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صرف 1000 روپے میں 10 وکلاء تک کی براہِ راست رابطہ تفصیلات حاصل کریں اور کال یا واٹس ایپ کے ذریعے موزوں قانونی ماہر سے رابطہ کر کے اپنا معاملہ پورے اعتماد کے ساتھ آگے بڑھائیں۔
Case No. 674/952 of 1984, decided on 12th June, 1985.
‑‑‑S. 4‑‑Limitation‑‑Seniority matter‑‑Seniority list notified in 1972 and position therein repeated in consective subsequent lists last being notified in 1984‑‑Appeal before Tribunal challenging position reflected in 1984 list, held, was positively hit by limitation‑‑‑Appellant by not challenging earlier lists were estopped in calling in question inaquiscience of seniority list issued in 1984.
1986 P L C (C.S.) 737; 1983 P L C (C.S.) 73 and 1214 and PLD 1983 Pesh. 100 ref.
(b) Punjab Service Tribunals Act (IX of 1974)‑‑
‑‑‑S. 4‑‑Limitation qua void order‑‑Plea that impugned order being void ab initio limitation would not run‑‑Held: (i) it is for Court to ignore or set aside an order claimed as null being void and not for individual himself, (ii) person presuming an order to be void and ignoring same does so at his own risk, (iii) affected person not at liberty in all cases to choose his own time to get a void order removed or set aside, and (iv) plea that limitation be condoned on ground of impugned order being void ab initio for want of jurisdiction would be falacious.
P L D 1975 Lah. 825; Kh. Abdul Qayyum v. Muhammad Afzal Khan and 2 others 1981 C L C 1163; 1985 S C M R 51; 1978 S C M R 367; Abdul Qayum Ansar v. Salahuddin Qureshi P L D 1974 Kar. 10 and Sardool Khan v. Deputy Commissioner and Project Director, Jhang and‑others 1980 P L C (C.S.) 116 rel.
1986 P L C (C.S.) 737; 1982 S C M R 537; P L D 1975 S C 331; P L D 1975 Kar. 543; 1978 S C M R 377; Ali Abbas v. I.‑G. Police Punjab P L D 1970 Lah. 25; P L D 1964 SC 97; P L D 1956 F C 72; 1984 P L C (C.S.) 759; 1984 P L C (C.S.) 1004; P L D 1970 Pesh. 194 and 1983 P L C (C.S.) 730 ref.
‑‑‑S. 4‑‑Civil Procedure Code (V of 1908), S. 11 6 O. XXII, R.1(3)‑‑Res judicata would be constituted only when case was decided on merits‑ Appeal before Tribunal withdrawn on becoming conscious that same would fail‑‑Fresh appeal on same cause of action objected on grounds of res judicata‑‑Held: Even if principle of res judicata would not be strictly applicable, principles of O.XXIII, R.1(3) of Civil Procedure Code, 1908 would be attracted whereby fresh proceedings on same issue are barred if previous proceedings were withdrawn without permission to institute fresh proceedings on same cause of action.
P L D 1983 S C 344; P L D 1976 Azad J&K 26; P L D 1982 Lah. 20; 1976 S C M R 243; P L D 1982 S C 201 and. P L D 1960 S C 138 rel.
‑‑‑S. 4(1), proviso (c)‑‑Matter prior to 1‑7‑1969 would be beyond jurisdiction of Tribunal‑‑Appeal involving direct attack on notification regarding absorption df respondents between 14‑10‑1955 to 1‑5‑1962 and order correction whereof sought by appellant issued on 25‑11‑1966 and 5‑12‑1966, held, were outside jurisdiction of Tribunal.
D.M. Awan and Masud Ahmad Riaz for Appellants.
Abid Hasan Minto, M. Aslam Virk, Waheed Saleem and Sh. Nisar Qutab for Respondents.
A.G. Humayun, District Attorney for the Government.
.‑‑Messrs Nazir Ahmad, Executive Engineer, Kirana Division, L.J.C. Sargodha and Muhammad Sharif Khan, Executive Engineer, Multan Canals Division, Multan, 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, Irrigation Department, Lahore, and 2 to 75 (Messrs Aman Ullah Naik and 73 others) as per list Annexure 'A' as respondents and 76 to 83 (Messrs Munir Ahmad Zafar and 7 others) as per Annexure 'A/1' as pro forma respondents.
2. By virtue of this appeal they have challenged seniority list of Executive Engineers, dated 30‑6‑1984/1‑8‑1984 praying that the same may be set aside and they may be declared senior to the contesting respondents Nos. 2 to 75 and having been appointed as Assistant Engineers in Class II against permanent posts and in permanent capacity w.e.f. 25‑11‑1966 and 5‑12‑1966.
