2012 PLP (C (PLC(CS))

WAQAR AHMAD SETH, J.

Impugned herein is the judgment dated 11-5-2005 passed by Subordinate Judiciary Service Tribunal whereby appeal of the respondent was partially allowed.

2. Facts of the case are that the respondent filed an Appeal bearing No.4 of 1994 challenging his seniority position given to him in the seniority list as it stood on 30-9-1991. The contention of respondent was that while joining the judicial service in 1981 as Civil Judge, his name along with 13 others were sent to the Provincial Government for promotion as Additional District and Sessions Judge and the case of 14 persons was considered by the Provincial Selection Board on 15-9-1987. Resultantly, seven Judicial Officers, two being junior to him, were promoted as Additional District and Sessions Judge while his case was deferred for want of special reports and subsequently he was promoted as Additional District and Sessions Judge on 12-5-1992. His grievance was that since in the earlier selection of 1987 he had not been superceded but his case was deferred for want of certain special reports, therefore, he sought promotion from the date on which two of his juniors, namely, Mrs. Irshad Qaisar and Muhammad Ibrahim Khan were promoted as he was at Sr.No.10 of the seniority list while the above Judicial Officers at Sr.Nos.13 and 14, respectively. He placed reliance on a Notification dated 15-10-1996 of the Provincial Government by virtue of which one Fayazullah Khan another Judicial Officer was allowed promotion retrospectively, thus, he prayed for similar treatment.

3. The said contention found favour with the Tribunal however, he was not held entitled to any arrears and only his case was considered towards pensionary benefits on 11-5-2010, hence necessitated the filing of instant application under section 12(2), C.P.C. by the petitioner.

4. Learned D.A.-G. assisted by Mr. Farhatullah Khan, Incharge, NJPC while appearing on behalf of the petitioner contended that the Tribunal cannot assume the powers of Administration Committee/ Departmental Promotion Committee regarding allowing of benefit, which is not sustainable in law being without jurisdiction. It was also contended that the respondent had been treated as per law and when he was found fit for promotion, he was promoted on the subsequent date, hence the reversal of previous process was not possible, which is against the law. They were also of the view that the Tribunal has the jurisdiction to judicially scrutinize the vires of an order but the grounds for declaring the promotion order made on September 15, 1987 as against the law, have not been provided as the grant of pensionary benefit without anti date promotion is nullity in the eyes of law.

5. On the other hand, the respondent while defending his cause contended that the Tribunal while allowing the appeal has held him entitled to be promoted as Additional District and Sessions Judge from the date on which his juniors were promoted, however, no arrears were allowed to him and only his case was considered for the purpose of pensionary benefits through the impugned order, which is in accordance with law and cogent reasons have been recorded therefor. Arguments heard. Record perused.

6. The grievance of the respondent was that on the previous occasion when he was not considered for promotion due to non-availability of special reports pertaining to him, only his case for promotion was deferred and no supersession could be made, therefore, on the subsequent date when his case was considered for promotion, two of his juniors were already promoted and they were held seniors to him. The contention of the respondent found favour with the Tribunal, which has been questioned through this application under section 12(2), C.P.C., the contents whereof are as under:

Section 12(2) "Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit." 7. The plea of the petitioner is that the Tribunal lacks the jurisdiction to assume the powers of the Administration Committee/Departmental Promotion Committee of allowing the pensionary benefit to the respondent. Section 6 of the N.-W.F.P. Subordinate Judiciary Service Tribunal Act, 1991 deals with the powers of Tribunal, which reads as under:

(1) The Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against. (2) ............................................................................. (3) .............................................................................

8. Similarly, Rule 27 of the N.-W.F.P. Subordinate Judiciary Service Tribunal Rules 1992 deals with the additional powers of the Tribunal, which reads as under:

Rule

27. Additional powers of the Tribunal.

"Nothing in these rules shall be deemed to limit or otherwise affect of the powers of a Tribunal to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Tribunal".

9. Thus, from the bare perusal of the above provision of law, it becomes crystal clear that the Tribunal has all the powers on appeal to confirm, set aside, vary or modify the order appeal against. The learned Tribunal while dealing with the matter placed reliance on a Notification bearing No.SOI(S&GAD)3-2/89 dated 15-10-1996 issued by the Provincial Government whereby one Fayazulalh Khan, Judicial Officer was allowed promotion retrospectively and his case was considered for the purpose of pensionary benefits, hence the impugned order was passed with the consent of learned D.A.-G. keeping in view the said Notification and settled law on the subject. Therefore, while keeping in consideration, the contents of section 12(2), C.P.C. and that of Section 6 coupled with Rule 27 additional powers of the Tribunal ibid, the impugned order/judgment dated 11-5-2010 is in accordance with law and no element of fraud, misrepresentation or that of jurisdiction arising out therefrom, hence this application being without any legal substance is hereby dismissed. M.W.A./191/P Application dismissed.