P L D 1989 Supreme Court 562 (PLP)

The Bench considering the leave petition, after hearing both the sides with regard to the question, observed‑‑ "It is an admitted position that the final list was not challenged by respondents Nos.2 to 6 before any departmental authority prior to the filing of the appeal before the Tribunal. Section 4 of the Punjab Service Tribunals Act (No.IX of 1974) provides that an appeal thereunder would not be competent if an appeal, review or representation to a departmental authority available under the Civil Servants Act, 1974, has not been filed. Under "subsection (2) of Section 21 of the Punjab Civil Servants Act. 1974, a representation to the next higher authority can be made if no remedy of appeal or review as provided in subsection (1) of section 21 is available. It has been stated at the Bar that the rules do not provide the remedy of appeal or review against final seniority list. Prima facie, therefore, the respondents Nos.2 to 6 could file a representation before the Governor as the next higher authority under subsection (2) of section 21; and not having done so, 'their appeal before the Tribunal was not competent‑‑ it was barred by proviso (a) to subsection (1) of section 4 of the Punjab Service Tribunals Act, 1974. Learned counsel for the respondents, inter alia, contended that the seniority list having been issued by the Provincial Government, a representation could be made only to a higher forum and under the Constitution the Governor was not the higher forum. That being so no representation was competent. It has also been contended that the petitioners not having raised this point before the Tribunal or in the petition leave to appeal, it should not be taken into consideration grant of leave to appeal. They also relied upon some Tribunal's decisions in this behalf. . Learned counsel for the petitioners, on the other hand, relied on two judgments of this Court‑‑ S.M.H.Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612 and Haji Kadir Bux v. Province of Sind and another 1982 SCMR

582. The above noted question not only goes to the very root of the jurisdiction of the Service Tribunal to entertain, hear, adjudicate and decide the appeal filed by respondents Nos.2 to 6, but also is of great general public importance. We accordingly permit the petitioners to amend their petition and also grant leave to appeal to examine this and other questions raised in the petitions for leave to appeal." It appears that pursuant to the above order of this Court the appellants submitted amended petitions raising an objection to the maintainability of the appeals before the Service Tribunal. The respondents, in reply thereto, submitted that at least four of them (respondents Nos.2, 3, 5 & 6) had, in fact, filed representation before the Governor against the final seniority list circulated on 2‑‑6‑1984, but since the view of the law taken by the Service Tribunal was that such a representation was not necessary (see Tribunal's judgment in Ch. Muhammad Sharif and others v. Secretary to Government of Punjab, S&GA. Department and others 1986 .PLC (CS 789), the applicants' counsel before the Tribunal did not mention this fact in the memo of appeal. It was in this background that at the time of the hearing of the leave petition, it was assumed that no representation was made to the Governor under section 21 of the Punjab Civil Servants Act, 1973 and that the respondents‑applicants shall submit at the time of final hearing that the appeal before the Tribunal was competent even without the aforesaid representations But if the view that a representation was necessary as pre‑condition for going in appeal before the Tribunal, then the applicants shall rely on the documents now being filed. In our opinion, the view taken by the Service Tribunal that a representation was not necessary in such cases is not correct and its decision in Ch. Muhammad Sharif and others v. Secretary to Government of Punjab, S&GA. Department and others 1986 PLC (CS) 789 is erroneous. It is an admitted position that the impugned seniority list has been issued by the Secretary to the Government and even if matters such as the orders relating to causing the preparation of a seniority list are not to be placed before the Governor for approval it does not mean that the Secretary to the Government becomes the Governor in the relevant regard. Because the Governor has his own independent position and, no doubt, remains the next higher authority before whom the necessary representation can be submitted. Section 4 of the Punjab Service Tribunals Act, 1974 to the extent pertinent lays down as follows:‑‑ "(4) Appeals to Tribunals.‑‑Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that‑‑ (a) where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules against any such order no appeal shall lie to Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred." Now, according to section 21(2) of the Punjab Civil Servants Act, 1974, it is prescribed: "

