1980 PLP 315 (SCMR)

SHAFI‑UR‑REHMAN, J.‑This is a petition for leave to appeal under. Art. 212 (3) of the Constitution against an order dated 27th Janual7, 1979 passed by the Service Tribunal, Islamabad.

2. The petitioner was at the time of Partition a Lower Division Clerk and had opted for service in Pakistan. In due course, he was promoted and confirmed as Upper Division Clerk. There was circulated a provisional seniority list of Upper Division Clerks in the Central Board of Revenue in which the name of the petitioner appeared as serial No. 4 and that of respondent No. 1 at serial No.

10. The seniority list is date' 8th Septem ber, 1971 and it included those who were confirmed or were eligible for confirmation as Upper Division Clerks. Taslim Hussain respondent No. 1 represented against his name being placed at No. 10 in the seniority list. His representation was considered by the Central Board of Revenue in consultation with the Establishment Division and a decision was communi cated on 29th September, 1973 in the following terms :‑ "Mr. Taslim Hussain will be senior to all officiating Assistant/UDC, who were allowed seniority as eligible in the, grade of UDC and Assistants against occupied permanent posts, permanent incumbents of which posts were officiating in higher grades and those allowed senio rity against quasi‑permanent posts before the transfer of the quasi permanent posts from Part II of the Budget and those adjusted against the regular posts not in accordance with the prescribed quota." In giving effect to this decision the name of respondent No. was placed at serial No. 2 of the seniority list and the petitioner, amongst others, lost his position in that list. Subsequently, however, there issued another letter of the Establishment Division dated 2nd April 1976 whereby respondent No. 1 was informed that "his seniority of Upper Division Clerk will be reckoned from the date of his appointment in the Central Board of Revenue on the result of the said examination. So far as the question of his confirmation is concerned, he is eligible for confirmation but there is at present no permanent post of UDC available in C B R against which he can be confirmed. He will be confirmed as and when a permanent post is available for his confirmation. "Respondent No. I preferred an appeal before the Service Tribunal challenging this directive and the consequences thereof. His grievances before the Service Tribunal were mainly three. Firstly, it was contended that he was a direct recuit appointed on the recommendation of the Federal Public Service Commission and the terms and conditions offered to him as supplemented by the Office Memorandum dated 14th March, 1969 made his appointment against a permanent post and that the confirmation could take place in the normal course from the date from which he was confirmed, i.e., 8th May, 1970 when the posts were made permanent. His second grievance was that the petitioner, and others had been unlawfully confirmed as UDC from 1st December, 1950 because there was on that date no permanent posts of UDC available against which posts confirmation could take place and also because the confirmation was not in accordance with the rules then prescribed. The third grievance relates to the adjustments of respondent No. 1 a direct recruit on the promotion list vis‑a‑vis the petitioner and the other promotee respondents.

3. The petitioner was served of the institution of the appeal by respondent No. I and was called upon to file his objection to the claim not later than 28th October, 1976. The petitioner filed his detailed objections to the claim of respondent No. 1 on 27th October, 1976. It was a documented reply to the claim of respondent No. 1 and on the strength of being a confirmed UDC since 1st December, 1950 the petitioner claimed seniority over respondent No. 1 even if his claim with regard to direct appointment and confirmation as from Ist September, 1970 was not accepted. The Government, represented by the Central Board of Revenue and the Establishment Division had first contested the claim of respondent No. 1 but on the last date of hearing the learned counsel for the Govern ment produced a decision of the Government dated 21st September, 1978 by which an undertaking was given that respondent No. 1 "shall be adjusted against the second post out of the five posts of Upper Division Clerks created vide order No. 2 dated 29th October, 1959". This was said to be in accordance with the earlier undertaking dated 29th September, 1973, which had led to the improvement of respondent No. 1 in. the seniority list from position No. 10 to position No.

2. The Service Tribunal thereafter proceeded to decide the case without taking into consideration the case put forward by the petitioner in resisting the claim of respondent No.

1. The operative part of the order of the Service Tribunal reads as follows :‑‑ "Since the claim of the appellant regarding correct seniority has already been accepted by the Central Board of Revenue, we did not consider it necessary to hear the detailed arguments from both ' the parties. However, to ensure the issue of correct seniority list in time, we accept the appeal and order that the seniority be fixed in accordance with the Office Memorandum of the CBR dated 21st September, 1978, referred to above and issued, with all the consequential benefits for consideration of promotion etc. The respondents from S. No. 3 to 13 in this case, did not furnish their written comments in time and were also not attending the proceedings of this case during the last two years, except on the last date. They are proceeded against ex pate."

4. Respondent No. I has entered a caveat and we have heard in the matter after converting this petition for leave to appeal into an appeal.

5. The main argument of the learned counsel for the petitioner is that once the petitioner had filed his objections within the time prescribed by the Service Tribunal, and it was a fairly documented objection, to the claim of the respondent No. 1, the petitioner could not be proceeded ex parte. It is further stated that the Tribunal was in error in recording a finding that the written comments were not furnished in time by, among others, the petitioner. It is further said that for the last date of hearing the Tribunal itself had issued a notice to the petitioner and other respondents calling upon them to appear on 27th January, 1979 for final hearing of Service Appeal. On that date the petitioner had appeared. Therefore, there was no occasion to proceed against the petitioner ex parte. The matter should not, according to the learned counsel, have been decided ex parte, in any case, because the Government had undertaken to produce record and instead of contesting the claim it had come out with a new decision which necessitated that the claim of respondent No. 1 should have been examined in the light of the objections taken up by the petitioner and other respon dents, the Government having decided to accept the claim of respondent No. 1.

6. We have already pointed out the nature of the claim made by respondent No. 1 and the various aspects of it. It was mainly directed against the seniority list and the adjustment of respondent No. 1 therein. The persons affected were the other colleagues of respondent No. 1 and the contest was between them. Therefore, any meaningful decision of the question could take place only when apart from the question whether respondent No. 1 was to be adjusted against one of those vacancies for which direct recruitment was made through the Public Service Commission or on the availability of a permanent vacancy, it was decided as to on which date it can be said that regular appointment of each of the affected individuals was made as Upper Division Clerk. We are told that the date of confirmation of the petitioner which was notified as 1st December, 1950 remains intact and has not so far been disturbed by a formal order. If that were so, the competing claim of the individuals needed examination the context of the rules applicable at various stages and the effect of various orders passed from time to time concerning the respondents and the petitioner. We also find that the Service Tribunal was in error in conclud ing that the petitioner had not furnished the written comments within time or that he was not entitled to a hearing in view of his past conduct or the manner of his participation in the proceedings. Admittedly, he was; present on the final date of hearing and m view of the position taken by the, Government it was necessary that a decision should have been given after hearing those affected and present at the hearing. We, therefore, accept this appeal, set aside the decision of the Service Tribunal and direct that the appeal shall .be decided after hearing the parties concerned. There will be] no order as to costs. Appeal accepted.