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Cases Nos. 78/811, 95/924, 108/957 and 109/958 of 1981.

(a) Punjab Service Tribunals Act (IX of 1974)‑‑

‑‑‑S. 4‑‑Punjab Civil Servants Act (VIII of 1974), S.21----Punjab Government Rules of Business, 1974, R. 11 and Sched. III‑‑Seniority matter‑‑Order passed by Secretary to Government in concerned Department challenged before Tribunal‑‑Objection that right of representation to next higher authority, having not been availed of appeal before Tribunal was not competent‑‑Matter not required to be placed before Governor under Punjab Government Rules of Business, 1974‑‑Impugned order, held, was final and objection of absence of right of representation to next higher authority was overruled.

(b) Punjab Service Tribunals Act (IX of 1974)‑‑---

‑‑‑S. 4‑‑Limitation Act (IX of 1908), S. 5‑‑Appeal before Tribunal‑ Limitation‑‑'A' claiming seniority over 'B' and 'C'‑‑During pendency of appeal before Tribunal Government informing Tribunal that claim of 'A' had been accepted‑‑Tribunal holding that grievance of 'A' had been redressed, therefore, appeal of 'A' became in-fructuous and judgment announced in presence of parties in open Court‑‑'B' and 'C' not challenging order of Tribunal before appropriate forum and coming up in appeal before Tribunal after about one year against their seniority so fixed below 'A'‑‑No application for condonation of delay made‑‑Appeal, in circumstances, held, was time‑barred and liable to dismissal.

1984 Y L C (C.S.) 261; 1976 P L C(C.S.T.) 15(2); 1980 P L C (C.S.) 238 and 1980 P L C (65) 555 rel.

(c) Civil Service Rules. Punjab‑

‑‑‑Vol. I, Part I, R. 2‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.2 (b)‑‑Cadre‑‑Functional unit‑ Posts sanctioned together, held, would constitute a separate unit‑‑Posts of Deputy Directors sanctioned by single sanction order of Industries and Mineral Development‑‑Deputy Director Mineral Development, in circumstances, held, at par in status of cadre with Deputy Directors Industries and they would belong to combined seniority list.

(d) Civil service‑‑

‑‑‑Seniority‑‑Person on surplus pool not absorbed in different Department but continuously working in parent department without any break, held, would not loose his seniority and would not be considered as fresh entrant.

1982 P L C (C.S.) 362; 1977 P L C (C.S.) 117 and 1972 P L C (C.S.) 142 rel.

Ch. Mushtaq Masood for Appellants.

M.A. Riaz and H.R. Cheema, District Attorney for Respondents.

ORDER

S. ABDUL JABBAR KHAN (CHAIRMAN).‑‑In the case of Messrs Muhammad Sharif, Muhammad Ali Sheikh, A.K. Ansari and Azmatullah Sheikh, a preliminary objection has been taken by the learned District Attorney for the respondents that the impugned order, dated 25‑1‑1981 by which Mr. S.A.S. Kirmani, was placed senior to the appellants, w was not a final order and the appellants were under obligations to file representation before the next higher authority in accordance with section 21 of the Punjab Civil Servants Act, 1974. It was further submitted that as the appellants have failed to file representations as provided under section 21 so mentioned above, section 4 of the Punjab Civil Servants Act, 1974, bars the appeal before this Tribunal.

2. On the other hand the learned counsel for the appellants have submitted that the impugned order is final order for all purposes as matter like one before this Tribunal was not to be settled by the Governor and the Secretary could pass order on behalf of Governor himself. According to the learned counsel, the appeals of the appellants so filed before this Tribunal were maintainable and were not hit by the provision of section 4 of the Punjab Civil Servants Act, 1974.

3. We have considered this point carefully and have perused rule 11 of the Punjab Government Rules of Business, 1974 as amended upto date alongwith schedule III appended to such rules.. The Schedule III has given an exhaustive list of the matters which had to be submitted to the Governor to attain finality. The perusal of this list reveals that the matter under consideration was not the one of those matters which had to be placed before the Governor, therefore, the Secretary Industries and M.R. was competent to issue order himself under the abovementioned Rules of Business.

4. In view of the above, we are of the considered opinion that the, preliminary objection so raised by the learned counsel for the respondents is not tenable and cannot be sustained. The result is we repel the B arguments so raised and order that the case will proceed on merits.