21. Right of appeal or representation (1) ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ...... ... (2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order." Since no provision exists in the rules in respect of an appeal or review against the impugned order of the Secretary to the Government causing the preparation of the seniority list circulated on 2‑6‑1984, a representation against it to the authority next above the said authority was necessary. The question is whether the Governor can be regarded as such an authority'' A reference to the provisions of Punjab Civil Servants Act, 1974, assists in answering this question. In this Act, clause (c) of section 2 defines the term "Government" to mean the "Government of the Punjab" . While section 4 thereof deals with the matter of appointments and provides‑‑ "S.4. Appointments.‑Appointments to a civil service of the Province or to a civil post. in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf." Thus, the appointing authority of the parties is the Governor. Coming to the matter of preparation of seniority lists, the same is dealt with in subsection (3) of section 7, as follows:‑ "(3) For proper administration of service or cadre, the appointing authority shall from time to time cause a seniority list of the members of such service or cadre to be prepared." In this case, the seniority list was prepared by the Secretary l of the Department. This function, however, under the law (subsection (3) of section 7 is conferred upon the appointing authority namely Governor of the Province. Here, the Seniority List was not prepared by the appointing authority himself namely the Governor but the Secretary. Hence any civil servant who felt aggrieved by the said seniority list could make a representation against it to the authority next above the Secretary to the Government namely to the Governor of the Province. ' The view of the Service Tribunal that since the seniority list framed under the orders of the Secretary to the Government need not be placed before the Governor for approval, under the Rules of Business, no representation would be necessary, cannot be accepted because merely this circumstance does not convert the order of the Secretary into the order of the Governor himself. The said order will remain the order of the Secretary of the Government but in view of the delegation conferred under the Rules of Business it will be deemed to have been made competently. However, it' any civil servant feels that some error has been committed by him, a representation against it would be competent under subsection (2) of section 21 to the Governor. Accordingly, the view of the Service Tribunal that the respondents herein were under no obligation to make representation against the same to any higher authority before coming to the Tribunal, is erroneous. This brings us to the submission that at least four of the respondents‑applicants had, in fact, filed representations before the Governor against the disputed seniority list and this fact was not mentioned because the view of the law, which was then entertained by the Service Tribunal, was that such a representation was not necessary. Since the objection regarding the maintainability of the appeal has been taken only on the Court's pointing out that the statutory obligation in regard to filing of the necessary representation had not been discharged and the appellants allowed to amend their petitions for leave to appeal, it is only fair that the reply of the respondents, in which they have stated that representations had indeed been made by the respondents to the Governor (and copies of the same placed before us), should be taken into consideration while determining whether the statutory obligation was not discharged by them. A perusal of the representations, however, shows that these were filed in the month of June, 1984 i.e. shortly after the impugned seniority list was circulated (on 2‑6‑1984) and that the appeal to the Service Tribunal was filed much before 90 days had elapsed after the filing of the representation, on 12‑7‑1984. Hence it was submitted by Mr. S.M.Zafar, learned counsel for the appellants, that the appeals were incompetent because a period of 90 days had not elapsed from the date on which representations were so preferred to the Governor. In this connection, he relied on S.H.M.Rizvi and others v. Maqsood Ahmad and others PLD 1981 SC 612 and Haji Kadir Bux v. Province of Sind and another 1982 SCMR

582. Mr. Dost Muhammad Awan, learned counsel for the respondents, however, submitted that since the appeals were heard long after the expiry of 90 days of the preferment of the representations no objection could be taken on this score. We find that this aspect of the matter has not been dealt with by the Service Tribunal on the erroneous view entertained by it that the representations were not necessary. Furthermore, certain questions of fact namely the exact date on which representations were filed; whether any orders were passed thereon etc. need to be investigated. In these circumstances we consider that it would be more appropriate to remand the case to the Service Tribunal for decision on the question whether the appeal would be deemed to have been competently filed after investigating these factual aspects of the matter. The result is that both these appeals succeed. The order of the Service Tribunal dated 19‑5‑1985 is set aside and the case remanded to the Tribunal for decision afresh in the light of the observations made above. M.B.A./F‑126/S Appeals allowed.