3. Brief facts as far as the appellants are concerned, are as under‑--
In 1964, Government of West Pakistan, Irrigation Department sent a requisition to the then West Pakistan Public Service Commission, for recruitment of qualified persons against 36 posts of Assistant Engineers (temporary) but likely to be made (permanent) in the Irrigation Department. The West Pakistan Public Service Commission, Lahore, advertised these 36 posts vide their Letter No. 14‑A/64, dated 4‑11‑1964. A number of candidates including the appellants alongwith Temporary Engineers including the contesting respondents applied for the said posts to the through the exercise in the appellants and other offer of appointment, dated 26‑10‑1966 to which they were offered Assistant Engine in the time scale of technical pay of ics.25 p.m. (for Graduate in Engineering, with usual allowances, and the said appointment letter contained clause (f), clearly indicating that the appellants would be ranked junior to all temporary Engineers already working in the Irrigation Department. The appellants joined service as Assistant Engineers w.e.f. 5‑12‑1966 and 25‑11‑1966, respectively. The appellants also signed the agreement which was properly incorporated in the said offer of appointment, out of these two appellants. Sh. Nazir Ahmad was confirmed in Class II alongwith 9 others who were selected alongwith him w.e.f. 5‑12‑1966, vide notification dated 15‑5‑1968.
Contesting Respondents:
Messrs Aman Ullah Naik and 73 others, the contesting respondents joined service in the Irrigation Department as Temporary Engineers. Under the Rules they were eligible for appointment /promotion to P.S.E.‑II provided they were considered fit by the Public Service Commission. We will for the purpose of convenience and ready reference formulate two sets of contesting respondents viz. 2 to 20 (group‑1) and 21 to 75 (group‑2). The contesting respondents 2 to 20 were working as temporary Engineers at the time when appellants were selected and appointed as Assistant Engineers in Class II. Much subsequently, on enforcement of Class II Rules of 1967, they were promoted to Class 11 by two notifications, dated 29‑9‑1967 and 28‑3‑1968. Another notification, dated 9‑10‑1972 was issued, in which they were assigned the following dates:‑
(1) Respondents Nos. 2 to 4. ‑‑‑14‑10‑1955
(2) Respondents Nos. 5 and 6. ‑‑‑1‑7‑1958"
(3) Respondents Nos. 7 and 8. ‑‑‑1‑7‑1959
(4) Respondents Nos. 9, 10, 12, 16 to 20. ‑‑‑1‑5‑1962
They were promoted as officiating Executive. Engineers on the dates falling in the years 1961 to 1965, which dates are prior to date of promotion of appellants as officiating Executive Engineers. Group 2: Respondents Nos. 21 to 75: These respondents were working as temporary Engineers before the recruitment of the appellants into service. By notifications, dated 25‑1‑1972 and 9‑3‑1972, they were absorbed as temporary addition to the cadre, under rule 10 of 1967 Class II Rules, in consultation with the Public Service Commission. As no particular date has been made available regarding the date of appointment, the respondents have relied on the seniority list of Class II as it stood on 30‑6‑1972 and issued on,14‑10‑1972, in which their appointments in Class II was shown as 20‑3‑1967. These contesting respondents were promoted as officiating Executive Engineers between the years 1965 to 1974, earlier than the dates of promotion of the appellants.
4. The case of pro forma respondents needs not be discussed as they have been impleaded to fulfil the legal formalities.
5. The respondent No. 1 has now issued impugned Seniority List of officiating Executive Engineers as it stood on 1‑8‑1984, in which the appellants have been shown at serial No. 87 whereas contesting respondents Nos. 2 to 73 have been shown senior to him between serial Nos. 5 to 76. According to the appellants as the notifications, dated 16‑5‑1968 and 6‑4‑1970, were never endorsed to the appellants and these came to the knowledge of the appellants on 5‑8‑1984, upon which the appellants became inquisitive about the true nature and status of the posts against which appellants were recruited and all the facts given in paras. 1 to 7 of the appeal came to their knowledge orb 10‑8‑1984, therefore, they have filed this appeal to challenge the said seniority list, supported by an affidavit in which state of indolence these facts have been so mentioned. Hence this appeal.
6. We have heard Mr. D.M. Awan, Advocate and Mr. Masud Ahmad Riaz, Advocate, learned counsel for the appellants, as well as Mr. Abid Hasan Minto, Advocate, Mr. Muhammad Aslam Virk, Advocate, Mr. Waheed Saleem, Advocate, Sh. Nisar Qutab, Advocate, learned counsel for the contesting respondents and Mr. A.G. Humayun, learned District Attorney on behalf of respondent Government, and have perused the entire record of this case carefully with their assistance.