JUDGMENT

.‑‑Messrs Ch. Muhammad Sharif. Azmatullah Sheikh, Muhammad Ali and A.K. Ansari, Joint Directors of Industries and Mineral Development Department, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which they have impleaded the Government of the Punjab through Secretary, Services General Administration and Information Department, Secretary to Government of the Punjab, Industries and Mineral Development Department and Mr. S.A.S. Kirmani, Joint Director of the said Department as respondents.

2. By virtue of these appeals, it has been submitted that the order, dated 25‑1‑1981 impugned in these appeals be set aside and the seniority of the appellants and respondent No. 3 as contained in the seniority list notified vide Notification, dated 22‑7‑1979 impugned in these appeals be ordered to be restored and they may be declared senior to the respondent No. 3.

3. Before we enter into the merits and facts of the case, it may be pointed out that all these appeals before us are against the seniority of respondent No. 3 and involves identical point of law, therefore, we will decide all these appeals by our one singe judgment.

4. The entire case of these appeals revolves against the seniority bestowed upon respondent No.3 when his appeal was pending before the Service Tribunal by respondent No. 1 collectively, therefore, it would be more useful to give in brief the entire history of the case of respondent No. 3 in order to judge whether the orders of respondents Nos. 1 and 2 which ultimately were notified by a regular notification are justified or not.

5. Mr. S.A.S. Kirmani, respondent No. 3 in all these appeals was appointed as Biologist with the status of Assistant Director in Class I (Jr.) on 30‑11‑1963 in the Mineral Development Directorate of the Industries Department. At that time, there was a separate Directorate of Mineral Development. He was promoted as Deputy Director on 13‑6‑1966 in the said Directorate. With the dissolution of One Unit of the respondent No. 3 was posted at Quetta and was allocated in the first instance to the Province of the Punjab. It so happened that there were shortage of vacancies equivalent to the status of the respondent No. 3 at that particular time, therefore, he was declared Furplus from the same date viz. 1‑7‑1970. He remained surplus upto 30‑1‑1972 but continued in the Department of Industries. In the year 1977 a seniority list was notified and has again repeated in the year 1979. In both these lists S.A.S. Kirmani was shown junior to all the appellants. This gave a cause of grievance to respondent No. 3 who made a departmental representations on 23‑5‑1977 and 19‑9‑1977, claiming thereby that he was senior to all the appellants. As the seniority was liable to be counted from the date of his continuous appointment viz. 13‑6‑1966. These two representations did not materialise in his favour and respondent No. 3 was forced to file an appeal before the Service Tribunal which was admitted for regular hearing. While the case was in progress, the parties had made their appearance before the Tribunal, a letter, dated 28‑8‑1979 addressed to the then District Attorney Mr. A.G. Hamayun, from the Government of the Punjab Industries Department was placed on record which informed the Tribunal that the seniority of the respondent No. 3 (Appellant in that case) had been accepted. When apprised of this situation, this Tribunal closed the case holding therein that as the grievance of the appellant has been redressed by the Department, therefore, the appeal had become in-fructuous. The Tribunal vide its judgment, dated 21‑11‑1979, disposed off the appeal without adverting to the merits of the case. This judgment was announced in the presence of the parties in the open Court.

6. It seems that the appellants were successful in getting the case re‑opened through their representations and the controversy was ultimately settled by notification, dated 25‑1‑1981, which declared the seniority of the respondent No. 3, placing him senior to all the appellants. The appellants have taken this notification as the basis of their grievance and have filed these appeals before us agitating that this notification be set aside and the seniority so taken away by the Government vide their order, dated 28‑8‑1979, be restored in their favour. Hence these appeals.

7. We have heard the learned counsel for the appellants as well as learned counsel for the respondent and learned District Attorney assisted by the representative of the Department at length and have perused the entire record of this case carefully with their assistance.

8. It has been argued on behalf of the appellants that respondent No. 3 is not a member of the service to which the appellants belong i.e. Industries Department and for all purposes he belongs to Mineral Wing of the Industries Department which has got its own independent entity as separate cadre with its own rules, etc. According to learned counsel, the respondent No. 3 cannot claim seniority against the appellants who belong to different cadre than the cadre of the respondent No. 3. In the alternative, it has been vehemently argued that respondent No. 3 became surplus at the time of dissolution of one unit and remained surplus uptil 30‑9‑1972, therefore, the appellants who were present earlier in the Industries Department than him would be senior. It was further argued that if the respondent No. 3 in this case is declared as member of the same service as well as is conferred the benefit of two years service in the same Department, even then the appellants would be senior to him as they were senior as Assistant Directors of Industries and would carry their seniority in the higher grade of Deputy Directors as they were not superseded.

