' QAZI MUHAMMAD FAROOQ, J.---This appeal, by leave of the Court, is meant to impugn the judgment dated 5-10-2000 of the Punjab Subordinate Judiciary Service Tribunal, hereinafter referred to as the Tribunal, whereby the seniority-related appeal of respondents Nos.1 to 5 was allowed and it was directed that the final seniority list of Civil Judges up to 31-8-1992 be corrected accordingly.
2. Briefly, the facts of the case are that pursuant to a requisition sent to it by the Government of the Punjab applications were invited by the Punjab Public Service Commission, through an advertisement published in the daily Nawa-i-Waqt, Lahore dated 19-12-1986, from eligible candidates for recruitment against 29 posts of Civil Judges including one post reserved for the disabled. While the requisite competitive examination was being held another requisition for recruitment against 50 posts of Civil Judges was sent to the Punjab Public Service Commission, hereinafter referred to as the Commission, by the Government of the Punjab on 13-7-1987. The second requisition was kept aside by the Commission and result of the competitive examination was announced whereby 39 candidates, including respondents Nos.1 to 5, were declared successful. However, in view of the number of the advertised posts and non-availability of a successful disabled candidate 28 successful candidates were recommended by the Commission on 19-8-1987 for appointment who were appointed as Civil Judges on 16-1-1988. Respondents Nos.1 to 5 being amongst the eleven successful candidates who were not recommended for appointment approached the Government of the Punjab through an application dated 25-8-1987 praying that they may be considered for appointment against the 50 posts for which a requisition had already been placed with the Commission. The application was dismissed and the writ petition filed by the respondents also met the same fate on 5-7-1989. However, the Intra-Court Appeal filed by them was allowed on 25-2-1990 by. a learned Division Bench of the Lahore High Court, Lahore and the Commission was directed tc recommend the case of the respondents to the Services and General Administration Department, Government of the Punjab for appointment as Civil Judges against future vacancies. The judgment rendered in the Intra-Court Appeal was challenged by the Government of the Punjab through C.P.S.L.A. No,66-L of 1991 but the same was dismissed on 5-5-1991 on the ground of limitation. In the meantime the respondents were appointed as Civil Judge vide Notifications dated ,17-10-1990 and 26-12-1990 and their names were placed in the seniority list at Serial Nos.385, 387, 389, 390 and 391. While the respondents were locked in litigation the 50 posts of Civil Judges against which they had sought appointment were filled iii sometime in August, 1988 and October, 1989 with the result that in the draft seniority lists issued on 2-6-1992 and 25-6-1992 and the final list issued on 31-8-1992 they were placed below the Civil Judges appointed in August, 1988 and October, 1989. The representations made by the respondents were turned down by the Government of the Punjab on 12-7-1993. However, the appeal preferred by them against the said order and the final seniority list was allowed by the Tribunal as stated above.
3. Leave was granted to consider the following contentions of the learned counsel for the appellants:--
(i) The prayer made by the contesting respondents in the Intra-Court Appeal that they be adjusted against the additional 50 posts shall be deemed to have been rejected in view of the direction that their appointment be made against the future vacancies.
(ii) The contesting respondents had accepted the offer of their appointment against future posts, therefore, the matter had become past and closed ancl'the Tribunal had no jurisdiction to re-open it.
(iii) The 50 posts against which the contesting respondents had sought appointment were filled in before the disposal of the Intra-Court Appeal, therefore, in view of the judgment rendered therein they were entitled to appointment against future vacancies i,e, the vacancies becoming available after the judgment and their seniority is tobe determined accordingly.
(iv) The appointees against the 50 posts ought to have been heard before making an order prejudicial to their interest qua seniority.
4. The relief prayed for by respondents Nos.1 to 5 was granted by the Tribunal for the reasons; firstly, that the requisition in regard to 50 posts was received by the Commission before finalization of selection to the originally notified 29 posts, therefore, the same were additional posts within the contemplation of the Punjab Public Service Commission Regulations, 1987 and the respondents were entitled to be adjusted against those posts, secondly, the respondents were appointed in 1990, in compliance with the direction made in the Intra-Court Appeal, on the basis of the competitive examination held by the Commission in 1987, thirdly, the Appointing Authority i,e, the Lahore High Court had conceded that the respondents "apparently belonged to 1988 batch" and, fourthly, it was clearly mentioned in clause (a) of rule 9 of the Punjab P.C.S. (Judicial Branch)
Service Rules, 1962, which were in force at the time of appointment of the respondents, that persons selected in earlier. Selection shall rank senior to the persons selected in a later selection.
5. The learned counsel for the appellants reiterated the contentions highlighted in the leave granting order and vehemently added that the appellants were not impleaded as a party in the Intra-Court Appeal, the respondents were adjusted against the future and not the existing posts and seniority is to be reckoned from the date of their actual appointment.
