( 19961 Hamced Akhtar Niazi v.

Secretary, Establishment Division'

r 185

(Ajmal Mian, i)
h 1996SCMRl185
a
a
[SuPrerne Court of Pakistan]
r Before AjmalMian, Saiduuaman Sidiliqui and
I Mukhtar Ahmad Junejo, JJ
n

t HAMEED AKHTAR NIAZI--APPellant

r
versus
I OF
t THE SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT
?
' PAKISTAN and others---Respondents
t f Civil Appeal No.345 of 1987, decided on 24th April, I996'
:
t (On appeal from tltc judgment dated 11-12-1986 of the Federal Service
I 'fribunal, Islanabatl, passed in Appeal No. 124(L) of 1980)'
I
Per dinral Mian, J.; Salduzzarnan Siddiqui, J. agreeing-'

(a) Civil Servants Act (LX)il of 193)-.

t
----s. 8(4)--Constitution of Pakistan (1973), Art. 212(3)---Establishment
Secretary's D.O. trtter No.2/4/75-Avl, dated 2- 10- 1975---Seniority---Merger
of four occupational groups of civil servants--l-pave to appeal was granted to
consider the questions as to whether lhe seniority list of 1979 was properly
*-. r-rrcr! in n,.cnrdrnre rvith law and what was the effect of the reliance front the
PrLPart4
bouernrnent side in the Supreme Court in another appeal on the list of 1976;
whether when preparing rhe list of 1979, s. 8(4) of the civil servanrs Act, 1973
and other relaied provisions of law had been kept in view; whether a civil
servant coukl be allowed to corint his senioriry in a post frotn a date eallier tllan
the one of his actual regular continuous officiation in that post; if not whether
the fact that the respondents in appeal belonged to the different civil services of
pakistan would make any difference; whether one unifonn principle of seniority
would apply to all members of lhe Secretariat Group or lhe officers joining the
Group frorn different sources/cadres would have to be treated differently; if so,
G whether such treatment with or without the support of statutory rules or
dircctions would not be in contravention of the relevant provisions of Cif il
Servants Act, 1973 and in that context what was the effect of the abolition of
C. S.P. Cadre; whether the eligibility of civil servant for appointment to a
selection post conferred any right of senioriry in that post and cadre wilhout
issuance of a formal promotion/appointment order in accordance with the
prcscribed procedure and whether in that context a civil selant belonging to ex-
C.S.P. Cadre was entitled to automatic promotion to the posl of Deputy
Secretary after he had completed eight years of service but without the
Iequirement of being actualty selected/promoted or appointed; and what was the

s( t{R
 1 186 Supreme Coun Monthly Review [Vol. XXIX I
l9

effect of the Supreme Court judgment in Khizar l{aider Malik atl orhers v. Isl
Muhammad Rafiq Malik and anorher 1987 SCMR 78 on the case. [p. I Ig7] A of
(b) Civil Servants Act, (LXXI of 19?3)--

----Ss. 8 & 23--Seniority---Merger of C.S.p and p.S.p cadres and creation of

APUG---Seniority of such an officer, who was workihg in province or
elscwhere, could not be distorted/disturbed to his detriment on account of the
merger of said groups and creation of ApUG and junior of such civil servant
could not be made senior to him nor a junior to his junior could be made senior
to him but this has to be done within the framework of the rules of
reorganization of servicces---lf the case of any civil servant does Jrot fa.ll within
the ambit of said reorganisarion rules, S. 23 of the Civil Sen ants Act, 1973 can
be pressed into service by the President of pakistan to obliviate the inequirable
and unjust result arising out of the merger of the two cadres in respect of d
seniority of any of rhe civil servanrs. tp. ll93l B b
ESTACODE, 1989 Edn., pp.t014, 1096 and 1097 ref.
(c) Service Tribunals Act (LXX of 1973)-- q

---S. 4---Constirurion of Pakistan (1973), Afl.Zl2---Appeal to Service Tribunal

or Supreme court---Effect---rf the Service Tribunal or Supreme coun decides a
point of law relating to the terms of service of a civil servant which covers
not
only the case of civil servant who litigated, but also of other civil servants, who
may have not taken any Iegal proceedings. in such a case. the dictates and rule
of
good governance demand that the benefit of such judgment by
Service
Tribunal/supreme court be extended to other civ servants, who rnay not
be
panies to rhe litigarion instead of compelring rhem to approach the
service
Tribunal or any other forum. [p. 1 193] C

Per l\{ukhtar Ahmad Junejo, J.--

(d) Servlce Tribunals Act (LXX of 1973)--

---S. 4--Appeal to Service Tribunal, scope and exrent.