7. Before we enter into the merits of the preliminary objections as well as the facts of the case, it would be useful to mention at this stage that an application on behalf of respondents Nos. 4, 12: 13, 15, 18, 24, 26, 30, 32, 35, 44, 49, 63, 68, 2, 16, 21, 23, 43, 56, 60 and 67 was moved through their learned counsel Mr. Abid Hasan Minto to proceed against Sh. Nazir Ahmad appellant, for committing contempt of this Tribunal by filing a false affidavit with regard to the condonation of delay. In this application, it was submitted that as the cause of action, in view of the assertions made in the grounds of appeal, had arisen in 1968, in the first instance, therefore, the appeal was barred by limitation. It was because of this legal disability that the appellant filed an application under section 5 of the Limitation Act seeking condonation of delay in filing the appeal and also attached an affidavit duly sworn in support of the averments contained in the application under section 5. It was further stated therein that appellant Nazir Ahmad was aware of the order, dated
16‑5‑1968, and had filed an appeal earlier before the defunct‑Civil Services Appellate Tribunal. The said appellant had withdrawn the appeal in view of the treatment meted out by the Tribunal to similar other appeals. In the said application it was stated that he was conscious of the order of 16‑5‑1968, and had come before defunct‑Tribunal at the relevant time, therefore, the affidavit to the effect that he had no knowledge that what had happened regarding his seniority earlier, was a false affidavit and he should be hauld up for the same. It was also asserted that this appeal was got admitted by clear misstatement and misrepresentation of facts the application under section 5 of the Limitation Act as well as the affidavit attached to it, contained false statement. After this application was filed by the contesting respondents through Mr. Abid Hasan Minto, learned counsel, the appellant, Sh. Nazir Ahmad filed an application, dated 10‑10‑1984 through his learned counsel Mr. Masud Ahmad Riaz, Advocte, that he may be permitted to withdraw his appeal in so far as it related to him. While the application of Sh. Nazir Ahmad (appellant) was still under consideration, he engaged Mr. D.M. Awan, learned Advocate, who appeared before this Tribunal on his behalf and prayed that he accepted the guilt of filing a false affidavit, and was throwing himself at the mercy of the Tribunal with unqualified apology that his application for withdrawal of appeal may be ignored and he may be allowed to continue his appeal and submit his arguments before this Tribunal. The Tribunal decided to pass a separate order on the application for contempt and submission of appellant Sh. Nazir Ahmad for seeking the mercy of this Tribunal and proceeded to hear the appeal as it was.
8. Learned counsel for the contesting respondents as well as learned District Attorney have come out with the following preliminary objections:
(1) Appellant No. 1 Sh. Nazir Ahmad filed Appeal No. 24/23 of 1973 before the Punjab Civil Services (Appellate) Tribunal in which he urged the same question as are the subject‑matter of the present appeal which was dismissed as withdrawn by order, dated 19‑6‑1973 of the said Tribunal. The order of withdrawal as such constitutes res judicata.
(2) The appeal is barred by time because seniority of the appellants qua the contesting respondents was determined by respondent No. 1 through Seniority List of Class 11 officers as it stood on 30‑6‑1972. This seniority list was notified by notification, dated 14‑10‑1972 and the appellants were shown junior to the contesting respondents. Appellant No.2 did not file any appeal before the Civil Services (Appellate) Tribunal. Therefore, the appeal is barred by 12 years.
(3) The orders of appointment, dated 25‑11‑1966 and 5‑12‑1966 of the two appellants were duly accepted by the appellants with all the conditions therein including clause (f) regarding seniority, appellants cannot, therefore, approbate and reprobate by accepting appointment and denying condition (f) which was part and parcel of their appointment order. If the appellants had accepted the order of appointment they are deemed to have accepted it as a whole including condition (f) as well. The Secretary to Government of the Punjab, Irrigation Department was fully competent to lay down such a condition like clause (f).
(4) The proposition of law that there is no limitation against void order is not applicable in the present case. Even void seniority list of 1972 should have been challenged within the prescribed period as it was militating against the appellants and if it was not challenged it became final and contesting respondents acquired vested rights of seniority. According to the learned counsel the plea that no limitation runs against a void order can be taken up by a defendant /respondent when same proceeding is taken against him and it is as a defence that it can be said that since the order is void it may be ignored and may not be used against him. He relief upon the following judgments:‑
(1) P L D 1975 S C 331. (2) P L D 1975 Kar. 543.
(3) P L J) 1975 Lah. 825. (4) 1978 S C M R 377
(5) 1981 C L C 1163.
(5) The appellants are estopped to file the present appeal by their own conduct because they fully knew that a large number of appeals had been filed against the seniority list before the Punjab Civil Services (Appellate) Tribunal and the same have been dismissed. In view of this fact appellant No. 2 did not file any appeal and appellant No. 1 withdrew his appeal, they cannot now claim seniority over the contesting respondents in Class 11 as officiating Executive Engineers. He has relied upon 1986 PLC (C. S.) 737; 1983 P L C (C.S.) 73 and 1214 and P L D 1983 Pesh. 100.
In view of these substantive preliminary objections we will first of all deal with the merits of these legal objections, before we enter into the merits of the case.
9. Learned counsel for the appellants while replying to the point of res judicata, has submitted that according to the law laid down by their Lordships of the Supreme Court of Pakistan in P L D 1983 S C 344, para. 9 where a suit is withdrawn and is not decided on merits then it does not constitute res judicata for instituting further proceedings on the same issue/matter. For this he has relied on P L D 1976 AJK 26, P L D 1982 Lah. 20, 1976 S C M R 243, P L D 1982 S C 201, 326 and P L D 1960 S C 138.
