' BAHAUDDIN SIRHINDI (MEMBER-I).---Having been aggrieved by Chief Secretary's order dated 16-6- 1997, the appellant filed an appeal before the Chief Minister of Sindh on 15-6-1997, and after waiting for the statutory period of 90 days, he has filed this appeal before Sindh Service Tribunal on 26-9- 1997 under section 4 of the Sindh Service Tribunals Act, praying therein that this Tribunal may be pleased to assign the seniority to the appellant above respondents Nos,3 to 10 in BPS-20, and that respondent No,1 be directed to finalize and circulate such seniority list accordingly.
' The history of the case, as pleaded by his counsel can be summarized as follows:--- ' The appellant was appointed to the then West Pakistan Civil Service (Executive Branch) as Deputy Collector (under training) on 10-9-1968. The name of the appellant was placed at Serial No,26 as per the notification issued on 19-9-1968. He passed the departmental examination and completed the prescribed training on 19-10-1969 as notified on 17-1-1971 by Commissioner, Karachi. He took over the charge as Deputy Secretary. Administration, Education Department on 15-5-1975 PBS-18, in pursuance of S&GAD's notification dated 14-5-1975. He was promoted to PBS-19 on 24-11-1988 as Additional Secretary/equivalent post on regular basis, and on 7-12-1991, he was promoted to the post of Secretary/equivalent in BPS-20, in the Provincial Government on regular basis. A provisional seniority list, of Exh.PCS (Executive Branch) officers in BPS-20 was issued on 4th March, 1996, in which name was shown at Si. No,10 below the respondents Nos, 3 to 9. According to him he filed objections before the Chief Secretary, Government of Sindh, on :31st March, 1996. Since the respondent No,1 failed to finalize the seniority list in the light of the objections filed by the appellant, the appellant made another representation on 27-5-1997. However, his letter/representation was treated as independent and rejected as time-barred on 17-6-1997, which has been treated by him as the first impugned order. He then filed an appeal before the Chief Minister, Sindh on 24th June, 1997 and after having waited for 90 days, filed this appeal before this Tribunal on 26-9-1997.
2. According to his counsel, since it was not a final seniority list, hence any appeal/representation against it has no time limit and the period of limitation has to be established, by private respondents. According to him both section 4 of the Sindh Service Tribunals Act, 1973 as well as that of Sindh Civil Servants (Appeals) Rules, 1980, do not place any limitation on the original departmental authority to consider any representation on merit.
3. He further stated that while the appellant was appointed on 19-9-1968, the dates of appointment of respondents Nos,3, 4 and 5 are 10-1-1969, 17-2-1971 and 17-2-1971 respectively. There is also difference in mode of appointment i,e, the respondents Nos, 3 to 5 are the nominees appointed under quota as per Rule 5 of the West Pakistan Civil Service (Executive Branch) Rules, 1961. Thus, they could not be made part and parcel of PCS (Executive Branch) cadre while the appellant is a direct recruitee. It follows as a corollary that the nominees are to be regularized only after passing Part-I and Part-H of the Departmental Examination through Sindh Public Service Commission, under section 3(4) of the Sindh Civil Servants Act, 1973. It was pointed out by him that he qualified the departmental examination earlier, whereas the respondents Nos, 3 to 5, qualified the same, much later in time. He further submitted that the appellant was promoted to BPS-18 on regular basis on 14-5-1975 while the respondents Nos, 3 to 5 were promoted subsequent to the appellant, 21-5-1975, 18-12-1975 and 20-12-1975 respectively. Comparing himself regarding respondent No,6, who passed departmental examination (Part-I and Part-II) on 4-6-1970, i,e, 8 months later to the appellant, while respondent No,7 passed the same examination on or after 7-6-1970, he further stated that respondents Nos, 6 and 7 remained under training in 1970 and 1971, drawing 23rd of the salary and, thus, they are junior to the appellant in BS-17. Regarding respondent No,8, it was stated that he qualified Departmental examination three years later to the appellant and possessed a checkered record of service, while respondent No,9 entered in service alongwith the appellant, but was removed and superseded by the appellant, at the time of promotion in BPS-18 on 20-9-1976, compared to the appellant's date of promotion in BPS-18, i,e, 14-5-1975. The appellant moved over to BPS-19 on 1-12-1984 and to BPS-20 on 1-12-1990, while the respondents 8 and 9 were allowed such inove-overs later than the appellant. Regarding respondent No,10, he stated that though he was appointed in 1967 but was removed from service in 1971 under M.L.R.114 and was reinstated in service under M.L.O.23, somewhere in 1978 or 1979 in BPS-17, and that he was promoted to BPS-18 in 1980-81 and could not take the advantage of seniority because of break in service for which he quoted the judgment of Supreme Court reported in PLD 1987 page 427. Accordingly he claimed seniority over all the private respondents 3 to 10 in BPS-20.
4. He, thus, based his premises on the following three points of law:
(1) Principle of inter se seniority--unless superseded.
