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Civil Appeals Nos. 74, 75 and 166 of 1982, decided on 30th September, 1985.

(On appeal from the judgment and order of the Punjab Service Tribunal Lahore, dated the 29th November, 1981 in Cases Nos. 12/8, 15/6, 6/7, and 9 of 1973, 281/167 of 1972, 204/158, 205/159 of 1978 and 351 of 1980).

‑‑‑Art. 212(3)‑‑Civil service‑‑Leave to appeal granted to examine whether Service Tribunal had correctly applied bar of limitation and res-judicata and had correctly interpreted and applied Service Rules to parties for fixing their inter se seniority.

‑‑‑S. 4‑‑Appeal disposed of and points raised by appellant were considered and rejected‑‑Such points, held, were barred by doctrine of constructive res judicata could not, therefore, be revived by filing a miscellaneous application before Tribunal‑‑Civil Procedure Code (V of 1908), S. 11.

‑‑‑S. 4‑‑Appellant, held, could get no relief on basis of a ground which he could have taken but had not taken‑‑Jurisdiction of Tribunal did not extend to any event prior to 1969‑‑Question of reversion of appellant in 1954, therefore, fell outside jurisdiction of Tribunal and such question could not be re‑opened even on merits‑‑Appellant, if on interpretation of Rules, wanted to obtain benefit, effect of decision of Tribunal was not to deprive him of same.

Muhammad Iqbal and another v. Secretary to Government of Punjab and 37 others 1986 S C M R 1 ref.

‑‑‑S. 4‑‑Seniority‑‑Appeal‑‑Limitation‑‑Condonation of delay‑‑Seniority list of 1972 challenged in 1978‑‑No application for condonation of delay filed alongwith appeals but only presented when appeals were at stage of arguments‑--Tribunal heard appeals on merits subject to all just exception‑‑No justification was made by appellants to persuade Tribunal to condone delay of six years, particularly when their other colleagues promptly approached Tribunal by challenging said seniority list‑‑Service Tribunal s rejecting appeal, as time‑barred, held, was an act with jurisdiction in circumstances.‑‑[Civil services]

Shahzad Jahangir, Advocate Supreme Court instructed by Muhammad Aslam Choudhry, Advocate‑on‑Record for, Appellant.

Masood Akhtar, Advocate‑on‑Record for Respondents Nos. 3 and 5.

Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents Nos. 17 and 20.

M. Nawaz Abbasi, Assistant Advocate‑General, Punjab instructed by Rao Muhammad Yousuf Khan, Advocate‑on‑Record for the Government.

Ex parte for other Respondents.

Shahzad Jahangir, Advocate Supreme Court instructed by Muhammad Aslam Choudhry, Advocate‑on‑Record for Appellant.

Masood Akhtar, Advocate‑on‑Record for Respondents Nos.3 and 5.

Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Respondents Nos. 17, 19 and 20.

M. Nawaz Abbasi, Assistant Advocate‑General, Punjab Instructed by Rao Muhammad Yousuf Khan, Advocate‑on‑Record for the Government. Remaining Respondents: Ex parte.

Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

Shahzad Jahangir, Advocate Supreme Court instructed by Muhammad Aslam Chowdhry, Advocate‑on‑Record (absent) for Respondents Nos. 26 and 27.

M. Nawaz Abbasi, Assistant Advocate‑General, Punjab Instructed by Rao Muhammad Yousuf Khan, Advocate‑on‑Record for the Government. Remaining Respondents: Ex parte.

Dates of hearing: 22nd, 23rd and 29th June, 1985.

‑Leave to appeal was granted in the three appeals now before us under Article 212(3) to examine whether the Punjab Service Tribunal has by its consolidated judgment, dated 29th November, 1981 correctly applied the bar of limitation and res judicata and whether it has correctly interpreted and applied the Service Rules to the parties for fixing their inter se seniority.

