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Case No. 155/107 of 1983, decided on 16th November, 1983.

---S. 4--Civil Procedure Code (V of 1908), S. 11, Explanation V- Review--Res judicata--Tribunal has no powers to review its earlier order--Appellants Readers of High Court claiming upgradation to Pay Scale No. 16 w.e.f. 1-3-1972--Same claim made in earlier appeal already decided by Tribunal allowing benefit of Pay Scale No. 16 but consciously not from 1972--Appeal by same party involving same claim, in circumstances, held, hit by principles of res judicata and also that Tribunal cannot review its own judgment.

Allah Wasaya for Appellants.

A.G. Humayun, District Attorney for Respondents.

.--Messrs Kamaluddin and 30 others, all Readers of the Lahore High Court, Lahore have filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which they have impleaded the Province of the Punjab through the Secretary Finance, Government of the Punjab, Civil Secretariat, Lahore and the Government of the Punjab through the Secretary, Services, General Administration and Information Department, Lahore, as respondents.

2. By virtue of this appeal they have prayed that the respondent be directed to allow them the benefit of their upgradation to N.P.S.-16 from 1-3-1972, the date when the National Pay Scales were introduced and modify its notification, dated 19th February, 1983, accordingly.

3. Brief facts of the case are that the appellants who were all Readers of the Lahore High Court, filed an appeal before this Tribunal and ultimately succeeded vide its judgment, dated 17-5-1982. The respondents aggrieved of this judgment so delivered in favour of the appellants filed an appeal before the Supreme Court of Pakistan, but the judgment of this Tribunal was upheld and the appeal of the Government was dismissed. The appellants made a claim before the respondents that although in accordance with the judgment of 1982, they have been considered for N.P.S.-16 and their status has been

brought at par with the Readers of the Board of Revenue, yet at the same time, it was requested that according to the said judgment the upgradation should be from 1-3-1972, the date when the National Pay Scales were so introduced. The respondents have refused to accede to their request. Hence this appeal.

4. We have heard the learned counsel for the appellants as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case including the judgment delivered by us, dated 17-5-1982.

5. Learned counsel for the appellants has argued that the decision of respondent No. 1 in upgrading the post of Readers of the Judges of the Lahore High Court in N.P.S.-16 w.e.f. 22-6-1981, was absolutely unjustified as the same should have been implemented from the date of introduction of National Pay Scales, in comparison with the Readers of the Board of Revenue, Punjab. It was further submitted that as the judgment of the Tribunal was upheld by the Supreme Court of Pakistan, therefore, it has attained finality and the respondents are bound to implement the same. Lot of stress has been laid by the appellants on the ground that this move for upgradation of N.P.S. was made much earlier than the present judgment in their favour and the original recommendations of the High Court be honoured.

6. On the other hand a preliminary objection has been taken by the respondents that the present appeal of the appellants was hit by section 11 of C.P.C., on the principle of res judicata. According to the learned District Attorney prayer for grant of N.P.S.-16 w.e.f. 1-3-1972, was made to the Tribunal in the previous appeal, which was not expressly accepted within the meaning of Explanation V of section 11 of C.P.C. 1908. It has been argued that the parties are the same issues are same and the claim is under the same title before the same Court. Learned District Attorney has brought to the notice of this Tribunal while reading its judgment that with a conscious mind, the Tribunal has deleted the word 'with effect from 1-3-1972' therefore, it may well be said that the prayer of the appellant that they should be given the benefit of N.P.S.-16 from 1-3-1972, was not accepted.

7. We have heard the parties at length, perused the entire record of this case particularly the written statement filed by the respondents and the rejoinder to the same, submitted by the appellants. Without going into the merits of the case we will advert to the legal implication as pointed out by the learned District Attorney.

8. We have read the earlier appeal of the appellants and find in para. 2 of our judgment which is reproduced below for the sake of reference: --

'By virtue of this appeal it has been prayed that the impugned order be set aside and the appellants be upgraded to N.P.S.-16 since 1972'.

In view of the above, the appellants are not permitted to argue that in their earlier appeal the claim for upgradation since 1972, was not made by them. We have also read our judgment carefully and find that while concluding the judgment, this Tribunal did write that the appellants be given N.P.S.-16 from 1972, but the same scored out by the authors of the judgment with a conscience mind. Happily two of the authors are still working in their offices viz. Justice (Retd.) S. Abdul Jabbar Khan, Chairman and Malik Zawwar Hussain, Member I, who are still on the Bench of this Tribunal. We both have given our careful consideration to the point at issue and have no hesitation to hold with clear conscience that the word 'w.e.f. 1--3-1972' was scored out purposely, as we at that time did not consider it feasible. This being so, there is nothing to go further into any controversy, as it is now established on the record that in the earlier judgment as well as in the present appeal, parties, issues and prayers were the same, therefore, the principle or , res judicata will positively apply in these circumstances. It is a settles principle of law that this Tribunal cannot review its earlier order and once an issue has been decided in favour or against a civil servant, the remedy open to him is to go in appeal before the Supreme Court of Pakistan and he is not permitted to agitate the matter before this Tribunal asking for a fresh decision.

9. The result is we do not find any merit in this appeal which is J dismissed on the principle of res judicata as envisaged in section 11 of l C.P.C. However, there will be no order as to costs.

M.I. Appeal dismissed.

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