(2) No advantage of broken service M .L.0.23.
(3) Seniority depending on induction in the cadre on regular appointment/qualifying the Departmental examination after joining.
5. In support of his argument he quoted the following citations:---
(1) PLD 1991 Lahore 418.
(2) 1996 SCMR 850.
(3) 1997 SCMR 287.
(4) PLD 1987 SC 427.
(5) PLD 1960 SC 195.
(6) PLD 1970 SC 203.
(7) PLD 1981 SC 612.
(8) 1994 PLC (C.S) 1400.
(9) PLD 1994 SC 233.
6. While the judgments at Serial Nos, 1, 2, 3, 5, 7 and 9 were found not relevant, the judgment cited at Serial No,4 has been discussed at its proper place i,e, Mr. Nasim Haider vis-a-vis Salahuddin under the caption. "Factual position of seniority claim by Mr. Nasim Haider'. The one at Serial No,6 deals with the determination of seniority between incumbents in the same grade, which is to be from the date of their entry in the grade. This is exactly what we have discussed in the following pages and goes against the appellant rather than in his favour. So in the case of confirmation. Regarding judgment cited at Serial No, 8 interestingly a judgment of Federal Service Tribunal on the same subject i,e, 1999 PLC (C.S.) page 1336 has been cited by the counsel of the respondent No,4. Both of them go against the appellant.
7. The appellant also filed a Miscellaneous Application No,64 of 1998 and on 9-12-1998, the diary of the case-proceedings seem to have been corrected by Mr. Nasim Haider himself in his own handwriting. It shows that Mr. Abdul Latif Ansari, Advocate for respondent No,4 had pointed out that this miscellaneous application was also listed in the cause list but he had not received the copy of the same. Advocate for the appellant was accordingly directed to supply the copy of miscellaneous application to him. It is further stated in the diary that this application was merely for summoning of the record which has also been disposed of. However, it is not mentioned how this miscellaneous application was disposed of. Respondent No,3 has, however, filed his comments on this miscellaneous application.
8. During the hearing, none of the respondents from 3 to 10 was present, Mr. Abdul Lateef Ansari, Advocate represented respondent No,4, while A.A.-G. Represented respondents Nos, 1 and 2.
9. Mr. Abdul Latif Ansari, Advocate referred to section 6-A of the Sindh Service Tribunals Act, 1973 and stated that provision of sections 5 and 12 of the Limitation Act shall apply to this appeal under this Act and further stated that no application for condonation of time limit has been filed and thus the appeal is hopelessly time-barred. He further argued that all preceding provisional seniority lists on publication of subsequent provisional seniority list, except for the freshly inducted Government servants, become final and are treated as such. He quoted the judgment of Sindh Service Tribunal in NLR 1991 (T.D) p.506 and further stated that cause of action to the appellant arose on the publication of inter se seniority of Ex-PCS Officers (Executive Brand-) on 16-4.-1986, wherein the appellant has been shown at Cereal No,33, in the interest seniority list of PCS Officers in BPS-17. He contended also why this list was not challenged by the appellant for whom the first instance/cases arose in 1986. He, thus, argued that his inter se seniority list of Ex-PCS (Executive Branch) has attained finality, as far as these officer together are concerned. He further argued that a provisional senerioty list of officers of former PCS (Executive Branch) service was published on 10-3-1991, wherein the appellant was shown at Serial No,8 in BPS-19, while respondent No,4 was shown at Serial No,5. He asked that at this point in time, when the seniority list in BPS-18 was over, why the appellant did not make any representation regarding inter se seniority in PBS-19 at that appropriate time, also needs to be explained. According to him the respondent No, 4 has been shown as appointed in BPS-19 on 31-5-1988, whereas the appellant has been shown to have been appointed in BPS-19 on 24-11-1988. He further stated that a second cause of action arose to the appellant at this stage, against which he did not make any representation. He then referred to the provisional seniority list published on 21-9-1992 which is the first list so far as the BPS-20 Officers Ex- PCS (Executive Branch) are concerned, in which the respondent. No,4 has been shown at Serial No,12 while the appellant has been shown at Serial No,15. The appointment date of respondent No,4 in BPS-20 in this seniority list has been shown as 21-10-1991. While that of the appellant as 7-12-1991.
A second list of inter se seniority of BPS-20 officers in Ex-PCS (Executive Branch) was published on 16-8-1994 in which the respondent No,4 has been shown at Serial No,9 while the appellant has been shown at Serial No,11. Against both these seniority lists, the appellant did not make any representation, and according to him each day is to be counted towards the appeal time, which is hopelessly time-barred at this stage. He further argued that at page 4, para. 5 of his memo. Of appeal, the appellant himself admits that he was promoted to BPS-20 on regular basis on 7-12- 1991. Thus, according to his own admittance, there is no fresh cause of action and the seniority list published on 4-3-1996 is the third seniority list of BPS-20 officers of Exh-PCS (Executive Branch) in continuity. He further argued that the repetition of representation is not allowed without an application under section 5 of the Limitation Act for condonation and relief as per the judgment reported in 1998 (PLC (C.S.) at page 862. According to him he could not claim fresh start of limitation by preferring an appeal in 1996 against seniority list issued in 1990, wherein the appellant was assigned seniority in 1986, which he failed to challenge earlier.