[p. ll94] D
M. Bilal, Senior Advocate Supreme Court and Ejaz Muhanmad Khan,
Advocate-on-Record for Appellant.
Raja Muhammad Bashir, Deputy Attomey_General.and Ch. Akhtar
Ali,
Advocate-on-Record for Respondents.

Dates of hearing: 7rh and 8rh April, 1996.

JUDGII{EI\IT
AJMAL MIAN, J.---This is an appeal with the leave of rhis Coun l
against rhe judgment dated I l-12-19g6 passed by rhe Federar
service triuunJ, l

SCTIR
K 1996] Hamecd Attrtar Niazi v' Seuerary' Esrablishment Division' I 187
(Ajmal Mian, J)
passed ill Appeal No' 124(f)
Islunabad, hereilafter referred to as the Tribunal,
tirJ by the appellant' praying for the following reliefs:--
"iiiio, (who was eventually promoted
" 16. In view of rhe above, the appellant
houourable Tribunal
with effect from 28-8-1986) humbly prays that this
rvith
f *"V tinofy direct the respondent ivo't to proceed in accordance and
r i"* -a to declare him toiave been promoted before theandineligible
May' 1980'
in August, 1979 and February
:""i* "ii."tt lro*ottafull salary and all other-benefits may also kindly
t it is further prayed that
be allowed to the appellant frorr the date on
which he would have been
consideration of the
promoted if his name had been put up for.the
graciously be
C.S.B. according to his seniority' Cost inay also
allowed, "

dismissing rhe same for the reasons recorded in Appeal

No.l16(R) of 1981, filed
by one M. Rantizul Haq.

2. [rave to appeal lvas granted to consider inter alia the followiug

questiolrs:--

(a) Whether the seniority list of 1979 was properly prepared in accordance
with law and what is the effect of the reliance from the Covenrment
side in the Supreme Coun in another appeal on the list of 197
6?

(b) Whethir when preparing the list of 1979, section 8(4) of the Civil
SeruantsAct,lgT3andotherrelatedprovisionsoflaw'lravebeenkept
in vierv?

(c) Whetheracivilservantcanbeallowedtocounthisseniorityinapost
from a dale earlier than the one of his actual regular continuous
officiation in that post; if not, whether the fact that the respondents A
belonged to the difunct Civil Service of Pakistan rvill make
any

difference?

(d) Whether one uniform principle of seniority will applv to all metnbers
of
the Secretariat Group or the officers joining the Group from clifferent
source/cadres would have to be treated riifferently; if so, rvhether
such
treatment whether with or without tlte support of statutory rules or
directions would not be in contravention of the relevant provisions of
tire Civil Servants Act, 1973, and in this context what is that effect of
the abolition of the C.S.P. Cadre? and

(e) Whether the eligibility of a civil servant for appointrnent to a seleclion

post confcrs any right of seniority in that post and cadre without
irrrrn." oJ a formal promotion/appoilltment order in accordance witlt
the prescribed procedure and whether in this corltext a civil serl'ant
belouging to ex-C.S.P cadle is enlitled to automatic promotion to the
post & Deputy Secretary after he completes eight years of service but
 It88 Supreme Court Monthly Revierv lVol. XXIX I

without the aforenoted requirement of being actually selected/promoted I

or appointed? and
(
(f) What is rhe effect on this case of the judgment of this Coun in Khizar (
Haider Malik and others v. Muhanmad Rafiq Malik and another 19g7
I
SCMR 78.?
i
3. It may be observed that the order of granting leave was recalled on I
l0-2-I992, but upon review, the sarDe was set aside through an order dated
14-2-1994 and thereby the aforesaid leave granting order was restored.

