1990 PLP 1246 (SCMR)

SA.M. Quadri, Advocate‑on‑Record for Respondent No.2. Date of hearing: 27th September, 1989. SHAFIUR RAHMAN, J.‑‑‑Leave to appeal. was granted to the appellant under Article 212(3) of the Constitution to examine whether the Service Tribunal had not misconstrued the facts by treating the appeal before it as a review petition against its judgment dated 18‑2‑1984.

2. The appellant Qudratullah had been regularly appointed to the post of Development Officer in B.16 and he was holding an ad hoc appointment in B.17. As a measure of economy, certain posts in the category which he was holding, were reduced and mistakenly the case of the appellant and many others was referred to the Public Service Commission for regular appointment in B.16. The Public Service Commission did not recommend the absorption or appointment of the respondent whereupon his services were terminated. He challenged the order by an earlier appeal before the Service Tribunal and the order of termination was set aside and the operative part of the order passed by the Service Tribunal on 18‑2‑1984 was as hereunder:‑ "The impugned order is defective inasmuch as it ordered the termination of service of a regular Development Officer whereas under sub‑rule(5) of rule 8 of the Balochistan Local Government Rural Development and Agrovilles Department Service Rules, 1980, if a holder of the post fails to complete successfully any training or pass any departmental examination within such period or in such number of attempts as may be prescribed by Government, the appointing authority may: (a) in case he has been appointed by initial recruitment dispense with his services; or (b) in case he has been appointed otherwise, revert him to his former appointment and if there be no such appointment, dispense with his services. The Notification dated 3‑2‑1975 issued by Respondent No.1 clearly indicates that he was appointed otherwise because he was promoted a Assistant Director (L.G.) and as the post of Development Officer was, also there at the time of issue of impugned order, his services could not be terminated and if it was desired not to retain him as Assistant Director, he should have been reverted as Development Officer.

3. In compliance with this order of the Service Tribunal the Government reinstated the respondent in B.16 and not in B.17. This aggrieved him and he came to the Tribunal complaining that the Tribunal's order had not been complied with and he was entitled to be absorbed in B.17. The Tribunal disposed of his appeal by observing that the order of the Tribunal permitted the Government to adjust him in any case in B.16 if not in B.17 and if he wanted a modification in that order, it would amount to a review which, was not permissible. The operative part of the order of the Tribunal was as hereunder: "We observe that the order of the Tribunal dated 18‑2‑1984, referred to above, is quite clear on directing the reversion of the petitioner as Development Officer which post did exist at the time of issue of the impugned Notification, dated 19‑11‑1981 of respondent No.2 on termination of his service. The respondents were under no obligation to retain him as Assistant Director, the post he held before termination of , his service under the above notification of 19‑11‑1981. We also tend to agree with the views of the Full Bench of the Service Tribunal Pakistan that this Tribunal cannot review its own order as narrated in Para 3 above, though, it appears that the learned counsel for the appellant has not requested for the review in its strict meanings and application. He is interpreting the order of this Tribunal, dated 18‑2‑1984 wrongly and out of the provisions of relevant rules of Baiochistan Local Government Rural Development and Agrovilles Department Service Rules, 1980."

4. The learned counsel for the appellant has contended that in view of the order passed by the Service Tribunal earlier, the appellant was entitled to be appointed and to be treated in B.P.S.17. This had to be so additionally for the reason that on account of seniority itself he deserved to be so placed and could not be discriminated against as a few others similarly affected had been fixed by the Government in that scale.

5. The first and the primary question involved in the second appeal before the Service Tribunal was whether the order passed by the Government, was in contravention of the order of the Tribunal or in conformity with it. The operative part of the earlier judgment of the Service Tribunal has been quoted and it clearly shows that the Government had been permitted to adjust the appellant in B.16 in case he was not adjusted in B.17. The Government has implemented that part of the order and in doing so it cannot be said to have contravened it. Besides, being an ad hoc appointee of the post he could not claim as a legal right to continue on an ad hoc appointment. In case the merits of that order had to be examined or disputed it was as held by the Tribunal not within its power to do so because it would have amounted to review. On both these matters the view taken by the Tribunal is sound and correct.

6. As regards the discrimination, the full facts were not brought before the Tribunal and we do not find any mention of it in that judgment. Besides, the parties in whose favour the appellant had been discriminated against, have not been impleaded either. It is a ground which has been taken up after the decision of the Service Tribunal and involves question of fact which it may not be possible' to deal with it now as also it is outside the purview of the leave granting order. ! The Appeal is dismissed with no order as to costs. AA./Q‑31/S Appeal dismissed.