Syed IFTIKHAR HUSSAIN SHAH and another vs GOVERNMENT OF PAKISTAN
The petitioners filed petitions for leave to appeal against the judgments of the Federal Service Tribunal which declined their miscellaneous petitions. The miscellaneous petitions were filed alleging non-compliance with the Tribunal's earlier judgment that had remanded their cases to the authority for reconsideration of promotion after their appeals were disposed of. The grievance was that their juniors had been promoted by bypassing them without justifiable reason, and the respondents had refused promotion on the ground of the absence of vacancies. The Supreme Court considered the arguments that the respondents' plea regarding the lack of vacancies negated the Tribunal's remand judgment and that the Tribunal failed to examine whether the petitioners were factually bypassed without justifiable reason. The Court held that these contentions raised substantial questions warranting examination and accordingly granted leave to appeal. The key principle established is that when a service appeal regarding supersession and promotion is remanded for reconsideration, the authorities cannot defeat the remand order on the mere plea of non-availability of vacancies without addressing the core grievance of unjustified bypassing.
- Whether an authority can refuse promotion after a remand order on the ground of non-availability of vacancies?
- Does the failure of a service tribunal to consider whether an employee was bypassed without justifiable reason warrant interference by the Supreme Court?
- Can the non-compliance of a tribunal's remand judgment be challenged through miscellaneous petitions?
ORDER
' AJMAL MIAN, J.---By this common order, we intend to dispose of the above two petitions as they involve common question of law. They are directed against the judgements dated 16-12-1993 and 20-11-1993 passed by the Federal Service Tribunal, hereinafter referred to as the Tribunal, in Appeals Nos. 73 and 74(L)/92 filed by the present two petitioners in the above two petitions, declining the petitioners' Miscellaneous Petitions Nos. 81 of 1992 and 82 of 1993 filed by them in the above disposed of two appeals, which were disposed of by judgment dated 22-4-1993 and the cases were remanded to the authority for reconsideration of their cases for promotion. The above miscellaneous petitions were filed alleging therein that the respondents had not complied with the above judgment of the Tribunal inasmuch as that the petitioners were not promoted on the ground that there was no vacancy. The petitioners have, therefore, filed present petitions for leave to appeal.
2. In support of the above petition Chaudhry Mushtaq Masood, learned ASC; appearing for the petitioners, has vehemently urged that the grievance of the petitioners in the above service appeals was that their juniors were promoted by by-passing them without justifiable reason and, therefore, when the above cases were remanded to the respondents, they were required to examine the question, whether factually the petitioners were bypassed without any justifiable reason.
' It has further been urged by him that the plea taken by the respondents that there was no vacancy against which the petitioners can be promoted is a plea which negates the above judgement of the Tribunal.
' It has also been argued by him that learned Tribunal failed to take into consideration the above aspects.
3. We are inclined to grant leave to consider the above contentions. Leave is accordingly granted.