1972 PLP 1 (SCMR)

HAMOODUR RAHMAN, C. J.‑This is a petition for the review of an order passed by this Court on the 29th of June 1971 dismissing Civil Petition for Special Leave to Appeal No. 37 of 1971. The petitioners, who are optee Railway Guards from the East Indian Railway, joined the North‑Western Railway on coming to Pakistan. In the beginning they were provisionally placed in a combined seniority list prepared in the year 1952 with Guards opting from other Railways to Pakistan. There were subsequently further changes in the combined seniority list and a concordance of optee Guards was prepared by the Railway Administration. The petitioners felt aggrieved by the position given to them in the combined seniority list as a result of the subsequent changes and they filed a suit in the Court of the Civil Judge, Multan, for a declaration that the combined seniority list prepared in 1952 had been illegally ; and unlawfully changed and that they were entitled to be treated as Grade B Guards. Their complaint was that they had been wrongly placed in a lower grade as Grade `C' Guards. That Suite was dismissed in 1959 and the decision was upheld in appeal by the High Court. A writ petition, being Writ Petition No. 1198 of 1957, filed by another Guard of Group `B', was also dismissed by the High Court on the 11th of December 1962. The petitioners then filed another suit, being Suit No. 1003 of 1956, in the Court of a Civil Judge at Karachi. This suit was, decreed on the 22nd of September 1962, and the petitioners, who were the plaintiffs in the suit, were given the declaration that they should be classified and grouped as Grade `B' or Grade II Guards of N. W. R. and it was further declared that the combined seniority list placing them in lower grades was illegal and void. An appeal from the said decree was dismissed by the District Judge, Karachi, on 12‑4‑

66. Thereafter, the Railway Administration, it is said, proceeded to implement the decree and prepare a seniority list in accordance with the declarations given in the decree in the year 1967. In the meantime, six other suits were filed at Karachi by other Guards for restraining the Railway Administration from implementing the said decree. In these suits, orders of interim injunction were also made, but ultimately on 29‑5‑67, the said injunctions were vacated. Another suit, being Suit No. 9 of 1967, was fled at Sukkar by another guard and again an order of injunction was obtained in that suit. This suit was ultimately dismissed for non‑prosecu tion on 24‑9‑1969. In another suit filed on the 22nd of June 1967 at Lahore by two other `B' Grade Guards of the North Western Railway an order of injunction was again obtained restraining the Railway Administration from disturbing their position in the seniority list. This suit was dismissed on the 23rd of December 1969. An appeal from that order also failed before the Additional District Judge, Lahore, on 3‑2‑

70. The efforts of the petitioners thereafter to get the Railway Administration to implement the seniority list of 1967, however, failed as the Railway Administration took the view that the decision of the High Court given on the 11th of December 1962, in Writ Petition No. 1198 of 1957 stood in the way. The contention of the petitioners that the decision of the High Court in that writ petition, to which the present petitioners were not parties, could not affect them, was not accepted by the Railway Administration. The petitioners, therefore, filed another writ petition being No. 1232/S of 1970 in the Lahore High Court on the 11th August 1970. In this, the High Court called for a report, and in this report the Railway Administration again took the point that, in view of the judgments of the High Court in Writ Petition No. 1198 of 1957 and R. F. A. No. 105 of 1959 disposed of on the 11th of December 1962, the Railway Administration was not in a position to accede to the demand of the petitioners. This writ petition was dismissed by a Division Bench of the High Court on the 4th of November 1970 on the ground that the writ jurisdiction was not the appropriate procedure for getting a declaratory decree implement. Reliance for this purpose was also placed on a decision of this Court in the case of Pakistan v. Mehraj Din (P L D 1959 S C147). While dismissing the writ petition the High Court observed as follows :‑ "If the petitioners have a binding and subsisting declaratory decree in their favour and the same is not being implemented for reasons not acceptable to the petitioners, they may approach the civil Court again for adequate relief, if so advised.". The petitioners then came up tot his Court to seek special leave to appeal from this judgment but this Court dismissed the petition holding that the view taken by the High Court, that the application of the petitioners was misconceived, was unexceptionable, because, "if they were asking for the enforce ment of" their declaratory decree the procedure by' way of Article 98 of the Constitution was not the procedure available for that purpose. On the other hand, if they were asking for being given their proper seniority according to their proper grade, then this .was not a matter in respect of, which they could proceed under Article 98 of the Constitution of 1962." This Court also repel-led the contention that by this writ petition the petitioners were not seeking the implementation of the declaratory decree as the same had already been implemented by the preparation of the combined seniority list of 1967. This Court held that in substance they were seeking the enforcement of the decree. If not, then, in any event, the petitioners were indirectly seeking the enforcement of their seniority in accordance with ‑the declaratory decree in their favour, and this they could not do as seniority was no longer a condition of service guaranteed by the Constitution of 1962. In the order of this Court, it was also observed that, in the facts and circumstances of this case, the Railway Administration did not appear to this Court to, be deliberately refusing to implement the declaratory decree, because it could not ignore "the subsequent decision" of the High Court. Learned counsel appearing in support of this petition contends 'that the order of this Court suffers from an error patent on the face of the record, for, this Court was under a misconception in thinking that the decisions of the High Court relied upon by the Railway Administration were of a subsequent date. It is pointed out that the decisions in Writ Petition No. 1198 of 1957 and R. F. A. No. 105 of 1959 were announced by the High Court on the 11th of December 1962 while the decree in favour of the petitioners was upheld in appeal by the District Judge on the 12th of April 1966. The declaratory decree, therefore, was of a subsequent date. The error, it appears, has crept in by reason of the fact that the declaratory decree was actually made by the Civil Judge: on the 22nd of September 1962. In any event, this observation was made merely to point out that there did not appear to be any deliberate refusal on the part of the Railway Administration to decree. It had no material bearing on the decision of this Court. If the decision of the High Court in Writ Petition No. 1198 of 1957 and R. F.. A. No. 105 of 1959, as contended by the peti tioners, does not stand in their way then they can still proceed to have their declaratory decree enforced through the Court which, passed that decree, if so advised. We express no opinion on the question one way or the other. So far as the decision of this Court is concerned, we see no reason to review the same, for, this Court dismissed the petition for special leave on the ground that the writ petition filed in the High Court was, in substance, a device for having the declaratory decree enforced. or, in the alternative. to have a dispute, regarding the seniority of the petitioners, decided. Neither of these could be done by means of an application under Article 98 of the Constitution. Learned counsel has placed strong reliance on certain. observations of this Court in the case of Income‑tax Officer v Cement Agencies Ltd. (P L D 1969 S C 322). This Court has not in the present case departed from the principles laid down therein ; but all that it has r held is that the remedy sought by the petitioners in the present case was not the appropriate remedy and, therefore, their writ petition in the High Court was rightly dismissed. We see no reason to alter this view nor do we see any reason. to revise our decision. If the petitioners think that the principles laid down in the above‑mentioned decision are of any assistance to them, they may rely upon them in the proceeding, if any, started in the Court which passed the declaratory decree for its enforcement, if that is, legally permissible. So far as the present review petition is concerned, we find, as we have already stated, no ground for `the invocation of out Review Jurisdiction. This petition is, accordingly, dismissed. Petition dismissed