1997 PLP (C (PLC(CS))

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This order will govern the above two petitions for leave to appeal arising out of a single judgment of the Federal Service Tribunal, as the question of law falling for decision in both are the same.

2. In first round of litigation, Masood Ahmad Changwani respondent in both the petitions (to be hereinafter referred in as the respondent) had challenged before the Federal Service Tribunal the Notification dated 7‑12‑1993 whereby the petitioners before us and few others were promoted as Assistant Director (B‑17). The grievance of the respondent was that the officers named therein were ineligible for promotion and juniors to the respondent who had been illegally ignored despite being eligible. The Tribunal, while seized of the matter, took cognizance of the fact that the respondent was considered alongwith the petitioners and others for promotion as Assistant Directors and then they were promoted, therefore, the jurisdiction of the Tribunal was barred under section 4(1)(b) of the Service Tribunals Act, 1973. The respondent sought leave to appeal against the aforesaid decision from this Court. It was conceded before the learned Division Bench of this Court that in the provisional seniority list issued by the Department, the respondent was shown junior to the petitioners and that his representation against the provisional seniority list was still pending decision before the departmental authority. While holding that until such time the seniority claimed by the respondent was allowed by the Department, he could not lay claim to his promotion over and above the petitioners, the respondent's appeal was held to be without merit. In the present round of litigation, the respondent represented to the Department to finalize the seniority of the officers (B‑16) in pursuance of the direction of this Court and to declare him senior to the petitioners. He also challenged the propriety of the petitioners to hold the posts even in BPS‑16 and their eligibility for promotion to BPS‑17 within the ambit of rule 3 of SRO No.290 (1)/88, dated _20‑4‑1988. The representation remained un-responded for a period of 90 days, therefore, the respondent filed another appeal before the Tribunal to have the impugned order/notification, dated 7‑12‑1993 of promotion of the petitioners annulled; and to have him declared senior to the petitioners. Ultimately, the Tribunal vide order dated 20‑6‑1996, not only held the petitioners to be disqualified and ineligible for promotion to B‑17 "in preference to the respondent as they were not holding the posts of B‑16 on regular basis" but also that "since the respondent was alone holding the post in B‑16 on regular basis, he was also entitled to the post of Assistant Director (B‑17)".

3. We have heard Mr. Fazal Ellahi Siddiqui, learned counsel for the petitioners in C.P.L.A. No.465 of 1996 and Raja Muhammad Bashir, learned Deputy Attorney‑General appearing on behalf of Pakistan through Director‑General Bureau of Immigration and Overseas Employment in support of these petitions. It is contended on behalf of the petitioners that the matters in issue between the parties having already been decided up to this Court and there being no fresh order in the field, the appeal before the Federal Service Tribunal giving rise to these petitions was not only barred as res judicata, but was also not entertainable. It is further submitted that the departmental representation. and appeal after the dismissal by this Court of A C.P. No.359 of 1994 were hopelessly barred by time. It is lastly urged that, besides incompetency of the appeal, it was too late in the day for the Tribunal to have upset the seniority of the petitioners in the latest round of litigation both in B‑16 and B‑

17. It was further contended that the Service Tribunal by its impugned order in determining and declaring the respondent to be senior to the petitioners in C.P.L.A. No.465 of 1996 had exceeded the jurisdiction possessed by it in view of restriction contained in proviso (b) to subsection (1) of section 4 of the Service Tribunal Act (LXX of 1973). In support of this proposition reliance has been placed on the law laid down by this Court in Government of Pakistan versus Muhammad Sadiq (1985 SCMR 699).

4. Leave to appeal is granted to consider the above propositions of public importance. A.A./S-1082/S Leave granted.