ROSHAN ALI MANGI (MEMBER)---This judgment shall dispose of both the appeals i.e. Appeal No. 6(Q) of 1996 filed by Ch. Abdul Latif, and appeal No. 7(Q) of 1996 filed by Mr. Farrukh Sohail Malik, respectively, involving similar dispute of seniority.
2. Ch. Abdul Latif, appellant was appointed as Accounts Officer in Pakistan Audit Department on 27- 5-1977 and was placed at the top of the combined seniority list of Accounts Officers in the ypar- 1992. Another list was issued on 12-12-1993 in which the name of the appellant appeared at Serial No. l and the names of M/s. Shah Nawaz Ali and Azmat Ali Afridi appeared at Serial Nos.43 and 55 respectively with respective dates of their appointment Le 2-3-1980 and 25-8-1980.
3. According to appellant surprisingly in the combined seniority list of 5-12-1994, his name was relegated to 4th position and the names of his alleged juniors jumped to Serial Nos. l and 2 respectively. The name of another junior viz Mr. S.M. Ziauddin, which did not even place in the combined seniority list of 1993, was also mentioned at Serial No.3 above the appellant.
4. The dates of appointments of all the three of his juniors were anti-dated as 3-5-1975, 12-9-1975 and 24-4-1976.
5. According to appellant this allegedly manipulated combined seniority list of 1994 was not provided to him and he only came to know about it when he was posted in the Office of Accountant-General, Balochistan, Quetta, in November, 1995.
6. Arguing his case, the appellant has taken the position that the seniority count from the date of regular appointment in the cadre. Since the dates of appointments of the three of his juniors were later than the appellant, they cannot be put over the appellant. The antitation of their promotion has been done without going through prescribed procedure.
7.This gave cause to the appellant, against which he represented on 6-12-1995 but received no response. He, however, submitted another representation on 18-1-1996 and thereafter, he approached this Tribunal by way of present appeal.
8.The appellant claims relief i.e. revision of combined seniority list of 1994 by placing him at the top position and induction/promotion of three of his juniors to the higher post be declared ultra vires and of no legal effect.
9. Other appellant Mr. Farrukh Sohail Malik, was appointed in BPS-17 in the Accounts Group (on probation) w.e.f 1-12-1990 through competative examination of 1989. According to him, in the first seniority list of BPS-17 officers dated 22-4-1993, his name was at the bottom with his date of appointment as 1-12-1990. But amazingly three Accounts Officers namely Shahnawaz Ali, Azrnat Ali Afridi and S.M. Ziauddin, (who have been impleaded as respondents. Nos. 3, 4 and 5 respectively in his appeal No.7(Q) of 1996, from the departmental cadre were inducted in the IDC and wrongly placed at the top of direct officers of 18th Common at Serial Nos. 6, 8 and 9 respectively in the seniority list dated 8-11-1995.
10. According to appellant, this mala fide induction of the three Accounts Officers was made by manoeuvring the combined seniority list of Accounts Officers issued on 5-12-1994 wherein their names have been shown at the top at Serial Nos. l, 2 and 3 respectively. The actual dates of promotion of M/s Shahnawaz Ali and Azmat Ali Afridi was 2-3-1980 and 25-8-1980 respectively.
Their antedation and retrospective promotion was made without adopting proper procedure, and as a result of wrong placement in the seniority list of 1994, these Accounts Officers were wrongly inducted in IDC and placed at the top of 18th Common Accounts Group. The appellant also alleged that Federal Service Tribunal had determined their seniority as Accountant and not as Accounts Officers.
11. This wrong antedation of their promotion and their placement/induction in IDC, gave cause to the appellant against which he repeatedly requested the department to restore his original seniority of IDC issued in 1993 and placement of the alleged juniors three Accounts Officers at proper place, but no effect rather they have been promoted to higher post in B-18 and posted as Deputy Accountant-General in the office of Accountant-General Balochistan, Quetta.
