' MUHAMMAD AFZAL (MEMBER-I).---The appeal assails the impugned order dated 8-8-2002 whereby the departmental representation of the appellant against the revised seniority list, dated 2-2-2002 was rejected by the concerned authority.
2. Facts relevant to the present appeal are that the appellant who was initially appointed as Lecturer on 21-1-1977 in the Education Department was selected as Assistant Professor on 8-8-1984 and promoted as Associate Professor in accordance with his seniority on 1-9-1990 against 70% quota of promotion under the four tier system introduced by the Government through a notification in the year 1990. A seniority list of Associate Professors in the Education Department was notified on 1-3-1997, in which Associate Professors directly recruited on the recommendations of the Punjab Public Service Commission were given seniority in accordance with their respective dates of appointment. However, some of the directly recruited Associate Professors represented against the seniority list of 1997 and on rejection of their representations, they filed Appeal No,33 of 1998 titled Dr. Muhammad Rafique and others v. Secretary Education and others. In this appeal (Appeal No,33 of 1998), 554 respondents were impleaded including 552 private respondents (promoted Associate Professors) and Secretary. Education as respondent No,553 and DPI (Colleges) as respondent No, 554'. Prior to this appeal, Appeal No,12 of 1996 had been filed by Dr. Ijaz Mujtaba Ghauri as sole appellant, on the same issue i,e, seniority of directly recruited Associate Professors v. Promoted Associate Professors the appellant Dr. Ijaz Mujtaba Ghauri being directly recruited Associate Professor. However, Dr. Ijaz Mujtaba Ghauri did not implead' any private respondent. The Appeal No,12 of 1996 was accepted by a Single Bench of this Tribunal through judgment, dated 15-11-1997, declaring the appellant to be considered senior to all those Associate Professors whose promotions were made during the period 1988 to 1992, although the appellant (Mr. Ghauri) in that case had directly been appointed as Associate Professor in 1995. The judgment, dated 15-11-1997 was challenged by Government and the affected (but not impleaded) parties in the Hon'ble Supreme Court of Pakistan and the same was set aside and remanded to Punjab Service Tribunal for fresh decision by apex Court on 17-10-2000 while considering Civil Petition 495- L and Civil Petition 523-L of 1998, on the ground that parties (promotee Associate Professors) affected by the judgment had not been impleaded. The original appeal (12/1996) was, therefore, again taken up by this Tribunal and the appellant was directed to implead the affected private parties as per directions of the Hon'ble Supreme Court of Pakistan. At that juncture, the appellant sought permission to withdraw the appeal. The said appeal was accordingly dismissed as withdrawn on 12-9-2002 by the Full Bench of this Tribunal. Appeal No,33 of 1998 was decided (on the same subject but parties being different) by the Single Bench of this Tribunal on 14-6-1999 at a point of time when the judgment in identical appeal (12 of 1996) stood challenged in the Hon'ble Supreme Court of Pakistan. The then learned Member without noticing this significant development in the round of litigation between the directly recruited Associate Professors and promoted Associate Professors, passed judgment on 14-6-1999 placing exclusive reliance on judgment, dated 15-11-1997 in Appeal No,12 of 1996 and declared the rejection of the representations of the appellants (direct recruits) against the seniority list as void. The learned Member recorded in his judgment:-- "The appellants have also brought to my notice copy of the judgment of the learned Member-II of Punjab Service Tribunal. The appeal was accepted by the Tribunal. It is very detailed judgment dealing by and large with the facts of the present appeal and the legal points involved. A liberal use of the detailed order of learned Member-II, dated 15-11-1997 has been made. Profitable guidance has also been sought by the reference made in this order to the judgment/findings of the Hon'ble Supreme Court."