4.
The brief facts are that rhe appellant joined pakistan Military Lands and
Cantonments Service on the basis of the results of competitive examination held
in June, 1960. Ir is the case of the appellanr rhat in 1967, he proceeded ro
U.s.A. on study leave and obtained a Master's Degree in public Administration
from the Maxwell Schoot of public Affairs and Citizenship, Syracuse
University. It is also his case rhat in Juhe/July, 1972, the planning Division
recommended him for prombtion to the post of Deputy Secretary to the
Govemment of Pakistan. It is his funher case that pending ,pprorrl of th.
Establishment Division, Planning Division promoted.him as Deputy secretary
by an order dated,9-8-1972. The above order reads as follows:--

"OFFICE ORD ER ,:,*

It has been decided that Mr.Hameed Akhtar Niazi, pML & CS will
look after the work of Deputy Secretary (Administration) with
riiiiiicdrate eiiecr. He rviii be <iesignated as Officer on Special Duty
(Administration).

Mr. Zafar Iqbal is posted as Deputy Secretary, programming. ,,

Ithas also been averred by the appellant that he was prbmoted as Deputy
Secretary on regular basis on 9-4-1973 antl posted in the Establishment
Division.

.into5All I!Pakistan
seems that in August, 1973, C.S.p. and p.S.p. cadres were merged
Unified Grades, hereinafter referred to as ApuG. It further
seems that after the aforesaid merger, four occupational groups were created,
namely, Tribal Areas Group, District Management Group, Secretariat Group and
Police Group. The appellant opted for the Secretariat Group. It is the case
of the
appellant rhat the Gradation Lisr of Deputy secreraries i.e. of the secretariat
Group was prepared in accordatce with the provision of section g(4) of the
Civil
Servants Act, 1973, hereinafter referred ro as the Acr, which provides
that
"Seniority in a post, service or cadre to which a civil servant
is p;omoted shall
take efl'ect from the date of regurar appointmenr ro that post".
Aicording to the
appellarit, the above Gradation List was circurated in June, 1976,
wheiein the
appellant's name appeared at Serial No. 69. However, the appellant
learnt in
August, i979, rhat civ servarrs belonging to erstrvhile civil service of
,CATR
 lgg6lHameedAkhtarNiaziv.Secretary,EstablishmentDivision'1189
(Ajmal Mian, J)
Pakistan (C.S.P.), whose names appeared much below the appellant in
the

aforesaid bradation Lists of 1976, were being promoted to the rank of

Joint
A Secretary (Grade-20) and his name had not been put up for promotion to the

General Selection Board for consideration . He first made efforts to

get redress
fromthedepartment,buteventually,hefiledtheaforementionedserviceappeal
in the Tribunal, which was dismissed as above. After that he filed a
'iated
petirion for leave to appeal in this court, which was granted to consider the
above questions.

6. It may be pertinent to observe that in the above appeal, besides the

Federation, 14 civil servants were arrayed as respondents' lt may further be
observed that, in addition to the above respondents, 7 other civil servants were
impleaded pursuant to an application dated 4-1-1988. Dr' Sh' Aleem Mehmood
was impleaded as a respondent (respondent No. 23 in the present appeal) on his
own application, whereas the applications of Muhammad Aslam urd Tariq
Junejo for being impleaded, remained pending till today: However, they were
heard. One, Malik Zahoor Akhtar, has also appeared though he had not filed any
application for gening himself impleaded in the aforesaid appeal '

7. Be that as it may, in support of the above appeal, Mr. M. Bilal, learned

Sr. A.S.C. for the appellant, has vehemently contended that after the melger of
the two cadres, namely, C.S.P. and P.S.P. and creation of APUG' the Gradation
List of the Deputy Secretaries prepared in 1976 coultl not have been disturbed
and that certain civil servants could not have been given seniority over the
appellant from a date prior to their regular appointments as the Deputy
Secretaries in the above cadre. 'l'o reinforce lhe above submission,
reliance has been placed by him inter alia on section 8(4) of the Act and
para. 8 of ESTACODE, 1989 Edition, under the caption "Secretariat Group"
at Serial No. 19 incorporated on the authority of O.M.No.2/2/75-ACR. dated
t2-4-r976.

The aforementioned newly added respondert ,uppottt Mr. Bilal's

contention.

