point of fact and the other on point of law.
The issue regarding point of fact is whether the appointment of the appellant as well as the respondent No,2, from the post of Assistant, in S.E.S.S.I. to the post of Awarding Officer (later redesignated as Social Security Officer) was by way of 'Selection' or Promotion. If it was by way of 'Promotion' then seniority between the two shall be determined in accordance with Proviso to section 8(4) of the Sindh Civil Servants Act, 1973 which reads as under:-- :Provided that civil servants who are selected for promotion to a higher grade in one batch, on their promotion to the higher grade, retain their inter se seniority, as in the lower grade."
If it was Selection', then their inter se seniority shall be governed in accordance with Rule 11(a) of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 which reads as under:-- "11. Inter se seniority of civil servants appointed in a batch or on the same date shall be determined- -
(a) in the case of persons appointed by initial appointment, in the order of merit assigned by the selection authority and if such authority is either not competent to assign such order of merit or has omitted to do so and is unable to overcome the omission for reasons beyond its control, the seniority shall be determined by the appointing authority."
There is no denying the fact that both the appellant and respondent No,2 was working as Assistants, when selected and appointed as Awarding Officer/later redesignated as Social Security Officers. They were both appointed as Assistant during the days of former West Pakistan and Awarding Officer after the dissolution of West Pakistan and Recreation of Sindh Province, in 1970.
The Bureaucratic set up till 'August 20, 1973 had four classes of civil servants, till abolished, on that date by the speech of late Mr. Z.A. Bhutto as available on pages 1 to 9 of the Book on Administrative Reforms in Sindh, complied by S&GAD (amended up to 31st March, 1977). These four classes were: Class I to Class IV (para. 23(b), page 8 of that publication were:-- Class-I (Comprised of Gazetted Officer Class I from superior services and non-superior services offices).
Class-II (Comprised of Gazetted Officer Class II or departmental officers).
Class-III (Comprised of Supervisory/Ministerial officials).of Supervisory/Ministerial officials).
Class-IV (Comprised of Peons/Physical workers category).
Class III (Supervisory/Ministerial Officials) in offices comprised of:-- - Junior Clerks. - Senior Clerks. - Assistants. - Superintendent: (Superintendents in the Main Ministeries and Divisions were gazetted class II, while those in attached, subordinate and Government controlled organisation were non-gazetted.
S.E.S.S.I. fell in 4th/last mentioned category of Government controlled Organisation).
On recreation of Sindh, after dissolution of former West Pakistan Sindh Civil Servants Act, 1973 and rules thereunder were framed. Sindh Public Service Commission was also created in 1973. Most of the Government Controlled Organizations adopted Sindh Civil Servants Act, 1973 and rules framed thereunder. A few framed their own rules like S.E.S.S.I., in 1976 known as: Sindh Employees Social Security Institution Service Regulation, 1976 filed as Annexure 'R' by respondent No, 1 . After introduction of the said Act in 1973, National Pay Scale Rules in 1973 (Grades 1 to 22) were framed. At pages 285/365 (of the appeal/said Annexure) the same hierarchy is given i,e, of Junior Clerks, Senior Clerks, Assistants and Superintendents. Superintendents were in Grade-11, while Assistants were in Grade-8. The posts of Awarding Officer (later redesigned as Social Security Officers) were in BPS-16. In view of that background of the hierarchy and Class I to Class IV existent at the time of their appointment as Awarding Officers in 1970--it is obvious that an Assistant (then Class III, later in BPS-8 in 1976) could only be promoted to the next higher grade of Superintendent, non-gazetted then, and later in BPS-11 in 1976) but not to Gazetted Class II then or BPS-16 in 1976, for which the recruitment fell within the purview of former West Pakistan Public Service Commission/later Sindh Public Service Commission. Since their appointment as Awarding Officer was made in 1970--when S.P.S.C. was not in existence, it was made through a Selection Board, comprising of Commissioner, S.E.S.S.I. and its two Members. Promotion can only be made to the next higher post. This becomes more clear when we see Annexure 'A' of the appeal of the appellant (page 15) which is reproduced below:-- COMMISSIONER'S ORDER The following Assistants are promoted as Awarding Officers in the Scale of Rs,350-35-525/EB-40- 925, with other usual allowances, with immediate effect:
1. Mr. Muhammad Ali Naqvi 30 SITE Office - 19.8
2. Mr. Kazi Lateefullah 50 Landhi Office
3. Mr. Muhammad Usman Memon 6 Hyderabad Office 2.66
4. Mr. Muhammad Aslam 34 SITE Office 67
5. Mr. S.A. Hussain Zaidi 54 Landhi Office
6. Mr. Atta Muhammad 12 Landhi Office 10 They will remain on probation for a period of 2 years which may in the discretion of the Commissioner, be extended for a further period of 1 year. During probation their services will be deemed to be temporary and terms and conditions will remain the same.
