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Case No. 565/950 of 1984, decided on 19^th May, 1995.

‑‑‑S. 4‑‑Appeal‑‑Civil Procedure Code (V of 1908), S.11‑‑Res judicata, applicability of‑‑Previous appeal not against seniority list but about upgradation of status‑‑Dismissal of such appeal on point of limitation, held, would not bar subsequent appeal on question of seniority‑‑Principle of‑ res‑judicata would only apply where earlier case had been decided on merits and not on technical ground.

Muhammad Saleem and 8 others v. 'Secretary to Government of Punjab, Communication and Works Department, Lahore 1984 P L C (C.S.) 834; Saleem Akhtar Bhalli and others v. Secretary, Communication and Works Department and others 19 5 S C M R 950; 1982 S C M R 408 and P L D 1983 S C 344 ref.

Seniority ---Earlier selectees of public services commission held would be always senior to latter selectees.

Masud Ahmad Riaz for Appllants.

A.G Humayun District Attorney for Respondent No.1 .

Ch. Khurshid Ahmad for respondents Nos. 2 and 3..

‑‑Messrs Mukhtar Ahmad, Mehr Ghulam Rasool, Noor Muhammad, Malik Muhammad Ibrahim and Abdul Ghafoor Ansari, all Assistant Agricultural Engineers, have filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Secretary to Government of the Punjab, Agriculture Department, Lahore, and Messrs Falak Sher Khan, Offg. Agriculture Engineer, Soil Conservation, Rawalpindi, Abdul Salam, Offg. Agriculture Engineer (Research) Faisalabad, Faqir Muhammad, Assistant Agriculture Engineer (Store Verifier), Bahawalpur, Muhammad Yusaf, Assistant Agriculture Engineer (Training), Qaidabad as contesting respondents and Abdul Majid Doggar, Assistant Agriculture Engineer, Bahawalnagar, as pro forma respondent.

2. By virtue of this appeal they have prayed that their appeal be accepted and final seniority list as it stood on 31‑5‑1984 and circulated on 2‑6‑1984, be set aside qua the appellants and the contesting respondents. It has been further prayed that the appellants be declared senior to the contesting respondents Nos. 2 to 5.

3. Brief facts of the case are as under: ‑

The appellants joined service as Assistant Agriculture Engineers on various dates falling in November, 1968. Their appointments took place as a result of their selection by the then West Pakistan Public Service Commission and direct recruitment under the special orders of the then Governor of West Pakistan. The question of validity of selection appointment of the appellants and their batch mates had been subject- matter of litigation and ultimately in the judgment reported as P L D 1971 S C 846, their Lordships of the Supreme Court of Pakistan upheld the appellants, selection /appointment as valid. However, despite the judgment of the Supreme Court of Pakistan the appellants were not allowed their seniority as decreed by the Supreme Court of Pakistan and were treated as ad hoc appointees from 1968 to 1971. Aggrieved against this treatment the appellants filed Appeal No. 184/547 of 1975, in which they succeeded and were declared regular appointees for the purpose of seniority. This matter once again came before their Lordships of the Supreme Court of Pakistan and the judgment of the Tribunal was upheld vide Supreme Court's judgment reported as 1982 S C M R 408. After the dust was so settled the seniority list of Assistant Agriculture Engineers (Grade‑17) was circulated vide letter, dated 28‑3‑1978. In the said list the appellants were shown at serial Nos. 3, 4, 6 to 8, whereas contesting respondents at serial No. 38, 39, 41 to 43 and pro forma respondent at serial No. 1. Subsequently another seniority list of Grade‑17 officers as it stood on 1‑7‑1978, was also issued by respondent No. i. In this list also the same position as assigned in the earlier list was reiterated and the appellants were shown senior to the respondents Nos. 2 to 5. This position remained as it was, as the same was not challenged by the contesting respondents. However, respondent No. 1 issued tentative seniority list of Assistant Agriculture Engineers (Grade‑17) of Agricultural Engineering Wing, as it stood‑on 1‑7‑1982, with a covering letter, dated 7‑7‑1982. In the said list the position was changed and the appellants were shown junior to the contesting respondents. Later on respondent No. 1 issued a letter, dated 2‑6‑1984, whereby final seniority list of Assistant Agriculture Engineers (Engineering Wing) as it stood on 31‑5‑1984, has been circulated. This seniority list was received by the appellants on 17‑6‑1984. In the said list the position of the appellants and contesting respondents as shown in the earlier tentative seniority list was reiterated and the appellants were declared junior to the contesting respondents. As this final list has been circulated under the orders of the Government

of Punjab, therefore, the appellants were under no obligation to make representation against the same and have come before this Tribunal. Hence this appeal.

