1999 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑This is an application of Mr. Masood Ahmed Changwani, for implementation of judgment in Appeal No. 395(R) of 1995 whereby this Tribunal decided that the appellant was entitled to be promoted to a post of Assistant Director, B‑17 and we ordered accordingly. The respondents, i.e. Director‑General, Bureau of Emigration and Secretary, Labour Division in pursuance of the judgment of this Tribunal forwarded the case of the appellant for promotion to Grade‑17 to the Secretary, Establishment Division. The Establishment Division has declined to pass any order on the ground that the matter is pending in the Supreme Court, therefore, no action could be taken. In this situation, we heard the learned counsel for the parties and also the appellant. Mr. Fazal Elahi Siddiqi, Advocate appeared on behalf of those respondents who were declared ineligible for promotion in the impugned judgment, and argued that there is stay from Supreme Court, therefore, judgment cannot be implemented. On the other hand, the appellant argued that before grant of leave, the Hon'ble Judge of Supreme Court in Chamber ordered that status quo be maintained till leave is granted. It is contended that when leave was granted the application for stay was there but Supreme Court did not grant stay and according to the appellant status quo was for limited period upto grant of leave to appeal. He argued that Establishment Division without justification is delaying the matter.

2. In view of the submission of the parties, we have perused the record

3. This Tribunal in Appeal No.395(R) of 1995 vide judgment dated 20‑6‑1996 in para. 18 directed as under: ?

18. As a result of above discussion, we hold that respondents 4 to 8 were not qualified and eligible for promotion to the post of Assistant Director (B‑17) in preference to the appellant as they were not holding the post of (B‑16) on regular basis. Since the appellant alone was holding (B‑16) on regular basis, he was entitled to be promoted to the post of Assistant Director (B‑17) and we order accordingly????." Civil Petition No. 465 of 1996 alongwith Civil Miscellaneous Application No.558 of 1996 was placed before Hon'ble Judge when Mr. Fazal Elahi Siddiqi, Advocate as respondent No.4, appeared and following ordered was passed on Miscellaneous Application No. 558 of 1996: "ORDER Mr. Fazal Elahi Siddiqi, Advocate Supreme Court respondent No.4 in person. Status quo to be maintained until hearing of the leave petition Dated: 29‑9‑1996 Thereafter, Civil Petition for Leave to Appeal No.465 of 1996 and Civil Petition for Leave to Appeal No.476 of 1996 was heard by Supreme Court and in both Civil Petition for Leave to Appeal M/s. Fazal Elahi Siddiqi and Raja Muhammad Bashir, Deputy Attorney‑General, appeared for petitioners whereas respondent No. 4, Mr. Masood Ahmed Changwani was also present. The following order was passed by Division Bench of Supreme Court: "

4. Leave to appeal is granted to consider the above propositions of public importance. 27th November, 1996. "

3. The point for determination before us is whether there is any stay in the field which could prevent the respondent department not to implement the judgment of the Tribunal. As stated above, the Hon'ble Supreme Court on 29‑9‑1996 ordered status quo to be maintained until the hearing of leave petition, and that order was subject to grant of leave. Subsequently, the Hon'ble Supreme Court by order, dated 27th November, 1996 granted leave to appeal only, but did not suspend the operation of the judgment passed by the Tribunal, in spite of the fact that in Civil Miscellaneous Application No.558 of 1996 in Civil Petition No. 465 of 1996, there was a specific' prayer to this effect, and it appears that perhaps, request for continuance of status quo was either not pressed or for order granting leave is clear that order of Tribunal was not suspended. It may also be pertinent to mention here that in another Civil Miscellaneous Application No. 124 of 1997 in Civil Appeal No. 1753 of 1996 filed by Mr. S. Masood Ali and others "captioned as Application for supervision of the operation of the impugned orders in Civil Petition for Leave to Appeal No. 465 of 1996", in paragraph 7 thereof, it has clearly been stated? "That when the leave was finally granted on 27‑11‑1996, it appears that the petitioner Mr. S. Masood Ali, etc. failed to make a request that the order directing maintenance of status quo be extended till the determination of issues in the Supreme Court"?????.. The abovementioned facts clearly bear out that status quo was for a limited extent whereafter leave to appeal was granted, and at the moment there is no stay order in the field, because while granting leave to appeal, the operation of judgment of the Tribunal was not suspended and mere leave to appeal cannot defeat the implementation/process. On this we rely on a judgment of Lahore High Court (1982 Law Notes (Lahore) (437) (S. Inamul Haq v. Secretary, Establishment Division and others) and 1989 PLC (C.S.) 398 (Ahmad Nawaz Khan v. Senior Accounts Officer, Pakistan Railways). The relevant para of judgment of Lahore High Court is as follows: "It is an admitted position that the Supreme Court of Pakistan has not suspended the operation of order impugned before them. The mere fact that the appeal is sub judice provides no justification for not implementing the order of the Federal Service Tribunal. In this connection the rules of the Supreme Court are clear. Reference can be trade to Order XX, Rule I. It reads thus: "The filing of a petition 'for leave to appeal or an appeal shall not prevent execution of the decree or order appealed against, but the Court may, subject to such terms and conditions as it tray deem fit to impose, order a stay of execution of the decree or order, or a stay of proceedings, in any case under appeal to this Court." Order XLI, Rule 5 of the Code of Civil Procedure is also relevant. It lays down as under: Stay by Appellate Court.‑‑‑(1) An appeal shall not operate any stay of proceedings under a decree or order appealed from except so far as the Appellate Court may order, nor shall execution of a decree by stay or reason only of an appeal having been preferred from the decree, but the Appellate Court may for sufficient cause order stay of execution of such decree. The aforesaid two provisions especially the Supreme Court rule demolish the stand taken by the respondent. We still expect the respondent to act gracefully so as to honour the order passed by one of their own Tribunals." In these circumstances, we are unable to subscribe to the view of the Establishment Division to withhold the recommendations of the Manpower Division and keep the case pending without any justification. We, therefore, direct the Establishment Division to decide the case of the appellant within a period of one month, and report compliance. H.B.T./171/Sr.F?????????????????????????????????????????????????????????????????????? ??????????? Order accordingly.