2014 PLP 1149 (SCMR)

MUHAMMAD ATHER SAEED, J.

These review petitions have been filed seeking review of the judgment of this Court dated 14-6-2010 in C.P.L.A. No.769-K of 2011 whereby this Court had allowed the petition filed by the then petitioner against the judgment of the learned Service Tribunal dated 17-6-2011 in Appeal No.116 of 2009 and had set aside the impugned judgment of the Service Tribunal as well as the order of the departmental authority.

2. Brief facts of the case which has a chequered history are that initially the petitioner before this Court in a C.P.L.A. had challenged the order of the department in respect of promotional dispute between the direct recruits and the promotees which had been decided in his favour. However, both the petitioner and the respondents in another particular C.P.L.A. claimed to be direct recruits and the then petitioner had challenged the seniority list for the year 1997 which showed respondents in this C.P.L.A. senior to the petitioner which was initially challenged by the petitioner before the department. However, in the revised seniority list dated 24-3-1998 the petitioner was shown senior to the respondent against which the respondent filed an appeal and in response thereto a modified seniority list was published on 19-8-1999 in which the seniority of the petitioner was disturbed and he was shown junior to the present petitioner. The petitioner's appeal before the departmental authority and the Tribunal failed and therefore he approached this Court who vide its order dated 28-4-2009 passed in Civil Appeals Nos.1233 to 1251 of 2005 set aside the findings of the fora below and remanded the case back to the competent authority in the department with directions to decide the appeal within six weeks on the receipt of that order after hearing all concerned. The competent authority as alleged by the petitioner instead of deciding the case after hearing all concerned had disposed of the said appeal of the petitioner in a mechanical manner vide order dated 27-8-2009 by simply mentioning that Chief Secretary/ Competent Authority has rejected his appeal, without any discussion or reference to any material for dis-entitlement of the petitioner from the requisite relief of seniority against private respondents. The petitioner further alleged that Tribunal to whom appeal against such departmental authority was filed, non-suited him on the basis of technical grounds which had no legal basis, despite the fact that as observed in the earlier order of this Court, the matter with regard to inter se seniority of the petitioner and the private respondents was to be decided by the competent authority on merits. After hearing the counsel in the above mentioned C.P.L.A. this Court, passed the judgment mentioned above which is now sought to be reviewed.

3. We have heard Mr. Yawar Farooqi, learned Advocate Supreme Court for the petitioner in C.R.Ps. Nos.17-K and 18-K of 2012 and Mr. Ansari Abdul Lateef, learned Senior Advocate Supreme Court for petitioner in C.R.P. No.19-K of 2012, Mr. M. Aqil Awan, learned Senior Advocate Supreme Court for the respondents in all the three petitions and Mr. Adnan Karim, learned Additional A.-G. Sindh.

4. Mr. Yawar Farooqi, learned Advocate Supreme Court for the petitioner pointed out that petitioners in these review petitions were initially regularly appointed in the year 1991 under rule 5 of the Sindh Public Service Commission (Functions) Rules 1990 (hereafter referred to as 'the Rules of 1990') whereas the present respondent and the petitioner in the C.P.L.A. was appointed in the year 1992 and they were non-suited for the first time when the seniority list dated 24-3-1998 was published. From a perusal of this list it transpires that since the appointments were made without advertising the vacancies publically, therefore, it required rectification in the light of this Court's final order in Human Right Case No.104 of 1992 dated 19-3-1993 and it was done by regularizing the appointments under the SCS (Regularization of Ad hoc Appointments) Act 1994. He submitted that notification dated 1-4-1998 was also attached with the list which provided that this list shall be treated as "Provisional". He referred to the minutes of the committee held under the Chairmanship of Chief Secretary Sindh on 8-1-1999 in which it was mentioned that the Chief Secretary had agreed that the provisional seniority list of Section Officer issued on 28-3-1998 be treated as final to settle the issue once for all. He, however, submitted that these minutes have never been initialed by the members of the committee nor have been confirmed by them and even the signature of Chairman/Chief Secretary does not appear on such minutes. He, therefore, submitted that these minutes could not be considered as valid minutes and no legality can be attached to it. He took us through the notification issued in the year 1991 which provided for the appointment of his client under section 5 of the Rules of 1990 on regular basis and submitted that when the Act of 1994 came, a procedure was provided for regularization of ad hoc employees and this procedure was not followed in his case because he had already been regularized in 1991 and therefore this Court fell in error when it observed as under:-- "Admittedly, private respondents Nos.4 - 9 were appointed in the year 1994 on regular basis, therefore, they could not have been allocated seniority on the basis of their appointment in the year 1991 as against "the present petitioner who was appointed on regular basis on 25-10-1992." He submitted that it was on the basis of this observation and erroneous finding that this Court accepted the appeal of the petitioner in the C.P.L.A., and set aside the order of the fora below. He further argued that seniority list dated 19-8-1999 was a valid seniority list which was issued in response to the appeals filed by the present petitioners against the 1998 seniority list. He drew our attention to notification No.S.O.-X(S&GAD)/3-17/95 dated 19-8-1999 under which this list was published and pointed out that the said notification mentions that upon consideration of appeals preferred by direct recruits and the promotees on seniority list/provisional seniority list of Section Officer dated 24-3-1998, this list was being notified. In support of his contention, he relied on the following judgments:-- (1) Dr. Azim-ur-Rehman Khan Meo v. Government of Sindh and another (2004 SCMR 1299) (2) Ajmal Hassan Khan and another v. Government of Sindh and others (2012 SCMR 860). He, therefore, prayed that the judgment under review being erroneous may be re-called.