6. Learned counsel for respondents Nos.1 to 5 supported the impugned judgment by contending that respondents Nos.1 to 5 ranked senior to the appellants as they were never candidates in the competitive examinations held in 1988 and 1989 and were appointed as a result of the direction in the Intra Court Appeal in 1990 from the merit list prepared as a result of examination of 1987. He went on to contend that requisition for 50 posts was received by the Commission much before the conclusion of the Competitive Examination, 1987, therefore, the same were additional posts against which the respondents were entitled to be appointed but were made to suffer for no cause and were well within their right to agitate that they be restored to their original position. He further submitted that the High Court had also supported the case of the respondents in the comments available on record. It was lastly contended that seniority of the parties is to be determined in the light of section 9 of the Punjab P.C.S. (Judicial Branch) Service Rules, 1962 and not from the date of their appointment.
7. The learned counsel appearing for the Province of the Punjab and the Additional Chief Secretary, Government of the Punjab supported the appeal by adopting the arguments addressed by the learned counsel for the appellants.
8. Having given serious consideration to the respective contentions we find that there is no defect in the reasoning of the Tribunal or the impugned judgment and none of the contentions raised by the learned counsel for the appellants has any substance.
9. It was held in the Intra-Court Appeal in most unequivocal terms that the 50 posts regarding which a requisition was placed with the Commission by the Government of the Punjab were 'additional posts'. The relevant portion of the judgment reads as under:- "The language used in Regulation 2(c) is plain, clear and suffers from no ambiguity and therefore, it has to be construed in the ordinary meaning of the words used therein without reference to any other consideration. A bare perusal of the aforesaid regulation would show that the term 'Additional vacancy' means a vacancy in addition to the number of vacancies, regarding which a Department had sent a requisition to the Commission before selection against the original vacancies of 29 posts of Civil Judges had been finalized by the Commission, the Government placed another requisition for 50 posts. This would, therefore, come within the purview of 'Additional vacancy' as defined in Regulation 2(c)."
10. The operative part of the judgment in the Intra-Court Appeal may also be reproduced hereunder as the fate of the appeal hinges on its import. It reads as under:-- "Having regard to the facts and circumstances of the present case and keeping in view the past practice, the Commission is directed to recommend the case of the appellants and respondents Nos.3 and 4 for appointment as Civil Judges to the S&GAD Department, Government of Punjab, who shall adjust these persons subject to future vacancies. To this extent the appeal is accepted and the impugned order of the learned Single Judge is set aside, but there shall be no order as to costs."
11. It is true that in the operative part of the judgment in the Intra-Court Appeal a direction was issued for recommendation and appointment of respondents Nos.1 to 5 against future posts and not the 50 additional posts but this does not mean that their claim that they were entitled to be appointed against the 50 additional posts was turned down. The claim was duly recognized and for that very reason they were treated as selectees, of the Competitive Examination, 1987 and a direction was issued to the Commission to recommend them for appointment as Civil Judges and the Services and General-Administration Department of the Government of the Punjab was directed to appoint them against future vacancies. The expression ' future vacancies' was used in the operative part of the judgment for the obvious reason that the 50 additional posts against which respondents Nos.1 to 5 were held entitled for appointment having been filled in were not available.
12. The contention that the respondents were not adjusted against the 50 additional posts, therefore, their seniority should be reckoned from the date of their actual appointment against future posts is misconceived as it overlooks the striking distinction between appointment against a post and determination of seniority. The respondents were appointed against future vacancies instead of the 50 additional posts on account of the technical ground of non-availability of posts out of the said posts but the judgment in the Intra-Court Appeal leaves no room for doubt that they had a vested right to be appointed against the additional posts and shall be deemed to have been selected for appointment on the results of the Competitive Examination, 1987. The question of their seniority vis-a-vis the appellants, thus requires determination in accordance with clause (a) of Rule 9 of the West Pakistan Civil Service (Judicial Branch) Rules, 1962 which were in force at all the three vital stages i,e, Competitive Examination, 1987, disposal of the Intra Court Appeal and appointment of the respondents as Civil Judges in 1990. The same is worded thus:-- "Seniority.--The seniority inter se of the members of the Service in the various grades thereof shall be determined--
(a) in the case of members appointed by initial recruitment, in accordance with the order of merit assigned by the Commission provided that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection;"
13. Respondents Nos.1 to 5 were not candidates in the Competitive Examinations held in 1988 and 1989 and were taken from the merit list prepared as a result of Competitive Examination, 1987, therefore, there can be no cavil with the proposition that they belong to 1988 batch and their seniority is to be determined accordingly. It will be pertinent to mention here that the appeal before the Tribunal was not seriously contested by the Appointing Authority, namely, the Lahore High Court in view of its stance taken at the stage of preparation of the seniority list of the parties by the Government of the Punjab that the contesting respondents apparently belonged to 1988 batch.
14. Acceptance of the offer of appointment against future vacancies by the respondents being traceable to the observations made in the judgement passed in the Intra-Court Appeal can have no bearing on the question of their seniority. Similarly the matter had become past and closed only to the extent of appointment of the respondents as Civil Judges against future posts and the question of their seniority remained open.
15. The appellants were party to the appeal before the Tribunal, therefore, their non-impleadment in the Intra-Court Appeal cannot be blown out of proportion particularly when at the time of its institution both the parties were not holding any post of Civil Judges and the question of seniority was not involved therein.
' For the reasons stated above, the appeal is dismissed. Parties to bear their own costs.