10. A.A.-G. Adopted the arguments of Mr. Abdul Latif Ansari, Advocate, and stated that the appeal is time-barred and rightly rejected by the department. He has further pointed out that there is no application for condonation of the delay.
11. Apart from the counsel of respondent No,4, no other respondents or any of their counsel was present. Respondents Nos,3, 4, 5, 8 and 9, have filed the written statement out of which the one by respondent No,4 being very comprehensive and almost covering all the points raised by the respondents, consist mainly of the following points:-
(1) That the appeal is hopelessly time-barred and is liable to be dismissed as the Tribunal on its own cannot condone, the delay in favour of the appellant in vacuum, when no such application is on record.
(2) That the Government of Sindh has been issuing seniority lists of officers initially appointed as Assistant Commissioner/Deputy Collectors in BPS-17 from time to time and the appellant has been availing promotions in next higher grades. The first consolidated seniority list of P.C.S. Officers of Karachi Division and remaining Sindh was issued in 1986, which can be termed as provisional/tenative while the subsequent seniority lists issued and circulated after 1986, are final for the appellant as well as for the respondents. The appellant has not challenged these seniority lists during last 12 years and he cannot claim retrospective seniority in the cadre of an Administrative Secretary in BPS-20, in view of his own averments/pleadings and he is estopped to claim relief at this stage.
(3) The appellant has neither furnished any seniority list in his favour nor he has advanced any reasons for the delay in his memo. Of appeal.
(4) The respondent No,4 alongwith the appellant and respondents Nos,3, 5, 8 and 9. Appeared in the PCS Examination in the year 1968 conducted by the West Pakistan Public Service Commission and cleared the same and subsequently all of them were appointed as Deputy Collectors/Assistant Commissioners in their own regions, when Karachi was treated as a separate region from other parts of Sindh. The appellant as well as afore-mentioned respondents were initially recruited in the same batch and their merit stands decided by the Commission in 1968 batch. Their postings were made according to vacancies in respective regions, which does not make any difference so far as seniority or merit is concerned.
(5) That passing of the departmental examination by the appellant has been notified by the Divisional Commissioner, Karachi, whereas the defendant No,4 has passed the departmental examination held on 30th November, 1971 and 1st December, 1971, through Sindh Balochistan Public Service Commission. Hyderabad. The appellant also did not have any training from Civil Service Academy, Peshawar. It is further contended that passing of departmental examination earlier does not confer seniority. It is the initial merit list by the Public Service Commission, which determines the seniority. The appellant has been regularized as Assistant Commissioner, w,e,f, 1st July, 1974, as per Government's Notification dated 16-9-1976 alongwith respondents Nos, 3, 4, 5, 8 and 9 in their respective regions. According to him, their first provisional seniority list was notified on 20th February, 1973 and later modified according to merit assigned by West Pakistan Public Service Commission and notified on 23rd December, 1975. He further states that according to Notification dated 16-9-1976, the 1968 batch PCS (E.B.) have been confirmed and their seniority has been shown in their own region as it was. At the relevant time, Sindh Province was bifurcated in two service regions and two groups of Ex-PCS (E.B.), namely, officers of Sindh (excluding Karachi) and Officers of Karachi, but the actual and original seniority assigned by the Commissioner remained intact as mentioned earlier. Appellant being fully satisfied with this position and having failed to file any departmental appeal/representation and not having agitated any grievances in the form of any appeal before the Sindh Service Tribunal, it has attained finality.
(6) Vacancies in Grade-18 in Karachi Region and the remaining Sindh, fell vacant and were to be filed in 1975. Appellant was promoted on 14-5-1975 against a vacancy in Karachi Region, while respondent No,4 was promoted on 18-12-1975, when a vacancy fell vacant in the remaining Sindh Region, but their inter se seniority in lower grade had not been notified till then. It was notified on 23rd December, 1975 and updated on 16th September, 1976. Since both the incumbents were promoted in BPS-18 in the year 1975, as such they retained their inter se seniority of the lower grade as assigned by the Commission.
(7) The Government of Sindh in S&GAD, finalized objections received on provisional seniority list, published in 1973, and notified a provisional seniority list of PCS (E.B.) Officers of Sindh except Karachi on 19th February, 1970 wherein 1968 batch of PCS Officers have been assigned the same seniority as had been assigned by the West Pakistan Public Service Commission, earlier. Since some of the incumbents challenged their seniority position in this list before Sindh Service Tribunal, as such the Government of Sindh in pursuance of the judgment of the Tribunal notified a revised seniority list as it stood on 20-2-1986, and notified on 16-4-1986. The list includes the inter se seniority of PCS Officers in BPS-17 and BPS-18. Thus, this notification on 16th April, 1986, once and for all finally settled and decided the inter se seniority of all PCS Officers serving in the Province of Sindh, including Karachi at the relevant point in time. In this seniority list the appellant is shown junior to respondents Nos,3 to 9.
