1990 PLP (C (PLC(CS))

MUNAWAR ALI KHAN (CHAIRMAN).‑‑The appellant has come to this Tribunal second time agitating the same issue namely the fixation of his seniority in the cadre of Secretariat Assistants. He filed first appeal No. 31 of 1981 as far back as 4‑7‑1981 wherein he claimed seniority on the basis of the decision of the Service Tribunal in the cases of M/s Aftab Ahmed Siddiqui and Muhammad Siddique Makhdoom. The said appeal was allowed vide judgment of the Service Tribunal dated 17th March, 1982. As the decision taken in that judgment was not being implemented by the departmental authorities, the appellant was constrained to file constitution petition in the High Court. During the pendency of the petition, the Chief Secretary to Government of Sind passed an order dated 5th March, 1983, purporting to fix the seniority of the appellant in accordance with the decision of the Service Tribunal. When the Advocate?-General produced his order before the High Court, the appellant's Constitution petition was dismissed on the ground that decision of the Service Tribunal was duly implemented, vide judgment of the High Court dated 22nd March, 1983. Meanwhile the appellant had filed departmental appeal dated 16th March, 1983 to the M.L.A. Zone `C', challenging the Chief Secretary's aforesaid order. Since no decision was taken on his appeal until 19th July, 1987, the appellant renewed his request to the said appellate Authority (M.L.A. Zone `C') by way of reminder for taking appropriate decision. In reply to his request, he received the letter dated 17th July, 1987 of the Secretary (S&GAD) which has been impugned in the present appeal. As the appellant was not represented by counsel, he was permitted to submit his written arguments. In reply to his written arguments the learned Government counsel also preferred to rely upon the material contained in the written statement filed on behalf of the official respondents instead of making oral arguments. We have carefully gone through the appellant's written arguments as well as the written statement filed on behalf of the official respondents. We have also perused the other documents available on record and so also the judgment of the Tribunal delivered in the appellant's previous appeal. The letter of the Secretary (S&GAD), dated 17th September, 1987 which has been called in question in this appeal reads as under:‑‑ ?To Mr. Muhammad Moosa Soomro, Section Officer Food Department Karachi. Subject:‑‑Appeal under Rule 3 of the Sind Civil Servants (Appeal) Rules, 1980, read with Rule 17‑A of the Sind Government Rules of Business, 1973. Reference your application dated 19‑7‑1987 on the subject noted above. (2) Your case for seniority already stands decided / finalised. You are hereby warned to desist from making further representations failing which you will be liable for disciplinary action under the E & D Rules, 1973. (3) This issues with the approval of Secretary (Services)." The question arises if the above letter is the final order, original or appellate against which appeal can be filed under section 4 of the Sind Service Tribunals Act, 1973, hereinafter referred to as the said Act. It would appear that the appellant was allegedly aggrieved by the Chief Secretary's order dated 5th March, 1983 with regard to fixation of his seniority so that he challenged the said order in the appeal filed before the M.LA. Zone `C'. For approaching this Tribunal, he had obviously two alternatives. His First choice was to straightaway file appeal against the Chief Secretary's order within 30 days following the expiry of the statutory period of 90 days from filing of the appeal before the M.L.A. Zone `C'. Manifestly he did not avail this alternative. Had he chosen that path, his appeal would have come before this Tribunal sometime in July, 1983. But he actually filed the present appeal after lapse of more than 4 years, on 13‑10‑1987. Thus the said opportunity was lost to him. In the alternative he had to wait for the decision of the departmental appellate authority namely: M.L.A. Zone `C'. But in the meantime, his writ petition pending in the High Court was dismissed on the basis of the Chief Secretary's order dated 5th March, 1983. It seems to us that after dismissal of the writ petition the M.L.A. Zone `C' did not think it necessary to pass any order on the appellant's appeal. Even the appellant himself seemed to have lost interest in his departmental appeal which was clear from the fact that he slept over the matter for over four years. His belated application dated 19‑7‑1987 urging the appellate authority. for disposal of his departmental appeal was obviously an attempt on the part of the appellant to revive and reopen the closed chapter of his case, by such application he tried to create fresh‑ cause of action for filing appeal before this Tribunal. In reply to that application he received the impugned letter herein?above, which does not contain the order of M.L.A. Zone `C' rejecting his appeal. Therefore by no stretch of imagination the said letter can be regarded as the final order of the M.L.A. Zone `C' within the meaning of section 4 of the said Act and as such appeal cannot lie against such letter. The present appeal which is directed against the said letter is therefore liable to be dismissed on this sole ground. Apart from above, the appeal is clearly barred by the principle of res judicata. The appellant had already agitated the issue relating to his seniority in his earlier Appeal No. 31 of 1981. In that appeal his prayer was "In view of the B above, it is respectfully prayed that this Tribunal be graciously pleased to declare the case of the appellant as identical to that of M/s Siddiqui and Makhdoom and award the same relief as awarded in Appeals No. 225/74 and No. 226/74." The appellant's above prayer was granted by the Service Tribunal by its judgment dated 17th March, 1982. The operative part of the judgment is as under: "We accordingly allow the appeal and declare that the case of the appellant is identical to that of M/s. Aftab Ahmed Siddiqui and Makhdoom Muhammad Siddique and the seniority of the appellant in the grade may be determined in similar manner, after counting his previous term of officiation on regular basis in the same grade." It is an admitted position that the appellant had to file the Constitution petition in the High Court for implementation of the relief granted to him as mentioned above. It is further admitted that pending the said petition, the Chief Secretary passed order dated 5th March, 1983 in implementation of the above decision of the Service Tribunal. It is also clear from the record that when the Advocate‑General produced the said order of the Chief Secretary before the High Court, the appellant's petition was disposed of by the High Court vide its judgment dated 22nd March, 1983 with the following observation:‑‑ "The petitioner makes a grievance against this order, and states that this is not a correct implementation of the order of Service Tribunal. We are afraid we cannot agree with the contention for more than one reason. 'The Service Tribunal had only stated that the case of the petitioner should be treated in an identical manner as the case of Aftab Ahmad and Muhammad Siddiq and the seniority of the petitioner in the grade may be determined in similar manner. The learned Chairman of the Service Tribunal had, after stating a principle, left the implementation thereof to the Provincial Government. The Provincial Government has, on the face of the order that is produced before us, implemented that principle." Thus as per order of the High Court, the relief allowed to the appellant by the Service Tribunal in his previous appeal was actually implemented. Despite that the appellant filed the present appeal seeking the same relief. This is clear from his prayer in the present appeal, which reads as under: "In view of the above, it is respectfully prayed that this Hon'ble Tribunal be graciously pleased to order that‑‑ (a)??????? the seniority of the appellant be counted as Assistant with effect from 1?10‑1962, the date of continuous appointment as Assistant as declared by his Hon'ble Tribunal in Appeal No. 31 of 1981: (b)??????? the same treatment as that of M/s Siddiqui and Makhdoom (Annexure ??E?) be meted out to the appellant and allow past benefits accrued on seniority basis: (c)??????? award cost of the appeal to the aggrieved appellant." It is obvious from the above prayer that it is substantially the same the appellant had made in his previous Appeal No. 31 of 1981, which was not only allowed by the Service Tribunal but it was also implemented as had been declared by the High Court in its judgment referred to above. Since the present appeal is in respect of the same cause of action which was the subject‑matter of the previous appeal, the present appeal is manifestly barred by principle of res judicata. For above reasons appeal is dismissed with no order as to costs. AA./210/Sr.S?? Appeal dismissed.