Full Judgment Text & Judicial Ruling

1995 P L C (C

1995 P L C (C.S.) 790

[Supreme Court of Pakistan]

Present: Saad Saood Jan, Manzoor Hussain Sial and Mukhtar Ahmed Junejo, JJ

FALAK SHER KHAN and 2 others

versus

SECRETARY TO THE GOVERNMENT OF PUNJAB, AGRICULTURE DEPARTMENT, LAHORE and another

Civil Petition No. 39‑L of 1994, decided on 1st February, 1995.

(On appeal from the‑ judgment dated 23‑11‑1993 of the Punjab Service Tribunal, Lahore in Appeal No. 552/594/84).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212‑‑‑Service Tribunal in post‑remand proceedings instead of itself deciding question of seniority between civil servants inter se, directing Provincial Government to place such matter before Governor for disposal within specified time‑‑‑Validity‑‑‑Petition for leave to appeal was converted into appeal and Service Tribunal was directed not to wait for the decision of Provincial Government on representation made by civil servant and take the appeal to have been filed by civil servant after ninety days of moving representation to Provincial Government/Governor unless order was passed before expiry of said period of ninety days.

Dr. Khalid Ranjah, Senior Advocate Supreme Court, Zahid Hussain, Advocate Supreme Court and Gulzar Hasan, Advocate‑on‑Record for Petitioners.

Faiz Muhammad Bhatti, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 1st February, 1995.

JUDGMENT

MUKHTAR AHMED JUNEJO, J.‑‑‑Leave to appeal is sought against o an order dated 23‑11‑1993 passed by Punjab Service Tribunal (hereinafter mentioned as the Tribunal) in Appeal No. 552/594/84.

Said appeal was filed by respondent No. 2 Muhammad Anwar Hakim before the Tribunal claiming seniority, inter alia, over petitioners Falak Sher, Abbul Salam and Faqir Muhammad. Said service appeal was accepted by the Tribunal on 19‑5‑1986. Acceptance of said appeal was challenged in this Court Civil Petition No. 526 of 1986 which was heard with Civil Appeals Nos. 80 and 81 of 1987. All these appeals were decided on 14‑5‑1989 and the case of respondent No. 2 was remanded to the Tribunal to ascertain whether respondent No. 2 had competently filed the appeal before the Tribunal. After remand the Tribunal dismissed the appeal of respondent No. 2 after taking view that said appeal was not maintainable. Respondent No.2 took the matter to this Court where it was heard with Civil Petition No. 671‑L/90 on 24‑11 1990. Under a judgment dated 24‑11‑1990 this Court observed that the Tribunal had not made the necessary inquiries in terms of the earlier order of remand. This Court therefore directed the Tribunal to summon record of the department and proceed to decide appeal in the light of the observations made in the earlier order of remand passed by this Court.

In pursuance of the order of remand, the Tribunal passed an order dated 23‑11‑1993 impressing upon the Secretary Agricultural, Government of Punjab, to place case of respondent No. 2 before the Governor within a month for disposal. While ordering so, the Tribunal observed that the objection raised by the counsel for respondent No. 1 will not lose its force and will be considered when ultimately the case comes to final arguments. Said Order is challenged before this Court in this petition.

Dr. Khalid Ranjah, learned counsel for the petitioners argued that the Tribunal had travelled beyond its, jurisdiction by directing the Provincial Government to decide the appeal preferred by respondent No. 2 and that the only action to be taken by the Tribunal was to summon the record of the department and to see if respondent No. 2 had complied with the provisions contained in provision (a) below section 4 of the Punjab Service Tribunal Act which read as below:‑

"(a) Where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974 or any rules against any such order no appeal shall be to a Tribunal unless the aggrieved Civil Servant has preferred an appeal or application for review or representation to a departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred."

There appears to be some force in the contention raised. Mr. Faiz Muhammad Bhatti, learned counsel for the caveator argued that the impugned order had not prejudiced the case of the petitioners."

In the circumstances, we convert this petition into appeal and direct the Tribunal not to wait for decision of the Provincial Government‑ on the representation/appeal made by respondent No. 2 and to take the appeal to have been filed by respondent No. 2 after ninety days of moving the representation/appeal to the Provincial Government/Governor unless an order is passed before expire of said period of 90 days. The appeal is disposed of accordingly.

A.A./F‑343/S Case remanded.

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