STATE BANK OF PAKISTAN and 2 others vs Syed ASIF ALI
This matter concerns a petition for leave to appeal against a judgment of the Federal Service Tribunal, which had directed the State Bank of Pakistan to place a transferred employee at the top of the seniority list for the post of Assistant at the Lahore office. The respondent, originally a Senior Assistant at Sialkot, had requested a transfer to Lahore on the condition of accepting a demotion to Assistant. The Tribunal found the department's insistence on demotion and subsequent placement at the bottom of the seniority list to be unjust. The Supreme Court examined whether the respondent had waived his seniority rights by accepting the transfer conditions and whether the appeal was maintainable without impleading affected employees. The Court held that the Tribunal's decision to grant the respondent the top position in the seniority list for Assistants was just and equitable. The Court distinguished the precedent regarding non-impleadment of necessary parties and refused to entertain a new plea regarding the maintainability of the appeal under the Service Tribunals Act, 1973, as it was not raised before the Tribunal.
- Can a civil servant claim seniority rights after accepting a demotion as a condition for transfer?
- Is an appeal before the Service Tribunal maintainable if the affected employees are not impleaded as parties?
- Can a petitioner raise a plea regarding the maintainability of an appeal for the first time before the Supreme Court if it was not urged before the Tribunal?
- Section 4, Service Tribunals Act 1973
- Section 2-A, Service Tribunals Act 1973
ORDER
' IRSHAD HASAN KHAN, J.---Leave to appeal is sought against the judgment dated 23-9-1997 passed by the Federal Service Tribunal, Lahore (hereinafter called the Tribunal), in Appeal No,364/L of 1997.
2. The brief facts are that respondent was holding the post of Senior Assistant in the State Bank of Pakistan at Sialkot. At his own request he was transferred to Lahore on the condition that he shall not be posted as Senior Assistant but as Assistant in Lahore office. The respondent being aggrieved against placing him at the bottom of seniority list of the lists maintained at the Lahore Branch of the State Bank, approached the Tribunal which, after hearing the parties and perusing the material available on record accepted the appeal, inter alia, with the following observations:- "3.We have considered the arguments of both the sides and are of the view that the department has been rather callous with a man who for his family reasons wanted a transfer and made him ag, e to a lower rank, although there is no such stipulation under the law. The plea of the respondent department that this was a sort of contractual agreement is of no consequence because there is no contract involved. The other argument that he accepted this proposition, as held earlier is not legally valid. The most unfortunate part of the whole thing is that the department literally by force compelled the appellant to accept the post of Assistant without which he was told that he will not be transferred but later on also assigned the seniority at the bottom of the Assistants in Lahore Zone. This leads to double jeopardy of the vested rights of the appellant.
4. We have considered the arguments of both the sides and are of the opinion, that because the appellant had himself accepted his demotion as Assistant for ensuring his transfer we will not interfere as far as the assignment of the rank at Lahore is concerned. All the same under the law he could have been a Senior Assistant if the transfer had been made in accordance with the rules and regulations. So, the natural and legal consequence of all this shall be that even if he is retained as Assistant he should be assigned the top position in the seniority list maintained for Assistants at Lahore. The department is directed to do so."
3. Raja Abdul Ghafoor, learned Advocate-on-Record for the petitioners argued that the respondent was not entitled to claim seniority after having himself foregone his placement as senior assistant and, in any case, he has waived his right to claim seniority after transfer from Sialkot to Lahore at his own request on compassionate grounds. Reliance was also placed on Farid Muhammad v.
Secretary, Ministry of Food, Agriculture and Cooperatives, Government of Pakistan, Islamabad (1996 SCM R 818), to contend that the respondent had claimed relief against the assistants working at Lahore office without impleading them as parties, therefore, the Tribunal was not right in placing him above them. The precise submission was that the appeal filed by respondent No,2 before the Tribunal was not maintainable without impleading the assistants at Lahore office whose seniority has been adversely affected. It was argued that the impugned judgment of the Tribunal was violative of the principle of natural justice. We are not impressed by the submissions made by Raja Abdul Ghafoor. The case of Farid Muhammad (supra), is distinguishable, inasmuch as, in the precedent case the aggrieved party filed an appeal against the order of the Tribunal on the ground of non-impleading of necessary parties in appeal before the Service Tribunal against whom Civil Servants had claimed relief and the service Tribunal had directed that Civil Servants be placed above those unimpleaded parties. In the case in hand no employee of the State Bank of Pakistan, who has been adversely affected in pursuance of the impugned order has filed a petition before this Court.
5. It was next contended that the appeal was not maintainable before the Tribunal in terms of section 4 read with section 2-A of the Service Tribunal Act, 1973. A bare perusal of the impugned order shows that this point was not urged before the Tribunal. It is not the case of the petitioners in the petition for leave to appeal that they duly urged this point, but the same was not considered by the Tribunal. We are, therefore, not inclined to permit the petitioners to raise this plea for the first time before this Court in the facts and circumstances of this Court.
6. Be that as it may, the respondent was admittedly a senior assistant, therefore, assigning him the top position in the seniority, list maintained for Assistants at Lahore was just and equitable warranting no interference in these proceedings. This is, therefore, not a fit case for invoking our discretionary jurisdiction.
7. Resultantly, petition fails and is hereby dismissed. Leave to appeal is refused. _