1995SCMR26 (PLP)

SAJJAD ALI SHAH, J.‑‑‑By this petition leave is sought against common judgment dated 12th March 1992 of the Sindh Service Tribunal, Karachi, whereby two appeals filed by the petitioners before us are dismissed on the grounds that they are premature and without merits.

2. On introduction of National Pay Scales, post of Ward Rationing Officer in the Food Department in the Government of Sindh was placed in Grade‑16 with effect from 1‑3‑1972. Both petitioners before us were directly appointed as Ward Rationing Officers on 19th May 1973 after their selection by Departmental Selection Committee. Respondent No.3 Ghulam Nabi Mughal was promoted on the same day as Ward Rationing Officer vide Notification. His case was referred to Departmental Promotion Committee, which regularised it vide Notification dated 5th March 1978.

3. Under MLO‑55 appointments of the petitioners were reviewed by Public Service Commission and on the basis of their recommendations they were regularised by Food Department Notification dated 2nd July 1978. Petitioners were shown junior to respondent No.3 in seniority lists of the said cadre dated 16‑8‑1983 and 18‑6‑1999. Petitioners challenged seniority of respondent No.3 in departmental appeals and on not getting response within 90 days, Appeal No.93 of 1989 was filed before Service Tribunal by Pir Maqsood Hussain Sarhandi (one of the two petitioners). During pendency of service appeal, departmental appeals were allowed vide order reflected in Notification dated 13‑6‑1990 giving seniority to the petitioners in the cadre of Ward Rationing Officers with effect from the date of initial appointment. In the result Service Appeal No.93/89 was withdrawn.

4. Against the order/notification dated 13‑6‑1990, respondent No.3 Ghulam Nabi Mughal did not file service appeal but filed departmental appeal before the Chief Secretary to the Government of Sindh, who has allowed the same vide Notification dated 16‑5‑1991 by giving him seniority in the cadre of Ward Rationing Officers over and above petitioners before us and in the consequential cadre of Assistant Directors. Grievance of the petitioners before Service Tribunal, inter a.ia, was that order of the Chief Secretary to the Government of Sindh dated 13‑6‑1990 determining question of seniority amongst the two petitioners and respondent No.3 Ghulam Nabi Mughal was final in nature against which appeal was not competent before the same forum, hence allowing that appeal vide notification dated 16‑5‑1991 is void and nullity in the eyes of law.

5. Service Tribunal in the impugned judgment (at page 25 of paper book of C.P. , No.217‑K of 1992). has held that order dated 16th May 1991 was passed by appellate authority other than the Chief Minister and therefore, Chief Secretary had no jurisdiction to decide second departmental appeal or review of ‑his own order. On the same page of the impugned judgment another observation is that since impugned orders dated 16‑5‑1991 were presumably passed by the Chief Minister, appellants (petitioners before us) should have Sled review petitions to the same authority.

6. We have perused both notifications copies of which are on the record. In the paper book of C.P. No. 217‑K/92 at page 55 is Notification dated 13‑6‑1990 allowing appeals of petitioners and at page 60 is Notification dated 16‑5‑1991 allowing appeal of respondent No.3 Ghulam Nabi Mughal. Tenor in both is same and appellate authority is mentioned as having decided appeals. Mr. Manzoor Ali Khan learned ASC for the petitioners has pointed out that in the written statements filed before the Service Tribunal by Government of Sindh, Chief Secretary and respondent No.3 Ghulam Nabi Mughal, admissions are made to the effect that departmental appeals were addressed to the Chief Secretary and have been decided by him as competent authority.

7. Apparently there is anomaly in the disposal of departmental appeals as appeals of petitioners have been allowed vide notification dated 13‑6‑1990, in which it is mentioned that the said officers shall rank senior to Ghulam Nabi Mughal. By Notification dated 16‑5‑1991' appeal of Ghulam Nabi Mughal is allowed and it is mentioned therein that he would rank senior to petitioners. It appears that both sets of these appeals are disposed of by the same competent form of Chief Secretary. In such circumstances we consider it appropriate to resolve this anomaly by directing that the Chief Secretary to the Government of Sindh should hear appeal of respondent No.3 Ghulam Nabi Mughal again by giving a fresh hearing after giving notice to the petitioners and hearing them so that question of determination of seniority inter se be decided finally in presence of all the parties. If decision goes in favour of the petitioners as held earlier, then respondent No.3 Ghulam Nabi Mughal can file appeal before Service Tribunal,

8. In the result we set aside order contained in notification dated 16‑5‑1991 for reasons and purpose stated above and observe that it would be satisfactory if departmental appeal is disposed of within three months as directed above and meanwhile status quo is to be maintained as is obtaining today. Consequently petitions before us are converted into appeals and disposed of in terms mentioned above.??????????? AA./G‑466/S?????????????????????????????????????????????????????????????????????????????????????? Order accordingly.