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Case No. 509/1357 of 1981 (and 8 other cases), decided on 12th September, 1983.

(a) West Pakistan Service of Civil Engineers (Buildings and Roads) Class II Rules, 1967‑

‑‑ R. 15 (2), Explanations 1 and III and West Pakistan Service of Civil Engineers (Buildings and Roads) Class I Rules, 1967, r. 15 (2) Explanations I and III‑Seniority ‑Explanations I and III operative and invocable only in case of regular promotions in consultation with Public Service Commission‑Temporary Assistant Engineers (Graduates) enjoying, status of Officiating Engineers‑Upgraded by General Notification, dated 22nd July, 19'71 to status of Class (Junior)‑Inter se seniority of such Engineers‑Governable by rule of continuous officiation as Executive Engineer‑Seniority list pre pared on such basis, held, not exceptionable‑Earlier appointment made on basis of regional sub‑cadre as Officiating Executive Engi neer, held, not open to attack and date of continuous officiation will remain the determining factor.

‑‑ S. 4‑Effect of judgment of previous Tribunals‑Res judicata- Plea not only confined to suits but can be invoked under general principle of law and such principle will apply to decisions given by previous Tribunals‑Questions raised in appeal before Tribunal involving same issues decided by Punjab Service Appellate Tribu nal by speaking judgment‑Fresh appeal, in circumstances, hit by dictum of res judicata.

Ch. Hamiduddin, Masuddin, Ahmed Riaz and Barjees Nagi for Appellants.

D. M. Awan and Raiz Anwar for Respondents.

A. G. Humayun, District Attorney for the Government.

Messrs Muhammad Saleem, Muhammad Amin, Muhammad Javed Iqbal Malik, Khurshid Ahmad Malik, Abdul Waheed Farooq, Noor Ahmad Malik, Muzaffar Iqbal Shaikh and Muhammad Abdul Majid and Ghulam Samdani all Officers of the Com munication and Works Department Government of the Punjab, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974. They have impleaded Secretary to Government of the Punjab, Communication and Works Department, Lahore and others as respondents which have been mentioned above in their respective appeals.

2. By virtue of these appeals they have prayed that the impugned seniority list, dated 10th September, 1983, as it stood on 1st September, 1981, in so far as it relegates the appellants junior to the contesting respondents may be set aside and the appellants be declared as senior to the contesting respondents.

3. As the facts and point of law involved in these appeals are common, we will dispose of all these appeals with our this single judgment.

4. Brief facts leading to these appeals are as under:

Muhammad Saleem, appellant, joined service as Temporary Assistant Engineer, on 28th October, 1960, and was promoted to the rank of Officiating Executive Engineer, with effect from 23rd November, 1979. Muhammad Javed Iqbal joined the service as Temporary Assistant Engineer, on 20th October, 1960 and was promoted to the rank of Officiating Executive Engineer, on 23rd November, 1972. Abdul Waheed Farooq joined the service as Temporary Assistant Engineer, on 31st May, 1962 and was promoted to the rank of Officiating Executive Engineer, on 29th April, 1973. Muhammad Amin joined service as Temporary Assistant Engineer, on 24th April, 1962 and was promoted to the rank of Officiating Executive Engineer w. e. f. 9^th April, 1973. Khurshid Ahmad Malik joined the service as Temporary Assistant Engineer on 4th June, 1961 and was promoted to the rank of Officiating Executive Engineer w. e. f. 9th April, 1973. Muzaffar Iqbal Sheikh joined as Temporary Assistant Engineer on 15th November, 1958 and was promoted as Officiating Executive Engineer by an order, dated 30th September, 1972, w. e. f. 3rd February, 1970. Muhammad Abdul Majid joined as Temporary Assistant Engineer on 2nd November, 1958 and he was also promoted to the rank of Officiating Executive Engineer w. e. f. 3rd February, 1970. Noor Ahmad Malik joined as Temporary Assistant Engineer, on 15th November, 1958 and was promoted to the rank of Officiating Executive Engineer w. e. f. 3rd February, 1970. Mian Ghulam Samdani joined as a Temporary Engineer and was promoted on 13th December, 1969 as XEN.

