' MUHAMMAD YUNUS SURAKHVI, J---Through this review petition the petitioners herein, have sought the reversal of our judgment passed in Civil Appeal No,119 of 2000 titled Muhammad Ilyas Khan v.
Sardar Muhammad Hafeez Khan and others decided on 8-12-2000, whereby the appeal filed by the petitioners, herein, against the judgment of the Service Tribunal dated 25-4-2000 was dismissed.
2. The necessary facts, giving rise to the present review petition, are that petitioners and Sardar Muhammad Hafeez Khan, respondent No,1, herein, were selected as S.D.Os. Through initial recruitment by the Public Service Commission in the Public Works Department vide notification dated 11-5-1980 and 17-12-1980 respectively. The appointment orders referred to above were issued in the light of the recommendations of the Public Service Commission but the said recommendations did not contain the order of merit of the appointees. The Secretary Works wrote a letter to Public Service Commission for providing a merit list in order of seniority and the Public Service Commission vide letter dated 8-9-1987 provided a merit list. Thus the competent Authority issued a final seniority list vide order dated 25-12-1987. In this seniority list Muhammad Ilyas Khan, one of the petitioners, is shown at serial No,8 while Muhammad Hafeez Khan respondent No,1, herein, is shown at serial No,6. It is claimed by the petitioners that in 1990 the cases of petitioners and respondent Muhammad Hafeez Khan were referred to the respective Selection Board for promotion in B-18 as Executive Engineers and the Selection Board after considering the merits of the parties promoted the petitioners by superseding respondent No,1 vide notification dated 6-6- 1990.
3. Feeling aggrieved by the notification dated 5-6-1990 respondent No,1 preferred an appeal against the said notification bethre the Government and subsequently, after awaiting the statutory period, invoked the jurisdiction of the Service Tribunal. However, the appeal of respondent was dismissed for non-prosecution on 27-2-1993. It is case of the petitioners that respondent No,1 never got restored his appeal. However, he persuaded his remedy before the Government which directed that the case of the respondent may be referred to the Selection Board afresh. On 8-9-1994 the case of respondent No,1 was referred to the Selection Board but it deferred the case because some departmental inquiry was pending against him. In 1995 the case of respondent was again referred to the Selection Board and he was promoted vide notification dated 30-5-1995 with retrospective effect from 16-8-1987. In the meantime petitioners were promoted as Superintending Engineers on officiating basis vide order dated 6-7-1998 and 9-1-1999. On 10-5-1997 a seniority list was issued wherein respondent No,1 was shown much below the petitioners who firstly preferred a review petition and then filed an appeal before the Service Tribunal on 7-10-1997. The Service Tribunal vide its order dated 25-4-2000 accepted the appeal of respondent No,1. The appeal filed against the order of the Service Tribunal dated 25-4-2000 by the petitioners, herein, by way of leave of Court was dismissed by this Court vide its impugned judgment dated 8-12-2000, which is the subject of present review petition.
4. Mr. Abdul Rashid Abbasi, the learned counsel for the petitioners, in support of review petition urged three main grounds:--
1. That while passing the impugned judgment this Court has escaped the notice of provision of rule 8(1)-B Explanation-II of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977. The aforesaid provision postulates that if a person junior in lower grade is promoted to higher grade by superseding his senior and subsequently the latter is also promoted, the promoted first shall rank senior to the one promoted subsequently. Thus in view of the aforesaid rule the petitioners were rightly assigned the positions in the seniority list and the same did not call for interference by any of the departmental authorities;
2. That promotion to a higher grade is subject to approval by the concerned Selection Board as has consistently been held by this Court in numerous cases, therefore, respondent No,1 having been found unsuitable for promotion to the post of Executive Engineer B-18 and rejected in the year 1990 could not be promoted by any of the authorities from the date prior to such rejection. The approval of respondent for promotion by the Selection Board in the year 1995 could not be made basis for giving him retrospective promotion; and
3. That vide order dated 5-6-1990 the respondent was supersded by the petitioners against which the respondent availed the remedy before the Service Tribunal but his appeal was. Dismissed for non-prosecution as such the order had attained finality.