5. Mr. Ansari Abdul Lateef, learned Senior Advocate Supreme Court for the petitioner in C.R.P. No.19-K of 2012 adopted the arguments of Mr. Yawar Parooqi, learned Advocate Supreme Court and drew our attention to various notifications issued in October on different dates under which his clients were appointed as Section Officers on regular basis by the Chief Minister under rule 5 of the Rules of 1990. He referred to the observations of this Court in the judgment under challenge and submitted that it was observed that there was admission to the effect that the petitioners were appointed in 1994 instead of 1991 and submitted that this admission was never made by him and argued that petitioner had been regularly appointed in 1991, therefore, they were senior to the present respondent who was appointed in 1992. He submitted that this Court had fallen in error by adding the word admittedly in the above observation. In support of his contentions, he relied on the case of Nazeer Ahmed Dhoon v. Government of Sindh and others reported in 1996 SCMR 1547 and prayed that the impugned judgment may be re-called,

6. Mr. M. Aqil Awan, learned Senior Advocate Supreme Court for the private respondent opposed the arguments of the learned Advocate Supreme Court for the petitioners and supported the impugned judgment passed by this Court. He submitted that no error had crept in the judgment of this Court and it was passed after detailed appraisal of correct facts of the case and this Court had arrived at a valid conclusion that the impugned judgment of the Service Tribunal is to be set-aside. He first of all stressed that the seniority list dated 24-3-1998 was not provisional seniority list but in final seniority list as decided by the high power committee in its meeting held in 28-1-1999. He submitted that petitioner's appointment under rule 5 of the Rules of 1990 by the Chief Minister could not be considered to be regular appointments. They were regularly appointed on the basis of Act of 1994 and therefore their seniority should be considered from the date, the Act of 1994 was promulgated. He further submitted that rule 5 of the Rules of 1990 being against equity and natural justice was deleted in the year 1997. He further argued that this Court in number of cases has held that any vacancy filled without advertising the same could not be considered to be regular appointment and the seniority of such officers shall start from date they were officially regularized. He also argued that no appeal was filed by the present petitioners against the seniority list of 24-3-1998 but when the said appeals were shown to us by the learned Advocate Supreme Court for the petitioner, he argued that these appeals were not decided and therefore there was no basis to modify the list which was notified in 1999. In support of his contention, he relied on the following judgments:-- (1) Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287), (2) Syed Saghir Ahmad Naqvi v. Province of Sindh through Chief Secretary, S&GAD, Karachi and another (1996 SCMR 1165), (3) Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043). He, therefore, prayed that these review petitions being meritless as there was no error in the judgment sought to be reviewed, therefore, these review petitions are not maintainable and may be dismissed as such.

7. We asked Mr. Adnan Karim, learned Additional AG Sindh who was present in Court on Court's notice to provide us the actual copy of the minutes of the high power committee. He, however, could not produce the actual minutes but only produced a photocopy and a note sheet by which he tried to show us that the minutes have been approved by the Chief Secretary. He submitted that the actual minutes were not available on record and on the basis of these minutes and note-sheet tried to convince us that the minutes of the meeting have been approved. We are, however, not satisfied with his explanation.

8. On a perusal of the impugned judgment, we have noted that this Court had allowed the appeal on the basis of its observations and findings after hearing learned counsel for the parties, which is reproduced below:-- "Admittedly, private respondents Nos.4-9 were appointed in the year 1994 on regular basis, therefore, they could not have been allocated seniority on the basis of their appointment in the year 1991 as against the present petitioner who was appointed on regular basis on 25-10-1992." From a perusal of the above, we are of the view that this finding and observation should not have been given without examining the notifications of the appointment of the petitioners issued in the year 1991 and the relevant provisions of the Art of 1994 to arrive at a valid conclusion that the appointment orders of 1991 could not be considered as valid and legal regular appointment and would be considered ad hoc appointments and the respondents were regularized in 1994. A perusal of the provisions of Act of 1994 also leads to the conclusion that a procedure was prescribed therein for regularization of the ad hoc employees which had to be followed and only thereafter the ad hoc employees could be regularized. We have seen that no such procedure was followed in the cases of the present petitioners to regularize their services and therefore the assumption is that competent authority may have considered them to be regular employees from 1991. However, without considering the merits and de-merits of the contentions of the learned counsel for the parties at said contentions in detail and either accepting or rejecting it, this Court fell in error in disposing of the above C.P.L.A. by the judgment sought to be reviewed.

9. We, therefore allow these review petitions, re-call the impugned judgment dated 14-6-2012 and C.P.L.A. No.769-K of 2011 shall be deemed to be pending before this Court and the office is directed to fix it for re-hearing before any Bench for decision to be taken in accordance with law after hearing the parties concerned. These review petitions are disposed of in the above terms. MH/A-4/SC Petitions allowed.