5. The respondents namely Ashfaq Ahmad Qureshi, Muhammad Akhtar, Mian Muhammad Sharif, Abdul Hafeez, Majid Hussain Rehmani, ZafarulIah Khan, Abdul Raziq, Munir Ahmad, Mubarik Ahmad, Manzoor Ali Chaudhry, Nisar Ahmad Shaikh, Sardar Muhammad Chaudhry, Azhar Irshad and Ghulam Samdani joined the service as Temporary Assistant Engineer on 30th August, 1957, 8th November. 1958, 16th January, 1960, 30th June, 1960, 31st May, 1958, 15th November, 1958, 20th October, 1960, 2nd November, 1960, 10th May, 1962, 22nd October, 1962, 2nd October, 1958, 14th October, 1963, 24th October, 1963 and 28th May, 1958 respectively. These respondents were promoted to the rank of Officiating Executive Engineers, on 14th December, 1963, 14th June, 1966, 14th June, 1966, 14th June, 1966, 30th April, 1969, 26th April, 1969, 13tb December, 1969, 9th January, 1970, 13th December, 1969, 13th December, 1969; 14th June, 1966, 6th March, 1970, 27th October, 1972 and 13th December, 1969, respectively.

6. Keeping in view the respective parties in all these nine (9) appeals, admittedly, the respondents impleaded in each appeal separately have been promoted to the rank of Officiating Executive Engineer earlier than the appellant in each appeal.

7. We have heard the learned counsel for the appellants as well as learned counsel for the respondents and have perused the record of these cases, carefully with their assistance.

8. It has been contended by Messrs Hamiduddin, Burjis Nagi and Masud Ahmad Riaz, learned counsel for the appellants that in the senior ity list issued. vide Notification dated 28th November, 1974, which is termed as the seniority list of Class II Officers of Communication and Works Department, the names of the appellants figure above the respon dents, therefore they should be deemed to have been appointed/promoted to Class II service prior to the respondents. It is further contended that since all the Graduate Engineers have been upgraded to the status of Class 1 (Jr.) by a Notification dated 22nd July, 1971, therefore, the appellants may be treated to have been promoted to Class I (Jr.) w. e. f. that date and that no separate notification in each individual case was required either under West Pakistan Service of Civil Engineers (Buildings and Roads) Class II Rules, 1967 or Class I Rules of 1967. In other words, the main plank of the appellants' case is the seniority list, dated 28th November, 1974.

9. It was also contended on behalf of the appellants that the respon dents were allocated to the Eastern Region and on that basis they were promoted earlier to the rank of Officiating Executive Engineer, whereas the appellants were allocated to the Central Region. On that basis it was submitted that the respondents had not superseded the appellants.

10. Mr. Masud Ahmad Riaz counsel for the appellants Muzaffar Iqbal Sheikh and Khurshid Ahmad Malik also contended that under the Delegation of Powers Rules, 1962, the Secretary was competent authority for promoting any officer to Class II service and as he had provisionally proved, on 7th October, 1964 the note submitted by the Deputy Secretary in this context, the exercise for promoting the parties to Class II service had been made and that there was no need of sending the case to the Public Service Commission for consultation and approval. It was also contended by the learned counsel for the appellants that the judgment given by this Tribunal in Saleem Akhtar Bhalli's case declaring the senior ity list/notification dated 28th November, 1974, as illegal was not based on detailed reasons.

11. Admittedly, no case of any of the parties was ever recommend by the Communication and Works Department for promotion to Clasp service under Class II Rules of 1967 to the Public Service Commission or their promotion to Class I (Junior) as contemplated by Class I Rules of 1967. According to the position explained by the Department in its parawise comments and written statements submitted in the appeals, both the appellants as well as respondents are Temporary Assistant Engineers enjoying the status of Officiating Executive Engineer. It is further pointed out by respondent No. I that according to the provisions of Class II Rules of 1967, cases of appointment/promotion to Class II, in keeping in view that the dates of occurrence of the vacancies were required to be submitted to the Public Service Commission for determination of the suit ability of Officers concerned for induction into Class 11 service, but no such case in respect of the appellants and respondents was referred to the Commission for the purpose. It is further elucidated that no orders of promotion/appointment of appellants and respondents to Class II service were issued as required by the Rules.

