1991 PLP (C (PLC(CS))

M. MAHBOOB AHMAD, J.

This Intra Court Appeal under section of the Law Reforms Ordinance, 1972 (in fact it is Law Reforms (Amendment Act, 1972) is directed against order dated 16-10-1990 passed by a learned Single Judge of this Court whereby he dismissed writ petition No. 3502 of 1990.

2. The Constitutional petition, aforementioned, sought for a direction to be issued to the respondents to prepare seniority list of the graduate Engineers as had been claimed by the appellant in his appeal dated 28-9-1988 before the departmental Authority and for restraining the respondents to promote any Assistant Director to the newly sanctioned post of Deputy Director. The Constitutional petition was dismissed by the learned Single Judge inter alia, on the ground that the same was not maintainable as the matter fell within the domain of the Service Tribunal.

3. The learned counsel for the appellant attempted to argue the matter on the merits of the case which have also been adjudicated upon by the learned Single Judge but he was asked to first clear the deck as regards the aforementioned fundamental objection; to the maintainability of the Constitutional petition itself. He only submitted that in view of the judgment of the Supreme Court of Pakistan in case S.H. M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612, the Constitutional petition was maintainable.

4. We have given anxious consideration to the aforementioned contention of the learned counsel for the appellant. We find that the judgment cited in support of maintainability of the Constitutional petition proceeds on wholly different circumstances. The relief that has been held to be available was also that only a direction can be had from the High Court to the Authority concerned for deciding the appeal before it and not that the matter under appeal could be decided by the High Court in the Constitutional jurisdiction. In the case in hand, the appellant has not prayed for any direction of the nature mentioned above but has asked for a direction to the respondents to make a separate seniority list of graduate Engineers and also to restrain the Department from promoting any other Assistant Director to the post of Deputy Director until they make the sought for seniority list.

5. In the face of the admitted position that the appellant has filed an appeal which is pending consideration before the competent authority and that no decision therein has been taken, the appellant could ask for a decision in the appeal from the competent authority or make an appeal to the Service Tribunal, if the period prescribed for decision of appeal by the departmental Authority had been allowed to expire. None of the above courses has been adopted by the appellant and we, therefore, see no reason to entertain this Intra Court Appeal against the order of the learned Single judge who has correctly decided that the Constitutional petition filed by the appellant was not maintainable.

6. Yet another aspect of the matter is that if an appeal lies to the Department under the relevant Statute/Rules, the Intra Court Appeal against the decision of the learned Single Judge will otherwise also be not available on account of the bar contained in the proviso to section 3 of the Law Reforms (Amendment) Act, 1972.

7. As regards the adjudication of the Constitutional petition on merits, we suffice by observing that in view of the position that the petition itself was not maintainable, no adjudication as such was called for on this point and the findings on merits of the case will, therefore, be no impediment in the way of the appellant for his remedies before other appropriate forums. In view of the foregoing discussion, this Intra Court Appeal has no merit. It is accordingly dismissed in limine. AA./M-2497/L Appeal dismissed.