SHAH ALAM KHAN Versus GOVERNMENT OF N.-W.F.P.

1. MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN): ‑ This judgment will dispose of appeals Nos. 46 to 49/87 and 56/87 as common question of law and fact is involved in all the 5 appeals. In the instant appeal appellants Shah Alam etc. were appointed as Lecturers on 1‑9‑1967 in the ex‑State of Swat which was later on merged vide integration order through which the seniority of the former employees of ex‑Swat State was to be fixed with reference to the dates of their continuous appointment. Respondent No. 2 issued a provisional seniority list and later on wanted to make promotions on its basis which was challenged in the Peshawar High Court through a writ petition, but the same was withdrawn on the statement of respondent No. 2 that a final seniority list had been prepared and the interest of the appellants shall be protected. On 20‑11‑1978 the list was prepared but the undertaking before the High Court was not honoured and the appellants were shown junior to respondents 3 to 41. This act of the respondents was challenged before this Tribunal which was accepted vide order dated 10‑1‑1980. The appellants were declared senior than the respondents: The said judgment was not challenged by any of the aggrieved persons and still holds the field.

2. However, another seniority list was announced on 30‑12‑1986 which does not endorse the findings of the Tribunal and the appellants were treated as junior than the present respondents. Their representation was not responded by the opposite party; hence the present petition on the ground that the action of the respondents is illegal, without jurisdiction and in utter disregard of the orders of the Tribunal. The respondents have dishonoured the rules of law vide which the appellants and three others were protected. In Appeal No. 47 the same grievance was made. However, the date of appointment of the appellants is 1‑9‑1968. Same is the case of the 3 appellants in Appeal No. 48 of 1987. Their dates of appointments however, are 15‑1‑1969, 1‑4‑1969 and 3‑11‑1969. In Appeal No. 49 of 1987 there are three appellants whose dates of posting are 1‑9‑1965 and 1‑i1‑1965, while the other facts are identical. So far as appellant Miftah‑ud‑Din is concerned, he joined the department on 11‑11‑1969. He was aggrieved of the seniority list dated 30‑12‑1986 as he was shown junior than respondents 3 to 101. His representation was not replied by the respondents so the present appeal on the ground referred to in the earlier appeals. Claim of the respondents was a bare denial of the allegations regarding the misinterpretation of the Merger Scheme and the order passed by the Worthy Supreme Court of Pakistan in Appeals Nos. 20 and 23 of 1979.

3. Learned counsel for the appellants argued that respondents did not invite objections while preparing the seniority list dated 30‑12‑1986 in the light of the findings of the Worthy Supreme Court of Pakistan and this Tribunal. They did not challenge the verdict of the Tribunal passed in the earlier appeals filed by Shah Alam, Akbar Hussain and Mohammad 11yas etc. According to the Merger Act the seniority of the employees of the ex‑State service was to be determined in the said grade, cadre or post from the date of their continuous appointment, inter se as well as qua the employees of the Provincial Government.

4. Respondents on the other hand argued that they have got no interest in treating the appellants junior than the respondents. They have prepared the list strictly in accordance with the judgment of the worthy Supreme Court of Pakistan. However, they admitted that no objections were invited in preparing the list on the basis of the above findings.

5. We have given our patient hearing to the arguments advanced by the counsel for the parties and have come to the conclusion that instead of treating the seniority list dated 30‑12‑1986 as final, the respondents were bound to invite the objections from all the contested parties and then in the light of the proposals/suggestions/objections they should have prepared the final seniority list. Mere writing that the order of the Supreme Court was complied with by them would not be sufficient. At least on the record there must have been some objections/suggestions/proposals by the interested parties. At the same time respondents should also take into consideration the fact that earlier judgment in favour of the appellants also holds the ground as none of the respondents have challenged the same in the Supreme Court. Over and above this the respondents were duty bound to prepare the seniority list in the light of the Merger Scheme. We have, therefore, no alternative but to accept the present appeal set aside the impugned seniority list and remand the case to the respondent No. 2 with the directions to invite objections to the seniority list and then to prepare the final seniority list. Costs to follow the event and file be consigned to the record room.

6. S.Q/87/Sr. N. ???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.