1995 PLP (C (PLC(CS))

ABDUL RAZZAQ A. THAHIM (CHAIRMAN).‑‑‑Mr. Khalid Amin is working as Joint Secretary, Ministry of Defence, Rawalpindi. He has filed this Miscellaneous Petition No. 21/94 in Appeal No. 342 (R)/92 (Roshan Ali Mangi v. Secretary, Establishment Division and others) wherein he has prayed that the Establishment Division be directed to issue revised seniority list of officers of the Secretariat Group in general and indicating the position of the petitioner in particular in accordance with law as enunciated, with approval by the Supreme Court, by this Tribunal in the cases of M/s. Wahidi and Mangi with reference to their dates of continuous officiation in BPS‑19 and to grant the petitioner the consequential benefits and seniority in BPS‑20 to which he has since been promoted on 24‑3‑1986.

2. The petitioner Mr. Khalid Amin has not filed any proper appeal, as provided by law, and by this miscellaneous application he seeks direction for implementation of judgment of the Tribunal in M/s. SA.M. Wahidi and Roshan Ali Mangi's case. The petitioner was one of the respondents in Appeal No. 342 (R)/92 flied by Mr. Rosh an All Mangi on 8‑9‑1992 and decided b/ this Tribunal on 9‑2‑1993. The Establishment Division challenged the decision oil the Tribunal passed in favour of Mr. Roshan Ali Mangi, by filing Civil Petition for Leave to Appeal No. 220 of 1993 but the same was dismissed by the Supreme Court vide judgment dated 22‑6‑1993. The petitioner made an undated representation to the Secretary‑General, Establishment Division, wherein he challenged the gradation list of officers of the Secretariat Group as on 15‑2‑1993, and he got his application received in the office on 19‑7‑1993, which has not been responded, and he has come up with this miscellaneous petition for implementation in his favour of judgment of this Tribunal and the Supreme Court in the case of Mr. Roshan Ali Mangi.

3. We have heard Mr. SA.M. Wahidi, Advocate appearing for the petitioner, at length. The contention of the learned counsel is that under Article 189 of the Constitution, all the decisions of the Supreme Court are binding on the Courts. He has referred to 1993 SCMR 1869. It is also contended that benefit having been given by the Supreme Court cannot be denied to other persons. Reliance has been placed on 1984 SCMR 286 and 1987 SCMR 1694. The petitioner has not filed any application for condonation of delay in seeking his grievance redressed when according to the learned counsel he was party as respondent in Roshan Ali Mangi's case.

4. Notice of the application was issued to the Establishment Division and in pursuance of notice, comments have been fled by them. It has been contended that the appellant/ petitioner is not an aggrieved person as there is no specific impugned order affecting his terms and conditions which could be appealed against before this Tribunal and this application is not competent. Mr. Zakaullah Jan, Section Officer, Establishment Division also stated that petitioner is not a decree‑holder in Appeal No. 342 (R)/92 and in that appeal he was one of the respondents and judgment was passed against him. It is submitted that the appellant should have filed an independent appeal to seek relief which he failed to do so and judgment in Appeal No. 342 (R)/92 has already been implemented in favour of the appellant Mr. Roshan Ali Mangi, and there was no direction in respect of the present petitioner.