On the other hand, Mr. Raja Muhammad Bashir, learned Deputy '
Attorney-General, has conlended that seniority inter se of the civil servartts
belonging to C.S.P. cadre obtaining prior lo its merger could not have been
distorted to the detriment of any of the above civil servarlts and, therefore' if
C.S.P. officers, who were noi actually posted as Deputy Secretaries but were
deputed to various Provinces on account of public exigencies, could not have
been madelunior to civil servants who were junior to them prior to the nerger
of aforesaid two caders and who were working as Deputy Secretaries and rvere
senior inter alia to the appellant.

8. It appears that the Tribunal proceeded dn the premises as urged by

scr{n
 I 190 Suprcmc Court Monthly Revievr lVol, X;{t.t(

lcarned Deputy Atlorney"General. It rnay lre advantageous to rcproduc\. ihe

relevant porlion of rhe impugne<l judgmcnt, which reads as follows:--

"lt appears rhat the question of seniority was not exarnined wl,rn
persons nor heing Membcrs of the'service were appointed Io APttf
with the approval of the President vide Notification No.t/l/73-ARC,
dated I4-9-1973. Nevertheless, the seniority lists were preparcr.l of .the
Deputy Sccretaries and Joint Secretaries, etc..uxl tlrey included only
those officers of the former C.S,P. who at lhe relevant timc were
serving against these posts. At that rirne, rhe Rule for appointment of
the Deputy Ser:retaries was lhat a C.S.P. Officer who hart completei 8
years' serice could be appointed as Dcputy Secretary. No doubt,
subscquently by Office Menro. No.3/7/74-AR.II, dared thc 20th
Ivlay, 1974, 12 yoars pcriod was provided for Grade-I9 and for
horizontal rnovemont of Grade-I8 Officers to the post of Deputy
Secretary vidc para. 3 of Office Memo. No. 212175-ARC, dated
21-2-1975, but this deviation in rhe lengrh of service is immaterial as
far as C.S.P. Officers are concamed. Their names already existed as
Mernbers of C.S.P.,and subsequenrly of APUG, Their scniority was to
be changed in accordance with some principle and not by making any
mle affecting their vested right. All Rules madc undcr rhe Civil
Servants Act or the Civil Servants Ordinance have to be construed wilh
prospective operation and not with retrospcctive operation. All those
. Rules which affect the formcr Officers of rhe C.S.p. havc to be applied
for the siluations existing itter ttrc cnactment of thc Civil Seryants
Ordinancc, 1973, and the Rules rnade thcreunder. The senioriry of the
C.S.P. Ot'ficers in APLJG could not, rherefore, be disroned. Any
seniority to which a Member of thc Cadre was entitled before the
con$titution of Secretariat Croup, could nor be affected hy the
provisions of secrion 8(4) of the Civil Servants Act, 1973. In other
worrls, thc scniority of such 0 pcrson caxnot bo destroyOd by any
subscquent change in the principlcs of seniority. By making a provision
in thc rclevant Officer Memorandum that seniority shall count from the
date when an otliccr becorncs Deputy Secretary or is promoted to
Glade-19, whichever is errlier, thc distortion in tlro seniority of other
Federal Services was renroved, but in casc of C.S,p. Officers this
fornrula could not work as thcro was no fcalc comparablc to Grade-19
(Junior Adrninistt.arive Grade) and the C,S,p, Offlcers used to bc
lromojed to rhe Joinr Secretary's grade from Senior C.S.p. Scale which
is cornparable with Grade-l8, and tlre post of Dcputy,secrctary was
never a promotion post in the cadre. Thus, in our ophion, lf after the
conring into force of rhe Civil Servnnts Act, ao officer of former C.S,p,
who.was senior to his colleagues working as Deputy Secretary in the
Secretariat, but an of(icer who was working. in the province or
elsewhere would, whcn brought to the Seqretariat later, retain his
st^tR
l
I
1996] Hameed Akhtar Niazi v. Secretary, Establishment Division: 1191
(Ajmal Mian, J)
seniority vis-a-vis his own colleagues. In other words, if an officer of
I

