2010 PLP (C (PLC(CS))

JAMAL KHAN MANDOKHAIL, J.

Briefly stated facts of the petition are that by means of common judgment dated 30-8-2007, passed in Service Appeals Nos.115 and 116 of 2000, filed by Abdul Rashid and Abdul Waheed Khan, the Balochistan Services Tribunal, Quetta (the Tribunal) had directed the Provincial Selection Board (the Board) to re-examine the matter and to issue fresh seniority list keeping in view all the rules, regulations and dates of appointment of incumbents.

2. After remand of the case, the Board had initially circulated provisional seniority list on 14-4-2008 and later on final seniority list was circulated on 30-3-2009, which contain the names of petitioners as well. After issuance of final list, the private respondents, feeling aggrieved, have challenged the same before the competent authority by filing representation/appeal. Main contention of private respondents in their appeal was that the Board, while preparing seniority list, had not considered their case and they have been deprived from their right.

3. The competent authority was convinced and has issued corrigendum on 16th November, 2009, wherein the seniority list dated 30-3-2009 was reviewed the private respondents were adjusted. The petitioners, being aggrieved from the said corrigendum, have filed the present petition. The private respondents in parawise comments, in reply to para No.16 of the petition, have stated as under: "Not admitted. The corrigendum for correction in the final seniority list of BCS (EB)/BS-17 officers was issued by respondent No.2 after due process of the case and acceptance of appeals of the replying respondents by the Appellate Authority/ Chief Minister. The correction in the final seniority list dated 30-3-2009 by issuing corrigendum dated 16-11-2009 was made in accordance with the law/rules/policy/procedure."

4. Learned counsel for petitioners have submitted that the impugned corrigendum dated 16-11-2009 issued by official respondents is based on mala fide intention, as they have no authority to do so, because the earlier list dated 30-3-2009 was issued on directions of the Tribunal, therefore, it amounts to contempt of the Tribunal's order as well. He has further submitted that, even otherwise, the petitioners are seniors to private respondents; therefore, as a matter of right, they are entitled to be given seniority over private respondents.

5. On the other hand, learned counsel for private respondents has vehemently denied the contentions and has challenged the maintainability of the petition in view of the bar contained in Article 212 of the Constitution. On merits too, he has contested the petition.

6. Learned Additional Advocate General has also strongly opposed the petition and has submitted that the competent authority has accepted the appeal of private respondents, therefore, the petitioners could have challenged the said order, if aggrieved, before the Tribunal, therefore, the petition being incompetent is liable to be dismissed.

7. We have heard learned counsel for the parties and have gone through the record. It transpired that the petitioners are strongly relying upon a judgment dated 30-8-2007 passed by the Tribunal and have claimed that in view of same, the final seniority list dated 30-3-2009 was issued. After going through said judgment, it reflects that petitioners have not properly understood its theme, in which the Tribunal has never declared that petitioners or somebody else should be given preference or be listed senior to others. While remanding the case, the Tribunal has simply held that the authorities/department should look into the matter in depth from very initial stage and then make appropriate order in this respect while assigning seniority to the official concern keeping in view relevant law and rules. Directions of the Tribunal were general in nature and it was not in favour of any individual, rather the Board was directed to follow law and rules while preparing the list, thus, the authorities were bound to consider the cases of all the incumbents including the petitioners and private respondents strictly in accordance with law. Since the private respondents were aggrieved from the list issued by the Board, therefore, they have availed the proper remedy by way of filing representation/ appeal to the competent authority. No doubt, we cannot look into the outcome of any order passed by competent authority, but according to law against any seniority list, the remedy available to aggrieved person is a representation/appeal to the competent authority, which the private respondents have availed. The competent authority has passed an order, reviewing the seniority list, against which the law has provided a remedy by way of filing an appeal before the Tribunal.

8. Since the impugned corrigendum issued by the competent authority pertains to terms and conditions of service, therefore, in view of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, we have no jurisdiction to entertain the petition against said order and in this behalf, reliance has been placed on a judgment-reported in 2007 SCMR 54.

9. Thus, in view of above, the petition, having being filed in a wrong forum, is dismissed in limine being not competent, with no order as to cost. These are the reasons of our short order dated 22-12-2009 announced in the open Court. M.H./18/Q Petition dismissed.