4. We have heared the learned counsel for the appellants as well as learned District Attorney assisted by the representative of the Department and have also heard Mr. Muhammad Aslam Virk, Advocate and Ch. Khurshid Ahmad, Advocate, who appeared on behalf of the contesting respondents to contest the claim of the appellants via‑a‑via their seniority over contesting respondents.

5. Learned counsel for the appellants has submitted that the main issue of this case would be whether by mere upgradation of the status of Assistant Agricultural Engineers would bestow the status on the contesting respondents being inducted as Members of Service or said upgradation was promotion to Class I (Jr.) or not. Learned counsel for the appellants after setting up this issue, has submitted that the answer would be in negative. For this he has relied on the judgment of this Tribunal in the case of number of Engineers of the Communication and Works Department reported as Muhammad Saleem and 8 others v. Secretary to Government of Punjab, Communication and Works Department, Lahore 1984 P L C (C.S.) 834. He has further submitted that the said judgment of the Tribunal had been upheld by their Lordships of the Supreme Court of Pakistan, when the appellants in the said case went before the Supreme Court of Pakistan to contest the same. Their Lordships of the Supreme Court of Pakistan refused to grant Leave to Appeal in the said case vide, their judgment reported as Saleem Akhtar Bhalli and others v. Secretary, Communication and Works Department and others reported as 1985 S C M R 950.

6. On the other hand learned counsel for the contesting respondents as well as learned District Attorney have adopted the comments of the Department so submitted by the Secretary to Government of the Punjab, Agriculture Department, Lahore, through Mr. Ghulam Hussain, Under Secretary (Mech.) and have submitted that as the contesting respondents who were Graduate Engineers, were upgraded vide notification, dated 22‑7‑1971, earlier than the upgradation of the appellants, which took place on 28‑8‑1972, therefore, the contesting respondents would be deemed to be senior than the appellants and no exception could be taken to the said treatment so given to them over the appellants.

7. We have given our anxious thought to the arguments advanced by the parties and to clinch the issue we will first of all refer to our own judgment mentioned in the earlier part of our judgment. In the said judgment the learned counsel for the appellant raised the following issues:‑--

"It is further contended that since all the Graduate Engineers have been upgraded to the status of Class I (Jr.) by notification, dated 22‑7‑1971, 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 the West Pakistan Services of Civil Engineers (B&R) Class II Rules, 1967 or Class I Rules, 1967."

After taking into all the pros and cons of the said case the facts of which are almost identical with the present case as far as the claim of induction to Class I (Jr.) is concerned this Tribunal came to the following conclusion:‑

"As regard the contention of the appellants that by virtue of general notification, dated 22‑7‑1971, they have been upgraded to Class I (Jr.) and thus be deemed to be absorbed in or recruited to Class I (Jr.). It may be observed that in Saleem Akhtar Bhalli's case, we have decided that our observation given in the judgment in the case of Ahsanullah Sardar and Tahir Ahmad Malik, were based on the facts absolutely different from the present one and the said observation relied upon by the learned counsel for the appellants, could only be termed as obiter dictum."

It would further be pertinent to mention that this Tribunal in the case of Muzaffar Iqbal Sh. decided on 22‑12‑1983, while discussing this General notification of 22‑7‑1971, 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 22‑7‑1971. As we have held in other case this notification though raising their status, does not mean their recruitment to or aboption in Class I service. It is, therefore, necessary that they be absorbed in or appointed to Class I(Jr.) on the basis of their seniority if such promotion is due to them, so that Explanations I, III could operate in order to determine their inter se seniority as officiating Executive Engineers. We are in respectful agreement with the decision given by the predecessor Tribunal in this context."