10. With regard to the point of limitation learned counsel for the appellant have relied on two appeals filed by Messrs Ehsanullah Sardar and Tahir Ahmad Malik in 1977, in which they claimed seniority over all these contesting respondents. According to the learned counsel their appeals were accepted by this Tribunal on 18‑5‑1982, vide judgment reported as 1984 P L C (C.S.) 1282, and the Tribunal was pleased to set aside the said list, therefore, according to the learned counsel for appellants, the Department was under obligation to take into consideration the said judgment delivered on 18‑5‑1982, and to correct the seniority list, therefore, the appellants were under an obligation to agitate the seniority so circulated against them because respondent No. l had failed in its legal duty.
11. With regard to the legal issue that no limitation runs against a void order learned counsel for the appellant has submitted that list was void due to the following reasons:‑
(i) Appellants had been shown as 'Temporary Addition' to the Cadre w.e.f. 20‑3‑1967. However, there were no orders of competent authority viz. Governor of Punjab regarding appointment of the appellants as 'Temporary Addition to the Cadre'.
(ii) Similarly the appellants stood appointed w.e.f. 5‑12‑1966 and 25‑11‑1966 respectively whereas in this list the date of appointment of the appellants had been shown as 20‑3‑1967 and this date has no basis whatsoever. The same was inserted by the staff of the Irrigation and Power Department at their own whim as against their actual dates of appointment as a result of the valid order of the Appointing Authority viz. Governor.
(iii) Similarly the seniority list was equally void ab initio in regard to the contesting respondents. The date of appointment of contesting respondents Nos. 21 to 75 had been shown as 20‑3‑1967 whereas there was no order of the competent authority viz . Governor of the Punjab appointing them with effect from that date. According to the learned counsel the law on this point has been settled that if the date as shown in the seniority list was not supported by any executive order then that should be altogether ignored. For this he has relied on 1985 S C M R 51, Case No. 239/27 of 1982 decided by this Tribunal on 28‑12‑1983, Ali Abbas v. I.‑G. Police, Punjab P L D 1970 Lah. 25 and 26, P L D 1964 S C 97, P L D 1956 F C 72, 1984 P L C (C.S.) 759, 1984 P L C (C.S.) 1004, P L D 1970 Pesh. 194 and 1983 PLC (C.S.) 730.
12. With regard to clause (f) it was submitted by the learned counsel for the appellants that another proposition enunciated by the learned counsel for the contesting respondents was that if a civil servant accepts an appointment order then he was deemed to have accepted that appointment with all the conditions laid down in the appointment order, that it was not applicable in this case. Learned counsel for the appellants have submitted that issue would be whether condition (f) regarding fixation of seniority was a condition relating to their appointment and whether the appointment of the appellants was not complete without this condition. It was further submitted that it was not only unnecessarily mentioned but was also incompetent. According to him it was sufficient to submit that whereas the Secretary was competent to make appointment, he was not competent to lay down a Rule with regard to the seniority or lay down a condition which was contrary to the rules of seniority. For this he has relied on the case of S. Kabir Hussain Shah and Bashir Ahmad Kamlana 1983 P L C (C.S.) 1231.
13. In concluding arguments while dealing with the point of estoppel it was submitted that cases wherein the Civil Services Appellate Tribunal dismissing the appeals have been placed on record and in these judgments the learned Tribunal had given directions to the respondent No. 1 that vacancies should be worked out under rules 7, 8, 9 of 1967 Rules and if there were any, these should be given to the contesting respondents in accordance with their position as temporary Engineers. According to the learned counsel for the appellants they were not final judgments whereby the claim of the appellants were rejected/ dismissed and they were declared junior.
14. It is an un-controverted fact established on record that the appellants were offered the posts of temporary Assistant Engineers on the recommendations of the West Pakistan Public Service Commission on 26‑10‑1966. This offer of appointment came from the Secretary to Government of West Pakistan, Irrigation and Power Department, vide the Letter No. R‑2/22‑SOII(E)/65, dated 26‑10‑1966. In this offer it was stated as under:‑
(l) You are hereby offered a temporary post of Assistant Engineer in the time scale of pay of Rs.350‑35‑525/40‑925 plus Technical Pay of Rs.25 p.m. (for Graduates in Engineering) with usual allowances;
(2) You will have to undergo a practical training for a period of four months and during training period you will be entitled pay at the rate of 2/3rd of the initial pay of the post plus the usual allowances sanctioned by Government from time to time;
4(ii) Your services may be terminated as follows:‑
(a) at the end or during the first four month by either party without notice;
(c) by the Government or their officers having proper authority, without any previous notice, if you be guilty of any insubordination, intemperance or other misconduct or of any breach of non‑performance of any of the provisions of these presents or of any rules pertaining to the class of the public service which you belong;
(d) by one month's notice by the Government on one side and by ,. your on the other;
(f) you will be ranked junior to all temporary Engineers already working in the Irrigation Department."
We have highlighted these clauses because these have importance of their own in the context of the arguments made by the learned counsel for the appellants. We further find that in the end of this order/offer an agreement has been incorporated as under:‑
"I do hereby declare that I have clearly read the terms and conditions of service of temporary Assistant Engineers as embodied in my appointment Letter No. R‑2/22‑SOII(E)/65, dated 26th October, 1966, and that these terms and conditions are clearly understood by me and that I am willing to accept employment under them.