5. It is an interesting case in which the petitioner Mr. Khalid Amin, without filing any departmental appeal as required by law came before this Tribunal, seeks implementation of a judgment passed in favour of another person Mr. Roshan Ali Mangi in Appeal No. 342 (R)/92 in which the petitioner was one of the respondents. Before we advert to merits or demerits of the case, in the first instances we have to see whether this application for implementation of judgment is competent. Mr. Roshan Ali Mangi fled Appeal No. 342 (R)/92 for determination of his seniority and he succeeded and his appeal was accepted, but the matter did not end there, but the official respondent i.e. Establishment Division went to the Supreme Court against judgment of the Tribunal and filed Civil Petition for Leave to Appeal No. 220 of 1993 but the same was dismissed. The petitioner Mr. Khalid Amin who was one of the respondents in the appeal filed by Mr. Roshan Ali Mangi did not care to seek any relief from the Tribunal or before the Supreme Court and as such the decision in favour of Mr. Mangi attained finality. The Supreme Court has not given tiny declaration but redressed the grievance of the aggrieved persons such as Mr. SA.M. Wahidi and Mr. Rosltan Ali Mangi who had filed appeals and came before the Tribunal for redressal of their grievances, which is not the case of the petitioner, now before us. The contention of the learned counsel for the petitioner is that the judgment in the cases of Mr. SA.M. Wahidi and Mr. Roshan Ali Mangi should be implemented in respect not only petitioner but of all the officers of that cadre. We are sorry we cannot agree with the learned counsel as there could be so many persons aggrieved by the decision of the Tribunal and only an aggrieved person individually can file appeal against an order original or appellate affecting his term and conditions of service, and a judgment in individual cases cannot be binding in the case of others automatically. In the case of the petitioner Mr. Khalid Amin who although being a party in the appeal of Mr. Roshan Ali Mangi neither filed appeal before Department nor the Tribunal and the Supreme Court and on the contrary he was made party by Mr. Mangi in his appeal, and the appellant now wants us to extend him the same benefit as given to Mr. Roshan Ali Mangi, who was appellant before us. It may be observed that appeal before the Tribunal can be filed by any aggrieved civil servant against an order original of appellate affecting his term and conditions of service, and that too only after exhausting departmental remedy. In the instant case, neither there is any original nor appellate order which could be appealed against and therefore this appeal cannot be termed as appeal under the law. Furthermore, it may also be observed that the petitioner by way of this application has attacked the gradation list of Secretariat Officer as on 15‑2‑1993 which he first challenged by making a departmental representation which time‑barred, having been received in the office of the Establishment Secretary on 19‑7‑1993 which remained un-responded and this petition filed on 3‑2‑1994 in view of Supreme Court decision reported in PLD 1990 SC 951 (Chairman, PIAC v. Nasim Malik) is also time‑barred and incompetent. It is also pertinent to mention here that while contesting the appeal filed by Mr. Roshan Ali Mangi, the respondent Mr. Khali d Amin, had categorically mentioned vide his application dated 3rd December, 1992 (placed on record at page 30 ‑‑ Annexure VI, with this miscellaneous application), that since the Establishment Division are the main respondents in the appeal and will file written objections, as such, he (Mr. Khalid Amin) will not file comments to the appeal and will adopt the comments filed by the Establishment Division. Since the appeal filed by Mr Roshan Ali Mangi had been decided against all the official as well as the private respondents (including the petitioner Mr. Khalid Amin), and the matter went upto the Supreme Court and the judgment of the Tribunal it favour of Mr. Roshan Ali Mangi was upheld, therefore, in no circumstances the petitioner Mr. Khalid Amin can get the benefit of that judgment, and this miscellaneous application is misconceived when there is no appeal, and only a decree‑holder can come and ask for implementation.

6. The learned counsel for the petitioner has referred to 1984 SCMR 286 (Chairman, Pakistan Railways, Lahore v. Muhammad Latif and others). In this case, it was held that department's refusal to accept the request of a civil servant for correction of seniority according to the rules determined by the Tribunal could afford ground for preferring appeal to the Tribunal; but in the instant case, the petitioner has not filed any appeal before the Tribunal according to law, and this case is not applicable to the facts of the case in hand before us. In the case reported in 1987 SCMR 1698 (Hakim Muhammad Nabi Khan v. Warasatullah), it was held that under Order XLI, Rule 33, C.P.C., benefit of relief can also be extended t the non‑appealing party for doing complete justice. That was not a case of term and conditions o service of a civil servant where there are specific rules to regulate the terms and conditions of any of the aggrieved civil servants, and for redressal of their legal remedy Service Tribunal is the proper forum, therefore, this case is not applicable to the facts of this case. To resolve this controversy, we also refer to _PLD 1987 SC 145 (Pir Bux, Legal Heirs v. Chairman, Allotment Committee) whereby it has held that those party in judgment cannot operate in rem. Even otherwise any judgment when there is individual aggrieved party can be passed in his favour or against, but those who are not party cannot seek any relief and even adverse decisions are not binding on those persons. On this, we refer to‑‑ 1987 SCMR 899, 1988 SCMR 620, 1990 SCMR 1216 and 1990 SCMR1620. Therefore, this miscellaneous application fails on legal point.

7. On merits also, the petitioner cannot succeed. He has sought the relief f for reckoning his seniority in BPS‑19 and consequential refixation of seniority in BPS‑20 on the basis of decisions of this Tribunal and the Supreme Court in the cases of M/ s. SA.M. Wahidi and Roshan Ali Mangi. In similar circumstances and for the same cause of action, certain officers of the Secretariat Group filed appeals before this Tribunal and they are M/s. Pervez Ijaz Sheikh (Appeal No. 407(R,)/93); Javed Ahmed Noel (Appeal o.204(R)/94); Dr. Abdul Hameed Qureshi (Appeal No. 216(R)/94) and Akbar Hayat Gandapur (Appeal No. 218(R)/94). All the appeals were dismissed by separate orders holding that since the respondents against whom they had claims seniority in BPS‑20 had moved to BPS‑21 and BPS‑22, and the appellant were still in BPS‑20, the had no locus standi claim seniority against them and their appeals were hopelessly time barred. The judgment of he Tribunal in the case of Mr. Pervez Ijaz Sheikh has been upheld by the Supreme Court and the case is reported in 1994 SCMR 1523,

8. For the reasons recorded, the Miscellaneous Petition No. 21/94 in Appeal No. 342(R)/92 is misconceived and incompetent and is accordingly dismissed. H.B.T./999/Sr.F Petition dismissed.