(8) It has been contended that the aforesaid seniority list was the first consolidated seniority list of all PCS Officers of 1968 batch from entire Sindh Province, including Karachi. As such if appellant had any objection or grievance, this was the list to be objected to by him, and accordingly, cause of action, if any, firstly accrued to the appellant on 16th April, 1986. The said list was circulated and the appellant could have challenged the same at the relevant time, but he failed to do the same and, thus, the list attained finality in the year 1986 and as such appellant cannot claim 'start of fresh period of limitation' by filing this appeal after a lapse of 12 years. Administrative Department has validly and rightly dismissed the departmental appeal of the appellant as time-barred.
' Summarizing, the arguments of the counsel of respondent No,4, and the reply of the respondent No,4, in this written statement the following points have been raised, for which they have relied on the case-laws mentioned below.
' Points to be considered:----
(a) Accrual of 'Cause of Action'.
(b) Appeal against current Seniority List without challenging previous Seniority List.
(c) Award of Seniority without getting promotion ante-dated.
(d) Filing appeal after expiry of 'statutory period' and its limitation under section 5 of Limitation Act vis-a-vis section 6-A of Sindh Service Tribunals Act, 1973.
(e) Mentioning of the word 'Provisional' in repeated Seniority Lists. Case-laws cited:---
(1) 1998 SCMR p.882 which in turn makes reference to the following judgments:---
(a) 1972 SCMR p.1136.
(b) PLD 1997 SC p.397.
(2) 1999 PLC (C.S.) p.25.
(3) 1984 SCMR p.379,
(4) 1985 SCMR p.2099.
(5) 1999 PLC (C.S.) p.
510.
(6) 1999 PLC (C.S.) p.1198.
(7) 1999 PLC (C.S.) p.176.
(8) 1995 PLC (C.S.) p.1015.
(9) 1996 PLC (C.S.) p.955.
(10) 1995 SCMR p.1229.
(11) 1994 SCMR p.543.
(12) NLR 1987 (TD) p.423.
(13) 1986 SCMR p.12;
(14) 1982 PLC (C.S.) p.494' .
(15) NLR 1991 (TD) p.
506.
(16) 1984 PLC (C.S.) p.
546.
(17) 1994 PLC (C.S.) p.1336.
(18) 1996 PLC (C.S.) p.891.
12. The Honourable Supreme Court of Pakistan in the case of Abdul Wahed v. C.B.R., in a Full Bench decision reported in 1998 SCMR at page 882, has held that an "Aggrieved civil servant does not have unfettered discretion to file Representation, Appeal of Review before next higher authority at any time. Line has to be drawn whereafter no representation would be competent or entertainable.
Any omission, slackness, negligence without specifying sufficient cause with regard to commencing period of representation contained in section 4 of the Service Tribunals Act, 1973, cannot be easily ignored or overlooked.
13. In the instant case Seniority List of BPS-18, wherein the appellant was shown junior to answering respondent No,4, was not challenged and if subsequent seniority list of BPS-19 and two seniority lists of the years 1992 and 1994 of BPS-20, did not aggrieve him, then no subsequent order or disposal of 1997, incompetent second representation, could create fresh cause of action or automatically operate to condone delay of limitation in availing the remedy under section 4 of the Sindh Service Tribunals Act, 1973, when there is not even an application asking for such relief.
14. The honourable Court has further held that "Terminus ad quem". i,e, starting point has been explicitly mentioned in section 4 of the Sindh Service Tribunals Act, 1973. Seemingly it is difficult to assume that period of limitation so prescribed would be dependent upon set choice of aggrieved person who might wake up from deep slumber at his own sweet whims, possibly waiting for favourable environment to agitate his grievances", and the appeal was dismissed on the point of limitation only. Hence same rule would apply in this case also.
15. The Honourable Supreme Court of Pakistan in the case of Muhammad Ashraf v. Government of Sindh in a Full Bench decision reported in 1999 PLC (C.S.) page 25, has held that "Civil servant had filed appeal before Service Tribunal almost after 10 years, after cause of action had arisen to him.
Admittedly he had not submitted application before Services Tribunal seeking condonation of delay nor placed any material on record, which could effectively justify cause of delay in availing prescribed remedy". Thus leave to appeal was refused.
16. The appellant in the instant case was shown junior to answering respondent No,4, in Grade-18, vide notification dated 16-4-1986. As such, the cause of action firstly accrued to appellant on 16-4- 1986, but he never challenged the same, even when the appellant was continuously being shown junior in BPS-19 vide notification dated 10-3-1991 and in BPS-20, vide notification of 21-9-1992, and again on 16-8-1994 and for the third time the 1992 and 1994. It is only when the seniority list was repeated in 1996, that he becomes an aggrieved person. Appeal is, therefore, liable to be dismissed under instant Supreme Court decision.