On their promotion they are transferred and promoted as under:-- To
1. Mr. Muhammad Ali Naqvi --Landhi
2. Mr. Kazi Lateefullah --SITE
3. Mr. Muhammad Usman Memon --Hyderabad
4. Mr. Muhammad Aslam --Landhi
5. Mr. S.A. Hussain Zaidi --SITE
6. Mr. Atta Muhammad --SITE (Sd.) Rashid Ahmad.
No, SS-Admn-I (280)/70-449, dated Karachi the 10th October, 1970. Firstly, the scale of pay of Awarding Officer was that of Gazetted Class II, Secondly, we asked from M/s. Khalid Habibullah and Nishat Warsi (counsels for respondents Nos. 1 and 2) as to what do the Serial Nos. mentioned column 3 viz: 30, 50, 6, 34, 54 and 12 meant? Mr. Khalid Habibullah expressed his ignorance about the same, without being enlightened by S.E.S.S.I., whereas Mr. Nishat Warsi stated and asserted that these showed the Serial No, of the applicants from S.I.T.E., Landhi and Hyderabad offices of S.E.S.S.I.
In this context he placed reliance on the documents produced by respondent No,1 viz. S.E.S.S.I.
Had it been a case of promotion then the appellant and respondent No,2, should have been considered in order of their inter se seniority of Assistants--but they were not considered in that order but on the basis of Serial Nos. of their applications. Lastly, Assistants could only be promoted only to the next higher post/grade of Superintendent and not to (two) 2 step higher post of Awarding Officers. Since their cases were not considered on seniority--but on the basis of Serial Nos. of their applications as in service candidates, the order of precedence in the minutes of Selection Board is based on merit, otherwise Mr. S.M.A. Naqvi (S.No,30) could not be the 1st and Mr. Muhammad Usman Memon (6) could not be the 3rd. (The marking in column No,4 - 19.8, 2.66, 67 and 10 with no entry before the name of Mr. S.A. Hussain Zaidi is beyond the comprehension of all the Advocates and even A.,A.-G. and hence, we too cannot explain the same). Had it been a promotion then Mr. Usman Memon who was appointed as Assistant in 1966 would have been placed above. Mr. Muhammad Ali Naqvi who was appointed in 1967.
The only logical/plausible explanations of order of Precedence in this order of the Selection Board could be that:--
(a) The post of Awarding Officer being two (2) steps up than Assistant in the old/present hierarchy of S.E.S.S.I., (the post of Superintendent being in between the two), could not be filled up by promotion from amongst the Assistants.
(b) Therefore, posts of Awarding Officers were advertised - as evident from the list of applicants (in service of S.E.S.S.I.) as well as External applicants. In service employees of S.E.S.S.I. were allowed to compete with those external candidates.
(c) The order dated 10th October, 1970 and the Serial No, of the candidates shows obviously the merit of the applicants/their order of precedence, as awarded by the Selection Board appointing authority, viz. the then Commissioner, S.E.S.S.I. However, the words used in this order such as 'promoted' and on their promotion they are transferred and posted as has given an entirely different and incorrect color to 'Selection' of the appellant and the respondent No,2, as promotion.
