SHAHEEN SHAH Versus MUHAMMAD HASSAN
SYED JAFFAR SHAH, J .---Through this Civil Petition the petitioners have sought leave to appeal against the judgment dated 9-6-2009 passed by Division Bench of Chief Court Northern Areas in Writ Petition No. 51 of 2008.
1. The facts giving rise to the instant petition are that the petitioners and respondents No.1 were initially appointed as sub-engineers in the Directorate of L.G and R.D Govt. of Northern Areas in the year 1985 on different dates as under:-
S.No.
Name
Date of appointment
Basic pay scale
1.
Mohd Hasan respondent No.1
4-2-1985
9
2.
Shahin Shah petitioner No.1
23-3-1985
9
3.
? Mirza Ali petitioner No.2
23-5-1985
9 qualifying of DAE Diploma within one year of aforesaid appointment was made a condition for regularization of their services in BPS 11 at the time of their appointment. It is stated at the Bar that petitioner No.1 was qualified at the time of appointment and petitioner No.2 and respondent No.1 later on obtained the DAE diplomas.
2. That the official respondents prepared the seniority list of petitioners and respondents Nos. 1 on 24-10-1989, 31-10-1989, 27-6-1990, 13-1-1994, 31-4-1994,.9-3-2003, 18-11-2004 and 7-1-2008 and as per seniority list dated 7-1-2008 the respondent No.1 was figured junior to the petitioners having passed his diploma on 11-8-1985 i.e. about three months later to that of petitioners, feeling aggrieved the respondent No.1 filed a writ petition in the Northern Areas Chief Court challenging the above list in exercise of its writ jurisdiction. This petition was hotly contested by the present petitioners (than respondent) and respondents Nos.2 to 5 through their separate parawise comments and oral arguments.
That the learned Division Bench of Chief Court vide impugned judgment dated 9-6-2009 allowed the writ petition with the following direction:
"In the presence of above mentioned facts we feel that the petitioner had made out a good case and he is entitled to be placed at serial No.1 of the seniority list and if any promotion of the respondent No.5, as pointed out, is correct, then the same is reversed to the extent of respondent No.5. The petitioner is entitled to be promoted against the vacant seat on the basis of his seniority."
4. The learned Counsel for petitioners Mr. Muhammad Issa Advocate contended that the respondent No.1 is junior to the petitioners in all respect. He submitted that respondent No.1 has qualified his DAE Diploma on 11-8-1985 while petitioner No.2 Mirza Ali was already diploma holder at the time of his appointment and petitioner No.1 had qualified the same on 8/5/1985 as such they are senior to the private respondent. He further submitted that the seniority can be claimed from the date of qualification for appointment or regular appointment and not from the date of initial appointment. He also added that the respondent No.1 has already waived his right of seniority if any after withdrawal of his appeal unconditionally from Federal Service Tribunal as such he cannot re-agitate the matter before any Court of law. He further contended that the diploma of DAE produced by the respondent No.1 was a fake and forged one as such he was also liable for legal action but the learned Chief Court ignored this factum. At the fag end of his arguments, he also questioned the maintainability of writ petition. The Advocate General representing the respondents Nos.2 to 5 supported the above view point and further added that the services of petitioners and respondent No.1 are still continued as temporary and not placed on regular footings. He contended that otherwise regular appointment can not be considered from the date of initial appointment as the petitioners and respondent No.1 were appointed in BPS 9 to run the official business of the department as temporary arrangements. He further went on to argue that the impugned judgment suffers from legal flaws and not maintainable.
5. On the other hand the learned Counsel for the respondent No.1 controverted the above contention and contended that since the respondent No.1 was appointed as sub-engineer in BPS 9 prior to the appointment of petitioners and as per rules the seniority is to be fixed according to initial appointment however he could not produce any rule or provision of law in this regard. He further contended that the seniority list dated 7-1-2008 prepared by respondent No.4 is illegal and without any legal effect. The learned counsel submitted that seniority list dated 29-7-1999 is based on merits and the same may be maintained.
6. We have considered the contention noted above put forth by the learned Counsel for the parties in the light of impugned judgment gone through and perused material available on record with due care and caution.
7. So far as the validity of seniority list in question is concerned the learned counsel for the respondent No.1 during the course of arguments frankly conceded that the seniority lists prepared by the department at different times, including the seniority list dated 7-1-2008 are not final lists and these are in fact tentative lists. He further contended that a final list has been prepared by the department concerned during the pendency of the writ petition but to the reasons best known to the respondent No.1, this seniority has not been questioned in Chief Court in Writ Petition nor any amendment in the Writ Petition is sought in this regard, the learned counsel agreed that final seniority list ought to have been challenged by amending the writ petition or the writ petition ought to have been withdrawn with the permission to file the writ petition afresh after the removal of the defects. The respondent/writ petitioner may do so if he is so advised; the Chief Court after affording proper opportunity to opposite party may decide the fate of such application if presented in accordance with law.
8. The next question regarding validity of seniority list dated 29-7-1999 is concerned, no seniority list has been issued by the department on 29-7-1999 but a memorandum has been issued by respondent No.2 wherein he has opined that seniority shall take effect from the date of regular appointment and not from the date of passing of diploma. The respondent No.1 has failed to establish whether his service has been brought on regular footing or he still discharges his duties as temporary employee. The judgment of the learned Chief Court is also silent in this regard. The learned Chief Court should have discussed this aspect of the case before arriving at final conclusion but unfortunately no pain has been taken in this regard.
9. The impugned judgment is also silent about the applicability of seniority rules whether department has their own seniority rules or the seniority is governed under section 8 of Civil Servant Act, 1973. This should have been examined and discussed in the impugned judgment but has not been done so. Moreover the conclusion derived in the impugned judgment is self-conflicting as on the one hand the learned Chief Court observes in the impugned judgment. "that it is also noted that there are the minimum of three or four seniority lists attached with the petition which makes it very difficult for the court to come to a correct conclusion."
And on the other hand the learned Court has accepted the writ petition and granted relief in favour of writ petitioner and maintained/ validated the seniority list which favours the writ petitioner. The learned Chief Court has not appreciated the real controversy and has not given a well reasoned verdict without dilating upon the merits of the case we have come to the conclusion to remand the case back to learned Chief Court with the above observation.
The result is that the petition is converted into appeal the impugned judgment dated 9-6-2009 is set aside. The case is remanded back to the Chief Court for decision afresh in accordance with law after providing proper opportunity of hearing to all parties.
Office is directed to transmit copy of this judgment and relevant record to Chief Court forthwith.
No order as to cost.
M.H./33/Glt. ??????????????????????????????????????????????????????????????????????????????????????? Case remanded.