1987 PLP 899 (SCMR)

(c) Service Tribunals Act (LXX of 1973)‑‑ ‑‑‑S. 4‑‑Seniority‑‑Appellants and a number of respondents being necessary parties in appeals having not been impleaded as such, any action taken/or order made in their absence which adversely affected their interest could not at all affect their right and they would not be bound thereby‑‑Such persons, held, could take up the matter of their seniority before departmental au only and get it determined afresh. Hasan A. Shaikh, Advocate Supreme Court with Yousaf Rafi, Advocate‑on‑Record for Appellants. Muzaffar Hassan, Advocate‑on‑Record for Respondents Nos. 1 and

2. Fakhruddin G. Ebrahim, Senior Advocate Supreme Court with M.S. Ghaury, Advocate‑ on‑Record (absent) for Respondents 3 and

4. Date of hearing: 8th March, 1987. ALI HUSSAIN QAZILBASH, J.‑‑Leave was granted in this case to consider whether an order passed by the Federal Service Tribunal in respect of seniority of certain officers without impleading the necessary parties and giving them an opportunity of being heard, being null and void, could be recalled in exercise of the purported powers of review.

2. The facts are that respondents 3 and 4 serving in the Customs House, Karachi, claimed seniority in the cadre of Appraisers with effect from the date of their respective appointments in March, 1965. Their claim was rejected by the Central Board of Revenue, as a result of which they filed appeals before the Federal Service Tribunal. Both the appeals were heard together, and by a single order, dated 26th May, 1982 their appeals were accepted and they were granted seniority. The appellants who were also holding the posts of Appraisers in the Customs House, Karachi, were, however, not impleaded in the appeals before the Federal Service Tribunal filed by respondents 3 and 4 although their seniority was adversely affected by the order passed in the two appeals. This led the appellants to file miscellaneous applications before the Federal Service Tribunal for review of its order, dated 26th May, 1982, where they succeeded on 2‑8‑1984 and the order, dated 26th May, 1982 was recalled on the ground that the appellants were necessary parties to the appeals and in their absence the question of their seniority could not be legally determined. It was directed that the appellants may be impleaded as respondents in the said appeals which may be.

3. The matter was still pending when respondents 3 and 4 submitted an application wherein the order passed on the miscellaneous applications submitted by the appellants, dated 2‑8‑1984, was challenged as without jurisdiction on the ground that the Federal Service Tribunal possessed no powers of review. The learned Federal Service Tribunal after hearing the parties, agreeing with the contention of the respondents that the Tribunal had no powers to review its own orders, through the impugned judgment recalled and withdrew its order dated 2‑8‑1984, with the result that the order originally passed by it on the appeals of respondents 3 and 4; dated 26th May, 1982, was revived.

4. We have heard the learned counsel for the parties. The learned counsel for the appellants vehemently contended that an order passed in respect of seniority without impleading the appellants who were admittedly necessary parties and without giving them an opportunity of being heard, was an order null and void and under the law there was no impediment in the way of the Tribunal in exercise of its inherent powers to recall such an order. As against the above, the learned counsel for the respondents submitted that the Service Tribunal had no jurisdiction to review its order, and in its impugned order has left it open to the appellants to agitate the question of seniority in respect of the freshly prepared provisional seniority list, and, therefore, no prejudice has been caused to the appellants.

5. After giving our careful consideration to the submissions made by the learned counsel for the parties, we came to the conclusion that the arguments advanced by the learned counsel for the appellants have no force in that neither the Service Tribunals Act nor the Rules made thereunder has invested the Service Tribunal with powers to review its' own orders under any circumstance. Reliance in this respect is placed on S.A. Rizvi v. Pakistan Atomic Energy Commission and another 1986 S C M R

965. This being the legal position, the order passed by the Service Tribunal in review, dated 2‑8‑1984, is without jurisdiction and inoperative in the eye of law. There is, however, no denying the fact that the appellants and respondents 6 to 39 were necessary parties in the appeals filed by respondents 3 and 4 but since they were not impleaded as such, therefore, any action taken or order made in their absence which adversely affected their interest could not at all affect their right and they would not be bound by it. Therefore, there would be no hurdle in the way of the appellants and respondents 6 to 39 to take up the matter of their seniority qua respondents 3 and 4 before the departmental authority and get it determined afresh. 6.With the above observations, the appeal is dismissed with no order as to costs. S.Q./S‑20/S Appeal dismissed.