In my considered opinion, the use of word 'Promotion' in this order is nothing more than a misnomer--being in total violation of the principles of promotion which can be only to the next higher post (post of Superintendent from Assistant in the instant case). There is neither any provision nor any precedence in Government to promotion of anyone on a post 2 steps up. Even one step up promotion has to be strictly on seniority cum fitness, with a Herculian Procedure prescribed for 'out of turn promotion'. This thinking is further strengthened from the Probation clause in this order whereby both of them were placed on Probation of two years--further extendable by one year in the discretion of Commissioner S.E.S.S.I. Rule 2 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 states as under:-- Part - I Probation "2. A person appointed to a post by initial recruitment shall be on the probation for two years and a person appointed otherwise, if the appointing so directs, be on probation of one year."
This provision is more or less replica of old and West Pakistan Rules. Since both were appointed as Awarding Officers, on probation of 2 years--extendable by one year in the discretion of Commissioner, S.E.S.S.I., the only legal presumption/conclusion could be' that their appointment as Awarding Officer amounted to Initial/Direct appointment to that post and not promotion to that post. The reason for this confusion/substitution of the words 'Promotion' instead of correct Nomenclature of Selection was perhaps due to the fact that 1970-1977 were extremely turbulent times, in the history of Pakistan, leading to internal civil strife/war with India fall of East Pakistan subsequently and the then Commissioner, S.E.S.S.I. (Mr. Rashid Ahmad being as ex-P.C.S. Offider, having mostly served as a Magistrate/City and A.D.M. in City Court of Karachi) was perhaps a novice to Establishment matters on elevation as Commissioner, S.E.S.S.I. and not fully aware of the delicacies of Establishment matters/distinction in promotion/Selection. Had it been a 'promotion' case it would have been considered by the 'Promotion Board' and not 'Selection Board'. Had it been a case of promotion from the post of Assistants as contended by the respondents--there was no need to invite applications from outsiders of S.E.S.S.I./External candidates and a list of at least 8 such external candidates has been produced by the respondent No,1 in evidence itself.
Mr. Nishat Warsi, Advocate for respondent No, 2 has argued before us that the appellant being a Graduate is not even qualified to be appointed as Awarding Officer as under S.E.S.S.I. Rules of 1976 the required qualifications is Master (M.A.). I am not inclined to agree with him on this point. The appellant's appointment as Awarding Officer as per record and undisputed was made in 1970, while the rules referred to were framed in 1976. It is an established principle of law that no new rule shall be applied with retrospective effect unless so specifically stated in its body itself. 1976 Rules of S.E.S.S.I.%are silent in this respect. The action taken 1970 naturally was a fate accomplice and S.E.S.S.I. Rules of 1976 cannot be applied to the appellant with effect from 1970, when these rules did not exist.
Mr. Nishat Warsi, also referred to the Arbitration Award of Mr. G.A. Madni dated 2-10-1972, published in Sindh Government Gazette of 9-2-1972, para. 12(3) irregular promotions for the reasons mentioned therein. Firstly, such reference affects the case of his client viz. respondent No,2, adversely because he was also one of such promotes in 1970-71. If at all it affects the case of the appellant adversely it also affects the case of the respondent No,2 adversely. I wonder, if it is not a professional misconduct? Except in criminal cases, where ascertaining the 'truth' is utmost, crime being against state/public--no plea could be taken by an Advocate against the interests of his own client. Secondly, it was a case of arbitration between the then Commissioner, S.E.S.S.I. and the then General Secretary of Social Security Institution, Staff Union under I.R.O., 1969. It is my humble understanding of Industrial Relations Ordinance that the dispute between the (Labour) Union and Management, Reconciliation/Arbitration can take place only regarding a labour dispute while the appellant/respondent N'o.2 (Assistants subsequently the Awarding Officer, being part of Ministerial Supervisory staff/officers) had no relevance in the matter nor the (Labour) Union could have a Locus Standi in their promotion. Lastly the Award has already been set aside (perhaps for the same reasons) in Constitutional Petition No,535 of 1972, by order dated 10-5-1976 copies supplied on 10- 7-1978 and thus of no legal consequence whatsoever. Lastly the respondent No,1 viz. S.E.S.S.I. the employer of both the appellant and the respondent No,2 from 1970 to 1983 sided with the appellant and subsequently has supported the claim of respondent No,2 and taking a diagonally opposite stand is rather surprising for which the only plausible explanation offered is that respondent No,1 could frame a new seniority list under the rules/had justification for doing so when the findings of a committee gave verdict in favour of respondent No,2 which was accepted by the Commissioner, S.E.S.S.I. The validity of that argument depends on the 2nd/legal issue whether the orders of Honourable High Court in Provisional Civil Application No, 143 of 1985 have attained finality in favor of the appellant. This is not denied by either side, as no appeal against that was filed before the Honorable Supreme Court of Pakistan nor that order was ever reversed by any competent appellant Legal Forum.
