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Case No. 240/733 of 1984, decided on 9th July, 1984.

‑‑‑S.4‑‑Appeal before Tribunal‑‑‑Limitation‑‑Seniority matter‑‑Appeal contested as premature for reason that representation of appellant to next higher authority against impugned final seniority list not yet decided‑‑Tribunal accepting plea and disposing of appeal accordingly‑ Fresh appeal filed well within limitation period after rejection of representation by next higher authority stating that order passed while rejecting earlier representation against tentative seniority list was maintained‑‑Fresh appeal contested as time‑barred on contention that limitation period started from date of issuance of final seniority list and order of next higher authority reiterating its earlier order could not extend limitation‑‑Contention rejected and limitation, in circum stances, held, started from date of order of next higher authority on representation against final seniority list.

‑‑‑Seniority‑‑Officials of different lines and cadres‑‑Seniority of such officials cannot be intermingled‑‑Assistants and Stenographers of Public Health Engineering Department eligible for promotion as Superin tendent‑‑Common list of such officials merely for purpose of promotion cannot be treated as seniority list reflecting their inter se position in respective cadres‑‑Seniority as Superintendent of such officials countable from dates of promotion as Superintendent and fact that a Stenographer or Assistant had a longer period of total service, held, not relevant.

P L C 1973 (C. S .T.) 206 rel.

‑‑‑ Judgment of predecessor Tribunal (Punjab Service Appellate Tribunal) binding upon Punjab Service Tribunal‑‑Punjab Service Tribunals Act (IX of 1974), S.5.

1981 S C M R 510 rel.

Masud Ahmad Riaz for Appellant.

A.G. Humayun, District Attorney for Respondents.

.‑‑ Mehdi Asghar, Superintendent, Office of the Chief Engineer, Public Health Engineering Department, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Director Works, Office of the Chief Engineer, Punjab Public Health Engineering Department, Lahore, Chief Engineer, Punjab Public Health Engineering Department, Lahore and M.H. Jillani, Superintendent, Office of the Chief Engineer, Public Health Engineering Department, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the appeal may be accepted and impugned final seniority list, dated 6‑7‑1982 and the final order, dated 23‑2‑1984 upholding the previous decision, dated 30‑6‑1982 be set aside, and the appellant be also declared senior to the contesting respondent No. 3 as Superintendent.

3. Brief history of the case is given below:

He joined service in the B & R Department as Assistant w.e.f. 13‑3‑1961, and was transferred to the Office of Chief Engineer Public Health Engineering Department, w.e.f. 8‑5‑1962, in public interest. He was promoted as Superintendent w.e.f. 24‑11‑1980. However, he filed appeal before this Tribunal by which his seniority was determined. In consequence of the said appeal he was allowed pro forma promotion as Superintendent w.e.f 8‑9‑1976, vide order, dated 21/22‑9‑1981.

He joined service on 20‑2‑1948 as Stenotypist in the Social Welfare Organization which was renamed as Public Health Engineering Department. He was promoted as Stenographer in Grade‑10 w.e.f. 7‑2‑1961. He was awarded N.P.S.‑11 and then N.P.S.‑12 w.e.f. 1‑7‑1973 and 2‑12‑1973, respectively as Stenographer being attached to the Head of Department. He was promoted as Superintendent w.e.f. 1‑6‑1981.

4. A tentative seniority list of Superintendents was issued on 14‑12‑1981, in which contesting respondent No.3 was shown at serial No.5 whereas the appellant was shown at serial No.6. Aggrieved against the same, objections were filed by the appellant against the said seniority list on 21‑12‑1981, which were rejected on 8‑5‑1982. After the said rejection the appellant filed appeal before the next higher authority on 10‑5‑1982, which was rejected on 30‑6‑1982. Meanwhile a final list, dated 6‑7‑1982 came in the field, in which the same position was maintained as appellant was shown junior to the contesting respondent No.3. Appellant submitted his representation, dated 26‑7‑1982 to the next higher authority against that final seniority list. However, before awaiting the decision of next higher authority the appellant filed Appeal No. 377/1846 of 1982, which was admitted to regular hearing. Ultimately the same was disposed of as premature when it was found that he had come before the Tribunal without waiting for the orders of the next higher authority of his representation, dated 26‑7‑1982. It was on 23‑2‑1983, that he was informed by the next higher authority that the said authority was not inclined to interfere with the order earlier passed on 30‑6‑1982.

5. We have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case with their assistance.

6. Learned counsel for the appellant has submitted that the appellant and respondent remained in distinct line of Assistant and Stenographer, respectively and it was only when they were promoted to the post of Superintendent their integrated seniority list was notified. According to the learned counsel for the appellant, he was shown at serial No.6 while respondent No. 3 was shown at serial No.5 of the said list, but at the same time reason given for this position was that the case of the respondent was under consideration for pro forma promotion w.e.f 1‑9‑1980. It has been vehemently argued that although this reason was neither tenable nor appropriate, the case of the appellant was on a very strong footing in view of the established facts on the record that he was promoted as Superintendent from 8‑9‑1976 vide order, dated 22‑9‑1981. It this manner it has been argued that even if at all the respondent was going to be promoted from 1‑9‑1980, the earlier promotion of the appellant in field could not be ignored and thus he could not be declared junior to the respondent No.3.