17. Apart from it the appellant has not moved any application under section 6-A of Sindh Service Tribunals Act, 1973, and honourable Supreme Court in a Full Bench decision, reported in 1984 SCMR page 379, in case of Ibrar Hussain v. Secretary to Government of N.-W.F.P. Dismissed the appeal wherein the delay was there, but the 'Memo. Of Appeal' was not accompanied with condonation application.
18. The honourable Supreme Court of Pakistan in a Full Bench decision in the case of Federation of Pakistan v. Muhammad Naqi Khan reported in 1985 SCMR at page 2099, has been pleased to hold that "Seniority in a post, service or cadre to which a civil servant is promoted, shall take effect from the date of regular appointment to that post and hence the seniority of the appellant could not be taken back to an earlier date without ante-dating his regular promotion in BPS-20.
19. Federal Service Tribunal in a Full Bench decision (Chairman and three members), in the case of Khalid Latif Chaudhri v. Secretary, Establishment Division, reported in 1999 PLC (C.S.) at page 510, held in the similar circumstances, has followed the Supreme Court decision by holding that "Civil servant who never requested for ante-dated promotion in specified grade unless and until his promotion was not ante-dated by the Competent Authority he could not regain his seniority.
20. Federal Service Tribunal in a Full Bench decision in the case of Muhammad Khalid Alim v.
Secretary, Establishment Division, reported in 1998 PLC (C.S) at page 1196, had held that civil servant, despite allegedly being junior to civil servant, having been promoted, civil servant who considered himself to be eligible for such promotion did not file any representation, within 120 days, thus, a valuable right accrued to co-civil servant had attained finality". Appeal was, thus, dismissed, being time-barred.
21. The Lahore High Court in the case of Abdul Wahid Farooq v. Chief Secretary, Punjab, reported in 1999 PLC (C.S.) at page 176, had held that "Seniority assigned to opposing civil servant in 1988 was not challenged at that time but was challenged after 10 years by affected civil servant in a Constitution petition, and held that re-opening the issue of seniority, after a period of 10 years, was totally unwarranted.
22. Federal Service Tribunal in Full Bench decision in the case of Syed Mohibullah Shah v. Secretary, Establishment Division, reported in 1995 PLC (C.S) 1015 has held that grant of promotion and given Seniority todate on regular basis in a grade-cadre which civil servant enjoyed for sufficiently a long period, a vested right is accrued and enjoyed. That right cannot be withdrawn. It was held that there was no provision in Civil Servants Act for review of seniority.
23. Sindh Service Tribunal in D.B. Decision in which the appellant himself was a Member, in case of Muhammad Iqbal Qureshi v. Province of Sindh, reported in 1996 PLC (C.S.) at page 955, has held that "appellant if felt aggrieved by the said notification was free to have challenged it before the appropriate forum. But instead he kept quiet and let the matter pass unnoticed. His objection against the said Notification at this stage being belated is barred by limitation since the order contained in the notification was not challenged in time, it attained the due finality and could be reopened at this later stage". Appeal was, thus, dismissed.
24. Honourable Supreme Court of Pakistan in D.B. Decision in the case of Federation of Pakistan v.
T.A. Tabasum, reported in 1995 SCMR at page 1229 has held that "Assignment of seniority to civil servant in an earlier seniority list could not be revised :after so many years, especially in absence of representation against the same". Leave was, thus, refused.
25. Honourable Supreme Court of Pakistan,in D.B. Decision in the case of Abdul Hamid Khan v.
Secretary, Establishment Division, reported in 1994 SCMR at page 543, has held that "Civil servant had not challenged seniority list issued by the Department on 15-6-1980. Wherein respondent was shown senior to him with his date of anointment as 19-8-1976 and date of appointment of appellant as 8-9-1976 on a question as to why that seniority list was not challenged by him, the petitioner stated that he was not aware of that seniority list, as it was not served upon him. This explanation at that stage hardly sounded plausible to the Court". Hence his appeal was dismissed.
The present appeal is quite belated at this stage.
26. The Punjab Service Tribunal in Full Bench decision in the case of Abdul Rehman v. The Chief Engineer reported in NLR 1987 TD at page-423 decided that "seniority list which remained undisputed by contesting respondents for full 17 years attained finality and accepted without demur by contesting respondents for 17 years, would stand in field as valid".
27. The honourable Supreme Court of Pakistan in a Full Bench decision in case of Mazhar Saeed Qureshi v. Government of Punjab, reported in 1986 SCMR at page 12, decided that "Seniority List of 1972 challenged in 1976 when there was no application for condonation of delay alongwith appeal was time-barred".
28. The Punjab Service. Tribunal in a Full Bench decision in the case of M.S. Hamid Rehmani v.
Secretary to Government of Punjab, reported in 1982 PLC (C.S.) at page 494 has held that "Seniority List of 1972 has been challenged in 1978 and no application for condonation of delay was filed alongwith appeal. Appeal hopelessly time-barred".
