2001 PLP (C (PLC(CS))

This petition for leave to appeal has been directed against the order of the Service Tribunal, dated 30-4-1998 whereby accepting the appeal of Syed Tasawar Hussain Shah respondent as a result of compromise he was declared senior to Muhammad Anwar, respondent, herein.

2. The brief facts of the case are that Syed Tasawar Hussain Shah filed an appeal against the order of departmental authority claiming seniority over Muhammad Anwar, respondent, before the Service Tribunal wherein the petitioner, herein, was also impleaded as a pro forma-respondent alongwith some others. During the pendency of the appeal Tasawar Hussain and Muhammad Anwar, respondents, entered into a compromise as a result of which Syed Tasawar Hussain Shah was declared senior to Muhammad Anwar. The Service Tribunal has opined in the impugned order that as Syed Subtain . Hussain Kazmi, pro forma-defendant, did not challenge the impugned order, he was not entitled to any relief. The case of the petitioner is that Syed Subtain Hussain Kazi has engaged Syed Nazir Hussain Shah Kazmi, Advocate as his counsel before the Service Tribunal at the instance of Tasawar Hussain Shah, respondent. the Service Tribunal to transpose him (petitioner) to the line of the appellants to which the objections were also filed but without deciding the question of his impleadment, the said compromise was accepted and impugned order was passed which, according to the learned counsel for the petitioner, could not be done without deciding the question of his impleadment. It has been contended on behalf of the petitioner that as the provisions of Civil Procedure Code are applicable to the proceedings before the Service Tribunal, the petitioner, herein, should have been transposed in the line of the appellants. The learned counsel for the petitioner cited Pakistan Banking Council and another v. Ali Moohtaram Naqvi and others (PLJ 1985 SC 461) in support of his contention that the Court has wide powers to implead a person as a party under Order 1, rule 10 of the Civil Procedure Code. In the above said case the Supreme Court of Pakistan while deciding the question of impleadment of a party in the suit filed in the High Court held that only a necessary or proper party can be added under the provision of Order 1, rule 10 of the Civil Procedure Code; the Court should allow the record to be loaded with the addition of the parties which have no interest in the suit. Evidently, authority has no relevancy to the case in hand because the present petition arises out of the proceedings under Service Tribunals Act which is a special statute to which the application of Civil Procedure Code is of limited nature.

3. In reply Mr. M. Tabassum Aftab Alvi, the learned counsel for the respondent controverted the arguments advanced on behalf of the petitioner contending that a civil servant who is aggrieved by an original or final order is bound to first exhaust the departmental remedy before filing an appeal to the Service Tribunal within a period of 120 days as envisaged under section 4(1) of the Service Tribunals Act. He has further argued that the Service Tribunal Act is a special statute and the question of impleadment of the petitioner is to be decided keeping in view all its provision.

4. I have given due consideration to the matter. A perusal of the Service Tribunals Act would indicate that although Service Tribunal enjoys the powers of a civil Court yet this does not imply that all the provisions contained in Civil Procedure Code are applicable to the proceedings before it without having' regard to the substantive provision of the Act which envisages that an appeal by an aggrieved civil servant to the Service Tribunal is competent only after exhausting the departmental remedy within prescribed period of limitation. Thus, it can be said that irrespective of the condition laid down in section 4 of Service Tribunals Act, a person cannot be transposed as an appellant from the line of the pro forma-defendants merely not because he was impeladed as such. Obviously, if an aggrieved civil servant fails to exhaust the departmental remedy, he is debarred to move Service Tribunal for the redressal of his grievance. Therefore, I am of the view that the petitioner is not entitled to challenge the validity of impugned order merely because he was arrayed as a pro forma-defendant in the appeal which was decided without transposing him as appellant. Even otherwise, expression 'pro forma-defendant' has many connotations and does not necessarily mean that appeal to Service Tribunal would be deemed to have been instituted also on behalf of the person who has been arrayed in the line of the pro forma-defendants. In the light of which has been stated above, finding no force in the petition for leave to appeal, it is hereby dismissed.