' MALIK HAMID SAEED, J.---The petitioners in this writ petition have questioned the appointment of Afzal Shah, respondent herein in Provincial Urban Development Board (PUDB) on regular basis with retrospective effect and his consequent seniority over the petitioners in the final seniority list of Grade-18 Officers and also his promotion to BPS-19. According to the petitioners, the respondent No, 1 was appointed as Deputy Director in BPS-18 in Mardan Development Authority on ad hoc basis for a period of six months on 10-11-1986 by respondent No,3 without confirmation/approval of respondent No,2; that on the expiry of the six months period the ad hoc appointment of respondent No,1 was further extended for another six months by respondent No,3 with effect from 10-5-1987 without any decision for further retention in service of respondent No,1; that respondent No,2 on 15- 10-1990 circulated tentative seniority list of regular Deputy Directors (BPS-18) and respondent No,1 was placed at Serial No,4 of the said list; that the petitioners preferred appeal/objections to respondent No,3 and requested for deletion of respondent No,1's name from the said list, but with no fruitful result; that three senior most Deputy Directors preferred Writ Petition No, 1135 of 1992 in this Court through Officers. Association and during the pendency of the said writ petition the respondents vide office order dated 9-8-1993 regularised the respondent No,1 under Government of N.-W.F.P. Civil Servants (Regularisation of Service) Act, 1988 read with Rule 10(a) of the PUDB Service Rules, 1978 w,e,f, 23-1-1988; that after regularisation of respondent No,1, the respondent No,2 issued another tentative seniority list dated 27-11-1993 in which the name of respondent No,1 was placed below the names of those officers who had filed writ petition in this Court, but above the names of petitioners; that petitioners again preferred appeal/objections to respondent. No,3 against the tentative seniority list dated 27-11-1993 but the said respondent instead circulated final seniority list on 19-3-1994 and thereby maintained the seniority position assigned to petitioners in the tentative seniority list and the appeal of the petitioners against the final seniority list was also turned down by the respondent vide letter dated 18-5-1994; that respondent No,4 on the basis of seniority list prepared in persuance of retrospective regularisation of respondent No,1 in service, decided to hold its meeting on 2-7-1995 to consider respondent No,1 alongwith other Senior Deputy Directors for promotion v the post of Director in BPS-19 and on coming to know about the said meeting, the petitioners instituted the instant petition, which was later on amended with prior permission of the Court because during the pendency of the writ petition, respondents Nos,2 to 4 held its meeting and promoted respondent No,1 to the post of Director in BPS-19 on regular basis.
2. The respondents Nos,2 to 4 in their written statements stated that the petitioners through Registered Officers Welfare Association alongwith other members had filed a similar Writ Petition No,1135 of 1992 against respondent No,1 with the prayers that respondent No,1 should not be regularised or promoted till the decision of the writ petition, but the services of respondent No,1 were regularised w,e,f, 23-1-1988 vide Notification dated 8-9-1993 and upon the issuance of said notification, having no objection to the said regularisation, the counsel for the petitioners did not press the said writ petition and requested for its withdrawal which was allowed on 7-3-1995 and, therefore, now the petitioners are estopped by their own conduct to file the instant petition. On merits of the case, the stand of the respondents is that when the services of respondent No,1 were not terminated after the expiry of the period of six moths, it will be deemed that his services have impliedly been regularised. The respondent No,1 in his comments has also laid great stress on the point that the petitioners through PUDB Welfare Association had filed Writ Petition No,1135 of 1992 on the similar grounds which was withdrawn without any permission to file a fresh writ petition and now the present writ petition is not maintainable.
3. We have gone through the written arguments filed by the learned counsel for the parties and have also perused the material placed on file.
4. In the earlier writ petition (W.P. No,1135/92) one of the plea of the writ petitioners was that respondent No,1 had no right to be listed on the seniority list of the regular Grade-18 Officers of Provincial Urban Development Board, yet his name was also placed on the panel alongwith the other eligible candidates. It is an admitted fact that respondent No,1 by then was not a regular employee as his services were not regularised. It was during the pendency of the said writ petition when the services of respondent No,1 were regularised through a notification dated 8-9-1993 and as in the tentative seniority list the names of the writ petitioners were already placed above respondent No, 1, therefore, they withdrew the said writ petition on 7-3-1995. The petitioners in the instant writ petition are those employees of PUDB, who are aggrieved of the regularisation of the respondent No,1 for the reason that their names in the seniority list have been placed below to respondent No,1 In Writ Petition No,1135 of 1992, petitioner No,1 was PUDB Officers Welfare Association through its Secretary General besides three other writ petitioners. The Secretary General at that time was Mr. Muhammad Salim, who is now petitioner No,4 and, therefore, the respondents have taken an exception with reference to Order 23, Rule 3, C.P.C. By stating that the petitioners could not institute any fresh proceedings concerning the same subject-matter or part thereof. As stated earlier, in the said writ petition PUDB Officers Welfare Association was a party through its General Secretary, but in this writ petition PUDB Officers Welfare Association is not a party and Muhammad Salim (Who was at that time the Secretary General of the Association) has now come in individual capacity because of being affected by the regularisation of respondent No,1 and his consequent seniority position in the seniority list. We are, therefore, of the view that the earlier writ petition was in the nature of a quo warranto and the same was withdrawn after the services of respondent No,1 were regularised vide office order dated 8-9-1993 during the pendency of the said writ petition, obviously for the reason that the writ petitioners in W.P. No,1135 of 1992 were already senior to respondent No,1 in the seniority list and they as such did not question the regularisation of respondent No,
1. The arguments of the learned counsel for the respondents appear to be attractive that appointment regularisation of respondent No,1 cannot now be challenged at this stage when it could have easily been assailed in the earlier writ petition, if an amendment had been sought to that effect. But legally speaking, since the very appointment and regularisation was not in order, therefore, this argument was flimsical and superfluous as illegal acts remain illegal and do not become legal with the efflux of time as such the principle of estoppel or limitation would not apply to the illegal acts. So far as the other aspect of the case is concerned, we are of the opinion that the petitioners in the instant writ petition cannot be restrained from questioning the seniority of respondent No,1, as the petitioners before us were not petitioners in the earlier writ petition and a cause of action later on accrued to them when the services of respondent No,1 were regularised which seriously affected their seniority position in the seniority list of Grade-18 Officers, therefore, the withdrawal of previous writ petition would not make the present petition res judicata to question the seniority position of respondent No,1 in the impugned seniority list. The earlier writ petition was filed by PUDB Welfare Officers Association on behalf of the aggrieved employees i,e, the writ petitioners in the said writ petition, who are not parties in this writ petition except Muhammad Salim, who was then the Secretary General of the Association, but now he had individually challenged the regularisation and consequent seniority of respondent No,1 There is no legal bar on the employees of PUDB that they cannot challenge an act of the authority in their individual capacity.