3. The above reference shows that the judgment, dated 14-6-1999 in Appeal No,33 of 1998 was based on the judgment, dated 15-11-1997 in Appeal No,12 of 1996 filed in this Tribunal. But when this judgment, dated 14-6-1999 was being delivered, the judgment in Appeal No,12 of 1999 stood challenged before the Hon'ble Supreme Court of Pakistan and was subsequently set aside too. The judgment, dated 14-6-1999 was also challenged in the Hon'ble Supreme Court of Pakistan by the official respondents but the Civil Petition for Leave to Appeal No,1619-L of 1999 and Review Petition No, 17-L of 2000 were not allowed by the Hon'ble Supreme Court of Pakistan on grounds of limitation and the apex Court refused to allow condonation of delay to the Government/petitioner with the observation that no preferential treatment qua the ordinary litigants could be given to the Government. The appellants in Appeal No,33 of 1998, subsequently filed Writ Petition No,3839 of 2001 and Writ Petition No,5075 of 2001 in the High Court for getting the orders, dated 14-6-1999 in Appeal No, 33 of 1998 implemented. These writ petitions were allowed with the direction to the Education Department to comply with the orders, dated 14-6-1999 of this Tribunal and to issue necessary orders within two months. Accordingly, seniority list in which the present appellant in this appeal was earlier shown senior to the private respondents, was reversed and a revised seniority list, dated 2-2-2002 was circulated. The appellant filed representation against the seniority list which was rejected on 8-8-2002, hence this appeal in the Tribunal.
4. Learned counsel for the appellant maintains that the judgment, dated 14-6-1999 in Appeal No,33 of 1998 by this Tribunal which was being pressed into service for revising seniority list to the detriment of the established service interests of the appellant, was not applicable in the case of the appellant, since the appellant and 551 other respondents in that appeal were never sent any notices for submission of written objections, were never heard by the Tribunal. It is also maintained that in that appeal (33 of 1998), an ex parte judgment was given by P.S.T: and that judgment was also open to serious legal objections since the judgment was entirely based on the earlier judgment, dated 15-11-1997 on the same subject in Appeal No,12 of 1996 which stood set aside under the orders of the apex Court subsequently on 17-10-2000 and this being so, the judgment dated 14-6-1999 could not be made applicable as the same had been rendered infructuous under the order dated 17-10-2000 of the Hon'ble Supreme Court of Pakistan and even the orders of the learned High Court in writ petitions (referred to above) for the implementation of the judgment dated 14-6-1999 in the presence of orders of apex Court were of no legal effect. It is further maintained that the judgment, dated 14-6-1999 could not be applicable in the case of the appellant because it was a settled principle of law that when a person was not a party in a case as required under the law, the judgment delivered in such a case would not be binding in terms of the judgments of the Hon'ble Supreme Court of Pakistan reported as 1999 SCMR 1869 and 1996 SCM R 1145. It is also contended that even judgment, dated 14-6-1999 in Appeal No,33 of 1998 did not envisage the reversal of the seniority of the appellant with retrospective effect.
5. On facts it is maintained by the learned counsel for the appellant that the appellant had been promoted as Associate Professor against prescribed quota (70%) of promotion on 1-9-1990, whereas the private respondents in this appeal were appointed as Associate Professors on the recommendations of the Punjab Public Service Commission during the year 1995-96 after advertisement of the posts in 1993. It is maintained that the directly recruited Associate Professors did not exist as such when the appellant was promoted as Associate Professor and therefore they could not be made senior to him. From the dates when they did not exist as Associate Professor at all and even their posts had not been advertised at that time. It is further argued that there is a principle of seniority given in section 7 of the Punjab Civil Servants Act according to which seniority of civil servants had to be determined from the date of regular appointment of the selectees and this view was upheld by the Hon'ble Supreme Court of Pakistan in their judgment reported as 1986 SCM R 898 and C.P. No,968 of 1997 and that this Tribunal was not competent to lay down or devise a different law for determination of seniority contrary to the provision of Punjab Civil Servants Act. The Hon'ble Supreme Court of Pakistan had also held that promotee officers were to be considered senior qua direct recruits in their judgment reported as 1990 SCM R 1623. It is also maintained that no directly recruited civil servants could be given seniority from a date earlier than the date of their actual appointment, when there was a possibility that those directly recruited persons may not have been even selected by the Public Service Commission.
6. The appeal is contested and opposed by respondents. Learned counsel for the private respondents have excitedly argued maintaining that the P.S.T judgment dated 14-6-1999 (Appeal No,33 of 1998) had become binding for implementation by all parties since Civil Petition for Leave to Appeal filed against this judgment was rejected and the learned High Court while deciding Writ Petitions Nos.3839 of 2001 and 5075 of 2001 also issued directions to the Department for implementation of the said judgment dated 14-6-1999. It is further contended that the judgment dated 14-6-1999 already having taken effect (through revised seniority) and the appellant being a party (one of 552 private respondents in Appeal No,33" of 1998), he was stopped to file this appeal and that this Tribunal was also not competent to admit this appeal. It is also maintained that the appellant has not come to this Tribunal with clean hands as he was aware that Civil Petition for Leave to Appeal filed against the judgment dated 14-6-1999, had been dismissed by the Hon'ble Supreme Court of Pakistan. It is also contended that seniority list has since been revised in accordance with law and the respondents have been given the seniority from the dates regular vacancies existed, although the respondents were actually not appointed on those dates due to procedural delays, and that this principle for determination of seniority of direct recruits versus promotees has already been settled by this Tribunal in their judgment in Appeal No,12 of 1996 and Appeal No,33 of 1998 and that these judgments could not be reviewed by P.S.T. As per law.