5. Mr. Abdul Rashid Abbasi, the learned counsel for the petitioners, in support of his contention relied on the cases reported as Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to Government of the Punjab Lahore and 2 others (PLD. 1991 SC 35), Nisar Ahmad Kayani v. Azad Government and 4 others (1999 PLC (C.S.) 1002, Abdul Qadir v. Abdul Karim and 4 others (2000 SCR 97) Muhammad Arshid Khan and others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and others (2000 PLC (C.S.) 247):
6. Mr. Ghulam Mustafa Mughal, the other learned counsel for the petitioners, also supported the contentions raised by Mr. Abdul Rashid Abbasi, the learned counsel for the petitioners.
7. After hearing the learned counsel for the petitioners it may be stated that in the judgment under review it was observed by us as follows:-- " There is no denying of the fact that the respondent was superseded by the relevant Selection Board in the year 1990 but the fact remains that he was not debarred to be again sent to the relevant Selection Board for promotion irrespective of the fact whether he submitted any review petition before the competent Authority against his supersession or not; a civil servant by his performance can render himself fit for promotion. Therefore, even if it is assumed that the review petition tiled by respondent against the supersession in the year 1990 was not accepted it cannot be said that he could not be referred for his promotion subsequently in the year 1994; it has already been stated that in 1994 Selection Board did not supersede him but merely mentioned in the relevant record that as some departmental inquiry was pending against him his case for promotion was deferred. Therefore, in the year 1995 when he was again referred to Selection Board he was approved and recommended for promotion to Grade B-18 as Executive Engineer. However, the Government vide the impugned order dated 30-5-199) promoted him as Executive Engineer in B-18 from 16-8-19'
7. Vas order of antedated promotion was not challenged by the appellants and thus the same has attained finality. It is a settled principle of law that seniority would be reckoned from the date of regular appointment in a grade. Thus the seniority list issued in the year 1997 which was challenged by respondent before the, Service Tribunal did not conform to that principle and respondent was shown junior to appellants despite the fact that seniority should have reckoned from his antedated promotion i,e, 16-8-1987."
8. So far as the contention of the learned counsel for the petitioners that under rule 8(1)-B Explanation II of the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, if a person junior in a lower grade is promoted to higher grade by superseding his senior and subsequently the latter is also promoted, the promoted first shall rank senior to the one promoted subsequently is concerned there is no cavil with the said principle. However, in the present case the appeal was dismissed on the ground that as respondent Sardar Muhammad Hafeez Khan was promoted in the year 1995 with retrospective effect from 1987 and the said order was not challenged by the petitioners herein, the same has attained finality. It needs hardly any authority that the seniority of a civil servant would be reckoned from the date of his regular promotion. As Sardar Muhammad Hafeez Khan was regularly promoted from the year 1987, his seniority ' would be reckoned from the. Said date, irrespective of the fact as to whether the retrospective effect to his promotion from 1987 was legal or not because that was not challenged by the petitioners and had attained finality. It follows from this that the appeal filed by the petitioners was not dismissed on the ground that the retrospective operation given to the promotion of the respondent was legal or not but on the ground that the order of promotion from 1987 was not challenged and that has attained finality.
9. As regards the contention of the learned counsel for the petitioners that promotion of respondent Sardar Muhammad Hafeez Khan could not be given retrospective effect prior to year 1990 when he was first superseded by the Selection Board is concerned, it may be stated that the point was not argued at the time of hearing of regular appeal and the same cannot be agitated for the first time by filing a review petition. Even otherwise as has already been stated that as the retrospective promotion of respondent from the year 1987 was not challenged, the same has attained finality and the argument that he could not be promoted prior to year 1990 cannot be pressed into service because the retrospective promotion of the respondent was not challenged within the period of limitation.
10. The last point urged by the learned counsel for the petitioners in support of review petition, finds its reply in the judgment under review, therefore, we need not dilate any more upon the said point.
The authorities referred to by the learned counsel for the petitioners have no relevancy in view of the peculiar facts and circumstances of the case. It has been opined in the judgment under review that respondent was duly promoted vide notification of Government dated 30-5-1995 with retrospective effect from 16-6-1987. This notification was not challenged by the petitioners, as such the same attained finality. If the said notification was void, the same should have been challenged by the petitioners. The petitioners slept over the matter, thus, their indolence and negligence cannot be excused. There are numerous authorities of this Court that even a void order adversely affecting the interests of a person should be challenged within reasonable time.
' In the light of what has been stated above no case has been made out for the regular hearing of the review petition. The same therefore stands dismissed in limine.
Review .