I asked specifically from the learned A.A.-G. Sindh, whether that judgment of Justice Abdul Qadeer Chaudhry in R.A. No, 143 of 1985 would not hit the impugned Revised Seniority of S.E.S.S.I. of 1983.
His;answer was in 'Affirmative', loudly and clear. It is also my considered view that the basis of res judicata are:--
(i) Subiect-matter should be the same.---In Revision Application No,143 of 1985, the subject-matter was Inter se seniority of the appellant and the respondent No,2 as Awarding Officer (redesignated as Social Security Officers) from the post of Assistants in S.E.S.S.I. and in the Revised Seniority list of 1983 relates the same.
(ii) Parties should have been same.--There is no denying the fact that the parties to Revision Application No, 143 of 1985 were the same as in Impugned Seniority of 1983 viz. S.E.S.S.I., M/s. S.M.A.
Naqvi and Muhammad Usman Memon.
(iii) The matter should have attained finality and must have been disposed of by the competent Court.
There is no disagreement of the A.A.-G., Advocate for the appellant and the respondent No, 2 regarding (i) and (ii) above. However, Advocates of respondents Nos.1 and 2 contend that the decision in Revision Application No, 143 of 1985 was only an the point of limitation without determining the merits of the case. Therefore, the principles of res judicata will not hit the impugned seniority list of Social Officers of 1983. I have gone through the judgment in Revision Application No, 143 of 1985 very carefully which comprises of 6 (six full scape pages by my Lord Justice Abdul Qadeer Chaudhry, an illustricious and highly--respectable Judge who had been the Chief Justice of Baluchistan and Supreme Court of Pakistan and whose competence and integrity is acknowledged all round. In para. 3 pages 5/6 of this judgment it is recorded as. follows:- "A seniority list of the officers dated 4-8-1973 has been filed by the petitioner (now respondent No,2) himself in this Court which was received by him on 21-8-1973 and in this seniority list the petitioner has been shown as Junior to M/s. S.A. Naqvi and Kazi Lateefullah. The petitioner has not shown that he had filed any representation against that list. The order dated 28-3-1977 was based on this order and if the petitioner has not challenged this order then he could not challenge the order dated 28-3-1977. Leaving aside the merits of the case, the time would not, run with effect from 11-6-1979 when his objections against seniority of 18-3-1977 was rejected, but with effect from 21-8-1973 when he received copy of the Seniority List of the Officers. If he had filed the representation Exh. 67 on 25-8-1977 with effect from after four years of the preparation of the list the . then petitioner would not be entitled to the extension of this period. Even otherwise, there was no statutory provisions for filing any representation or appeal against the preparation of Seniority List and the only course available to the petitioner was to file a suit within a period of 6 years as contemplated in Article 120 of the Limitation Act. In a case where-there is no statutory provision the period of limitation would not be counted from the rejection of the representation but the period would start from the circulation of the Seniority List. The authority relied upon by the learned Civil Judge PLD 1964 SC 520 is not attracted to the present case. So also the authority cited by the learned counsel for the respondents PLJ 1978 Karachi 440 is not applicable to the facts of the present case.'
As the accrual of the cause of action to the petitioner starts from 4-8-1973, the suit could have been filed before 3-8-1979 but the suit has been filed on 21-1-1980 that is after the period of limitation, therefore, the finding of the learned appellate Court on this issue has to be maintained.
The petition has no merit and is dismissed with no orders as to the cost." It is an established principle of law/wisdom/based on common sense that every judgment has to be read with reference to the context. The overall discussions,of 1 to page 6 are summed up in 2nd last para. 'The petition has no merit and it is dismissed with no orders as to cost.'