7. On the other hand learned District Attorney as well as learned counsel for respondent No.3 have come out with a preliminary objection before entering into the merits of the case that the appeal was time‑barred and was liable to be dismissed. It was submitted on their behalf that actual order of rejection of representation of the appellant was, dated 30‑6‑1982, and therefore, he could not count his period of limitation from the ultimate order of 23‑2‑1984, which according to them, was in fact reflection of the earlier order of 1982.

8. We have taken this point into consideration and find that the appellant agitated this against seniority list as well as order, dated 30‑6‑1982, in his earlier representation and when no reply was received by him, he filed appeal before this Tribunal agitating against the same. It was only when the Tribunal disposed of his appeal as premature and that too on the objection of the respondent s counsel that he had come before the Tribunal against the final rejection, which was conveyed to him on 23‑2‑1984. It has been pointed out that the observation made by the next higher authority while disposing of his objection that earlier order of 1982 was nothing but an innovation which was made most probably on the mechanization for respondent No.3, who was at the relevant time working as Steno to the Chief Engineer. The possibility of this contention cannot be completely ruled out but even then the case of the appellant cannot be considered time‑barred on account of this observation of the next higher authority. The fact of the matter is that the appellant had to leave this Court when an objection was raised by the learned counsel for contesting respondent No.3 that his appeal was premature and he had no alternative but to obey the order of the Court which accepted the said objection and waited for the final decision by the next higher authority. In these circumstances we are of the considered opinion that the time limit will run from the final rejection order, dated 23‑2‑1984, and the appeal so filed on 22‑3‑1984, is well in time.

9. With regard to the merits of the case learned District Attorney has submitted while controverting the arguments advanced by the learned counsel for the appellant that in fact respondent No.3 entered into service much earlier i.e. in the year 1948, therefore, his service ay Stenographer from 7‑2‑1961, which is equivalent post of the Assistant cannot be sliced away and the impugned seniority list based on this assumption is liable to be maintained. We are afraid we cannot agree with this contention so raised by the learned District Attorney as well as learned counsel for contesting respondent No.3, as the appellant and contesting respondent No.3 belong to different cadres and have to earn their promotion and seniority in their respective cadre and cannon be intermingled at this stage. Reliance is placed on the decision of Civil) Services (Appellate) Tribunal reported as 1973 P L C (C.S.T.) 206 in which this very issue came up for adjudication i.e. "whether the common list of Assistants and Stenographers constitutes a seniority list or not." The learned Appellate Service Tribunal held that such list is only promotion list and not a seniority list. We reproduce the relevant finding as under:‑

"The West Pakistan B & R Department (Circle) Ministerial Service Rules, 1963, were notified on 20th December, 1963. A note in the appendix to the Rules required that a common seniority list shall be maintained of Assistants/Head Clerks/Stenographers for the purpose of promotion to the post of Superintendent:

'As we have already held in other cases, this seniority list to be prepared under the note for purpose of promotion to this rank of Superintendent is intended to be a promotion list in order to guide promotion to the rank of Superintendents and is distinct from a seniority list in the service of each grade."

In view of this authoritative pronouncement of the predecessor Tribunal which is binding on this Tribunal in view of the Supreme Court's judgment in W.C. Austin cited as 1981 S C M R 510, we have no alternative but to hold that earlier list, if any, was a promotion list and not list of integrated seniority list. In fact the appellant and respondent No.3 joined in a common cadre when they were promoted as Superintendent. This being so, undisputedly the appellant's promotion dates back to the' year 1976, and respondent No.3 stands promoted from 1981, the mere fact that his case was under consideration, would in no way justify the respondents Nos.1 and 2 to declare him senior to the appellant whose promotion was a fait accomplin. It will be useful to mention here that even this proposal of awarding pro forma promotion to the respondent No. 3 from 1980 was turned down vide letter, dated 16‑3‑1982, placed on record as Annexure 'E' with the appeal. We have taken into consideration the argument of the learned District Attorney as well as learned counsel for the respondent that his case was reconsidered, even then he is fortunate enough to get promotion back dated to the year 1980, the fact remains that the appellant would be shouldered high in seniority as his promotion to the post of Superin tendent dates to the year 1976, a fact which was never challenged by the respondent No. 3, at any stage of this case.

10. In view of the above analysis of the case we are of the considered opinion that the final seniority list, dated 6‑7‑1982 and the final order, dated 23‑2‑1984 are liable to be set aside.

11. The result is we accept the appeal, set aside both the seniority list as well as impugned order, in so far as they relate to the parties and direct the respondents that the appellant be shown senior to the contesting respondent No.3 in the said seniority list of Superintendents.

There will be no order as to costs.

M.I. Appeal accepted

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