9. On the other hand learned counsel for the respondent as well as learned District Attorney have raised preliminary objections by submitting that all the appeals are hopelessly time‑barred and are liable to be dismissed on that score alone. This argument, they have developed by stating that on the day when appeal of S.A.S. Kirmani, respondent No. 3 was disposed of by the Tribunal as in-fructuous it was within the knowledge of the appellants that Government has taken a decision in favour of the respondent No. 3 (appellant in that case) 'and have declared him senior to all of them. According to learned counsel the order, dated 28‑8‑1979, was complete and final order which left the appellants in no doubt about their position vis‑a‑vis the respondent in this case, therefore, they had to file such appeals within 30 days about the knowledge of said order but they have taken more than a year to agitate their grievance before this Tribunal.

10. With regard to the merits of the case learned counsel for the respondent has submitted that the plea of the appellants that respondent belonged to different cadre was without any foundation. It has been argued that the respondent although declared surplus yet he remained actively involved in his duties with the Department of Industries throughout the said period and was ultimately brought into line without any break in his service.

11. With regard to the argument of the appellants that the appellants being senior in the lower grade as Assistant Directors (a fact not disputed) they would

carry their seniority into‑the higher grade, the learned counsel for the respondent has submitted that this argument is falacious and is hardly applicable to the circumstances of the present case. According to the learned counsel the seniority of the respondent would count from the date he joined as Deputy Director in the cadre as it is the case of the appellants themselves that before amalgamation of the Department the respondent belonged to a separate entity.

12. We have given our anxious thought to the arguments advanced by both the parties and first of all we will advert to the crucial preliminary objection raised on behalf of the respondent with regard to limitation. We have very carefully looked into the file in which the case of the appellants was discussed, processed and ultimately decided in his favour. The perusal of this file discloses that while the appeal of the respondent was pending before this Tribunal a controversy was raging whether the period between 1970 and 1972 i.e. 1‑7‑1970 to 30‑9‑1972, be counted towards seniority or not. What we find is that the Law Department ultimately agreed with the note contained in para. 158, dated 19‑7‑1979 of Administrative Department's File No. 1‑1‑22/72, wherein, it was clearly mentioned that the present respondent although shown as surplus was physically working with the Industries Department without any break in service and thus was entitled to count this period towards seniority over the appellants when there was no change in the administrative control as well. In this way, we have no hesitation to hold that the Government had accepted the concurrent findings of the Law Department and Administrative Department and had taken a final decision in this respect when they informed the Tribunal through the learned District Attorney that the case of seniority of respondent No. 3 had been concluded in his favour. This information was neither secret nor it was meant only for the knowledge of the Tribunal, but was an intimation of final decision taken by the Government in the said case. The appellants in the present case instead of filing appeal before the Supreme Court against order of the Tribunal chose a course of their own choice by filing fresh representations with the Government and thus extended the limitation in their favour by this subterfuge. It would be pertinent to mention at this stage that as far as the appellants were concerned the information so conveyed to the Tribunal was clear and indicated to them that they have been declared junior by the Government via‑a‑via respondent No. 3 in‑the present case. The only reaction and a natural one would have been to contest the said decision before a proper forum. It would not be possible for us to accept the argument advanced by the learned counsel for the appellants that the appellants were within their right to wait for any further decision of the Government which would invite objections for the new seniority list so formulated or prepared. We are fortified in our view as Devil knows not the thought of a man and the appellants cannot claim better knowledge than the Devil itself. Such like arguments tantamount to lame excuses and are likely to be repelled. We have no doubt in our mind when we hold that the time of limitation ran from the date when appellants were fully informed in the open Court on 21‑11‑1979, that they had lost their case with the Government and had no further choice but to challenge the said order. We, therefore, find that the appeals so filed L before us are barred by a period of more than one year and there is no application as well under section 5 of the Limitation Act to explain this inordinate delay and seek its condonation. For this reliance is placed on 1984 PLC (C.S.) 261, 1976 P L C (C.S.T.) 15(2), 1980 PLC (C. S.) 238 and 1980 P L C (65) 555.

13. Despite being conscious of the fact that we have held that present appeals barred by limitation, we will like to discuss the merits of the case as well to show that even on this score the appellants have got no case at all.