29. The Sindh Service Tribunal in a D.B. Decision in the cases of Sabir Ali, Shan Muhammad Khan, Khalid Anwar, Abdul Rab Siddiqui, Syed Zulfiqar Hussain and Abdullah Khan v. Government of Sindh, while disposing six appeals, reported in NLR 1991 T.D. At page 506, had held that "The impugned seniority list was published as final list. Merely because the word "Provisional" crept in the phraseology, and used as subject of the letter accompanying the impugned seniority list, it would not convert it into a "Provisional List". The word "Provisional" was conspicuously missing from the list itself, may be through clerical error. We are, however, convinced that the Seniority List chllanged in appeal was not provisional".
30. Federal Service Tribunal in a D.B decision in the care of Syed Ali Muqtada Wahidi v. Secretary, Establishment Division, reported in 1984 PLC (C.S.) at page 546 has held that "Every seniority list is marked 'Provisional', due to one reason or the other in utter violation of the seniority rules, which lay down that only first seniority list is to be Provisional and every other a Final List".
31. For the sake of arguments as raised on behalf of appellant, if all the seniority lists of appellant as well as respondents in BPS-17, BPS-18, BPS-19 and BPS-20 are 'Provisional', then in that case appellant has to wait till a final seniority list would have been circulated by the Department. Then only, he would be an aggrieved person and not now.
32. The Federal Service Tribunal in a D.B. Decision in the case of Abdul Waheed v. C.B.R. Reported in 1994 PLC (C.S.) 1336, had held that "Appeal before Service Tribunal was not competent against a Provisional Seniority List".
33. The Honourable Supreme Court of Pakistan in a Full Bench decision reported in 1996 PLC (C.S.)
891, in the case of Fareed Muhammad v. Secretary, Ministry of Food, Government of Pakistan, has held that time-barred appeal with no application for condonation of delay was moved by civil servant: civil servant's appeal before Service Tribunal ought to have been dismissed as time- barred in the circumtances".
34. The preponderance of opinion in all above-cited cases is that the law of limitation is to be strictly applied. Therefore, considering all relevant aspects and glaring lacunae in the case of the appellant, it needs hardly any elucidation that law helps the diligent and does not support the indolent as such appeal of the appellant against answering respondents is liable to be dismissed.
35. Mr. S. Nasim Haider has prayed this Tribunal for award of seniority over all the respondents for various reasons which are also enumerated in his letter to Chief Secretary, Sindh, marked 'secret' communicating his objections regarding Provisional seniority list of Ex-PCS Officers, Government of Sindh, and is dated 31-3-1996. In order to arrive at a just and legal position in this respect, these objections are discussed in case of each of the following officers as under:--- ' Objections against Serial No,1 Mr. Muhammad Salahuddin (respondent No,10)
' He has contested that Mr. Muhammad Salahuddin is an Ex-PCS (EB) officer of 1967 batch and was removed from service in 1970-71 under M.L.R.114 and re-instated in BPS-17, in the year 1980-81, under M.L.O.23, and given an ante-dated seniority against the principles laid down in M.L.O.23.
' In fact Mr. Muhammad Salahuddin was an Ex-PCS (EB) officer of 1963 batch and not 1967 batch. He was removed under M.L.R.114 and reinstated under MLO-23, and given all benefits of seniority and rapid promotions over and above his juniors. However, since he already stands retired from Government service on superannuation as of December, 1998, hence the averments against him are of no consequence as per prayer in the present appeal.
' Objections regarding Serial Nos, 3 and 4 (M/s. Muhammad Iqbal Kazi and Ghyasuddin Junejo) respondents Nos, 6 and 7 ' These two officers belong to the 1967 batch and were inducted in service much earlier than Mr. S. Nasim Haider. However, his plea against these two officers is that they were not confirmed and remained on probation for two years or more till qualifying the departmental examination, which they qualified after the appellant, hence are junior to him.
In fact qualifying the departmental examination is a must of Ex-PCS (E.B.) Officers, but it does not deprive them of seniority, in case of qualifying late. Thus, by simply qualifying the examination earlier does not bestow any right over seniority. In fact these two officers were confirmed in service in the West Pakistan period with effect from 9-6-1967 and 16-9-1967 respectively, i,e, before the appointment of the appellant to this service. Thus, the plea of Mr. S. Nasim Haider that he had qualified departmental examination earlier than the above two senior officers and was entitled to seniority over them does not hold good and hence not tenable.
' Objections regarding Sl. Nos, 5 and 6 (M/s. Ramesh M. Udeshi and Nayyar Bari) responents Nos, 8 and 9 Against these two officers also he has raised the same plea of qualifying the departmental examination earlier, and also that he was given a full-fledged charge of a Magistrate before them, hence he ranks senior to them. As already indicated, qualifying the departmental examination, does not vest the right of seniority to any officer as claimed by the appellant. In fact Mr. Ramesh M.
