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Civil Petition for Special Leave to 'Appeal No. K‑178 of 1983, decided on 3rd February, 1986.

Constitution of Pakistan (1973)‑‑

‑‑‑Art. 212(3)‑‑Sind Service Tribunals Act (XV of 1973), S. 3‑‑Civil service‑‑Seniority‑‑Promotion‑‑Tribunal declining to hear appeal of petitioner against order of Government, which was based on a judgment of civil Court whereby he was shown junior to another official in list of seniority, on ground that it would amount to giving a decision regarding fitness of a particular person for promotion which was barred under Sind Service Tribunal Act, 1973; that Tribunal could not hear appeal against decree of civil Court; that Appellate Court (High Court) was already seized of matter which was accordingly sub judice and a " separate suit for cancellation of original decree was also pending before civil Court‑‑Petitioner contending that Tribunal had failed to appreciate that in suit filed in civil Court, petitioner was likely to be affected but he was not joined as a party and judgment and decree passed in suit was not binding on him‑‑Such and several other contentions raised by counsel for petitioner deserving considerations‑‑Leave to appeal granted.

Nazir Ahmad Siddiqui, Advocate‑on‑Record for the Petitioner.

Abdul Sattar Shaikh, Additional Advocate‑General,. Sind and Muzaffar Hussain, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Date of hearing: 3rd February, 1986.

.‑‑Facts of this case briefly stated are that petitioner was initially appointed as Assistant Commissioner, Grade 17, with effect from 19‑12‑1974 against a substantive vacancy, after he qualified the competitive examination held by Sind Public Service Commission for recruitment to that post.

2. Khuslomal, respondent 3 herein, on the other hand joined the Revenue Department, Government of Sind, in a non‑gazetted post on 5‑12‑1945. In course of time, when list of persons fit to act as Mukhtiarkars was prepared by the Board of Revenue, Government of Sind according to the instructions laid down in this behalf in the Revenue Department Circular No‑l,, S.IX‑II‑C/41 dated 10‑1‑1945 Khuslomal's name was not entered in the: select list of 1959, but his name was included in the list for the following year 1960: Khuslomal protested against the non‑inclusion of his name in the select list through applications but these were rejected by the Board of Revenue. No further proceedings were taken by him in this regard.

3. However in 1975, Khuslomal filed an appeal before the Sind Service Tribunal against the non‑inclusion of his name in the Select‑list of 1959 which was dismissed on the ground that "Tribunal will have no jurisdiction to order inclusion of appellant's name in the Select‑list because it is a question of fitness for a particular post which is beyond our jurisdiction.

4. Khuslomal then filed a civil suit in the District Court Hyderabad, being Suit No. 90 of 1976, for a declaration that non‑inclusion of his name in the seniority list was illegal for injunction directing the Government of Sind and the Board of Revenue to consider his case for inclusion of his name in the 1959 list of revenue subordinates fit to act as Mukhtiarkars; and for grant of all the benefits of service, including promotion, seniority, difference of pay and other consequential benefits admissible under the rules. In the suit, only the Provincial Government and the Board of Revenue were made the defendants and no person, including the petitioner, who was likely to be affected by the judgment and decree was joined. Since Khuslomal's claim was admitted by the aforesaid defendants at the stage of arguments in the case, learned trial Judge decreed the suit in his favour by the judgment dated 27‑11‑1979. Finally, the Provincial Government in implementation of the said judgment and decree issued a notification dated 16‑11‑1981 including Khuslomal's name at S. No. 17 in the approved Select List of Revenue Subordinates fit to act as Mukhtiarkars for the year 1959, and as a consequence he was placed at S. No.202 in the final list of Mukhtiarkars issued by the Board of Revenue Sind under Notification No. 289‑Estt dated 4‑8‑1975 published in the Sind Government Gazette gated 27‑9‑1975.

5. As a result petitioner whose name was higher in that seniority list was shown as junior to Khuslomal, and he being thus aggrieved filed another suit in the Civil Court for the cancellation of the judgment and decree passed in Khuslomal's favour. Another official who was also an affected party filed an appeal against said judgment and decree in Sind High Court. Both these cases are said to be yet pending. Petitioner also filed an appeal against the decision of the Provincial Government in the aforesaid notification before the Sind Service Tribunal challenging the inclusion of Khuslomal's name in the subsequent seniority list. The Tribunal however, took the view which may be stated by reproducing the relevant paragraph of the impugned judgment.

"The legal position is that this Tribunal cannot review the judgment of the predecessor Tribunal nor sit in appeal over that decision whereby it was declared that the Tribunal had no jurisdiction to consider the question of inclusion of the name of the official in the select list of Mukhtiarkars as that would amount to giving a decision regarding fitness of a particular person for promotion which was

barred under the Sind Service Tribunal Act.

This Tribunal can also not hear the present appeal because in fact this is an appeal against the decree of a Civil Court. The appellate Court namely the High Court is already seized of the matter which is accordingly sub judice. A separate suit for cancellation of the original decree is also pending before the Civil Court. This Tribunal has no jurisdiction to sit in appeal over the decree of the Civil Court nor decide the real issue between the parties when the same issue has been agitated by the parties before the proper forums namely the High Court and the Civil Court.

6. It is in these circumstances that the petitioner filed this petition for leave to appeal from the judgment of the Service Tribunal.

7. Mr. Nazir Ahmad Siddiqui, learned Advocate appearing in support of the petition submits that the Service Tribunal has failed to appreciate that in the suit filed by Khuslomal in the District Court petitioner was likely to be affected but was not joined as a party and the judgment, and decree passed in the suit is, therefore, not binding on him. Several other submissions have also been raised by the learned counsel for the petitioner which deserve consideration. We, therefore, grant leave to appeal and allow the petition.

8. The appeal will be heard on the present record, at a very early date. It is, however open, to the parties to file additional documents if any.

M. Y. H. Leave granted.

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