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Petitioner: Sh. NAZIR AHMAD VS Respondent: SECRETARY TO GOVERNMENT OF PUNJAB IRRIGATION AND POWER DEPARTMENT
1986 P L C (C.S.) 774
[Service Tribunal Punjab]
Present: S. Abdul Jabbar Khan, Chairman
and Abdul Hamid Chaudhry, Member
Sh. NAZIR AHMAD and another
Versus
SECRETARY TO GOVERNMENT OF PUNJAB
IRRIGATION AND POWER DEPARTMENT and 74 others
Case No. 674/952 of 1984, decided on 12th June, 1985.
(a) Punjab Service Tribunals Act (IX d 1974)‑‑
‑‑‑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.
(c) Punjab Service Tribunals Act (IX of 1974)
‑‑‑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S. 11 6 O. XXII, R.1(3)‑‑Res judicata would be constituted only when case was decided on merits‑ Appeal before Tribunal withdrawn on becoming conscious that same would fail‑‑Fresh appeal on same cause of action objected on grounds of res judicata‑‑Held: Even if principle of res judicata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.
(d) Punjab Service Tribunals Act (IX of 1974)‑‑--
‑‑‑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.
JUDGMENT
S. ABDUL JABBAR KHAN (CHAIRMAN).‑‑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:‑
AGREEMENT
"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…
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