8. This matter went before the Supreme Court of Pakistan when Messrs Saleem Akhtar Bhalli and Muhammad Saleem and others prayed for the grant of Leave to Appeal and so far this issue is concerned it was resolved as under by their Lordships of the Supreme Court of Pakistan:‑

"The upgradation of all the Graduate Engineers to Class I did not have the effect of making all Graduate Engineers Members of Class I Service."

It will be useful to mention at this stage that in the case of Saleem Akhtar Bhalli and others, there was Class I (Jr.) Service in between Class II and Class I (Sr.) but in the case of Agricultural Engineering Department, no such class is .available, therefore, our earlier judgment so upheld by the Supreme Court of Pakistan, would have greater impact inasmuch as the case of the present contesting respondents. there would be no question of promotion as their being no Class I (Jr.) Service or post. While going through the comments of the Department, we further find that in para. S of their comments it has been conceded on behalf of the Department as under:‑

"No doubt respondents Nos. 2 to 5 were not promoted to a higher post but their status was raised from Class II to Class I w.e.f. 22‑7‑1971 against similar treatment to the appellant w.e.t. 2 9‑8‑197 2. .

While conceding the main issue they have taken a stand that 'as such the respondents Nos. 2 to 5 became senior to the appellants'. This stand in the comments is self‑destructive in view of their concession so referred to in the earlier part of this paragraph. Once it has been decided that mere upgradation of status of the contesting respondents neither makes them Members of service nor this can be treated as an act conceded by the Department that the appellants entered into service in the year 1968 whereas the contesting respondent No. 2 Falak Sher Khan, was transferred from Thal Development Authority w.e.f. 1‑7‑1970 and other three contesting respondents Nos. 3, 4 and 5 joined as Assistant Agricultural Engineers as direct recruits on 28‑1‑1972, 17‑1‑1972 and 22‑1‑4972 respectively. In case of Falak Sher Khan the latest judgment of Supreme Court of Pakistan 1982 S C M R 408 would be applicable wherein it has been held that the transfer from the T.D.A. of persons whose claim was rejected by the Tribunal did not become Members of Service on any reason whatsoever before 1‑7‑1970'. As regards other contesting respondents it is a settled principle of law that the earlier selectees of Commission are always senior to latter selectees.

9. While dealing with the written arguments filed by Ch. Khurshid Ahmad, learned counsel for contesting respondents in which inter an& a point was raised that the appellants have filed appeal earlier against seniority list, dated 7‑7‑1982 and the same was decided against them and, therefore, this would operate as res judicata and they would not be allowed to re‑agitate the matter. On going through our judgment in case of appellants v. Government of Punjab Case No. 365/1749 of 1982 we find no issue of seniority was involved in the said case of the appellants and the appellants had only claimed upgradation of their status from 1971. This appeal was dismissed on point of limitation with the observation that the appellants instead of filing appeal before this Tribunal chose to file against the said notification which was barred under section 21 of the Punjab Service Tribunals Act, wherein it has been held that no representation lies against the order of the Governor'. In view of the above findings of the Tribunal the principle of res judicata hardly applies in this case. According to the dictum laid down in PLD 1983 S C 344, the principle of res judicata only applies where the earlier case has been decided on merits and not on technical ground.

10. In the light of the above analysis of the stand of the Government that as the contesting respondents stood upgraded to Class I (Jr.) earlier than the appellants, therefore, they would deem to be Members of Service earlier than the appellants, is untenable, unjustified and without any legal foundation particularly when there is no Class I (Jr) service in the said Department. The net result of the case would be that the status of the appellants as well as of contesting respondents would remain the same i.e. Assistant Agricultural Engineers and as the appellants have been selected/inducted into service much earlier than the contesting respondents, therefore, they would be deemed to be senior to them in the said class. The position of Abdul Majid Doggar (pro forma respondent) via‑a‑via the appellants, as assigned in the impugned seniority list, will remain the same.

11. The result is we accept the appeal, set aside the impugned seniority list in so far as it relates to the parties, and declare the appellants senior to the contesting respondents Nos. 2 to 5. However, there will be no order as to costs.

A. A. Appeal accepted.

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