' MUHAMMAD RAZA KHAN (MEMBER).---This judgment will also dispose of the connected Appeals Nos,238(R) of 1997 to 241(R) of 1997, 245(R) of 1997 and 257(R) of 1997 because identical questions of law and facts are involved in all these cases with certain additions and modifications in Appeal No,257(R) of 1997. All the appellants are the promotees D.S.Ps. Of Northern Areas and the main grievance has been caused by the orders whereby respondent No,5 (Mr. Wazir Muhammad Ali Khan) was restored to his original position and was allowed seniority with effect from 1974. Since the main case revolves around the said private respondent, therefore, for the purpose of uniformity he will be referred to as private respondent No,5 (in all the appeals except Appeal No,257(R) of 1997 wherein he is mentioned as private respondent No,6) in this judgment.
2. The facts of the case lying in the background in these appeals are that all the appellants joined the police service prior to 1974 as A.S.I. Except the appellant, Raji-ur-Rehmat (Appeal No,241(R) of 1997) who had joined as Inspector on 1-9-1974. Precisely the appellants were posted as Inspector of Police on 9-4-1974, 1-9-1974 and 7-9-1974 and they had been promoted regularly as D.S.Ps. On various dates ranging from 1982 to 1990. Some of them had been promoted as D.S.Ps. Earlier but due to reorganization they were reverted and, therefore, they had been regularly promoted after 1982 as D.S.Ps. The present controversy started with an order, dated 11-7-1996 whereby the representative of the private respondent No,5 was accepted and he was restored to the rank of D.S.P (BPS-16) with effect from 25-7-1976 and to the rank of D.S.P. (BPS-17) with effect from 1988 when he had passed his Graduation examination. The appellants are also aggrieved by a subsequent order, dated 6-11-1996, whereby the said private respondent No,5 was allowed seniority from 1974 and consequently both the said orders, dated 11-7-1996 and 6-11-1996 were merged in.
The Seniority List of D.S.Ps. Circulated on 11-12-1996 wherein the private respondent No,5 has been stated at serial No,2 and one Mr. Dilpazir Khan, (the private respondent No,5, in Appeal No,257(R) of 1997), at serial No,1, whereas the appellants have been shown at serial Nos, 3, 4, 6, 7, 12 and 5 respectively. Thus, the five appellants have simply challenged the seniority position of private respondent No,5 on the grounds that he was not qualified in 1974 to be appointed as D.S.P. And the position of seniority of the said respondent has already been settled in various appeals earlier and that the appellants having joined the cadre earlier and promoted to the post of D.S.P. Earlier than the said respondent, are entitled to retain their seniority and the said private respondent may not be held entitled to supersede all of them and, in the alternative, the said respondent was entitled to count his seniority from the date of his Graduation and not earlier. Thus, the said five appellants have challenged the Seniority List, whereby the private respondent No,5 had been assigned seniority position at serial No,2.. The contention of the appellant in Appeal No,257(R) of 1997 is different. He claims that, on the one hand, the said private respondent No,5 (mentioned as private respondent No,6 in the said appeal) should not be restored to the pre' ions seniority position with effect from 1974 on the said grounds as well as the rest of the private respondents be declared junior to the said appellants on the ground that either they were junior to the appellant in the previous grade or they were not competent to be appointed under the Rules as Sub-Inspectors/ Inspectors/D.S.Ps. Prior to the date when he was so promoted. Thus, he claims that the Seniority List of D.S.Ps, should be based on the seniority position of the previous ranks.
3. The appeals were contested by the official respondent and some of the private respondents, including the said private respondent No,5. Written objections have been filed. We have listened to the arguments on behalf of the parties in detail and have also perused the record.
4. The main controversy is with regard to the position of seniority allowed to Wazir Muhammad All Khan, private respondent No,5, (in the first five appeals and private respondent No,6 in the last Appeals No,257(R) of 1997) and, therefore, it will he appropriate if the issue is decided at this stage.
The said private respondent and one other Mr. Dilpazir, (Private respondent No,5 in Appeal No,257(R) of 1997), were appointed directly as D.S.Ps. In 1974. Their appointment orders were withdrawn in 1976. They filed departmental appeals. The departmental appeal of the said Dilpazir was accepted in 1976 and he was restored to his position whereas the proceedings with regard to the departmental appeal of the private respondent, Wazir Muhammad Ali Khan; remained pending with various authorities. On a certain occasion it was rejected. However, the consideration was revived thereafter and finally vide the orders of 1996 the appeal has been accepted and the order of 1976 was withdrawn and he was restored to his original position as D.S.P. With all the consequential benefits and the seniority. That is why he is shown at serial No,2 in the impugned Seniority List whereas the said Dilpazir was shown at serial No,1 thereof. In all these appeals the impugned orders have been challenged on three grounds. Firstly, that the said private respondent was not qualified as Graduate at the time of his initial appointment which was precondition under the Punjab Police Rules, as applicable to the Northern Areas. Secondly, that the question of seniority of the private respondent had already been adjudicated upon by the Tribunal against him and, therefore, he cannot be placed senior to the appellants in violation of the said judgment. Thirdly, that his own claim for reinstatement as D.S.P. Has already been rejected by the Tribunal and the same has attained finality and the executive orders cannot be passed to negate the effect of judicial decisions.