5. Petitioners Nos,1 to 6 were initially recruited as Assistant Directors in PUDB in BPS-17 on 22-10-1983, 27-10-1983, 25-10-1983, 20-10-1983, 9-10-1983 and 12-5-1984. Thereafter, petitioners Nos,1 to 5 were promoted to the post of Deputy Director in BPS-18 on 13-12-1989 and similarly petitioner No,6 was promoted as such on 1-3-1990. As against this, respondent No,1 was appointed as Deputy Director in BPS-18 on ad hoc basis in November, 1986 for six months which period was extended for another six months and thereafter, neither extension was granted nor fresh appointment was made.
However, strangely the PUDB vide order dated 15-10-1990 circulated tentative seniority list of regular Deputy 'Directors (BPS-18) in which the respondent No,1 was placed at Serial No,4 despite the fact that the respondent was not a regular employee by then. When the petitioners preferred representations against his seniority, the respondents moved for the regularisation of respondent No,1 and ultimately vide order dated 9-8-1993 the services of respondent No,1 were regularised with retrospective effect whereby he was also held entitled to seniority in the respective cadre of Deputy Directors (BPS-18) w,e,f, 23-1-1988 purportedly under clause 8(4) of the N.-W.F.P.Civil Servants Act, 1974. The learned counsel for the petitioners vehemently argued that Rule 10(a) of the PUDB Service Rules, 1978, does not permit regularisation of the respondent service in PUDB and that section 8(4) of the N.-W.F.P. Civil Servants Act, 1973 is not applicable to the employees of PUDB for determining their seniority as it is applicable only to the civil servants. We have perused the order of regularisation of respondent No,1 whereby the services of the respondent No,1 have been regularised under the North-West Frontier Province Civil Servants (regularisation of Ad hoc Services) Act, 1988 (N.-W.F.P. Act No,7 of 1988) (hereinafter to be called as Regularisation Act, 1988).
There is no denying the fact that the Regularisation Act, 1988 provides regularisation of the services of the ad hoc civil servants with prospective effect, but in this case the services of respondent No,1 who is not a civil servant, have been regularised with retrospective effect, which was outside the domain of the Regularisation Act and, thus, illegal regarding regularisation of the services of respondent No,1 with retrospective effect. Section 4 of the Regularisation Act, 1988 reads as under:- - "4. Determination of Seniority.--(1) The Civil servants whose services are regularized under this Act shall rank junior to all civil servants belonging to the same service or cadre, as the case may be, who are in service on regular basis on the commencement of this Act, and shall also rank junior to such other persons, if any, who in pursuance of the recommendation of the commission made before, the commencement of this Act, are to be appointed to the respective service or cadre, irrespective of their actual date of appointment.
(2) The seniority inter se of the civil servants, whose services are regularized under this Act within the same service or cadre, shall be determined on the basis of their continous officiation in such service or cadre; provided that if the date of continuous officiation in the case of two or more civil servants is the same, the civil servant older in age shall rank senior to the younger civil servant."
Though, the petitioners have questioned the illegal regularisation of respondent No,1 under the Regularisation Act, 1988, as he was not appointed on ad hoc basis under the provisions of N.-W.F.P.
Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 or of 1989, yet their main stress was to get the impugned seniority list set aside being illegal and without lawful authority. Had the Regularisation Act applicable to respondent No,1 and his services had been regularised under the said Act, even then he would have ranked junior to the petitioners, who are, in service on regular basis prior to the issuance of the order dated 8-9-1993 whereby his services were regularised in BPS-18. The petitioners are regular employees of PUDB in BPS-18 since 1989 whereas respondent No,1 who was subsequently reguarised in the year 1993 with retrospective effect would not make him entitled to seniority with effect from 23-1-1988.
6. Since the petitioners' main stress was on the impugned seniority list therefore, this writ petition is partially allowed to the extent that the petitioners are entitled to be given their due position in the seniority list of BPS-18 Officers as against respondent No,1, whose services have purportedly been regularised later on under the Regularisation Act, 1988, The prayer of the petitioners with regard to the appointment of respondent No,1 is disallowed as not seriously pressed. It may also be observed that during the pendency of this writ petition, the respondent No,1 was promoted to BPS-19 and the petitioners were allowed to amend their writ petition to this effect, therefore, in view of the fact that the respondent No,1 would rank junior to the petitioners in the seniority, the petitioners are entitled to be considered for promotion to the post of Director (BPS-19) under the relevant law and rules on the subject. No order as to costs.