In view of what has been stated above I agree with the Honourable Chairman and the views of Assistant Advocate-General, Sindh that the impugned seniority list of 1983 is hit by the decision in Revision Application No, 143 of 1985 which attained finality and the respondent No,1. viz. S.E.S.S.I. was not competent to reopen the subject of Inter se Seniority of the appellant viz a-viz. the respondent No,2. We, therefore, have no option but to set aside the same and direct the respondent No,1 viz. S.E.S.S.I. to abide by that decision while framing a new Seniority List being binding upon it and to implement it to that extent. If the appellant was senior to respondent No,2 as Awarding Officer/redesignated a Social Security Officer, he in subsequent promotion would rank senior to him till super cadre in view of seniority rules on initial/direct appointment as quoted above. It is also protected, under the doctrine of locus poenitentiae. However, that decision in Revision Application No, 143 of 1985 is not binding as against any one else who was not a party to it, in accordance with the established principles of law.
Given under our hands and the seal of this Tribunal this 19th day of May, 1998 at Karachi. (Sd.) S. NASIM HAIDER, SENIOR MEMBER.
BAHAUDDIN SIRHINDI (MEMBER).---I have had the privilege of reading the judgment by my learned brother, the Chairman, with utmost deference and respect for his opinion. I find myself unable to agree with the same.
2. That brief facts of the case are that the appellant, by this appeal, has challenged seniority list of Social Security Officers circulated by the Commissioner Sindh Employees' Social Security Institution (S.E.S.S.I.) respondent No,1, vide No, SS-ADMN-37/70/83--3273, dated 10th October, P.. 33, in which the appellant has been shown at Serial No,3 whereas the respondent No,2, Muhammad Usman Memon has been shown at Serial No,1. It will be advantageous to give the background of the dispute which has had a chequered history of litigation.
3. Briefly stated, it has come on record that the private respondentNo,2 before us, Muhammad Usman. Memon, joined the service of the respondent No,1 as an Assistant on 12-12-1966 while the appellant was appointed and joined as Assistant on 19-8-1967.
4. It appears that in 1970 some of the Assistants were promoted as Awarding Officers. In the list of the Officials promoted, the appellant's name appears at Serial No,
1. The respondent No,2 herein, at Serial No, 3.
5. It further appears that after these promotions, a provisional seniority list was circulated on 4-8- 1973 in which the appellant was shown at Serial No,20 while the private respondent (Mr. Muhammad Usman) was shown at Serial No,22. The respondent No,2 submitted objections but the same were rejected by the respondent No,1. Ultimately, the respondent No,2 filed a Civil Suit No,2 of 1980 before the learned Civil Judge, Kotri, in which he claimed seniority over the appellant.
Ultimately the suit was decreed in favour of the respondent No,2 by judgment dated 16-5-1982.
6. The appellant, feeling aggrieved filed an Appeal No,1 of 1982 in the Court of District Judge, Dadu but the same was later transferred to the Court of learned Additional District Judge, Kotri. The learned Additional District Judge vide his judgment dated 30-4-1985 rejected the appeal on Issues Nos. 1 and 3 but accepted the appeal on Issue No,2 and held that the suit was time-barred. and set aside the decree passed by the learned Civil Judge, Kotri on the basis that the appeal by the respondent No,2 was time-barred.
7. This time, the respondent No,2 filed a Revision Application No,143 of 1985 before the Hon'ble High Court against the judgment in appeal by the learned Additional District Judge, Kotri. The Hon'ble Judge in the High Court vide his judgment dated 6-4-1986 dismissed the Revision Application. In the judgment the Hon'ble High Court has specifically mentioned that on merits the suit of the plaintiff had been decreed and that the appeal against the decree was decided only on the issue of limitation i,e, Issue No, 2 only and it was held that suit was time-barred. The Hon'ble High Court did not touch upon the merits of the case and upheld the judgment of the learned Additional District Judge on the point of limitation alone and consequently the Revision application was dismissed. The Hon'ble High Court observed: "Leaving aside the merits of the case, the time would not run with effect from 11-6-1979 when his objection against the seniority list of 28-3-1977 was rejected but with effect from 21-8-1973 when he received copy of the seniority list of officers."
