MUHAMMAD NAWAZ ABBASI, J.---Leave to appeal was granted by this Court, under Article 212 (3) of the Constitution, vide order 12-6-2001, to examine the following question:- ' "Whether the petitioner who, was appointed earlier than the contesting respondents and was placed senior to them in the seniority list dated 13-5-1979, could he vide latter seniority list dated 24-3-1997 be placed junior to the said respondents."
2. The facts leading to the filing of this petition in the background are that the appellant and respondents Nos.2 to 5 (hereinafter to be referred as 'the respondents') in response to advertisement made by N.-W.F.P. Public Service Commission (hereinafter to be referred as 'the Commission') applied for the post of Assistant Engineer in the Irrigation Department/Government of N.-W.F.P. And having gone through the process of selection were declared successful. The Irrigation Department of the Provincial Government in, consequence to the advice sent by the Public Service Commission through letter dated 30-7-1975 for the appointment of the appellant issued appointment letter to him on 10-7-1976 and the appellant joined service on 12-7-1976 as Assistant Engineer.
3. Later N.-W.F.P. Public Service Commission also recommended the names of 8 other successful candidates, including the respondents, belonging to the same selection, for appointment as Assistant Engineer and the respondents joined service in the Irrigation Department in October and November, 1976. In the combined seniority list published by the department on 15-4-1977 the appellant was shown junior to the respondents but subsequently, in the seniority list issued vide notification dated 13-5-1979 the respondents were placed junior to the appellant. On raising of objection by the respondents and their colleagues in the Irrigation Department against their seniority list, the Secretary Irrigation Department, N.-W.F.P. Appointed a 5-member Committee headed by Chief Engineer, Irrigation Department as its Chairman to resolve the dispute regarding seniority inter se of Engineers of Irrigation Department. The Committee having examined the matter in the light of the merit list of the successful candidates prepared by the Public Service Commission, recommended for maintaining the seniority inter se the appellant and respondents as per merit position assigned to them by the Public Service Commission and in consequence thereto, the department in the revised seniority list published on,29-12-1981 placed the appellant junior to the respondents. The appellant being dissatisfied with the change of position in revised seniority list filed a representation before the Secretary, Irrigation Department, N.-W.F.P. Which remained unsuccessful as conveyed to him vide letter dated 24-5-1982 which was to the following effect:-- ' "Copy of letter No, SO (E) I & PHE/2-1/75-III/3727, dated 12-5-1982, from the Secretary to Government of N.-W.F.P., Irrigation and Public Health Engineering Department to the Chief Engineer, Irrigation Department, N.-W.F.P., Peshawar.
Subject: REPRESENTATION OF MR. WAZIR KHAN SUB-DIVISIONAL 'OFFICER. HYDROLOGY IRRIGATION SUBDIVISION, ABBOTTABAD.
' "Reference your Memo. No, 9470/IBA/165-E, dated 4-5-1982, on the subject noted above.
' In this connection attention is invited to the minutes of the Seniority Dispute Committee of the Irrigation Department, copy received with your Memo. No,12028-030/IB/A/55-E, dated 17-5-1981, which reveals that the seniority now assigned to Mr. Wazir Khan, Assistant Engineer of your Department vide Notification No,SO (E) I&PHE/2-1/75-Vol.III/10394, dated 29-12-1981 is in accordance with the merit assigned by the Public Service Commission to his respective group, As such his representation has been turned down by the Administrative Secretary. The officer may be informed suitably accordingly.
(Sd.)
Abdul Qayum Kakazai, Section Officer (Estt.)
Irrigation and Public Health Engineering Department"
' The appellant having not further agitated the matter by availing the remedy of service appeal before the N.-W.F.P. Service Tribunal, accepted the finality of revised seniority list published in 1981.
4. The Provincial Government in 1989 appointed another 4-member Committee headed by Chief Engineer, Irrigation Department, N.-W.F.P. As its Chairman for resolving the dispute of seniority of Assistant Engineers intense and the said Committee affirmed the revised seniority list published in 1981 without any change. The appellant neither challenged the revised seniority list nor raised any objection to the correctness of the seniority lists published in the subsequent years. However, the appellant on circulation of seniority list dated 24-3-1997 again, on the basis of seniority list issued in 1979 while claiming himself to be senior to the respondents filed a representation before the Secretary, Irrigation Department N.-W.F.P. Which failed. The competent Authority having found no merit in the representation of the appellant rejected the same vide letter dated 25-10-1997 in the following terms:- ' "Government of N.-W.F.P. Irrigation Department. No, SO(E)IRR:2-1/75, 8344, dated Peshawar the 25- 10-1997.
' To ' Mr. Wazir Khan, ' Executive Engineer/Technical Officer, C/o Chief Engineer (Development), Irrigation Department.
' SUBJECT: REPRESENTATION AGAINST SENIORITY LIST.
' Reference your representation dated 9-4-1997 on the subject noted above: 'This Department regrets its inability to accede to your request and thus filed the case.
