Syed ISMAIL ALI SHAH Versus GOVERNMENT OF N.-W.F.P.
1. MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).‑‑ Appellants four in number have preferred the present appeal under section 4 of the N.W.F.‑P Service Tribunal Act, 1974 against the impugned order dated 1‑9‑1987 regarding the preparation of the seniority list. showing respondents 2 to 6 senior than the appellants. According to them appellants Nos. 1 to 3 were appointed as Assistants in Grade‑11 vide Order No.8519/Ad:IV/37 dated 22‑12‑1980, appellant No.l took the charge on 22‑12‑1980, appellant No.2 on 3‑1‑1981 and appellant No.3 on 23‑12‑1980. Appellant No.4 was appointed vide order dated 11‑1‑1981. On the other hand respondents 2 to 6 were promoted on 23‑2‑1977, 31‑5‑1977, 13‑2‑1979, 18‑4‑1979 and 17‑12‑1979 purely on temporary basis as stop‑gap arrangement. Respondent No.l prepared a tentative seniority list, published it, inviting objections which were submitted by the appellants; but not considered by him and resulting in the publication of the final impugned seniority list showing the appellants at S.Nos. 28 to 31 and respondents 2 to 6 at S.Nos. 23 to 27. They challenged the same as illegal, against facts, void and without jurisdiction.
2. Claim of the appellants was vehemently resisted by the respondents who raised the pleas of maintainability, estoppel, limitation, and cause of action.
3. Learned counsel for the appellants argued that they were senior than the respondents but vide impugned seniority list they have been relegated to an inferior position in derogation of the rules. He took us to the various ;appointment letters in respect of the, appellants and the respondents, showing that the posting of the appellants was against the permanent vacancies and that the respondents were appointed purely on temporary basis with no claim towards seniority. Further he argued that according to rule 9 the formula regarding quota reserved for the direct recruits was not observed by the respondent. The number of the promotees is large than their seats.
4. On the other hand, learned counsel for the respondents argued that the appellants are estopped by their own conduct to bring the present appeal as they failed to challenge the confirmation orders in favour of the respondents, that appeal is barred by time and that it is also not maintainable as they have failed to file the departmental appeal s6gainst the final seniority list. Raising objections against the preliminary seniority list would not absolve an aggrieved person to seek his remedy from a higher forum against his seniority. Law has prescribed the particular mode qua the provisional as well as the final seniority list and an aggrieved person must avail all the remedies before coming to the Tribunal.
5. We have given our patient hearing to the arguments by both the sides and have come to an irresistible conclusion that the question of maintainability of appeal in the present circumstances needs consideration. According to section 4 of the Tribunal Act, 1974 an aggrieved person must exhaust all the departmental remedies before coming to the Tribunal. In the instant case, however, the appellants preferred objections against the provisional seniority list dated 16‑4‑1987 but without filing appeal/representation against the impugned seniority list dated 1‑9‑1987, they have hurriedly filed the present appeal in the Tribunal. This was against the provisions of section 4 of the Act rendering the appeal incompetent and without touching the merits of the case we, therefore, dismiss the appeal, leaving the parties to bear their own costs.
6. S.Q. /69/Sr.N Appeal dismissed.