1999 PLP (C (PLC(CS))

Date of hearing: 14th March, 1996. AFTAB AHMAD (MEMBER).‑‑‑The appellant Muhammad Saleem‑II a Stenographer in the Establishment Division has come up in appeal against the orders dated 23‑11‑1995, whereby his request for promotion to the post of Private Secretary (B‑17) was turned down on the ground that he was junior‑most in the inter se seniority of Stenographers and that his accelerated promotion too could not be acceded to. The appellant has made the following two main prayers in the memo of appeal:‑‑ (a) That respondent No. l be directed to promote/consider the name of the appellant for the post of Private Secretary (BS‑17) with effect from the date on which respondent No.6 was illegally/unlawfully taken as Private Secretary i.e. with effect from‑ 12‑12‑1993 and 25‑4‑1993. (b) That respondent No.l be directed to repatriate respondent No.6 to his parent Department i.e. Statistics Division.

2. The Establishment Division respondent No. l has filed objections/comments to the appeal wherein it has been stated that the case of the appellant for promotion to the post of Private Secretary (B‑17) was considered but was not approved as he was the junior‑most Stenographer. It has further been stated in the comments that respondent No.6 Mr. Khalil Ahmad Chaudhry is working in the Establishment Division as Section Officer on deputation basis and that the post of Private Secretary to the Establishment Secretary is still lying vacant and no one has so far been appointed against the post. Besides a preliminary objection of the appeal being hit by the principle of res judicata has also been taken in the comments.

3. The appellant himself argued the case before the Bench on the date of regular hearing. The centre of his arguments was the appointment of Mr. Khalil Ahmad Chaudhry respondent No.

6. It was said that the said respondent had been appointed in the Establishment Division as Private Secretary in violation of the recruitment rules of October, 1987 jeopardising the rights of the appellant. A. Respondents Nos. 4, 12, 13 and 14 have also filed comments but none of them. appeared before the bench on the date of hearing except Mr. Muhammad Ishaq respondent No.4. The appellant has no claim against any of these respondents.

5. First of all we would like to deal with the preliminary objection of the respondent that the appeal was hit by the principle of res judicata. It was argued by the representative of the Establishment Division that the previously filed appeal by the appellant on the same cause of action had been dismissed by the Tribunal vide order dated 18‑7‑1995 and, therefore, the present appeal was not maintainable being hit by section 11 of the C.P.C. We have examined the decision in Appeal No.271‑R of 1995 previously filed by the appellant. The appeal was of course dismissed in limine but then it was observed that there was no order whether original or appellate which could be appealed against. It appears that after the decision, the appellant on 17‑10‑1995 made a representation to the Establishment Secretary for his promotion/consideration, to the post of Private Secretary (B‑17). The representation was rejected by the authority as per memo dated 23‑11‑1995 and, thus, having got a 'final order' contemplated by section 4 of the Service Tribunals Act, 1973, the appellant has again approached the Tribunal. The previous appeal having been dismissed for want of any order and the present appeal having been filed after the receipt of final order we are of the considered view that the principle of res judicata is not applicable to the present case.

6. Now coming to the merits of the case, the entire arguments of the appellant were on the appointment of Mr. Khalil Chaudhry as Private Secretary in the Establishment Division. He, however, could not produce any documents whereby it could be shown that Mr. Khalil Chaudhry had ever been appointed in the Establishment Division as Private Secretary. On the other hand, the Establishment Division have made a categorical statement in the comments that Mr. Khalil Chaudhry is working in the Establishment Division as Section Officer on deputation from the Statistics Division and that he was never appointed as Private Secretary. We were further informed that the post of Private Secretary to the Secretary, Establishment Division is still lying vacant and will be filled in accordance with the recruitment rules when considered necessary. The contention of the appellant that the post of Private Secretary had been occupied by Mr. Khalil Chaudhry in violation of the recruitment rules is, therefore, baseless. Besides, admittedly the appellant is the junior‑most Stenographer and cannot claim promotion to the post of p' Private Secretary as of right. The appeal has on merits and is liable to be dismissed. Ordered accordingly. Parties be informed. H.B.T./250/Sr.F Appeal dismissed