5. So far as the qualification provided for the direct recruitment under the Punjab Police Rules is concerned, the arguments are not relevant because the said private respondent was appointed as D.S.P. In 1974 when the Punjab Police Rules were not made applicable to the Northern Areas. The said Rules were extended to the Northern Ares in 1978 and, therefore, they cannot have retrospective effect. As argued, on behalf of the private respondent No,5 as well as the counsel for the official respondents, the state of affairs in the Northern Areas in 1974 was not like that of the settled areas. The area was in the process of being settled for civil administration and emergency measures had to be taken by the local administration. The Rules were neither framed nor any other Rules was made applicable to the said area and keeping in view the service exigencies the measures were adopted as required by the circumstances. Hence this argument will not be available to any of the appellants to state that the very appointment of the appellants was void for being less qualified under the Rules. Moreover, the appointment had taken place in 1974. It was not challenged by any aggrieved civil servant. Presently the impugned orders have simply withdrawn the effect of an order of 1976 which cannot at all give any cause of action to the appellants to go beyond the impugned orders and challenge the appointment of the private respondent for the lack of qualification. In 1974 none of the appellants was serving as D.S.P. Or even as Inspector nor any one of them was in the zone of promotion to the post of D.S.P. That is why nobody had challenged the appointment of the private respondent at that time. Now it is too late to ask for the relief of the nature of quo warranto after the expiry of 22 years.
6. It may also be mentioned that alongwith the private respondent another officer i,e, Mr. Dilpazir was also appointed in 1974. He was also not a Graduate at that time. His order was also withdrawn on 25-7-1976 but he was restored to his previous position by the order, dated 18-9-1976. None of the appellants challenged the said order of restoration of Mr. Dilpazir to his original post. The case of the private respondent Mr. Wazir Muhammad Ali Khan is identical to the case of Mr. Dilpazir with the only difference that his remedy was allowed in 1976 just two months after the order whereby he was aggrieved whereas the private respondent had to suffer for 20 years to get the order reversed.
Since the position of Mr. Dilpazir has been accepted and had attained finality without any objection, therefore, the private respondent No,5 being placed in similar conditions cannot be treated discriminatively.
7. The other objection with regard to the determination of seniority of the private respondent viz-a- viz his other colleagues working as Sub-Inspectors, it may be stated that the respondent was reverted to the post of Sub-Inspector on 25-7-1976 and he was placed senior to all the Sub- Inspectors working in the Northern Areas. One Mansoorul Haq filed a service Appeal No,131(R) of 1982 which was allowed and the said Mansoorul Haq was given seniority over the private respondent. The said decision was with regard to the position of the private respondent as Sub- Inspector. Had it been the question of seniority in that cadre or had it been the issue of, promotion to the post of Inspector, the said decision could certainly be used against the private respondent but presently the issue is with regard to the restoration of the position of the appellants as D.S.P. By withdrawal of the order, dated 25-7-1976 and, therefore, the said judgment in Appeal No,131(R) of 1982 does not stand in the way of the private respondent.
8. The other ground is that the private respondent himself challenged his reversion in an Appeal No, 91(R) of 1984, filed on 25-1-1984, which was dismissed in limine on 12-3-1984. By referring to this appeal the learned counsel for the appellant tried to establish the principle of res judicata.
However, the said principle is not applicable to the administrative department. Had the private respondent agitated the issue again by way of a service appeal, the said judgment would certainly be used against him but the principle of res judicata is applicable to the Courts and judicial forums and not to the administrative departments. It is the discretion of the department to decide the matter in accordance with the facts and circumstances of the case particularly when the said judgment is not passed on merits. It may be noted that the said appeal was dismissed in limine purely on the ground of limitation. The action was taken against the private respondent in 1976 and he had challenged the action in 1984 which was rejected on limine on the point of limitation.
However, this judgment could not prevent the official respondents from taking any action on the representation appeal of the said appellant because the merits of the case were not discussed and adjudicated upon.
9. It was also argued on behalf of the appellants that the appellants have already enjoyed the seniority over private respondent No,5 and, therefore, their position could not be relegated to a junior one without affording an opportunity to show cause against the proposed action. Thus, it was stressed that the impugned order dated 6-11-1996 and the impugned Seniority List were violative of the principle of natural justice as the appellants have been condemned unheard. While examining the facts of this case in the light of this argument one sees that the private respondent 'was appointed as DSP in 1974 and that the order of appointment was withdrawn in 1976 and he was reverted/appointed as Sub-Inspector i,e, two stages below the said poking. In 1996 his departmental appeal was accepted and the order of 1976 was withdrawn and thereby his position of 1974 was restored. The argument of disturbance of seniority or the issue of show-cause notice is not relevant in the circumstances of this case for the only reason that there was no dispute of seniority between the appellants and the said private respondent for which show-cause notice had to be issued. The private respondent had no cause of grievance against any of the appellants.
