1991 PLP 49 (SCMR)

RUSTAM S. SIDHWA, J.‑‑This order will dispose of five petitions, C.P.LA. No. 221‑P of 1988, C.P.LA. No. 1‑P of 1989, C.P.LA. No. 2‑P of 1989, C.P.L.A. No.3‑P of 1989 and C.P.LA. No.5‑P of 1989. The first filed by Raj Muhammad Khan and others and the fifth by the Government of N.‑W.F.P. and another seek leave to appeal against the judgment of the N.‑W.F.P. Service Tribunal, Peshawar, dated 10‑11‑1988 allowing seniority to Muhammad Farooq Khan, respondent No.1, over all the petitioners and respondents Nos. 4 to 8 in the first petition and over respondents Nos. 2 to 17 in the fifth petition with retrospective effect from 10‑4‑1982, and the remaining second, third and fourth petitions filed by the Government of N.‑W.F.P. and the High Court of Peshawar, seek leave to appeal against three separate judgments of the N: W.F.P. Service Tribunal, all dated 10‑11‑1988 expunging adverse remarks passed against Muhammad Farooq Khan respondent No.1 in his A.C. Rs. for the years 1980, 1985 and 1981 respectively.

2. We have heard the arguments of the learned Additional Advocate‑General; N: W.F.P., and have perused the record.

3. Leave to appeal is granted in the above cases to consider the following questions:‑‑ (i) Whether or not the Service Tribunal was legally justified in considering and allowing the appeal of Muhammad Farooq Khan, respondent No‑1, on merits without recording any reason for condonation of delay, when a preliminary objection to this effect was specifically taken by the respondent‑Government; (ii) Whether under the law seniority of Muhammad Farooq Khan, respondent No.1, in the cadre of Additional District and Sessions Judge, to which he was promoted on 24‑1‑1985, could take effect from a retrospective earlier date as allowed by the Tribunal over the heads of other persons who had been promoted earlier and had superseded the said respondent; (iii) Whether the decision of the Service Tribunal does not mount to the determination of fitness of Muhammad Farooq Khan, respondent No.1, to hold a particular post or to be promoted to a higher post or grade in respect of which no appeal lay before the Tribunal; (iv) Whether remission of penalty or stoppage of promotion imposed upon Muhammad Farooq Khan, respondent No.1, under the Efficiency and Discipline Rules 1973 entitled him to be considered for promotion retrospectively; (v) Whether or nor the Countersigning Authority is competent under the law to disagree with the Reporting Officer in the matter of A.C Rs. and whether the Reporting Officer or the Countersigning Authority were duty bound to justify the adverse remarks by producing evidence before the Tribunal; and (vi) Whether or nor the Service Tribunal in granting retrospective seniority to Muhammad Farooq Khan, respondent No.1, and in expunging adverse remarks passed in his A.C.Rs. for the years 1980,1981 and 1985, has not misappreciated the facts and erred in‑law. The appeals shall be heard on the basis of the present records. The parties are at liberty to file such further documents as they consider necessary fol. the full and final disposal of the case. All the four impugned orders of the N.‑W.F.P. Service Tribunal shall remain suspended, pending the final disposal of the appeals. A.A./M‑1294/S Leave granted.