the former C.S,P, is appointed as Dcputy Secreiary in the Secretariat

Sub-Group, within APUG, he would count his scniority from the date
he complitcs 8 years of servicc if any of bis colleagues junior tc him
had alrjady been promoted, It is this priqcipl. which the Establishment
Division has applied and we think that thig'h a proper course by rvhich
the distortion in the seniority can be rcmoved."
9, In this,regard, it may be pc(inent to refer to page 1014 of the
ESTACODE, lisg pdition, in which under the caption "Reorganisation of
APUG in to four Occupational Groups Seniority of members of the Group" at
serial No.17 has provided as undcr on the basis of Establishmen! secretary's
D.O. trtler No.2/4/75-AVI, dated 2-10- 1975 : --
"Sl. No,l7:
Kindly refer to Establishment Secretary's Circrilar D.O. Nos.5/1/73-
ARC, dated the 7th September, 1973, 212173-Ayl, dated the 26th
Noveinber, 1973, and 211174-AVI, dated the 29th May' 1974'
alongwith which the combined seniority lists of officers of All-Pakistut
Uriied Grades in various grades were circulated.
2. In the meantime, the All-Pakistan Unified Grades has been orgalised
into four Occupational Groups---the Secretariat Group, the District
Management Group, the Police Group and the Tribal Areas Group, The
rules and procedures etc. govcming the administration of each of these
Groups have already been issued and sint to you vide the Establishment
Division's Office Memoranda No.2l2l75-ARC, dated 21st February'
1975 (Secretariat Group) No.2l2l74-ARC, dated ?3rd February, 1974
(District Management Group), No.3/2/75'ARC, dated 31st May, 1975
(Police Group) and D,O. No.l/6/73-ARC, dated 20th October, 1973
(Tribal Areas Group). Consequcntly the seniority lists have now'been
drawn up separately in respcct of each Group,

3. As already indicated, cach group will henceforth be managed undcr the

. rcspective rulca quoted abovc, A mcmbcr of a particulu Group will be
govcrned by prospccts of promotion and advanccmcnt avallable within
the Group, While entry into other Groups by horizontal movement is
possible with thc approval of Central Selection Board, there will be no
automatic mobility from one Group to the other. In othcr words,
- officers shown in any pa(icular Group will now belong to lhat Croup
once for all unless specifically eelected and approved for movemcnt to
another Group,

4, You may now kindly inform the officers under your administrative
control accoidingly, Officers shown in the Secretariat Group but
bclonging originally to some other Group may let this Division know
finally as to whether they.would like to remain in the Secrctariot Group
sc,,1R
 t192 Supreme Court Monthly Review [Vol. XXIX

or go back to their parenr Group. Option once exercised wril be l.inal.

Such option should reach us not Iater than 3lst October, 197j. I;:rilure
to exercise option by that dare will be presumed to be an optir)n ii)r the
Group where the name appears presently.
5. In the meantime, these lists may be treated as provisiona.l and in case
there are any omissions or discrepancies, ihese may please be
communicated !o us immediately for rdctification. "
10.
Reference may also be made ro paras. 3 and g of the ESTOCODE, 19g9
Edition, at pages 1096 and 1097 thereof under the caption .Secretariat Group,, at
Serial No.19 and which read as under:--

Para. 3 of rhe ESTACODE: 3. Deouty Secrerarv._Appointment to the post

of Deputy Secretary will be made in accordance with the following
methods:--
(i) By promotion of Grade-l8 Officers of Office Managemenr Group and
the secretariat Group on the recorunendations of the centrar Seriction
Board.
(ii) By horizontal movement from other Occupational Groups of Grade 19
officers who have been recommended by the Minisiries/Divisions,
Departments or Provincia! Governmeits and have been found fit by the
Central Selection Board.
(iii) By direct appointment oq rhe recorunendations of rhe Federal public
Service Commission of 'persons possessing such qualifications and
experience etc., as may be prescribed.
.
Para. 8 of the ESTACODE: 8. Deoutv Sec{etarv. _Senioriry would be
determined from the date of continuous regular.officiation as Deputy
Secretary, or in a post in Grade-19, whichever is earlier.,,

I 1.
We may observe that in the present case, section g(4) of the Act
is
relevant as it will be covered by the mles framed for regulating ApUG.
It is
eryidenr from afore-quored para. 4 of ESTACODE, 1SAS
Eairion, at page l0l4
that after the creation of secretariat Group, the civ servants were given
the
option to opt the above Group or any other Group by 3I-10-1975. Whereas
above quoted para. 3 of rhe ESTACODE at page tOeO under
the caption,,
secretariat Group" at seriar No.r9, indicates as r;how the appointment
io the
post of Deputy secretary will be made i.e. by promotion
of Giade-lg officers
by hori2ontal movement and by direct appointment oh the recommendation
of
the Federal Public Service Commission.