Udeshi and Mr. Nayyar Bari were higher in merit than the appellant at the same examination, which was conducted by the West Pakistan Public Service Commission in 1968. Hence they will continue to rank senior to him. However, presently both these Officers are no more in service, having been dismissed from service. Written statement of Mr. Ramesh M. Udeshi was received from jail unsigned, hence not considered.
' Objections regarding SI. Nos, 7, 8 and ' 9 (M/s. Saleem Ahmed Memon, Manzoor ' Hussain Bhutto and Jamil Ahmed Siddiqui ' respondents Nos, 3, 4, and 5 ' The appellant while relying upon various documents has claimed that for all practical purposes he was senior to those three officers as they were not recruited to the service but were inducted as nominees, as also they did not come from the Subordinate Revenue Service by way of promotion.
He has also attached various documents showing that the West Pakistan Public Service Commission had never declared that they had qualified the PCS Examination of 1968 nor did their names appear in the offer of appointment issued by the then West Pakistan Government vide Notification No,SP-20-1/67(SOXI), 'Med 19-12-1968. He also stated that, thereafter no examination was conducted by the then West Pakistan Public Service Commission, hence their induction to the service as direct recruitees does not appear to be based on facts. He has further stated that Mr. Saleem Ahmed Memon was inducted in the cadre on 10-4-1969. i,e, 4 months after the appellant whereas Mr. Mazoor Hussain Bhutto and Mr. Jamil Ahmed Siddiqui, were appointed to Ex-PCS cadre on 16-12-1971, as per gradation list of 1979. Thus, they too were junior to the appellant by 3 years. He has also stated that these two officers were originally appointed as Section Officers till their appointment of Ex-PCS (EB) cadre in 1971. Thus, the appellant has come to the conclusion that as per established principles of service laws:---
(i) There cannot be any induction in a cadre with retrospective effect.
(ii) Induction in a cadre takes effect from the date when actual orders are passed, as also held by honourable Supreme Court of Pakistan, repeatedly.
(iii) Seniority in the new cadre begins from the date of actual induction as upheld by the honourable Supreme Court of Pakistan.
(iv) M/s. Saleem Ahmed Memon, Manzoor Hussain Bhutto and Jamil Ahmad Siddiqui (and Shah Muhammad Shaikh, late) actually worked in the West Pakistan Secretariat from 1968 to 1971 i,e, the date of their actual induction in E x-PCS (EB) cadre i,e, in 1969 and 1971 respectively. Their past service could only be counted for the purpose of pension, but not towards seniority in the new higher cadre of PCS (EB).
(v) Even in 1968 batch of PCS (EB), he was senior to all of the batch, having rendered 6 years non- gazetted service, which would be counted as 1-1/2 years more towards gazetted service, as per standard practice.
(vi) There is a prescribed method for change of seniority. If the seniority of any officer is to be changed, the affected officers are issued a notice, objections invited, heard and decided before the actual action is taken, as per principles of natural justice, fairplay and equity.In the instant case the prescribed procedure has not been followed. No notice was issued, nor objections invited to change their seniority.
(vii) These illegal/incorrect orders shall remain illegal despite passage of time because these are criminal as well as civil offences punishable under the provisions of P.P.C. And C.P.C.
36. In order to come to a definite position with regard to each one of them, we will revert to the written statements submitted by the respondents Nos, 3, 4 and 5.
37. As per written statement of Saleem Ahmed Memon (respondent No,3) he had qualified in the PCS (EB) Examination in the year 1968 and was inducted into service on the basis of his merit, from the quota of Hyderabad and Khairpur Regions, as at that time Sindh was divided in two Regions, one being Karachi and other comprising of Hyderabad and Khaipur Divisions. His name does appear in gradation list issued in the year 1976, vide Notification No,SO-V(S&GAD) 1-6/73, dated 19- 2-1976 at Serial No,96.
38. As he had qualified the same examination as Mr. S. Nasim Haider, as per result of PCS Examination announced in March, 1968, hence there is no question of his being an outsider. His name does appear with Seat No,406 in the result announced by the West Pakistan Public Service Commission, and was taken up later on against a resultant vacancy. Thus, inclusion of his name in the list of the officers of Ex-PCS of Sindh excluding Karachi in 1976 vide Notification No,SO- III(S&GAD)-5-24/74, dated 16-9-1976 as a direct recruit was according to rules and not challenged by any one including Mr. Nasim Haider, who is also shown in the same list at Serial No,2 of officers of Karachi.
