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Petitioner: EHSAN ULLAH VS Respondent: GOVERNMENT OF PAKISTAN
1998 P L C (C
1998 P L C (C.S.) 923
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui and Sh. Riaz Ahmad, JJ
EHSAN ULLAH
versus
GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and others
Civil Petition for Leave to Appeal No. 456 of 1995, decided on 27th November, 1995.
Civil Servants Act (LXXI of 1973)---
----S. 9---Civil Procedure Code (V of 1908), S. 11---Constitution of Pakistan (1973), Art. 212(3)-,- Civil servant---Promotion---Civil servant's claim to promotion was rejected by Department as also by Service Tribunal-- Validity---Civil servant's name appeared much below in seniority list, ,therefore, Department had rightly contended that he could not be promoted in preference to seniors---Civil servant's application for promotion having been rejected he had been challenging the same orders from time to time by repeating appeals and applications, therefore, Service Tribunal had rightly found that his appeal was barred by res judicata---Service Tribunal had also rightly dealt with question of promotion to hold that civil servant's name being at Serial No.20, he could not be promoted out of turn by ignoring persons who were senior to him---No exception could, thus, be taken to order of Service Tribunal---Leave to appeal was refused in circumstances.
Shah Abdur Rashid, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.
Nemo for Respondents.
Date of hearing: 27th November, 1995.
ORDER
SH. RIAZ AHMAD, J.---Petitioner has filed the present petition seeking leave to appeal against the order dated 29-6-1995 passed by Federal Service Tribunal, whereby, the appeal preferred by him to call in question the refusal of the department to promote him was dismissed. Facts in brief giving rise to the institution of this petition are as under:---
Petitioner at present is working as Office Superintendent (B-13) in Custom House at Rawalpindi. He claimed his promotion to the post of Deputy Superintendent of Central Excise and Custom, but the department refused to promote him vide order dated 5-3-1994. Petitioner then challenged the said order by way of filing an Appeal bearing No. 135-R of 1994, but in course of the hearing thereof, the petitioner withdrew the same to have a recourse to the proper remedy with the department. Accordingly, the appeal was disposed of as withdrawn by the Tribunal vide order dated 9-4-1994. Thereafter, on I6-4-1994 petitioner made another representation claiming his promotion to the Chairman, Central Board of Revenue (C.B.R.), and then filed Appeal No.355-R of 1994 before the Federal Service Tribunal, which was disposed of vide order dated 16-10-1994. Although, in this appeal, no specific order had been assailed, yet one month's time was allowed to the department to finalize the matter. Since, the Department did not pass any order within one month, therefore, the petitioner submitted a miscellaneous Application No. 157 of 1994 in Appeal No.355-R of 1994, and the same was also disposed o2 vide order dated 23-2-1995 passed by the Tribunal. The disposal of the application took place in the light of the orders passed by Department. The Department contended that the order of the Tribunal had been implemented, inasmuch as, Ahmad Nawaz Shah appellant in Appeal No.367-R of 1994 who was at Serial No.9 on the seniority list had already been promoted as Deputy Superintendent. The Department further contended that since -petitioner was at Serial No.20 in the seniority list, therefore, he could not be promoted in preference to the seniors. However, the Department assured the Tribunal that the petitioner will be promoted in due course of time on his own turn.
Dissatisfied the petitioner challenged the. Departmental order by means of filing another appeal, and he also pressed his claim for his seniority., The Tribunal observed that the claim of the petitioner as to his seniority was rejected as far back as 5-3-1994, and the appeal filed against the said order was withdrawn by the petitioner, therefore, he had no cause of action to agitate. The Tribunal also relied upon S.R.O. 249(1)/79, dated 15-3-1979, which provides that incumbents of eligible junior posts will be promoted only when incumbents of the eligible senior posts are not available. It may be stated here that the Rules were framed in 1979, under which, Stenographers, Stenotypists, Office Superintendents and Head Clerks were also eligible for promotion to the post of Deputy Superintendent against 5% quota, as such, there was a combined seniority list in the aforementioned cadres on all Pakistan basis. Later on, stenographers were deleted from the said S. R. O. due to the up-gradation of their post from B-11 to B-15. In the earlier appeal as well the petitioner had assailed the amendment of the` rules, but the Federal Service Tribunal repelled this contention by reiterating that the Government was fully competent and empowered to frame the rules from time to time.
2. We have heard the learned counsel appearing. on behalf of the petitioner, and we have also gone through the order impugned we are of the view that no exception can be taken to the order passed by the Tribunal, inasmuch as, the petitioner has been challenging the same orders from time to time by repeating appeals and applications, and therefore, the Tribunal rightly observed that the appeal was barred by res judicata. The Federal Service Tribunal also rightly dealt with the case of Ahmad Nawaz Shah by holding that his promotion was not open to challenge being senior to the petitioner.
For reasons stated above, we do not find any merits in this petition, and the same is hereby dismissed.
A.A,/E-5/S Leave refused.