12. He, therefore, claims relief for restoration of original seniority of IDC issued on 22-4-1993 and placement of his three juniors Accounts Officers at proper place and correction of combined seniority list of 1994 and every thing done subsequently on the basis of induction into IDC and s- promotion to higher posts may be declared unlawful.
13. The respondents have resisted the appeal and filed their comments. The departmental representative of Accountant-General Islamabad, contended that the Government of Pakistan vide Establishment Division's O.M dated 23-1-1974 as amended vide O.M. dated 3-3-1976, created Inter Departmental Cadre in Accounts Group. All posts in B-18 of IDC are filled by induction adjustment of promotee officers and direct recruited officers in- B-17 in the ratio of 50:50. For the purpose of induction of promotee officers, a combined seniority list of promotee officers of all the Pakistan Audit Department was prepared according to the date of promotion in B-17.
14. According to respondents, Ch. Abdul Latif was appointed as UDC on 16-12-1970 in Director- General Audit, WAPDA, Lahore. Then he was promoted as Accounts Officer (B-17) w.e.f. 27-5-1977 and his name was placed in the seniority list dated 6-7-1992.
15. He was considered by the DPC, but was superseded due to adverse remarks in ACR for the year 1989-90. A combined seniority list was circulated on 12-10-1993. After calling objections from all concerned, the list was finally circulated on 5-12-1994. This list was endorsed to the appellant vide letter dated 19-12-1994 but he did not make any objection. A Since he has not challenged the seniority list of 1994, the present appeal is badly time-barred.
16. Induction of the promotee officers for the years 1993, 1994 and 1995 was made with the approval of the Establishment Division vide letter dated 3-9-1995. The DPC again superseded the appellant in 1995, but the Establishment has approved his name vide its O.M. dated 3-9-1995.
16-A. So far as the seniority of M/s Shahnawaz Ali, Azmat Ali Afridi and S.M. Ziauddin is concerned, there was a dispute of seniority between employees of A.G. and deputationist who were subsequently absorbed retrospectively. Mr. Azmat Ali Afridi challenged the absorption of deputationist in Federal Service Tribunal in Appeal No. 46(Q) of 1988, which was accepted and also upheld by the Supreme Court. Therefore, the competent Authority on the recommendation of the DPC antedated the promotion of M/s Shah Nawaz Ali, Azmat Ali Afridi and S.M. Ziauddin and accordingly they were placed in the combined seniority dated 5-12-1994 at the proper place.
17. The departmental representative, clarified that due to some administrative reasons induction of promotee officers could not be carried out during 1993 and 1994. But their adjustment was to be made with respective batches of direct recruits placing them senior to direct recruits in the ratio of 50:50. As such Mr. Farrukh Sohail Malik, being direct recruit, cannot claim seniority over promotee officers of the same batch.
18. According to departmental representation the antedation of private respondents Nos.3 and 4 was made in compliance with the decision 13 of the Federal Service Tribunal. He brought to our notice a letter dated 4-6-1996 which mentions the antidation of promotion of respondents as g follows:-- Fromto
1. Shah Nawaz Ali, A.O2-3-19803-5-1975
2. Syed Jaffar Hussain, A.O31-12-19795-5-1975
3. Azmat Ali Afridi, A.O28-5-198012-9-1975 As regards Mr. S.M. Ziauddin, he has been accepted as A.A.O. in A.-G Balochistan, Quetta from the date of his option i.e. 24-04-76.
19. Learned counsel for private respondents also raised legal objections that the appeal against the provisional seniority list is not competent. The appellants did not file objections against seniority list of 1994. As such the present appeals are not competent without exhausting departmental remedy.