12. Learned counsel for the respondents contended that Communi cation and Works Department had notified a seniority list of Officiating Executive Engineers, on 28th February, 1973, as it stood, on 31st December, 1972. Against that seniority list several appeals were filed before the Punjab Civil Services Appellate Tribunal. In all the aforesaid judgments given in 1973 and 1974, the learned Tribunal had given verdict in unequi vocal terms that the inter se seniority of the parties would be governed on the basis of their continuous officiation in the rank of Executive Engineers as laid down under sub‑rule (2) of Rule 15 of Class II Rules. Explanations I and III of Rule 15 (2) of Class II Rules would be applicable until and unless the parties are regularly promoted to Class II service and thereafter to Class I (Junior) under Class II and Class I Rules of 1967. The continuous officiation in the rank of Executive Engineer being the rule of seniority it was held by the learned Tribunal that whosoever is promoted earlier as Officiating Executive Engineer shall stand senior to the persons whose date of promotion is later. The respondents, in this context, placed reliance on the following cases decided by the former learned Tribunal :‑----

It was contended on behalf of the respondents that in all the aforemen tioned cases the learned Tribunal held that the rule of seniority applicable to the parties was a date of continuous appointment as Officiating Execu tive Engineer since the appellants as well as the respondents had not yet been promoted to Class II or Class I (Jr.). Their inter se seniority would be governed by sub‑rule (2), of rule 15 of Class I rules.

It was further contended that the learned Tribunal had also held in several cases including the case of Muzaffar Iqbal Sheikh, decided on 27th December, 1973 that though the parties have been upgraded to Class I (Junior) by the general Notification of 22nd July, 1971, this Notification though raising their status does not mean their recruitment to or absorp tion in Class I service. Therefore, it was held that the parties should be absorbed or appointed to Class II and Class I (Junior) so that Explanations I and III could operate in order to determine their inter se seniority as Executive Engineer. As regards seniority list issued, vide Notification dated 28th November, 1974, the learned counsel for the respondents vehemently contended that the same does not confer any right on the parties claiming their promotion to Class II service under Class II Rules of 1967, as neither the appellants nor respondents, were ever recommen ded by the competent authority for promotion to Class II service. In each individual case, after examining the record, the recommendations should have been made by the competent authority to the Public Service Commission and after the scrutiny approval of the Public Service Com mission, separate notifications ought to have been passed in the name and on behalf of the Governor promoting the parties to Class II service and likewise, thereafter after determining their suitability or otherwise the same process should have been adopted for promoting them to Class I (Junior). But no such exercise was ever made.

It was further contended that this so‑called seniority list, dated 28th November, 1974. has been struck down as being of no legal consequence, for the purpose of claiming appointment/promotion to Class II service by this very tribunal in a recent Case No. 555/1454 of 1982 titled Saleem Akhtar Bhalli v. Secretary, Communication and Works Department and 4 others, decided on 17th April, 1993.

13. It was further contended by the learned counsel for the respon dents that out of the appellants Muzaffar Iqbal Sheikh, Muhammad Abdul Majid, Noor Ahmad Malik and Muhammad Javed Iqbal had filed appeal, challenging the seniority list, dated 28th February, 1973, before the previous learned Tribunal. In those appeals the question of seniority in the rank of Officiating Executive Engineer of the parties was adjudicated upon and their appeals qua the present respondents were dismissed on the ground that the promotion of the above‑named appellants to the rank of Officiating Executive Engineers was later than the respondents, and, there fore, they shall remain junior to them. On that basis it was contended that the appeals were hit by the dictum of res judicata.