Signature" It is also established on record that both the appellants signed this agreement and accepted the service so offered to them. After accepting the said offer by signing a written agreement, the appellants continued in service and a consolidated notification was issued on 9‑10‑1972, by which earlier notifications absorbing the temporary Engineers into Class II were confirmed and the dates of induction into Class II of the temporary Engineers were mentioned by order of the Governor. Respondents Nos. 2 to 20 were included in this list and their dates of induction into Class II have been fixed between 14‑10‑1955 and 1‑5‑1962. In other words by order of the Governor, respondents Nos. 2 to 20 had already been absorbed in Class II service long before the two appellants had even entered the Irrigation Department in any capacity whatsoever. The rest of the respondents were added to the cadre of the Assistant Engineers in Class II as Temporary Addition to the Cadre as provided under rules 4(2) and 10 of the West Pakistan Irrigation Engineering Services (Class II) Rules, 1967. It is also on record that appellant Sh. Nazir Ahmad went before the Civil Services Appellate Tribunal by filing an appeal against the said notification of 1972. It has been placed on record that the validity of notifications of 15‑5‑1968 and 6‑4‑1970 and the respective seniority of the parties as it stood in Class II and has subsequently been carried in Class I, was challenged before the Civil Services Appellate Tribunal through various appeals filed in the years 1973‑74 as per detail below:‑---
(1) Faqir Muhammad v. The Province of Punjab etc. (Appeal No. 244/157 of 1972).
(2) Asghar Mahmood v. The Province of Punjab and others (Case No. 284 of 1972).
(3) Muzaffar Hussain v. The Province of Punjab and others (Appeal No. 25/24 of 1973).
(4) Mian Yousaf Ali v. The Province of Punjab (Case No. 11/12 of 1973).
(5) Abdul Majeed v. The Province of Punjab (Case No. 10/11 of 1973).
(6) Younas Javed v. The Province of Punjab (Case No. 29 of 1973).
(7) Sh. Nazir Ahmad v. The Province of Punjab and others (Case No. 24/23 of 1973).
In the aforesaid judgments the learned Civil Services Appellate Tribunal dismissed all these appeals. In consequence thereof the seniority lists were adjusted and made upto date from time to time. The appellant Sh. Nazir Ahmad withdrew the said appeal and the circumstances which lead to the said withdrawal cannot be ignored because this withdrawal came in the wake of enbloc dismissal of the above‑mentioned appeals so mentioned by us in the earlier part of our judgment. In this manner the matter relating to seniority list of 1972 and the addition of Sh. Nazir Ahmad's name in that list at the particular place amongst the Temporary Addition to the Cadre thus came to an end and is a past and closed transaction for all intents and purposes. Subsequent to the aforementioned list, other seniority lists were issued from time to time in the Department reflecting substantially the same position as the one which was reflected in the 1972 list. These are as under:‑
(a) 8‑2‑1974, a list of Class II Engineers, almost reproducing the list of 1972 so far as the parties to this appeal are concerned;
(b) List relating to Executive Engineers issued on 15‑8‑1975, 24‑5‑1977, 19‑2‑1982, 10‑7‑1982, 28‑7‑1982 and 1‑8‑1984.
Excepting the last mentioned list of 1‑8‑1984, the other lists
were never challenged by the appellants although they depicted the same picture as is contained in the last mentioned list.
15. While we look into the application for condonation of delay filed by the appellants we find that Sh. Nazir Ahmad has sworn an affidavit saying that he never knew about the notifications, dated 15‑5‑1968 and 6‑4‑1970, nor he was cognizant of the various seniority lists previously issued. It is interesting to find that the appellant did challenge the 1972 seniority list wherein he mentioned all facts which he now denies were known to him before the filing of above appeal and when this matter was brought to the notice of the Tribunal through a written application for taking action in contempt, against Sh. Nazir Ahmad, appellant, the said appellant in the first instance asked permission through his learned counsel Mr. Masud Ahmad Riaz, to withdraw his appeal but subsequently engaged another counsel Mr. D.M. Awan, Advocate, and insisted that his appeal be determined on merits alongwith his application for condonation of delay. However, he tendered an unqualified apology for having sworn a false affidavit. Similarly Muhammad Sharif Khan, appellant has also sworn a similar affidavit claiming that he never knew of proceedings which were taken either before the Civil Services Appellate Tribunal by a large number of his colleagues or by the Department from time to time by implementing the order of the Tribunal or by issuing successive seniority lists from the year 1972 upto date of filing of the present appeal, a stand which is both untenable as well as illogical. Moreover, what we further find is that both the appellants are in harmony while dealing with the impact of clause (f) of offer of appointment, which was issued in 1966 whereas we find no explanation of whatsoever has been given in the application for condonation of delay or in the present appeal for not agitating against the same. Similar issue came before us in case of Mrs. Talat Musharaf and 17 others v. Director‑General Social Welfare Punjab and 73 others reported as 1982 P L C (C.S.) 1214, in which it was held as under:‑
"With regard to the point of limitation, we are fully satisfied that no appeal or representation was made against the seniority list of 1981 and thus the present appeal was time‑barred. Even appellant No, 8 did make representation, was not competent to make such efforts as no representation was permissible against the order of the Government. Moreover, the facts that the seniority list, dated 20‑2‑1975 and 5‑6‑1978, were based on the seniority list of 1981 and the same had not been challenged earlier, therefore, the law of estoppel would come into play as well as law of limitation, as the real injury which the appellants suffered pertains to 20‑2‑1974, therefore, the present appeal, would be hopelessly time‑barred."