The first seniority list was published in the Punjab Gazette (Extraordinary Issue), dated 13‑12‑1971 reflecting the seniority position as on 1‑12‑1971. Ninety posts of Executive Engineers were shown in which Mian Muhammad Younis (appellant in Civil Appeal No. 166 of 1982) was at Serial No.84; Mr. Mazhar Saeed Quraishi (appellant in Civil Appeal No. 74 of 1982) was at Serial No. 34; and Mian Muhammad Afzal (appellant in Civil Appeal No. 75 of 1982) was at Serial No. 33. Another list was then published in Gazette (Extraordinary Issue), dated 27‑11‑1972 reflecting their seniority as on 14‑10‑1972. In this list Mian Muhammad Younis was at Serial No.49; Mr. Mazhar Saeed Quraishi was at No.26 and Mian Muhammad Afzal was at No.25. The latter's seniority list was expressed to be under 1967 Rules.

In an earlier round of litigation under Civil Services (Appellate Tribunal) Ordinance, 1970 by an amended memo. of appeal Mr. Younis had made the following prayers:

"(i) The appellant seniority may be fixed as Assistant Executive Engineer as well as Executive Engineer basically under the Rules of ls41 with respect to the seniority in Class II or in the alternative under rule 15(2) of Class I Rules of 1967 for fixing equitable seniority also keeping his inter se seniority intact as required under rule 15(3) of the aforesaid rules.

(ii) The date of continuous officiation of the appellant as officiating Executive Engineer may be treated from 21‑6‑1951 on the precedents of cases of Sh. Abdul Khalique, Muhammad Safdar and Sh. Zahoor Ahmad.

(iii) The respondent No.l may kindly be given appropriate direction to confirm the appellant as Executive Engineer. with effect from 1‑6‑1962 and placing him above Mr. RamiZ Ahmad Malik appearing at serial order 4 of the list of Executive Engineers by giving the appellant the date of entry into Class I as 14‑10‑1955.

(iv) As a result of fixation of correct seniority, the respondent No.l be given appropriate directions to allow benefits to the appellant by promoting him to the rank of Superintending Engineer, with effect from 3‑1‑1970 when Mr. Ramiz Ahmad Malik was promoted in that capacity and placed above Mr. Ramiz Ahmad Malik appearing at serial Order 29 in the seniority list of Superintending Engineers which is notified to have been based on the seniority as Executive Engineers."

This appeal failed on 20‑4‑1980 but he attempted to revive the issues by filing a miscellaneous application, dated 30‑6‑1980 claiming "consideration of the points on which judgment has not been given".

Mr. Mazhar Saeed Quraishi sought the following main reliefs:

"(ii) The impugned seniority lists Annexure 'D' and Annexure 'F' in so far as these fix the seniority of the appellant vis‑a‑vis the contesting respondents may kindly be set aside.

(iii) The respondent No.l may kindly be directed to maintain the seniority inter se of the appellant vis‑a‑vis respondents Nos. 2 to 17 as fixed in the seniority list as on 1‑12‑1971 as Executive Engineers as well as Superintending Engineers.

(iv) Respondents Nos. 2 to 17 may kindly be declared junior to the appellant as Executive Engineers as well as Superintending Engineers."

Mian Muhammad Afzal also sought the following main reliefs:

"(ii) The impugned seniority list (Annexures 'D' and 'F') in so far as these fix the seniority of the appellant vis‑a‑vis the contesting respondents, may kindly be set aside.

(iii) The respondent No. 1 may kindly be directed to maintain the seniority inter se of the appellant vis‑a‑vis respondents Nos. 2 to 17 as fixed in the seniority list as on 1‑12‑1971 of Executive Engineers as well as Superintending Engineers.

(iv) Respondents No. 2 to 17 may kindly be declared junior to the appellant as Executive Engineers as well as Superintending Engineer.

(v) Appellant may kindly be awarded such other relief/reliefs to which he is found entitled alongwith costs of the appeal."