12. lt may further be noriced rhar para. g of rhe above ESTACODE ar

page 1097 provides that seniority would be determined
from the date of
continuous regular officiation as Deputy Secretary or in a post
in Grade-r9,
whichever.is earlier.
SCMR
19961 Hameed Akhtar Niazi v. Secretary, Establishment Division. I 193
(Mukhatar Ahmad Junejo, J)
13. The Tribunal has not taken into consideration that above relevant
provisions of the ESTACODE while dilating upon the controversy in issue. It
should have decided, whether the respondents had exercised the options in terms
of aforesaid para. 4 of the above ESTACODE at page 1014, by 31-10-1975 and
whether the seniority list was prepared as per aforequoted para. 8 of the
ESTACODE, i-e. from the date of continuous regular officiation as Deputy
Secretary or in a post in Grade-19, whichever is earlier.

There is no doubt that the seniority of an officer, who is working in a

14.
Province or elsewhere, cannot be distorted/disturbed to his detriment on account
of the merger of above two cadres of C.S.P. and P.S.P. and creation of APUG.
His junior cannot be made senior to him nor a junior to his junior can be made
B
senior to him. But, this is to be done within the framework of the rules of
reorganisation as given in the above ESTACODE. If the case of any civil servant
does not fall within the ambit of the above rules, section 23 of the Act can be
pressed into service by the President to obliviate the inequitable and unjust result
arising out of the above reorganisation in respect of seniority of any of the civil
servants.

15. It was also contended by Mr. Raja Muhammad Bashir, leamed Depury
Attorney-General, that since that appellant has already been promoted to
Grade-20, the above appeal has become infructuous. However, this contention
was refuted by Mr. Bilal and it was urged by him that the appellant is entitled to
get his seniority restored accordiDg to the rules.

16. [n our view, it will be just and proper to remand the case to rhe
Tribunal with the direction to re-examine the above case after notice to rhe
affected persons and to decide the same afresh in the light of above observations.
We may observe that if the Tribunal or this Court decides a point of law relating
to the terms pf service of a civil servant which covers not only the case of the c
civil servant who'llitigated, but also of other civil servants, who may have not
taken any legal proceedings; in such a case, the dictates of justice and
rule of good govemance demand that the benefit of the above judgment
be extended to other civil servants, who may not be parties to the above
litigation instead of compelling them to approach the Tribunal or any orher legal
forum.

17. The above appeal stands disposed of in the above terms, rvith no order
as to costs.

(sd.)
Ajnml Mian, J.
(sd.)
Saiduzzaman Siddiqui, J.

MUKHATAR AHMAD JUNEIO, J.--My learned brother Ajmal Mian,

J. was kinrl enough to send mc draft of the judgment proposed to be delivered by
SCMR
I194 Supreme Court MonthlY Reviel Ivol. XXIX

hirn in Appeal No.345 of 1987 (Hameed Akhtar Niazi v. The secretary'

civil
Estabii$hment fiirision, Government of Pakistan etc,) With due respects
to my
this be remanded to
learnod brother, I an unable to agree with him that matter
rhe Federal Service Tribunal with some directions including the direction to re-
decide the case.
'[he facts of the by my learned brother and
case have already been given
rhey rreed not be reiterated. !n rhe context of the facts given in para.4 of thc
draft
appellant Hameed Akhtar Niazi filed his appeal trefore the Federal
iudgrnent,
'seriice
friUunal under section 4 of the Service Tribunals Act with prayer in the
following words:--
"ln view of tlte above the appellant who was eventually promoted with
effect from 28-8'1980 humbly prays that this Honourable Tribunal may
kinrtly direct the respondent No.l to proceed in accordance with law
and to declare him to have been promoted before the ineligible and
junior officers promoted in August, 1979 and February and May' 1980'
It is further prayed that full salary and all other benefits may also kindly
bc allowed to the appellant from the date on which he would have been
promoted if his name liad been put up for the consideration of the
C.B.S. according to his seniority. Cost may also graciously be
allowed: "