(Sd)
Section Officer Irrigation Department."
5. The appellant being aggrieved of the rejection of his representation preferred an appeal under section 4 of the N.-F.P.F. Service Tribunals Act, 1974 before the N.-W.F.P. Service Tribunal, Peshawar.
The claim of the appellant was that having been inducted in service prior to the respondents, he was rightly shown senior in the seniority list dated 13-5-1979 and the subsequent alteration/change made in the order of seniority in 1981 was without lawful authority. In the nutshell, case of, the appellant was that notwithstanding the merits assigned to the selectees by the Public Service Commission, he having been recommended in the first batch of the same selection would deemed to be senior to the respondents who were recommended in the 2nd batch and joined service much after the appellant. In support of the contention, the appellant relied upon an unreported judgment, dated 26-1-1993 delivered, by this Court in Civil Appeals Nos.49-P and 50-P of 1991.
' The Service Tribunal, having examined the factual position in detail, observed as under:- ' "After the seniority list which was published for the year 1979 there were so many objections by the officers (Engineers) on the said seniority list, as a Committee was constituted who after thorough probe settled the matter of seniority amongst the various Engineers and the first seniority list was issued on 29-12-1981 in which the seniority was allotted to the various incumbents of their order of merit and in accordance with the Public Service Commission's recommendation. In this seniority list the appellant has been shown junior to respondents 2 to 5. The appellant made a representation against the same seniority list which was turned down and communicated to him.
Right from that time six seniority lists have been issued in which the appellant has been shown junior to respondents 2 to 5 but the appellant did not object to any of these lists nor he has tapped the door of this Tribunal. Now he has come against the tentative seniority list. So, in this background of the case the matter is badly time-barred as the first cause of action was accrued to the appellant on 29-12-1981 which was confirmed by the later seniority lists up to the latest seniority list of 1997. The representations of the appellant have been rejected and he kept mum for the last 15/16 years. The order of merit has been decided Once for all by the Committee and it. Cannot be challenged or re-opened at this later stage and the contention of the learned counsel for the appellant that fresh cause of action has been accrued to him, holds no ground. In this background of the case, the appeal in hand is devoid of merits, hence dismissed. No order as to costs."
6. Learned counsel for the appellants has raised the following contentions:-
(a) That the appellant being belonging to the first batch of the same selection was recommended by the Public Service Commission for appointment prior to the recommendation made in favour of the respondents and that he also joined service prior to the respondents, therefore, he was rightly placed senior to the respondents in the seniority list published in 1979.
(b) That the change in the revised seniority list published in 1981 being violative of the principle of seniority embodied in section 8 of the N.-W.F.P. Civil servants Act, 1974, was without lawful authority; and
(c) That since the appellant was continuously being shown junior to the respondents in the seniority lists issued periodically, therefore, on publication of each seniority list, there would be a fresh cause of action in, his favour to challenge the such lists and non-filing of appeal on rejection of his representation against the seniority list of 1981 would not debar him from challenging the seniority list published in 1997. The learned counsel, thus submitted that the Tribunal erred in law while treating the appeal of the appellant as barred by time.
7. Learned counsel representing the respondents, on the order hand, has argued that the seniority list under challenge, showing the seniority of Executive Engineers inter se, was published on the basis of their seniority as Assistant Engineers. It was forcefully argued that without challenging the revised seniority list published in 1981 and the lists issued in the intervening period, the appellant was estopped to challenge the seniority of the Assistant Engineers on their promotion to the higher position and consequently the appeal was rightly dismissed by the Tribunal as barred by time.
8. We have heard the learned counsel for the parties at length and considered the arguments advanced by them in support of their respective stand.
9. The appellant and respondents belonged to the same batch of selectees of competitive examination and in the order of merit assigned to them by the Public Service Commission, the appellant was junior to, the respondents. The controversy was started due to the recommendations made by the Commission in parts and the senior position allocated to the appellant in the initial seniority list prepared by the Department without keeping in view the order of merits assigned to him by the Commission.
10. In the light of nature of controversy, the following questions would essentially need determination by this Court:-
(a) Whether the order of merit assigned by the Public Service Commission to the selectees in the same competitive examination would not be the basis of seniority in case the selectees are recommended in batches and the appointees recommended in the first batch would be senior to the appointees recommended in the subsequent batch?
(b) Whether the publication of each seniority list in the same cadre or in the next cadre on promotion would give rise to fresh cause of action to the appellant to challenge the basis seniority as Assistant Engineers at any stage and the appeal preferred by him before the Service Tribunal was not time-barred?