In view of the history of the case, we have no hesitation to declare that the appellants were having the knowledge of the seniority list notified in 1972 and as they did not challenge the same, their appeals) would be positively hit by law of limitation.
16. Now we will examine the point raised by the learned counsel for the appellants that although the appeals before the Tribunal are barred by time filed after 12/18 years yet the appeal would not fall within the g mischief of law of limitation as no limitation runs against a void order and as this Tribunal had set aside the seniority list of 1972 in appeals filed by Messrs Ehsanullah Sardar and Tahir Ahmad Malik decided on 18‑5‑1982, therefore, the rigours of law of limitation cannot he used against them. We have examined the case of Ehsanullah Sardar v. Secretary Irrigation Department decided by this Tribunal and reported as 1984 PLC (C.S.) 1282 and find that the facts t that case are hardly applicable to the facts of the present appeal. In the said case the appellant Tahir Ahmad Malik was placed in order of merit at serial No.1 and Ehsanullah Sardar at serial No. 3, when out of 700 candidates 20 candidates including the appellants were declared fit by the Commission on merits. In the said appeal it was argued that according to law already settled a person who was senior in lower grade would be entitled to get seniority in the higher grade unless and until he was so superseded. According to the learned counsel for the appellants since the appellants were undisputedly senior as Executive Engineers they would rank senior in Class I senior as they were never superseded: This argument was controverted by Mr. Aitzaz Ahsan and Khawaja Muhammad Akram learned counsel for the contesting respondents, relying on rule 15(4) of the West Pakistan Irrigation Engineers Service Class I, Rules 1967, and contended that rule of seniority as laid down in rule 15(2) would not be attracted to the case of the respondents but only sub‑rule (4) would be applicable in their case. This Tribunal after thrashing out the issue relied on the judgment in case of Naeem Ahmad Khawaja delivered by the ex‑Tribunal and agreed with the same in its interpretation of rule 15(2) and held that as the said view had attained finality it could not be interfered by this Tribunal at this stage as the same was based on fundamental principle of seniority i.e. persons holding senior position in the lower grade continues to be senior in higher grade as well, and held that the said seniority list qua the said appellants had to be corrected. In view of the matter the reliance placed by the appellants in the present appeal on the cases of Ehsanullah Sardar and Tahir Ahmad Malik decided on 18‑5‑1982, is unfounded.
17. Now we will examine the argument of the learned counsel for the appellants that no limitation runs against a void order, which only needs to be ignored. The mainstay of the argument of the learned qounsel for the appellants is that the showing of the appellants as Temporary Addition to the Cadre, w.e.f. 20‑3‑1967 is not supported by the orders of the Governor of the Province as the appellants were appointed as Assistant Engineers in regular Class II by direct recruitment under the orders of the said authority and thus no other authority could relegate them to a lower status of Temporary Addition to the Cadre and that too through seniority list and without any orders of competent authority. For this, he has relied on 1985 S C M R 51, in which their Lordships of the Supreme Court of Pakistan upheld the view of this Tribunal. Reliance has also been placed by the learned counsel for the appellants on a number of rulings as mentioned in the earlier part of our judgment, and have no dispute with the same that if the order is void ab initio, no limitation will run against the same but the pertinent questions in this case would be as under:‑
(1) Whether the order in the present appeal are void ab initio; and
(2) Whether clause (f) which is apple of discord of this case, was not made by the competent authority and was it required to be challenged within a period of limitation because this was directly interfering with the interest of appellants service or the same has to be simply ignored as non‑existent.
This issue came before Mr. Justice Gul Muhammad Khan, Judge, in case V.R. Mall v. Sh. Muhammad Yusuf and another reported as P L D 1975 Lah. 825. Learned Judge at page 830 of the judgment held as under:‑
"(9) Even otherwise it cannot be said that in case of a void order the affected person is at liberty in all cases to choose his own time to get the same removed or set aside. It is true that void orders are nullity in the eye of law and must be ignored by a Court before whom they are brought as held in Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies. In that case, a judgment of the High Court refusing to set aside an order, which was held to be a nullity, was set aside with the following observation:‑--
'When questioned as to why the illegal order of 22nd April, 1960, should not have been set aside in the exercise of revisional powers all that learned counsel for the respondents urged was that the limitation for filing an application for revision had expired when the learned Single Judge decided the case, and the revision before him was not directed against the order of 22nd April, 1960, but against the order of the trial Court setting aside the ex parte decrees. This contention is wholly devoid of force. The Limitation Act does not provide for any period of limitation for an application in revision. The only Article which could be applicable was the residuary Article 181 which provides a limitation of three years for an application, but even that Article will not stand in the way of the exercise of revisional power for these powers can be exercised suo motu'.