The Service Tribunal had to undertake a very detailed examination of all the Service Rules in order to determine their effect, as a number of other appeals competently filed necessitated such an examination. As regards the claim of these three appellants, the Tribunal found the claim of Mr. Younis to be barred on principles of res judicata and that of the other two appellants on the ground of limitation.

Mr. M.M. Younis joined as Temporary Engineer on 3‑1‑1946 was taken in Class II on 23‑7‑1950 and confirmed as such from that date. He was for the first time promoted as Executive Engineer on 21‑6‑1951 and continued in that capacity till 1954 then he was reverted. He was again promoted, as Officiating Executive Engineer on 6‑10‑1955 and confirmed as such on 1‑1‑1966. He claimed seniority as Executive Engineer from 21‑6‑1951. He was given such seniority from 6‑10‑1955. His representation failed. So, did his appeal to the Service Tribunal. No further relief was sought. So, what was before the Tribunal was a miscellaneous application preferred from the position of a respondent claiming re‑opening of the issues not expressly decided earlier by the Service Tribunal. The Tribunal held that his claim was barred by res judicata. The exact finding of the Tribunal appears in the following words:‑

"The case of Mian Muhammad Yunis before us suffers from incurable defects as this case was disposed of by this Tribunal on 20‑4‑1980 and the points raised by him were considered and rejected. His is a case of res judicata and the same cannot be revived through the miscellaneous application which he has laid before us. The only argument was advanced in this matter by the appellant was that in fact he was agitating certain points which had not been taken in the appeal filed earlier before this Tribunal. This argument is of no avail in view of explanation 4 to section 11, C . P . C . wherein it is specifically provided that any matter which might and ought to have been made a ground of defence or attack in a former suit shall be deemed to have been a matter directly and subsequently in issue in such a suit, and that a matter which has directly and substantially been in issue in a former suit between the same parties, litigating under the same title, could not specifically be agitated by the said person again. For these reasons we have no hesitation to dismiss the appeal of Mian Muhammad Yunis on the point of res judicata."

In view of the past history and the decision given this appellant's' claim was indeed barred on the principle of constructive res judicata. He could claim no relief against his reversion in 1954. He could claim no relief on the basis of a ground which he could have taken but had not taken. Besides, as the jurisdiction of Service Tribunal did not extend to any event prior to July, 1969, the question of this appellant's reversion in 1954 fell outside its jurisdiction and was earlier held to be so. He could not get that question re‑opened on merits. If on the interpretation of Service Rules he was to obtain a benefit the effect of Tribunals decision is not to deprive him of it. As the questions concerning the interpretation of the rules has been dealt with by us in the connected appeals (Civil Appeals Nos. 7 and 8 of 1983), Muhammad Iqbal and another v. Secretary to Government, Punjab and 37 others 1986 SC M R 1 disposed of today we do not propose to undertake the exercise here and for the benefit of this appellant arising as it does out of a miscellaneous application'.

As regards the other two appeals the Service Tribunal held as follows

"Even otherwise, both these appeals are hopelessly time‑barred. the seniority list of 1972 has been challenged in 1978 by two appellants. No application for condonation of delay was filed alongwith the appeals and was only presented when the case was at the stage of arguments. The Tribunal heard them on merits subject to all just exceptions .............

In the present case no justification has been made by the appellants to persuade us to condone the delay of six years, particularly when their other colleagues came promptly before us, challenging the impugned seniority list. We, therefore, dismiss the appeal of the appellants both on merits as well as being hopelessly time‑barred."

The Tribunal refused to condone the delay. It was an act with jurisdiction. We , would not, therefore interfere in such a decision particularly when we have examined the merits of the claim and applicability of the service rules in those cases where at both the stages the appeals were incompetently filed. Hence all the three appeals are dismissed. No order as to costs.

M . B . A . Appeal dismissed.

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