14., The first point urged on behalf of the appellants is that respondent No.3 is a bird from a different flock and cannot be Allowed to fly with the appellants. This argument is absolutely without any logic as it is clear from the Annexure 'R‑2' placed on the record that all the existing sanctions creating different posts and cadres were rescinded and one sanction creating a 'composite Directorate of Industries and Mineral Development was issued. This document further revealed that all the fourteen posts of Deputy Directors were included and brought under the purview of the Industries Department, the respondent No. 3 being one of the Deputy Directors. We have further looked into the definition of 'cadre' as giving in rule 2 of C.S,R. Volume I Part I as well as definition of 'Functional Unit' as given in rule 2(b) of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1975 and find that according to definition so laid therein, all the fourteen posts of Deputy Directors sanctioned together, would constitute a separate unit and will bring the respondent at par in a status of cadre with the appellants. Nothing contrary has been brought on the record or stated in this context before us.

15. It would be interesting to mention here that in the prayer of all these appeals a common relief sought is that the seniority list of 22‑7‑1979, be restored. This list if looked into, would show that this is a joint list in which respondent No. 3 fully shares the status of an employee of the Industries Department. In this manner the Appellants are estopped to argue today before us that respondent No.3 be declared as belonging to a separate cadre without having any association with the appellants in the service, therefore, we cannot permit the appellants to breathe hot and cold in the same breath and repeal this argument with all force at our command.

16. With regard to the point that the respondent was placed in the surplus pool and should reckon his seniority from the date of his absorption on 1‑7‑1972, it would be sufficient to say that this argument has been fully discussed by the Administrative Department in its note, dated 19‑7‑1979 'and we fully endorse the approval of the Law Department in this respect. We have looked into the basic argument in this regard as advanced by the Administrative Department and approved by the Law Department which has clearly stated that as respondent No. 3 remained working all along in the Industries Department without any break in the above mentioned period, therefore, it cannot be said that he would be fresh entrant into service as claimed by the appellants. We have also considered the strength of arguments of the appellants in which they have placed their reliance on two instructions of Government, dated 8‑1‑1969 and 27‑3‑1971, which stated that persons on the surplus pool would be considered as fresh entrant; if they are absorbed in the different Departments. As respondent No. 3 was never absorbed in a different Department and remained working in its own parent Department, viz. Industries Department, therefore, the force of these instructions would hardly be applicable in his case and in this manner, opinion of the Administrative Department as approved by the Law Department will hold the field. We may refer to the decision of the Punjab Civil Servants (Appellate) Tribunal in Moinuddin Ahmad v. I.‑G. Prisons No. 21/31 of 1972, announced on 15‑9‑1972, in which the same principle was upheld. We would also refer to the following cases decided by the Sind Service Tribunal namely 1982 P‑ L C (C.S.) 362 and 1977 P L C (C.S.) 117 and also a decision of the Punjab Service Tribunal reported as 1972 PLC (C.S.) 142. In all these cases, it has been clearly held that if a person is not to be given the benefit of his past service while being declared surplus, shall have to be discharged according to the statutory provision of Punjab Civil Servants Rules and Punjab Civil Servants (Pension) Rules 1963. The ratio decidendi of these decisions is that without making it clear to the person so affected, his right of service cannot be denuded.

17. Similarly, the argument made in the alternative by the learned counsel for the appellants that if the appellants are not given the benefit of the first two arguments and the respondent No. 3 is declared as Member of the Industries Department, for all purposes, then the appellants being senior as Assistant Directors in the lower grade, would carry their seniority list in the rank of Deputy Directors as they were never superseded, is without any force. The reason being that the appellants themselves have accepted this situation in para. 2 of the appeals that appellants and respondents No.3 belonged to separate cadre uptil 30‑6‑1970. That being so that seniority of the respondent No. 3 would come into play from the date, he was amalgamated into the Department as Deputy Director, as he never worked with the appellants as Assistant Director of Industries, a fact proved on the record by absence of his name in any common seniority list of the parties as Assistant Directors. To clarify further it will be useful to state that merger was brought about on 1‑7‑1970 through an order, dated 31‑7‑1970 and on that date parties were neither Assistant Directors nor holding any lien on the posts of Assistant Directors. In this way the only irresistible conclusion would be that respondent No. 3 has joined the appellants as Deputy Director and not as Assistant Director. We are further pursuaded in our view by the judgment delivered in the case of Muhammad Tufail v. Superintending Engineer (Irrigation) etc. in Case No. 254/179 of 1971, announced on 16‑6‑1972, by the Full Bench of the Punjab Civil Services (Appellate) Tribunal Lahore, which is almost identical to the case of the present respondent.

18. In view of the detailed analysis on the point of limitation as well as on merits, we are of the considered opinion that the appeals are liable to be dismissed as being time‑barred as well as on merits, we proceed to dismiss the 'same. However, there will be no order as to costs.

A.E Appeals dismissed.

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