MASOOD AHMED CHANGWANI vs DIRECTOR-GENERAL, BUREAU OF EMIGRATION AND OVERSEAS EMPLOYMENT ISLAMABAD and 4 others
This matter arises from a petition for leave to appeal against the judgment of the Federal Service Tribunal, which dismissed in limine the petitioner's service appeal pursuant to Section 4(1) proviso (b) of the Service Tribunals Act 1973. The core legal question concerns whether a civil servant can maintain an appeal challenging the promotion of juniors and seeking his own promotion when his departmental representation regarding a provisional seniority list showing him as junior remains pending. The Supreme Court held that until the petitioner's claim of seniority over the respondents is formally determined by the department, he cannot claim promotion over them on the basis of seniority, and therefore the Service Tribunal rightly dismissed the appeal. The key principle laid down is that a service appeal challenging promotions and seeking consequential promotion is barred or premature when it is contingent upon a disputed and undetermined seniority status pending before departmental authorities.
- Whether a civil servant can maintain an appeal before the Service Tribunal regarding promotion while his representation against a provisional seniority list is still pending?
- Does a service appeal challenging the promotion of alleged juniors lie when the petitioner's own seniority has not yet been determined by the departmental authority?
- Section 4(1)(b), Service Tribunals Act 1973
1. ' SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of Federal Service Tribunal dated 7-6-1994 whereby the learned Tribunal dismissed in limine the service appeal filed by the petitioner holding it to be bared under the provisions of section 4(1) proviso (b) of the Service Tribunal Act 1973.
2. ' The learned counsel for the petitioner in seeking leave to appeal contended before us that the view taken by the learned Tribunal was not correct as the petitioner was not seeking his promotion through the appeal filed before the Tribunal. The learned counsel referred us to the prayer in the appeal which is as follows: "It is, therefore, respectfully prayed that the appeal may kindly be accepted, the impugned order of promotion of Respondents Nos. 4 to 7 may be held to be illegal, incompetent and without any legal effect, on account of their being ineligible for promotion and junior to the appellant who also stands approved for promotion and he may be ordered to be promoted from the same date from which they were promoted with all consequential benefits.
3. ' It is further prayed that any other relief which this Hon 'ble Tribunal may deem fit and proper may also be ordered."
4. ' The learned counsel for the petitioner contended that in the appeal the petitioner had contended that the promotion of respondents Nos. 4 to 7 in the present petition, was illegal as they were ineligible for promotion and were also junior to the petitioner in service. The learned counsel for the petitioner, however, conceded before us that in the provisional seniority list issued by the department, the petitioner is shown junior to respondents Nos. 4 to 7 and that his representation against the provisional seniority list is still pending decision before the departmental authority. The learned counsel for the petitioner has referred us to the minutes of the meeting of Departmental Promotion Committee-I (D.P.C.) in which respondents Nos. 4 to 7 as well as the petitioner were cleared for promotion to the next post namely, Assistant Director (BPS-17). The learned counsel accordingly, contended that as the petitioner was cleared alongwith respondents Nos. 4 to 7 for promotion as Assistant Director (BPS-17), he being senior should have been promoted, and therefore, promotion of respondents Nos. 4 to 7 without promoting the petitioner, was illegal and without jurisdiction. We have already referred earlier that in the combined seniority list issued by the department and which according to the petitioner is a provisional seniority list, the petitioner was shown as junior to respondents Nos. 4 to 7, therefore, until such time the seniority claimed by the petitioner was allowed by the department the petitioner cannot claim his promotion over and above respondents Nos. 4 to 7 on the basis of seniority. The appeal of the petitioner before the Tribunal in the absence of determination of his claim of seniority over respondents Nos. 4 to 7, therefore, could not succeed. No case for interference with the order of Service Tribunal is made out. The petition is, accordingly, dismissed and leave to appeal is refused.