14. The learned counsel for both the parties addressed the arguments at great length. They have also filed written arguments. We have given our anxious consideration to the questions of law and facts raised by the learned counsel and have also perused the written arguments. The main basis of the appellants for claiming seniority in the rank of Officiating Executive Engineer over respondents is the Notification, dated 28th November, 1974, which is termed as Seniority List of Class II Officers of Communication and Works Department. This very seniority list/notifica tion had been relied upon by Saleem Akhtar Bhalli in. his Appeal No. 555/1454 of 1981 which was decided by this Tribunal, on 27th April, 1983. Saleem Akhtar Bhalli was also represented in that case by Mr. Masud Ahmad Riaz, Advocate, who is also counsel in these appeals on behalf of Muzaffar Iqbal Sheikh and Khurshid Ahmad Malik. The precise argu ments raised in that case by the learned counsel for the appellants was that as Saleem Akhtar Bhalli was shown senior in Class II, vide seniority list/ notification, dated 28th November, 1974, he would be deemed to be senior in Class I (Junior) as well as in Class I (Senior) by carrying his basic seniority to the said Class until and unless it was shown that he was superseded having been considered in juxta‑position with the respondents. In that case this argument was repelled on behalf of the respondents show ing Notification, dated 25th March, 1969, which had been issued by the Governor whereby promoting Saleem Akhtar Bhalli under rule 8 of Class 11 rules against the pre‑1963 vacancy after coming into force of Class II rules of 1967. On that basis authenticity of seniority list, dated 27th November, 1974, was vehemently challenged as being without any legal basis and it was submitted on behalf of the respondents in that case that this list dated 28th November, 1974, was only the enumeration of the names of the officers mentioned therein without any orders by the com petent authority for their promotion to Class II service and without consulting the Public Service Commission. This Notification of 25th March. 1969 promoting Mr. Saleem Akhtar Bhalli to Class II service under rule 8 of Class II rules against pre‑1963 vacancies was also presented before us in these cases as a precedent demonstrating the prevalent practice in the department for promoting the officers to Class II service by such notifications. After considering all the pros and cons and examining the matter in detail we had given a positive finding in paragraph 14 of our judgment in Saleem Akhtar Rhalli's case in the following terms :‑---

"We have also examined the list of 1974 on the basis of which a has been claimed by the appellant that he had been shown senior to the respondents in the said list and find that there was no legal base of this list in any manner whatsoever. The, officers shown therein were not promoted to Class II under the rules by the competent authority in consultation with the Public Service Commission to the posts shown against their names.

In these appeals the same matter has been reagitated and it has been claimed that since the appellants' names figure above the respondents in the seniority list, dated 28th November, 1974, they should be deemed to have been promoted to Class II service and on that basis they should carry their basic seniority to Class I (Junior) as well as to Class I (Senior). In this context we have been taken through the judgments of the previous Tribunal given in the cases of Muzaffar Iqbal Sheikh, Muhammad Abdul Majid, Noor Ahmad Malik, Kh. Mahboob Hassan, Muhammad Akbar Khan, Abdul Qayyum Malik and Shaukat Ali, decided on 27th December, 1973, 12th November, 1973, 1st January, 1974, 15th November, 1973, 14th September, 1973, 7th January, 1974 and 2nd January, 1974, respectively which have been relied upon by the respondents. In all those cases the seniority list dated 28th February, 1973, of the Officiating Executive Engineers had been challenged and the previous learned Tribunal had come to the conclusion that the rule of seniority inter se the parties would be the continuous officiation in the rank of Executive Engineer as contempla ted by sub‑rule (2) of Rule 15 of Class I Rules, 1967. Explanations I and III to rule 15 (2) of Class I Rules, 1967, would come into play only when the parties have been regularly promoted to Class II service and thereafter to Class I (Junior) service under the relevant rules by the competent authority in consultation with the Public Service Commission. The respective position of the parties remains the same as it was at the time when the previous Tribunal delivered the aforementioned judgment. Moreover, in all those cases decided by the former Tribunal, it was held that the promotion to Class II service and to Class I service should be made under rules 7, 8 and 9 of the relevant rules of i967 after working out the vacancies and sending the case to the Public Service Commission for their scrutiny and approval. After the approval of the Public Service Commission separate notification be issued by the competent authority. Admittedly no such exercise has been done and the impugned seniority list has been issued and notified by the department on the basis of continuous officiation in the rank of Executive Engineers of the parties. Whosoever, is promoted earlier to the rank of Officiating Executive Engineer has been placed above than the officer who is promoted later. Therefore, the claim of the appellants based on the seniority list/notification, dated 28th November, 1974, is absolutely devoid of any force.

