2010 P L C (C.S.) 563
[Quetta High Court]
Before Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ
ZAFAR MASOOD and 4 -others
Versus
CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN CIVIL SECRETARIAT,
QUETTA and 6 others
Constitutional Petition No.739 of 2009, decided on 8th February, 2010.
Balochistan Civil Servants Act (IX of 1974) ---
----S. 8---Constitution of Pakistan (1973), Arts. 199 & 212 ---Constitutional petition ---
Maintainability ---Seniority list ---Remedy ---Petitioners were civil servants and aggrieved of
fixation of seniority ---Validity ---Remedy against seniority list was representation/appeal to
competent authority, which resp ondents had availed ---Competent authority had passed an
order reviewing the seniority list, against which order law had provided a remedy byway of
filing appeal before Service Tribunal ---As corrigendum issued by competent authority
regarding seniority list pertained to terms and conditions of service, therefore, in view of bar
contained in Art. 212 of the Constitution, High Court had no jurisdiction to entertain the
petition against such order ---High Court declined to interfere in the seniority list prepare d by
competent authority ---Petition was dismissed in limine.
2007 SCMR 54 rel.
Mohsin Javed for Petitioners.
Nasrullah Achakzai, Addl. A. -G. for Respondents Nos.1 and 2.
Kamran Murtaza for Respondents Nos.4 to 7.
Date of hearing: 22nd December , 2009.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---Briefly stated facts of the petition are that by means of
common judgment dated 30 -8-2007, passed in Service Appeals Nos.115 and 116 of 2000, filed
by Abdul Rashid and Abdul Waheed Khan, the Balochistan Se rvices Tribunal, Quetta (the
Tribunal) had directed the Provincial Selection Board (the Board) to re -examine the matter and to
issue fresh seniority list keeping in view all the rules, regulations and dates of appointment of
incumbents.
2. After remand o f the case, the Board had initially circulated provisional seniority list on 14 -4-
2008 and later on final seniority list was circulated on 30 -3-2009, which contain the names of
petitioners as well.
After issuance of final list, the private respondents, f eeling aggrieved, have challenged the same
before the competent authority by filing representation/appeal. Main contention of private
respondents in their appeal was that the Board, while preparing seniority list, had not considered
their case and they hav e been deprived from their right.
3. The competent authority was convinced and has issued corrigendum on 16th November, 2009,
wherein the seniority list dated 30 -3-2009 was reviewed the private respondents were adjusted.
The petitioners, being aggrieved from the said corrigendum, have filed the present petition. The
private respondents in parawise comments, in reply to para No.16 of the petition, have stated as
under:
"Not admitted. The corrigendum for correction in the final seniority list of BCS (EB)/ BS-
17 officers was issued by respondent No.2 after due process of the case and acceptance of
appeals of the replying respondents by the Appellate Authority/ Chief Minister. The
correction in the final seniority list dated 30 -3-2009 by issuing corrigendum d ated 16 -11-
2009 was made in accordance with the law/rules/policy/procedure."
4. Learned counsel for petitioners have submitted that the impugned corrigendum dated 16 -11-
2009 issued by official respondents is based on mala fide intention, as they have no authority to
do so, because the earlier list dated 30 -3-2009 was issued on directions of the Tribunal, therefore,
it amounts to contempt of the Tribunal's order as well. He has further submitted that, even
otherwise, the petitioners are seniors to private respondents; therefore, as a matter of right, they
are entitled to be given seniority over private respondents.
5. On the other hand, learned counsel for private respondents has vehemently denied the
contentions and has challenged the maintainability of the petition in view of the bar contained in
Article 212 of the Constitution. On merits too, he has contested the petition.
6. Learned Additional Advocate General has also strongly opposed the petition and has submitted
that the competent authority has a ccepted the appeal of private respondents, therefore, the
petitioners could have challenged the said order, if aggrieved, before the Tribunal, therefore, the
petition being incompetent is liable to be dismissed.
7. We have heard learned counsel for the p arties and have gone through the record. It transpired
that the petitioners are strongly relying upon a judgment dated 30 -8-2007 passed by the Tribunal
and have claimed that in view of same, the final seniority list dated 30 -3-2009 was issued. After
going through said judgment, it reflects that petitioners have not properly understood its theme, in
which the Tribunal has never declared that petitioners or somebody else should be given
preference or be listed senior to others. While remanding the case, the T ribunal has simply held
that the authorities/department should look into the matter in depth from very initial stage and
then make appropriate order in this respect while assigning seniority to the official concern
keeping in view relevant law and rules.
Directions of the Tribunal were general in nature and it was not in favour of any individual, rather
the Board was directed to follow law and rules while preparing the list, thus, the authorities
were bound to consider the cases of all the incumbents incl uding the petitioners and private
respondents strictly in accordance with law. Since the private respondents were aggrieved
from the list issued by the Board, therefore, they have availed the proper remedy by way of
filing representation/ appeal to the com petent authority. No doubt, we cannot look into the
outcome of any order passed by competent authority, but according to law against any
seniority list, the remedy available to aggrieved person is a representation/appeal to the
competent authority, which t he private respondents have availed. The competent authority
has passed an order, reviewing the seniority list, against which the law has provided a remedy
by way of filing an appeal before the Tribunal.
8. Since the impugned corrigendum issued by the co mpetent authority pertains to terms and
conditions of service, therefore, in view of bar contained in Article 212 of the Constitution of
Islamic Republic of Pakistan, 1973, we have no jurisdiction to entertain the petition against
said order and in this be half, reliance has been placed on a judgment -reported in 2007 SCMR
54.
9. Thus, in view of above, the petition, having being filed in a wrong forum, is dismissed in
limine being not competent, with no order as to cost.
These are the reasons of our shor t order dated 22 -12-2009 announced in the open Court.
M.H./18/Q Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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