1987 PLP 882 (SCMR)

Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Respondent. Date of hearing: 21st January, 1987. MUHAMMAD AFZAL ZULLAH, J.‑‑Leave to appeal has been sought in these two petitions from judgment dated 19‑5‑1985 of the Punjab Service Tribunal; whereby the service appeal of respondents Nos.2 to 6 was allowed and the question of sentiority viz‑a‑viz the petitioners was decided in the former's favour.

2. The petitioners who are called graduate engineers, were members of a Class‑II service, namely, West Pakistan Agriculture Engineering Service (Class II), under West Pakistan Agriculture Engineering Service (Class II) Rules, 1963. Respondents Nos.2 to 6 who are not so called graduate engineers' were in Class‑II service before the petitioners became members of that service while the respondents Nos.7 and 8 belong to the petitioners' class i.e. , graduate engineers' and have been impleaded as pro forma respondents. The Government of Pakistan by decision, dated 17‑5‑1971, 22‑7‑1971 granted Class‑I status to the graduate engineers (petitioners). Two other notifications were issued regarding upgrading the status of similar employees, one on 28‑8‑1972 and the other on 25‑6‑1973. In the latter notification the status of all Class‑II employees of the Agriculture Department was raised to Class‑I (Junior) in the pay scale of 450‑50‑1000 with effect from 28‑8‑1972. This, of course, included also the Assistant Agriculture Engineers. Prima facie, the petitioners as well as the respondents on account of their position in service were also covered by this notification. By another notification, dated 14‑1‑1982 the Government in modification of the notification, dated 25‑6‑1973, granted pay‑scale of Class‑I (Junior) (450‑50‑1,000) to the graduate engineers' appointed as Assistant Agriculture Engineers/ Assistant Mechanical Engineers in the Agriculture Department, with effect from 22‑7‑1971. Except of the first decision taken in May/July, 1971 all other orders/ notifications mentioned above are by the Punjab Provincial Government. The Provincial Government then dealt with the question of seniority between the petitioners graduate engineers group, and the respondents who were not in this category, by publishing the provisional seniority list on 7‑7‑1982 as it was on 1‑7‑1982. The petitioners were shown senior to the respondents Nos. 2 to 6 on the basis of (as the provisional list itself indicated) "dates of grant of Junior Class‑I NPS 17". Representations were made by the respondent‑side. A final list was issued on 2‑6‑1984 wherein the position viz‑a‑viz the contesting parties was kept in‑tact, as shown in the provisional list. The respondents Nos.2 to 6 aggrieved by this seniority list filed an appeal before the Tribunal on 12‑7‑1984 which having been allowed, the petitioners have now sought leave to appeal.

3. During the hearing a question arose whether the point noted by the learned Members of the Tribunal regarding competency of the appeal, had been correctly resolved. The Tribunal noted whether the appeal before it could have been filed without challenging the final seniority list in the departmental hierarchy. The learned Members of the Tribunal answered it in the affirmative and observed that the decision having been taken by the Provincial Government itself, there was no need for approaching any higher departmental authority.

4. We have heard both the sides on the aforenoted question. 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 sub‑section (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) 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.

5. 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 for leave to appeal, it should not be taken into consideration for grant of leave to appeal. They also relied upon some Tribunal decisions in this behalf.

6. 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 P L D 1981 S C 612 and Haji Kadir Bux v. Province of Sind and another 1982 S C M R 582.

7. The abovenoted 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 question raised in the petitions for leave to appeal. Appeals shall be made ready on the present record with liberty to the parties to file additional documents, if necessary. The interim order passed on 3‑7‑1985 shall remain in operation during the pendency of the appeals. M.I./F‑R/S?????????????????????????????????????????????????????????????????????????????????????????? Leave granted.