MUHAMMAD BOOTA Versus CHAIRMAN, PAKISTAN POSTAL SERVICES CORPORATION, ISLAMABAD

1. AJMAL MIAN, C.J.--- This is an appeal with the leave of this Court against the judgment dated 7-5-1995 passed by the Federal Service Tribunal, Islamabad (hereinafter referred as to the Tribunal) inter alia in Appeal No.518(R) of 1994 filed by the appellant against the seniority list dated 17-10-1993, dismissing the same.

2. Leave to appeal was granted to consider the following two points:

3. "(i) Whether the Tribunal could have dismissed the petitioners' aforesaid appeals on the ground of limitation though the department had dismissed their representation/appeal on merits and not on the ground of limitation; and

(ii) Whether the objection of the private respondents that the petitioners had not impugned the order dated 31-7-1993 of the department, is contrary to the factual position."

4. In support of the above appeal Hahz S.A. Rehman, learned counsel for the appellant has urged that since the department had rejected the appellant's representation on 30-10-1994 the Tribunal was not justified-in non-suiting the appellant on the ground of limitation. On the other hand, Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General, appearing for the official respondents, and respondents 3 and 4 who are appearing in person have submitted that factually the basic order was passed on 31-9-1993 which was not challenged by the appellant and, therefore, in any case the appellant has no right to contest the seniority list dated 17-10-1993 which is founded on the above basic order. The above position is controverted by Hafiz S.A. Rehman, learned counsel by inviting our attention to the appellant's representation dated 25-8-1993 addressed to the Chairman, Pakistan Postal Services Corporation (at page 50 of the paper book). It has also been submitted by respondents 3 and. 4 that factually the appellant's representation is still pending. They have further contended that after seniority list dated 17-10-1993, another seniority list was circulated which has not been assailed by the appellant. According to them seniority list dated 17-10-1993 has lost its significance in view of the subsequent seniority list.

5. It will be advantageous to reproduce para. 7 of the impugned judgment of the Tribunal which reads as follows:

6. "Before discussion the merits of the case, we would like to deal with the legal objections of Mr. Amjad, Advocate. The seniority list was circulated on 17-10-1993 and departmental appeals/representations were admittedly filed with the authority on 27-10-1994 i.e. much after the period prescribed for filing such departmental appeals. Therefore, when the appeals before the department were time-barred, the appeals before the Tribunal were also incompetent on that account. We are fortified in this respect by the dictum of the Hon'ble Supreme Court in the case of Chairman, PIAC v. Nasim Malik reported as PLD 1991 SC 951. The second objection of Mr. Amjad, Advocate too has force inasmuch as the inter se seniority of the two appellants vis-a-vis Nawaz Malik and Kamal Shahood respondents was decided by the department vide Memo. dated 7-2-1993. On the basis of this inter se seniority, substantive appointments were notified vide letter dated 31-7-1993. Here too the two respondents were shown senior to the appellant. This letter of the department dated 31-7-1993, it appears, was never challenged by the appellants. Therefore, the seniority list notified on 17-10-1993 on the basis of inter se seniority determined vide letter dated 7-2-1993 and substantive appointment dated 31-7-1993 cannot be challenged till the letter of 31-7-1993 is in field."

7. A perusal of the above extract from the judgment under appeal indicates that appellant's appeal was dismissed on the ground of limitation by holding that the seniority list was circulated on 17-10-1993 and the departmental appeal/representation was filed by the appellant on 27-10-1994. Factually the above position seems to be correct. However, at page 71 of the paper book there is a letter issued by the Assistant General Manager (Adorn) dated 30-10-1994 which reads as under:

8. "No.Admn.9-60/93 Islamabad, 30th October, 1994.

9. Subject: Fixation of Seniority of Assistants in the Pakistan Postal Services Corporation, Hq, Islamabad.

10. A seniority list of Assistants in this Headquarters was prepared and circulated vide Memo. No. Admn. 49-3/87, dated 17-10-1993 in the light of Federal Services Tribunal's judgment announced in Appeals Nos. 123 to 127 and 132-R of 1993.

(2) A number of officials submitted representations against the procedure and criteria adopted in determination of abovementioned inter se seniority of Assistants. After examining these representations a reference was made to the Establishment Division seeking clarification/advice on certain points. The required clarification/advice has since been received from the Establishment Division vide their U.O. No.1/5/92-R-6, dated 12-10-1994. Copy of the same is appended herewith for information of all concerned.

11. (Sd. )

12. (S. Iqbal Haider)

13. Assistant General Manager (Adorn)

14. All concerned,

15. Assistant, PPSC, HQs.,

16. Islamabad/Karachi. "

17. The copies of the above letter were endorsed to all concerned Assistants of Pakistan Postal Service Corporation, HQs, Islamabad/Karachi. The Tribunal has not held that this was not the letter whereby the appellant's representation was rejected. What has been held is that the appellant made representation on 27-10-1994 in respect of the seniority list circulated on 17-10-1993 and therefore, the representation before the department was time-barred and hence the appeal before the Tribunal was not sustainable on the ground of limitation. Hafiz S.A. Rehman, learned counsel for the appellant has relied on a judgment of this Court in the case of Muhammad Anwar v. General Manager, Pakistan Railways, Lahore (1995 SCMR 950) in which it has been held that if the department had not dismissed the departmental appeal on ground of limitation but dismissed the same on merits, then the Service Tribunal should not dismiss the appeal before it on the ground of limitation. The above judgment supports the above contention of Hafiz S.A. Rehman.

18. As regards the submission of respondents 3 and 4 that factually the appellant's representation is still pending, it may be observed that they have shown a Letter No. Admn. 9-60/93, dated 9-5-1998 issued by the Deputy Director (Adntn), Office of the Director-General, Pakistan Post Office, Islamabad addressed to respondent 3 inter alia stating therein that the representation of M/s. Ali Haider and Muhammad Boota were still pending. This was not the plea of the respondents or the department before the Tribunal. If that would have been the case the Tribunal would not have dismissed the appeal on the going mentioned in the abovequoted para. 7 of the judgment under appeal.

19. Adverting to the last submission of the above respondents 3 and 4 that factually after the above seniority list dated 17-10-1993 a fresh seniority list was circulated in 1996 and since the appellant had not taken any exception to the subsequent seniority list, he has no case to contest the seniority list dated 17-10-1993. According to them, the latter seniority list has been superseded by the above 1996 seniority list. In our view, it is not necessary for us to record any finding as to the effect of the above. second seniority list of 1996 on the seniority list issued on 17-10-1993. However, it will be open to the above respondents to urge this point before the Tribunal in case it is legally-, permissible.

20. With the above observation, the appeal is allowed, impugned judgment of the Tribunal is set aside and the case is remanded to the Tribunal with the direction to decide the appeal on merits. The appeal may be disposed of by the Tribunal within six months.

21. A.A./M-191/S Case remanded.