The above passage shows that the question of limitation would have arisen in that case also but for the revisional powers of the High Court for which no limitation applies. Further, it is for the Court to ignore or set aside an order which is nullity and not for the individuals themselves. But if a person presumes that an order is nullity and ignores the same he does so at his own risk. Subsequently, if he comes to a Court he shall have to show that the right he is claiming and which was hit by that presumed void order is not lost due to any provisions of the Limitation Act. An order obtained with fraud or without the knowledge of another interested party may be covered by section 18 of the Limitation Act."
There is another important judgment on this issue reported as 1978 SCMR 367. This case was heard by the Full Bench of the Supreme Court of Pakistan consisting of Mr. Justice Anwarul Haq, C.J., Justice Waheeduddin Ahmad, Justice Muhammad Akram and Justice Dorab Patel as they were in case S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another. The judgment was written by Mr. Justice Dorab Patel who observed as under:‑---
"Additionally, I have to observe here that the petitioner assumed in his arguments before. us that a Court always struck down a void order regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eye of law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And an order which has been passed can create consequence, therefore, there cannot be a hard and fast rule that void order must always ,be struck down. The true position has been clarified by Munir, C.J. with usual lucidity (I say so with respect) in Yousaf Ali v. Muhammad Aslam Zia, where Munir, C.J. observed at page .117;
'And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must unless same statute or principle of law recognizing as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded'."
This passage does not mean that a void order is always to be struck down regardless of the consequence of a decision but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down this void order. This qualification is very important, that is why, for example, a writ may be refused to a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation ..........................
There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches.
'It is true that a writ was issued in Yousaf Ali's case and the void order was set aside 'together with the superstructure of rights and obligations' built upon it. But there were no equities in that case against the appellants because the void order related to a dispute about property and was one of a series of orders in the continuous litigation between the parties, therefore, no equities had accrued either in favour of the respondent or in favour of third parties. But in the instant case even on the footing that the impugned order is void the petitioner failed to challenge it for more than a decade, therefore, it must have led to consequences, such as the promotion of other people to the appointment held by the petitioner. Additionally to allow the writ after much gross laches would be to throw on the tax‑payer the consequences of the petitioner's gross negligence in pursuing his remedies but as the petitioner relied upon the judgment in his favour by the Letters Patent Bench, I would recall here that the Letters Patent Bench had relied on this Court's judgment in Abdul Qadir's case, but the delay in filing the writ petition in this case was three years, and there can be no comparison between a delay of three years and a delay of twelve years. I may, however, point out that this Court had condoned a delay of about eight years in Pakistan v. Sheikh Abdul Hamid. But this was an extreme case. In any event, the law has to draw a line somewhere between delay which can be condoned/and/delay which cannot be condoned, and, as the delay in the instant case was too gross to be condoned, the writ petition of the petitioner had to be dismissed on this ground irrespective of the question whether impugned order was void or void-able."
Similarly, in 1981 C L C 1163, in Kh. Abdul Qayyum v. Muhammad Afzal Khan ,and 2 others, Justice Irshad Hassan Khan, Judge of the Lahore High Court, followed it as it was found that the delay was too gross to be condoned irrespective of the question whether the impugned order was void or not. In Abdul Qayum Ansari v. Salahuddin Qureshi P L D 1974 Kar. 10, it was held by Justice Dorab Patel, J. as he then was:‑
"Thus, in Bandiram Mookerjee v. Purna Chandra Ray a Dvision Bench of Calcutta High Court observed....When a decree has been made without jurisdiction as appeal lies against it precisely in the same manner as if it had been made with jurisdiction'. But the same view was taken by the Lahore High Court in Kirpa Ram v. Raghbir Singh and another and I cannot conceive of a different view, therefore, respectfully agree with this view and dismiss the respondent's objection as frivolous."
The crux of the decision in this case was that even if the order is void or without jurisdiction the person so affected by it was under obligation to challenge it. This view was also relied by the Tribunal in case Sardool Khan v. Deputy Commissioner and Project Director, Jhang and others reported as 1980 P L C (C.S.) 116 which held that plea of limitation be condoned on ground of impugned order being void ab initio for want of jurisdiction was fallacious. Similarly 'there are number of rulings cited by the learned counsel for the respondents indicated below: ‑
1986 P L C'(C.S.) 737. 1982 S C M R 537
to show that the appellants had consciously and willingly accepted the orders of appointment describing certain conditions including clause (f), therefore, they would be estopped from challenging that order by which they had accepted the appointments. Similarly but not challenging the seniority lists they are now estopped in calling in question the inacquiescence of seniority lists issued on 1‑8‑1984.
18. With regard to the withdrawal of appeal by appellant Sh. Nazir Ahmad and action being taken against as res judicata learned counsel for the appellant has relied on P L D 1983 S C 344, where it has been held that res judicata only constitutes when the case is decided on merits and issues involved are the same. He has supplemented the above with the following rulings:‑
(1) P L D 1976 Azad J & K 26. (2) P L b 1982 Lah. 20.
(3) 1976 S C M R 243. (4) P L D 1982 S C 201.
(5) P L D 1960 S C 138.