11. It is well-settled proposition of law that the appointments made as a result of the selection in one combined competitive examination would be deemed to be belonging to the same batch and notwithstanding recommendation made by the Public Service Commission in parts, the seniority inter se, the appointees of the same batch, would be determined in the light of merit assigned to them by the Public Service Commission. In the light of principle of seniority as contained in section 8 of N.-W.F.P. Civil Servants Act, 1974 the respondents on promotion, would retain their seniority as Assistant Engineers. Section 8 of N.-W.F.P. Civil Servants Act, 1973 provides as under:-- "8. Seniority:---(1) For proper administration of a service, cadre, or grade, the appointing authority shall cause a seniority list of the members of the time being of such service, cadre or grade to be prepared, but nothing therein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or grade, whether serving in the same department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that civil servants who are selected for promotion to a higher grade in one batch shall on their promotion to the higher grade, retain their inter se seniority as in the lower grade.
(5) The seniority lists prepared under subsection (1) shall be revised and notified in the official Gazette at least once in a calendar year, preferably in the month of January."
' In the similar situation, the Service Tribunal in the case of Musa Wazir v. N.-W.F.P. Service Commission (1993 PLC (C.S.) 1188), held as under: ' "When the selection is made out of one competitive examination, it cannot be bifurcated into two or more. The competitive examination being one, the selection has to be one and it cannot be said that any number of selections can be made out of the same competitive examination. Such a practice cannot stand scrutiny or the test of law applicable to the case."
' Reference can also be made to the following cases decided by the Service Tribunal:- ' Muhammad Jafar Hussain v. Chairman, C.B.R. (1993 PLC (C.S.) 52): ' "The same view was adopted by the Tribunal in Appeals Nos.138(R) of 1982 and 110(R) of 1982, decided on 14-2-1984 and appeals were preferred against that decision in the Supreme Court and the Honourable Supreme Court set aside the decision of the Tribunal and held that the seniority of the candidates selected in one batch was to be determined in accordance with the merit assigned by the Federal Service Commission and not on the basis of joining the assignments."
(The underlining is made by us), ' Tahir Rasheed v. Secretary, Establishment Division (1993 PLC (C.S.) 116: ' "This controversy stands finally settled by the judgment of the Supreme Court in the case of Ziaul Haq and others v. Secretary, Ministry of Education, Islamabad and others, reported in 1991 SCM R 1632, wherein it was held that inter se seniority of the candidates at one selection was to be determined on the basis of the merit assigned to the candidates by the Federal Public Service Commission in !Pursuance of the General Principles of Seniority."
' This Court in Ziaul Haq v. Ministry of Education (1991 SCM R 1632), in similar matter, held as under:-- ' "If the basis of the appointment whenever it took place was the selection made by the Public Service Commission, then the seniority assigned by. The Public Service Commission could not be avoided. The Department or the Government had no right except by overruling the Public Service Commission and reporting to it so to deviate from the recommendations of the Public Service Commission, both with regard to selection and the merit of the selectee. There could be, no exercise of pick and chose from the recommendations of the Public Service Commission."
(Underlining is by us to provide emphasis).
' In Sabir Zameer Siddiqui v. Abdul Malik (1991 SCM R 1130) it was held as under:-- "2. In the first place, both the contestants being direct recruits through Public Service Commission, the Commission was required to assign them merit and that merit was to hold good irrespective of the date they took over."
12. In the light of legal position emerged, no exception can be taken to the view expressed by the Service Tribunal and we, accordingly, hold that the seniority inter' se the appellant and private respondents would be determined on the basis of the merits assigned to them by the Public Service Commission being belonged to the one batch.
13. The next question relates to the limitation. It is not denied that upon rejection of the representation by the competent Authority against the revised seniority list published in 1981, the appellant did not prefer appeal before the Service Tribunal and allowed the same to attain finality.
The appellant also did not raise any objection to the seniority list issued periodically in the intervening period and consequently it would be deemed that he has accepted the seniority assigned to him in the revised seniority list published in the year 1981. The matter relating to the seniority of private respondents inter se having attained finality would be deemed as past and closed transaction and could not be re-agitated after lapse of a period of about 15 years through a fresh representation. The learned counsel for the appellant has not been able to convince us that the seniority of Engineers of Irrigation Department, N.-W.F.P. Inter se was either determined in departure to the principle embodied in section 8 of the N.-W.F.P. Civil Servants Act, 1973 or in violation of any rule framed thereunder. The mere fact that the appellant was placed senior to the respondents in the seniority list published in 1979 would not he a valid ground to declare him senior to the respondents by undoing the merits assigned to the appellant and the respondents by the Commission. The initial placement of the appellant senior to the respondents in the seniority list published in 1979, being not in accordance with the order of merit assigned to them by the Commission, would not create any right in favour of appellant to claim seniority over the respondents.
14. The contention of the learned counsel that incorrect publication of seniority lists periodically would be the continuous wrong and the same every time would give rise to fresh cause of action to the appellant to challenge the seniority list and consequently, the appeal was wrongly dismissed as time-barred. Has no substance. The appellant having accepted the junior position assigned to him in the revised seniority list published in 1981, would be estopped to re-open the same and agitate it at the belated stage in 1997 and resultantly the appeal preferred by him before the Service Tribunal was rightly dismissed as hopelessly barred by time.
15. For the foregoing reasons, this appeal having no substance is dismissed with no order as to costs.