He was not holding the post of DSP during the period 25-7-1976 to 11-7-1996 and, therefore, the question of his inter se seniority with the appellants did not arise. He was neither shown in the seniority list nor he could be shown as such because he was not holding the post in the meanwhile.
Therefore, the argument that he was junior to the appellants and has been placed senior to them without show-cause notice is irrelevant.
10. In almost all the appeals the Seniority List has been challenged and the departmental representation filed on 19-1-1997 is also directed primarily against the said List. The position of the private respondent in the Seniority List is based on two orders. Vide the order, dated 6-11-1996 he was allowed to reckon his seniority with effect from 4-11-1974 I e the date of his appointment and vide an earlier order, dated 11-7-1996 his departmental appeal was accepted and he was restored to the rank of DSP with effect from 25-7-1976 in BPS-16 and with effect from 19-6-1988 in BPS-17. No departmental appeal has been filed against the orders, dated 6-11-1996 or 11-7-1996 and the said orders have not been challenged specifically in the present service appeals. Unless basic order of restoration of the appellants to the previous position is challenged and got set aside, the plea, for rectification of the Seniority List only, will be incompetent.
11. In Appeal No,257(R) of 1997 the claim is a bit different as the appellant therein claims himself senior to respondents Nos, 5 to 11 on the only ground that he joined the service after Graduation whereas the said respondents have obtained Graduation after him and, therefore, their appointments were violative of the Police Rules. While specifically examining the case of respondents Nos, 5 to 11 in the said appeal viz-a-viz his position in the Seniority List, one comes to the conclusion that the said appellant has been shown at serial No,5 of the Seniority List and the private respondents Nos,5, 6, 10 and 11 only are placed ahead of him. Respondents Nos,7 to 9 are not, mentioned at all in the said Seniority List, and rightly so, because in December, 1996, when the Seniority List of DSPs was issued the said private respondents Nos,7 to 9 had already been promoted to the post of S.P. It was argued on their behalf that they were promoted as DSPs earlier than the said appellant and this fact was never challenged and consequently they attained finality in the Seniority List of DSPs. Thereafter, they were promoted to the post of S.P. And this promotion had also not been challenged. Not it will be too late to reopen the entire issue after the lapse of several years. As held in 1994 PLC (CS) 1336, the Seniority List cannot be challenged unless the promotion of already promoted officers is challenged first and get set aside. Thus, the claim of the appellant with regard to the private respondents Nos,7 to 9 is time-barred and incompetent.
Moreover, he has misstated that private respondent No,7 was unqualified for holding the post of senior scale in the Police. The record shows that the private respondent No,7 had Graduated in 1971.
Similarly the said appellant has suppressed certain facts with regard to his earlier reversion and filing of review petition. Thus, so far as the respondents Nos,7 to 9 are concerned the appellant has no case against them.
12. With regard to the private respondents Nos,10 and 11, who appear at serials Nos,3 and 4 of Seniority List and who are also the appellants in Appeals Nos,238(R) and 239(R) of 1997, it will be sufficient to say that they were promoted to the post of DSP on 19-6-1982 and 14-3-1983 respectively whereas the said appellant (Nazrab Khan) was promoted on 13-12-1984 i,e, more than one and two years thereafter. Under the Civil Servants Act and the Seniority Rules, the seniority in a cadre is reckoned from the date of regular officiating in a particular post or grade. Since the said private respondents were promoted earlier than the said appellant and the appellant did not challenge their competence or seniority at the appropriate time, therefore, he cannot be allowed to challenge the same after fifteen years. The position of private respondent No,5 (Dilpazir in the said appeal) is that he was appointed in 1974 and was reverted on 25-7-1976 which order was withdrawn to months thereafter i,e, on 18-9-1976 and after that he continuously holds the post of DSP whereas the said appellant was promoted in 1984 as DSP. While confronted with the position of finality and limitation the learned counsel for the said appellant argued that since the appointment of the said private respondent was violative of the rules as he did not meet the minimum educational qualification at the time of , his appointment, therefore, his appointment was void and there was no period of limitation prescribed for challenging a void order. We cannot agree with the said proposition for two reasons. Firstly, as stated earlier, the said original order of appointment was not void because the said rules prescribing the minimum qualification for direct recruitment was not extended to the area in 1974 and secondly the void order, has also to be declared by a competent forum as such and it does not rest with a particular appellant himself to consider a particular order as void and thereby avoid from the statutory period of limitation prescribed for the purpose. Thus, unless the original orders of 1974 (or of 1976) are set aside by a competent forum, seniority cannot be claimed by the said appellant against the said respondent.
13. So far as the private respondent No,6 (Wazir Muhammad Ali) is concerned, all the points have already been discussed and elaborate in the preceding paragraphs and there is no need for recapitulation.
14. For the foregoing discussion we do not find any force in any of the said appeals and consequently all the six appeals are hereby dismissed with no order as to costs.
15. Parties to be informed accordingly.