1989 PLP 1802 (SCMR)

NASIM HASAN SHAH, J .‑‑This petition has been heard along with Civil Appeals Nos. 80 and 81 of 1987 because in this petition too the legality and propriety of the final seniority list circulated on 2‑6‑1984 has been questioned which is also subject‑matter of controversy in the afore‑mentioned two appeals. According to the petitioner, he had, in the first instance, filed an appeal before the Punjab Service Tribunal against the tentative seniority list issued on 7‑7‑1982 but while this appeal was still pending, the respondent No.1 (Secretary to the Government of Punjab, Agriculture Department) circulated the final seniority list on 2‑6‑1984. As the petitioner was not satisfied with this either he withdrew his earlier appeal and filed a fresh one before the same Tribunal, on 12‑7‑1984. This appeal was disposed of on merits and found to be without substance and, accordingly, dismissed. Hence this petition for leave. We observe that the question whether the appeal riled by the petitioner before the Service Tribunal was at all competent has not been considered by the Service Tribunal, presumably on the view entertained by it that it was not necessary to file a representation against the orders of the Secretary in relation to the preparation of the seniority list. However, in our judgment, of even date, passed to Civil Appeals Nos. 80 and 81 of 1987, it has been held that this view is erroneous and that an appeal before the Service Tribunal is not maintainable without complying with the statutory obligation to file a representation against such a seniority list before the next higher authority namely the Governor of the Province. We further observe that in this case too a factual inquiry is necessary as to whether any representation was filed by the petitioner and if so what orders were passed thereon. It is true that in this case the appeal of the petitioner was dismissed on merits but this decision is questioned before us. In case, however, it is found that the appeal before the Tribunal was not maintainable and was liable to be dismissed on that short ground, it would become unnecessary to examine the other questions raised while impugning the order of the Service Tribunal in this petition. The learned Assistant Advocate‑General, Punjab and the learned counsel for the respondents, who have also been heard, agree that it will not be necessary to go into any other question in case the appeal of the petitioner before the Service Tribunal is found to be incompetent. In the result, we convert this petition into an appeal, set aside the impugned order of the Service Tribunal dated 16‑2‑1986 and remand the case for determination of the question whether the appeal riled by the petitioner on 17‑1984 before the Service Tribunal was at all maintainable. This appeal shall be heard along with the appeals arising in the cases of Falak Sher Khan and another v. Secretary to Government of Punjab, Agriculture Department and others Civil Appeal No.80 of 1987 and Faqir Muhammad v. Secretary to Government of Punjab, Agriculture Department and others (Civil Appeal No.81 of 1987). This appeal is disposed of in the above terms, leaving the parties to bear their own costs. M.A.K./M‑907/S Case remanded.