We have perused these rulings with respect and are of the view that res judicata will only operate when the case is decided on merits, but at the same time we cannot remain oblivious of the forceful arguments advanced by the learned counsel for respondents that the act of the appellant be viewed keeping the background and the circumstances which pursuaded appellant Sh. Nazir Ahmad to withdraw his appeal.
19. It is an established fact on record that a number of appeals were dismissed by the defunct‑Civil Services Appellate Tribunal filed by the colleagues of Sh. Nazir Ahmad, appellant, in which the issue involved was the same. The appellant becoming conscious of the fact that his appeal would meet the same fate withdrew the said appeal. Even if it is presumed the principle of res judicata would not be strictly applicable, Order XXIII, rule 1(3), C.P.C. shall be attracted. According to it, if a proceeding is withdrawn without permission to institute further proceedings on the same cause of action then fresh proceedings on the same issue are barred.
20. In view of the above analysis of the entire case of the two appellants, we are of the considered opinion that the appellants were under obligation to challenge clause (f) if they had in any manner thought that the same have affected their terms and conditions of service or in any way has hurt their status vis‑a‑vis the contesting respondents at the relevant time. Similarly, their failure to challenge the notification of 1972 and other notifications issued from time to time till 1982 would also go against them as an act of laches, estoppel and their case would certainly be hit by law of limitation as they cannot be permitted to agitate an issue after a lapse of 12/18 years, respectively when a number of consequences have occurred as a result of the said orders so passed against them. There is another legal question which stares in the face of the appellants .is whether this appeal can be considered as maintainable under section 4 of the Punjab Service Tribunals Act, 1974 or not. The fact remains that seniority list of 1‑8‑1984 is based on the claim that the order of appointment of the appellants made in 1966 be read without the words temporary Assistant Engineers and it be deemed that they were permanently employed against permanent post with effect from the date of those orders. By implication it is also claimed that condition (f) in the terms of their appointment be struck down. It shall be seen that the orders whose correction is sought in the appeal were issued on 25‑11‑1966 and 5‑12‑1966. Under section 4(1) proviso (c), no appeal lies to the Tribunal against an order or decision of a departmental authority made at any time before 1‑7‑1969. In view of this situation, we are of the considered opinion that this appeal is outside the scope of Punjab Service Tribunals Act, 1974. Similarly, there is direct attack on the notification regarding the absorption of respondents 2 to 20, which also pertains to a period between 4‑10‑1955 and 1‑5‑1962. In this manner they will also be barred under section 4(1)(c) to challenge the said notification.
21. The appellants in this case have also challenged that the appeals so dismissed by the Civil Services Appellate Tribunal as mentioned in the earlier part of our judgment, the said Tribunal had travelled beyond its jurisdiction, therefore, the same cannot be taken against the appellants' case. Reliance has been placed on the case of Ijaz Ahmad Bhatti v. Deputy Director Food decided by this Tribunal and has recently been upheld by the Supreme Court of Pakistan. We have carefully perused the said judgment and find that in the said case the Tribunal had not decided the question of seniority at all and instead reopened the question of the absorption of the concerned employees on the executive side and for that purpose set aside an order passed by the competent authority for the relaxation of rules. This exercise was clearly not permitted by the law under which the previous Service Tribunal exercised powers. No doubt that the previous Tribunal while determining seniority of the parties before it could look into all relevant orders and even could determine their correctness to the extent it was necessary for the purpose of determination of seniority but the Tribunal was not at all competent to set aside orders not concerned with seniority and to reopen the question of absorption. The present case, however, is totally different. In the appeals decided by the defunct‑Tribunal relating to the present issue no order other than the order relating to the seniority was passed in the final analysis. Orders of appointment were considered and examined in the context of the relevant rules purely for the purpose of determining the issue of seniority, therefore, no exception can be taken to the same. Reference in this connection be made to 'Crawford' on the construction of Statutes 1940 edition, page 266 paragraphs 168 and Binders on the Interpretation of Statutes (4th edition), page 490.
22. In the light of the above analysis of the entire case based on the preliminary objections raised by the learned counsel for the contesting respondents, we hardly feel any necessity to go into the merits of the case because we are of the considered opinion that both the appeals of the appellants before us are hopelessly time‑barred due to their gross negligence as they have waited for more than 12/18 years to agitate the issue, which was in their knowledge since the date of their acceptance of the appointments in the year 1966 and later on by notifications of 1972, 1974 and 1982. The case of Sh. Nazir is further hit by his behaviour of coming before this Tribunal with unclean hands and filing false affidavit and himself applying for withdrawal of appeal. Furthermore, we hold that the appellants were under obligation to challenge clause (f) as well as their status given to them as Temporary Addition to the cadre, if they had thought that the same was passed H by the incompetent authority and was void. Their. failure to do so does not persuade us in any manner to condone the inordinate delay which they have suffered for themselves. We further hold that orders pertaining to the period earlier than 1969 are beyond the scope of this Tribunal.
23. The result is, we dismiss the appeal both as grossly time‑barred, hit by principle of estoppel, laches and as well non‑maintainable. There will be no orders as to costs.
A.E. Appeal dismissed.
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