He further argued that Mr. Farrukh Sohail Malik, was a direct recruit of 1990 whereas respondents were promotee and by implementing the decision of the Federal Service Tribunal which was also upheld by the Supreme Court, their dates of promotion were antedated, therefore, they became senior to the direct recruits of 1990. The decision of the Supreme Court becomes a law which cannot be challenged. Moreover, promotion of the respondents was antedated to 1975 and the appellant being a direct recruit of 1990 cannot claim seniority from the date prior to his induction in the cadre. In support of his arguments, the learned counsel referred to PLD 1988 SC 131, 1991 SCM R 1874 and PLD 1981 SC 612.
20. With these submissions, it has been prayed to dismiss both the appeals with costs.
21. We have heard the parties and perused the record. Ch. Abdul Latif appellant alleged that his name has been relegating to 4th position and the names of his juniors namely Messrs Shah Nawaz Ali, Azmat Ali Afridi and S.M. Ziauddin have been placed over him in the seniority list dated 5-12- -1994 copy of which was not provided to him. This allegation of the appellant is not correct because the respondents have placed a letter dated 19-12-1994 on record whereby the seniority list was duly endorsed to the appellant anti the objections were also called for but the appellant did not file any objection against it which means that he had accepted the position. Therefore, he cannot claim seniority at this belated stage. Moreover, for the sake of argument if he filed appeal against it on 6-12-1995 and in case of no response he should have approached this Tribunal after expiry of 90 days' statutory period but he came to the Tribunal on 4-7-1996. As such his appeal is clearly time-barred. The claim of the appellant that he was pursuing remedy departmentally but there is no provision of repeated representations or appeals under the law. Further, he did not implead those persons as party on whom he claims seniority. It is a settled law that without hearing the affected persons no decision can be given. As such his appeal is incompetent, for non- joinder of necessary parties.
22. More or less the same is the position of with appeal of Mr. Furrukh Sohail Malik. We find that there is no departmental appeal on record to have been filed by the appellant nor did he raise any objection against the impugned seniority list. Only there is a mention and also argued by the appellant that he repeatedly requested the department for determination of his seniority but we find nothing on record in this report. We, therefore, come to the conclusion that the appellant did not agitate against seniority within time,-as such his claim at this belated stage cannot be entertained without exhausting departmental remedy.
23. On merit we find that appellants want us to declare the antedation of promotion of M/s Shah Nawaz Ali, Azmat Ali Afridi and S.M. Ziaddin, as ultra vires since antedation of these three Accounts Officer was made by the competent Authority in compliance of the judgment of the Federal Service Tribunal in Appeal No. 46(Q) of 1988 which was also upheld by the Supreme Court. If the appellants had any grievance against those persons they should have- approached the Supreme Court against the decision of the Federal Service Tribunal but they did not do so. As such the decision of the Federal Service Tribunal, upheld by the Supreme Court has attained finality and it cannot be challenged. As regard the case of Mr. Farrukh Sohail Malik we find that he was appointed as Accounts Officer directly in 1990. Admittedly M/s. Shah Nawaz Ali and Azmat Ali Afridi were promoted on 2--3-1980 and 25-8-1980 and Mr. S.M. Ziauddin was absorbed in the A.-G. Balochistan on 24-5-1976 whereas the appellant Mr. Farrukh Sohail Malik was directly inducted on 1-12-1990.
Being a direct recruit he cannot claim seniority over the promotee officers who were inducted in IDC cadre in the same batch but were appointed earlier than the induction of the appellants.
Appellant Ch. Abdul Latif was appointed as Accounts Officer on 27-5-1977 whereas M/s Shah Nawaz Ali Azmat Ali Afridi and S.M. Ziauddin admittedly promoted on regular basis but on antedation of their promotion in consequence of the decision of the Federal Service Tribunal, they became senior to the appellant and were rightly given seniority in the seniority list dated 5-12-1994.
24. For the foregoing reasons we do not find any merit in both the' appeals. We, therefore, dismiss these appeals being barred by limitation l incompetent and without merit. No order as to costs.
25. Parties be informed.