Perusal of the prayer shows that the appetlant seeks his promotion from
a date earlier than the dates of promotion of certain officers termed by him to be
-!-- r-it..---l- l^.
ineligiblg ,U]d.lUnlof . ACCOfOlng lO SeCIlOn 4 Ul IE JElvrL:E
^ I I tuuiiiii- .ieir ii- riiii
-:..:l

servant can invoke jurisdiction of the Tribunal in respect of any of his terms and
conditions of service. However, no appeal shall lie to a Tribunal against an
order or decision . of a departmental authority determinirlg the fitness or
otherwise of a person to be appointed to or hold a particular post or to be
promoted to a higher post or grade, vide clause (b) of the proviso to section 4 of D
the said Act, By asking the Tribunal to direct his promotion on a date earlier
than the promotion of ineligible and junior otTicers, the appellant wanted the
Tribunal to detertnine him to be fit for promotion and to determine the other
officers to be'ineligiblc for promotion by labelling them as ineligible. As regards
thg claim fbr salary and monetary benefits' the same in again based on thc
presumptivc piomotion of the appellant. Sincc the main relief of promotion
canno! bc given to thc appellant hy thc Tribunal, the consequential relief can
also not be given to him,

In my humble view appellant's appea[ before the Federal Service

'Irlbunal was not maintainable and it rcquircd to be rejected, In ny hunrble view
this appeal merits dismissal,
(sd,)
Mukhtar Ahmad Junejo, J,

sc,{ri
1

1195
Lahore Cantt. C'H.S. Lld' v' Inamullah
Khan
19961
(Muhammad IlYas' J)
ORDER OF TIIE COURT
The case is remanded to
By majority judgment this appeal is allowed'
l

vicw'
the Tribunal in ierms of the majority
(sd.)
Ajmal Mian' J.
(sd')
Saiduzzaman Siddiqui' J'
(sd.)
Mukhtar Ahmad Junejo, J.
APPeal allowed'
M.B.A./H-251lS

1996SCMR1195

[SuPreme Court of Paklstan]

Before Muhammad llyas and lrshad Hasan

Khan' JJ

LAHORE CANTT., COOPERATIVE HOUSING

SOCIETY LIMITED--Petitioner
versus

Khanzada INAMULLAH KHAN--Respondent

decided on 7th May' 1996'
Civil Petitiou for lrave to Appeal Nc'349-L/1996'
High
(On appeal from the judgment dated 6-11-1995 of the Lahore
Court passed in,C.R. No. I 851/1991)'

Cooperatlve Socletics Act (VII of 1925)-'

D

--..Ss, 70 & 54--Civil Procedurc Code (V of 1908)' O'VII'

R' l l---Constitution

of potirt- (1973), Art,185(3)--'Plaintiff's suit against cooperativc society

1925"'Plaint was rejected
,ri,f,oui noti.u under S.70, Coopcrativc Societies Act,
court
u, rriut coun for non-servicc of noticc.-Appctlatc corin as also High
ri,,irg-"riJ. such order'--validity--Questions of gencral public importance
granted to consider whcthcr
being-involvcd in thc casc--kavi to appcal was
;ff;l;;;N.d in plaintiff's suit touclrld busincss of the pctitioner societv;
without serv'i"
*tltt.t only the suit filed by a mcrnbcr of Cooperative SocietY'
be hit bv S G'aPn"L
noticc undcr S,70, Cooperativc iocieties nct, 1'SZS' would
person who was no1
Act or same would also operale a! bar to a suit brought by e
servlng notice under
u rn.*U.t of Society; and if sutt could not be fllcd without
of S'70 oi
i.iO ot,t, Act, could plaintiff thercin bc non'suited on thc strength
theActcvenwhinperlodoftwomonthshad.etapsedafterfilingofth,:
suit. [p. 1198] A
SCMR