8. It emerges from the record that the respondent No,1 issued a revised seniority list vide Letter No,SS/ADMN-3/70/83/3273, dated 10th October, 1983 whereunder, the appellant was placed at Serial No,3. The respondent No,2 was placed at Serial No,1 and this appeal, after his objection to the seniority list and abatement of his suit.
9. The learned counsel for the appellant has concentrated on the point that the appointment of the appellant as well as the respondent No,2 as Awarding Officers was a selection and not a promotion and that the Selection Board had assigned merit to the appellant at Serial No, 1 while the respondent No,1 was assigned Serial No,3 in the list of selectees. Consequently, he has argued that the appellant was senior to the respondent No,2. He has relied on 1972 PLC page No, 208.
He has next argued that the Hon'ble High Court had dismissed the Revision Applications of the respondent No,2 as having "no merits". As such respondent was relegated by the Hon'ble High Court to be junior to the appellant and the respondent No,1 cannot revise the seniority list. He has placed reliance on 1983 PLC (C.S.) p. 200.
He has finally argued that since the appellant was older in age, he was senior to the respondent No,2. For this proposition, he has relied on 1985 PLC (C.S.) page 631.
10.Mr. Khalid Habibullah, the learned counsel for the respondent No,1 has defended the action of the respondent No,1 by relying on the minutes of the D.P.C. as well as the Committee appointed by the respondent No,1 to resolve the seniority disputes among the officials of S.E.S.S.I. He has argued that this was a case of "promotion" and not "Selection". In the case of promotion in one batch, he has contended, the inter se seniority in the lower grade was to be maintained. Consequently, the Committee deliberated on the dispute between the appellant and the respondent No,2 and granted seniority to the latter on the basis that he was inducted in the lower grade of Assistant in 1966 where as the appellant was appointed in 1967 and as such the former was senior to the latter. ##TSE# He has relied on the Supreme Court judgment vide 1989 SCMR page 44 and PLD 1992 SC page 207 in support of his proposition that since the earlier seniority lists were incorrect and contrary to rules of seniority, the respondent No,1 could legitimately revise the seniority list in 1983 in the interest of justice and legal requirement.
11. The learned counsel for the respondent No,2, Mr. Sirajul Hague, by and large adopted the arguments on merits, advanced by Mr. Khalid Habibullah, Advocate, with following additional points.
(a) Whether it was a case of pure selection on merit or promotion on seniority-cum-merit?
(b) Whether the High Court dismissed the revised application of respondent No,2, on the basis of merit or time-limitation?
12. Examination of the minutes of the D.P.C. held on 30-9-1970, does not indicate that this was a case of appointment, purely by Selection on merit or that the list of six officers was issued by assigning any merit. In fact, the jottings on the pro forma of Particulars shows that the appellant, Kazi Lateefullah and the respondent No,2 were given ' A' while Muhammad Aslatn and Atta Muhammad were given 'B' whereas Zaidi was given 'C'. Among the three, who were given 'A' there is no further marking to indicate any inter se merit. The list of promotes, thus, does not show any inter se merit but at random the names of officials who were promoted.
It was, therefore, a clear case of promotion by seniority cum-merit. It has been correctly pointed out of the counsel of respondent No,2 that had it been appointment by pure selection, the second para. of the order as well as the minutes would not have mentioned the term "reverted" during probationary period but the word "terminated" would have been used. Moreover, the promotion on the basis of pure selection on merit is applicable to posts in BPS-20 and above and in the strict sense only to posts in BPS-22.
13. The learned counsel for the appellant has vehemently relied on the judgment of the Hon'ble High Court dismissing the Revision Application filed by the respondent No,2. Much emphasis has been laid on the words that the petition was dismissed as having "no merit". In the earlier part of this judgment, it has been brought out that the Hon'ble High Court, did not touch upon the merits of the case at all and the Revision dealt with the point of limitation only and the suit was held to be time-barred as was adjudicated by the learned Additional District Judge. The words "no merits" do not mean that the decision was being given on the merits of the controversy with regard to seniority.
14. I am, therefore, of the view that this appeal merits dismissal as non- maintainable. The appeal also fails as well on merits. It is accordingly dismissed. (Sd.)
BAHAUDDIN SIRHINDI, MEMBER