7. We have given our placed thought to animated arguments and contentions from both sides and perused the relevant record including the contents of Appeal No,12 of 1996 and Appeal No,33 of 1998 and the judgment dated 14-6-1999 in Appeal No,33 of 1998. We find that Appeal No,33 of 1998 was filed by Dr. Muhammad Rafique and 25 other appellants. The appellants in that appeal enclosed a seniority list containing names of 552 private respondents including the present appellant. As per record, only two notices were issued for submission of written objections to respondent No,553 and respondent No,554 i,e, Secretary Education and DPI Colleges and not a single notice was issued at any stage to 552 private respondents including the appellant. The appellant has, therefore, rightly pointed out in his appeal that the judgment, dated 14-6-1999 was admittedly ex parte as the appellant and other private respondents were never sent any notice to file their written objections and they were never given the opportunity of representation through attorney or personal appearance. We therefore, agree with learned counsel for the appellant that the judgment dated 14-6-1999 could not be applicable in the case of the appellant and private respondents in Appeal No,33 of 1988 and could not be considered as judgment in rem. In this connection, we feel no hesitation in placing reliance on judgment of the apex Court reported as 1996 SCM R 1145. It is not sufficient to just list names of some respondents in an appeal. The parties should materially be seen and found to be contesting the appeal through notices by post or through notices in the press. We also find force in the contention of the appellant that judgment, dated 14-6-1999 in Appeal 'No,33 of 1998 was based on the judgment, dated 15-11-1997 in Appeal No,12 of 1998 and when the judgment, dated 15-11-1997 was struck down by the apex Court and the case was remanded to this Tribunal for fresh decision, the edifice of any subsequent orders of this Tribunal or the Department built on this judgment also crumbled down automatically. The judgment, dated 14-6-1999 could not, therefore, be pressed into service for unilateral reversal of seniority of promotee Associate Professors. This being the position on legal plane, the. Present appeal filed before this Tribunal is found competent. The appellant had the legal right to challenge the reversal of his seniority when he was never sent any notice and never heard as a party in Appeal No,33 of 1998.
8. As regards facts, we find that a sound principle for determination of seniority has been enshrined in section 7 of the Punjab Civil Servants Act read with rule 8(2) of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, according to which seniority was to be determined from the dates of regular appointment of the direct .Selectecs and dates of promotions of promotees and this principle was upheld by the Hon'ble Supreme Court' of Pakistan in the judgment, reported as 1986 SCM R 898. This Tribunal was not competent to lay down any different principle for determination of seniority between the direct recruits and promotees contrary to what was prescribed under the existing law and rulings of the Hon'ble Supreme Court of Pakistan. We also find that promotees were rather to take precedence in seniority over direct recruits in terms of judgment of the Hon'ble Supreme Court of Pakistan reported as 1990 SCM R 1623.
In this case the directly recruited Associate Professors (private respondents in this appeal) joined as Associate Professors after selection by the Punjab Public Service Commission in 1995-96 whereas the appellant joined as Associate Professor on being promoted in September, 1990. The private respondents could by no stretch of imagination or any novel interpretation of rules be allowed seniority from dates when they did not exist as Associate Professors. The seniority has been declared a vested right by the superior Courts. The seniority of the appellant with effect from 1-9- 1990 as Associate Professor stood determined on that date and the same could not be altered after 12 years on the basis of a judgment in an appeal in which he was never heard and never sent any notice. The appellant, therefore, exercised a right conferred on him by law to challenge the altered/reversed seniority. We also find that reversal of a seniority through order, dated 2-2-2002 was against the principles of natural justice as the appellant was admittedly not given any personal hearing by the concerned authority before ordering alteration in seniority.
9. For the detailed reasons given above, appeal is accepted and the impugned order according to which seniority of the appellant yis-a-vis the private respondents (direct recruits) was altered is set aside with the direction to determine seniority of promotee Associate Professors and directly recruited Associate Professors strictly in accordance with rule 8(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.