15. As regards contention of the appellants that by virtue of a general Notification, dated 22nd July, 1971 they have been upgraded to Class I (Junior) and thus be deemed to be absorbed in or recruited to Class I (Junior), it may be observed that in Saleem Akhtar Bhalli's case, we have decided that our observations given in the judgments in the case of Ehsan Ullah Sardar and Tahir Ahmad Malik were based on the facts absolutely different from the present one and said observation relied upon by the learned counsel for the appellants could only be termed as obiter dictum. It would be further pertinent to mention that even the previous Tribunal in the case of Muzaffar Iqbal Sheikh, decided on 27th December, 1973, while discussing this general Notification of 22nd July, 1971, held as under :‑----

"The appellant as well as respondents have not yet been appointed to or absorbed in Class I service, though they have been upgraded to Class I by the general Notification of 22nd July, 1971. As we have held in other cases, this notification though raising their status does not mean their recruitment to or absorption in Class I service. It is, therefore, necessary that they be absorbed in or appointed to Class I (Junior) on the basis of their seniority if such promotion is due to them, so that Explanations I and III can operate in order to determine their inter se seniority as Officiating Executive Engineer."

We are in respectful agreement with the decision given by the predecessor Tribunal in this context. Since both the parties are only temporary Assistant Engineers enjoying the status of Officiating Executive Engineers, the rule for determining their inter se seniority shall remain the continuous officiation in the rank of Executive Engineer and since on this very basis the impugned seniority list has been published by the department, no exception can be taken to it.

16. It has been contended on behalf of the respondents that out of the appellants, Muzaffar Iqbal Sheikh, Muhammad Abdul Majid, Noor Ahmad Malik and Muhammad Javed Iqbal had filed appeals challenging the seniority list, dated 28th February, 1973, before the previous learned Tribunal and their appeals were dismissed. The present respondents who were placed senior to them in that seniority list of 28th February, 1973, were declared senior to them on the basis of their continuous officiation in the rank of Executive Engineer. Out of the present respondents, Manzoor Ali Chaudhry who was not in service at that time had not been impleaded in those appeals. Manzoor Ali Chaudhry was subsequently re‑instated and is now placed at Serial No. 18 in the impugned seniority list: i.e. above Nisar Ahmad Sheikh who is at Serial No. 19, just below Manzoor Ali Chaudhry. In the case of Muzaffar Iqbal Sheikh who. is senior to al) other appellants named above, Nisar Ahmad Sheikh was impleaded as a party. The previous learned Tribunal, vide its judgment, 'dated 27th December, 1973, declared Nisar Ahmad Sheikh senior to Muzaffar Iqbal Sheikh and his appeal was dismissed qua Nisar Ahmad Sheikh. Therefore, Muzaffar Iqbal Sheikh cannot jump over senior namely Nisar Ahmad Sheikh and on that basis he cannot claim seniority over Manzoor Ali Chaudhry who is senior to Nisar Ahmad. Sheikh. As such it is immaterial as to whether he was a party in the previous appeal before the previous Tribunal or not. On these facts and in view of the judgments given by the predecessor Tribunal in the cases of four appel lants named above, it is claimed that these appeals are hit by the dictum off' res judicata.

17. Since the questions raised in the present service appeals and issues involved are the same that were raised in the previous appeals and decided by the Punjab Service Appellate Tribunal, the appeals are hit by the dictum of res judicata as the questions raised in the present appeals have already been decided by speaking judgments. The plea of res judicata is not only confined to the suits, but it can be invoked under general principle of law and such principles will apply to the decisions given by the appellate Tribunal. Therefore, the aforementioned four appeals are also hit by the principle of res judicata.

18. It was contended on behalf of the appellants being that the respondent being promoted on cycle system from the Eastern Region and the appellants from the Central Region, the latter has not been superseded while being promoted to the rank of Officiating Executive Engineers and the earlier promotion of the respondents to the rank of Executive Engineer would not confer seniority upon them over the appellants. The question of supersession between the appellants vis‑a‑vis respondents, would only arise if Explanations I and III of rule 15(2) of Class I Rules, 1967, can be made applicable to them. Explanations I and III can only be invoked and become operative if both the parties are regularly promoted first to Class II service under the provisions of Class II Rules of 1967 and thereafter, to Class I (Jr) under Class I Rules of 1967 and not otherwise. However, the regional sub‑cadres and the allocations made to the regions have been incorporated in the Statutory Rules of 1967. The vacancies were allocated proportionately and the promotions were made on the basis of the available vacancies allocated to each region. Therefore, the promotion of the respondents from the Eastern Region having been made against the available allocated vacancies of the Executive Engineers (Grade‑18) were perfectly legal.

19. In view of the above analysis of these appeals we find no force in all these appeals which are dismissed with no order as to costs.

A. E. Appeals dismissed.

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