39. Mr. Manzoor Hussain Bhutto, in his written statement filed before the Tribunal has controverted the averments raised by Mr. S. Nasim Haider, but at the same time has contested that appeal of the appellant is hopelessly time-barred being delayed by at least 12 years, as such was not competent. He has further stated that Government of Sindh after appointment of the appellant as Assistant Commissioner/Deputy Collector in BPS-17, have been issuing and circulating seniority lists from time to time, while appellant was availing promotion in next higher grades but at no earlier stage had contested the seniority lists issued and circulated after 1986, which had attained finality for him as well as for all the respondents. The appellant cannot claim retrospective seniority in BPS- 20 in view of his averments/pleadings, whereas he is estopped to claim relief as set forth in the appeal. Besides he has not provided any seniority list in support of his contention that he had been declared senior at any earlier stage whereupon the subsequent lists are based, in which he had been placed at a higher position than the respondent.
40. Mr. Manzoor Hussain Bhutto, has further claimed that the plea of the appellant that he was not a direct recruit is denied. In support of his contention he has furnished his admission slip and the merit result of the PCS Examination conducted in the West Pakistan Government days in the year 1968. Thus, it is clear that the appellant alongwith respondent No,4 and so also the respondents Nos, 3, 5, 8 and 9 appeared and competed together. The result of examination was declared on 29- 3-1968, wherein the then West Pakistan Public Service Commission was pleased to maintain order of merit of the relevant competitors as under:---{{TABLE}} Roll No, Name Merit Assigned
397. Mr.Ramesh M. Udeshi. (Respondent No,9) 13
384. Mr. Nayyar Bari. (Respondent No,8) 25
406. Mr. Saleem Ahmed Memon (Respondent No,3) 35
310. Mr. Manzoor Hussain Bhutto (Respondent No,4) 39
666. Mr. Jamil Siddiqui, (Respondent No,5) 52
379. Mr. S. Nasim Haider (Appellant) 66 {{TABLE}}
41. He has further claimed that all above-named passing candidates were appointed as Deputy Collectors/Assistant Commissioners (Executive Branch) in their Regions when Karachi was treated as separate Region from other parts of Sindh. As such appellant as well as above-named respondents were initially recruited in the same batch and their merit stands decided by the Commission (in 1968 PCS Batch) and were appointed as and when vacancy existed in their Regions at the relevant time, but their overall merit as well as seniority, assigned by the Commission/Selection Authority, remained intact till today, even after disintegration of One Unit.
42. Mr. Nanzoor Hussain Bhutto, has further stated in his written statement that Mr. S. Nasim Haider, had qualified Departmental examination as certified by the Commissioner Karachi; whereas, the respondents had cleared such examination from the Sindh-Baluchistan Public Service Commission. As such on merit even, the appellant was below the respondent. The fact was that the seniority list of Assistant Commissioners of 1968 Batch was framed and notified vide Notification No, SO-V (S&GAD) 1-6/73, dated 23-12-1975 on the basis of merit assigned by the then West Pakistan Public Service Commission, and subsequently the appellant as well as respondents were regularized/confirmed vide Notification dated 1-7-1974 in Grade-17, under rule 11(a) of Seniority Rules, 1975. Perusal of the documents/Annexures provided by the respondent marks it amply clear that .Provisional gradation and seniority list of PCS (EB) Officers of Province of Sindh except Karachi was notified vide Notification No, dov (S&GAD)-1-6/73, dated 19-2-1977, with detailed' reasons and policy guidelines framed by the Government for determining the inter se seniority of promotees/nominees and direct recruits. Subsequently this seniority was revised and notified vide Notification No,SOV (S&GAD)-II-V/86, dated 16-4-1986.
43. That in this seniority list the position of the appellant and respondent was finalized as tinder:--- {{TABLE}} Appellant at Serial No,33 Respondent No,3 at Serial No .29.
Respondent No,4 at Serial No,3.
Respondent No .5 at Serial No,31 Respondent No .6 at Serial No,21 Respondent No .7 at Serial No,20 Respondent No,8 at Serial No,27 Respondent No,9 at Serial No,24 {{TABLE}}
44. Respondent No,10 was included in the seniority list issued vide Notification No,SOI(S&GAI)) 4/91, dated 10-3-1991. However, he had been assigned this seniority in view of his selection in the year 1963. Thus, the seniority list issued in 1986 was the earlier-most opportunity for the appellant to have filed objections/appeal for the redressal of his grievance.
45. Thus, it could be concluded from the foregoing facts that Mr. S. Nasim Haider has no case on merits also and, thus, his present appeal is liable to be dismissed. Further, the disposal of his Miscellaneous Application No,64 of 1998, in the Service Appeal No,131 of 1997, in which Mr. Nasim Haider had levelled allegations of fraud and forgery against the respondents under sections 167, 181, 191, 196, 201, 204, 205, 210 and 218, P.P.C. Has been disposed of on 9-12-1998, giving no details about the manner of such disposal. This application was also not argued by his counsel at any stage of his final arguments. The diary of 9-12-1998, has been corrected by him in his own handwriting, when he was Member, Sindh Service Tribunal. Thus, it shows that he was satisfied after the perusal of the record of the respondents and the allegations of fraud and forgery against respondents were unfounded and unwarranted. Accordingly the appeal is dismissed with no order as to costs.