QAZI QAMARUDDIN, MEMBER-I --- Above-named appellant has filed this appeal against the impugned seniority list of Section Officers dated 19.8.1999. Facts in brief for the disposal of the appeal are that the appellant was a Direct Recruited Section Officer (BS-17) through Sindh Public Service Commission in the year 1992. A dispute arose on the seniority list of 1994 issued on 8.2.1995 on the seniority position, of Promotees and Directly recruited Section Officers on the point of quota of the said two categories with the ratio of 50:50. Appellant like his colleagues filed departmental appeal before respondent No. 2 (Chief Secretary, Sindh). As a result thereof a seniority list was issued on 24.3.1998 under which grievance of the appellant (Direct recruit 1992 batch) alongwith, his other colleague Section Officers directly recruited on regular basis through Sindh Public Service Commission in the years 1988, 1992 and 1996 was redressed. The promotees who had been promoted earlier on the quota of direct recruits were shown junior to the direct recruits including the appellant. It is further stated that the issue was set at rest after issuance of said seniority list dated 24.3.1998. However, the Chief Secretary, Sindh, in his order dated 11.4.1998 through a separate notification declared said seniority list as "PROVISIONAL", which was male fide and illegal act on his part, since the character of Final Seniority List of 24.3.1998 was converted into "Provisional", therefore once again a high "power committee was constituted which in its meeting dated 28.1.1999 'ratified the finality of the same seniority list of 24.3.1998. Conversely, to the utter dismay of the appellant respondent No. 1 issued another seniority list dated 19.8.1999 where under the direct recruits batch 1988 had only been benefited, whereas the same benefit on the same principle had been denied to the batches of 1992 and 1996 who were also appointed in the same manner as of direct recruits batch 1988.
2. Furtherance to above it has been stated that after long sequel of departmental pursuance and the Constitutional petitions in the High Court of Sindh, Karachi and as a last resort after expiry of statutory period of 90 days, during which no decision of the respondents could surface, appellant preferred Service Appeal No. 379/1999 before this Tribunal which was dismissed by a common judgment dated 7.4.2005. Said judgment of this Tribunal was challenged before Supreme Court in CPLA No. 438-K/2005, accordingly leave to appeal was granted with the direction to Advocate General, Sindh to file concise statement containing full details regarding the quota of Direct Recruits and Promotees Section Officers. Subsequently, Civil Appeal No. 1213/2005 alongwith other connected matters came up for hearing before Honourable Supreme Court on 28.4.2009 and had been partly allowed to terms of setting aside the findings against the appellant in the impugned judgment of this Tribunal with the direction to the competent authority to decide the pending appeals within the period of six weeks after the receipt of order and after providing opportunity of hearing to all concerned. Consequently the respondent No. 2 processed the departmental appeal and rejected the same through reasonless appellate order dated 6.7.2009, hence this appeal.
3. The official as well as private respondents in their, written statements, so also during the arguments have -taken opposite view and have rebutted the claim of the appellant.
4. We have carefully considered the submissions xaised at the Bar and with able assistance of learned counsel for the parties have gone through the material placed before :us and the case- law.
5. The judgment of this, Tribunal dated 7th April, `2005 in 38 Appeals (360 of 1999 and others) is the most 'comprehensive document wherein every corner of the case has been cogently discussed and well concluded. Said 38 appeals were a mix of different categories mainly `Promotees versed Direct Recruits' and 'Direct Recruits of 1992 and 1996 versus Direct Recruits of 1988'. Instant appeal pertains to the latter category. The judgment (supra) has persuasively discussed and category in .Paragraph 16. Relevant part of the said paragraph of the judgment is reproduced hereunder being relevant:-- "16. So far case of direct recruits Section Officers is concerned, they pleaded that the seniority list earlier issued vide Notification dated 24.3.1998 was legal and proper but it was treated as `Provisional' and fresh impugned seniority list through Notification dated 19.8.1999 was prepared whereby the benefit which was allowed to direct recruits of 1988 was not extended to the direct recruits batch of 1992 and 1996. This plea appears to be fallacious. There is nothing brought on the record to indicate as to how the benefit extended to batch of 1988 was not extended to them. As observed earlier that every time a vacancy becomes available the same has to be filled in the proportion of 50:50 from each category of promotees and direct recruits and if any category of these groups is appointed/promoted in excess of their quota in the particular year would rank junior........................................... " [In subsequent part of the paragraph, year-wise details of benefited persons are elaborated per quota].
6. Even otherwise said seniority list of 24.3.1998, on the fact of it, seems to be "Provisional", as it looks, inadvertently word "PROVISIONAL" would have been missed by the issuing authority. Para 2 of the covering letter of said seniority list reads:- "2. The officers may also be intimated that the aggrieved person(s) can prefer appeal within 30 days from the date of issue of this seniority list. The appeals, if any, may kindly be forwarded to the department within the stipulated period. The appeals received after the prescribed period will not be entertained."
Simple perusal of the above contents of the Notification suffices to opine that such language caters to invite objections to finalize the seniority list which emerged in the shape of "Final Seniority List" as issued vide Notification dated 19.8.1999. In the said circumstances, we understand that the respondent No. 1 had rightly issued Notification dated 1.1.4.1998 wherein said seniority list of 24.3.1998 was treated as "PROVISIONAL".
7. In the instant case, Honourable Supreme Court partly allowed Civil Appeals Nos. 1233 to 1251 of 2005 (including of appellant) on the request of the Advocate General to seek time for deciding the pending appeals. The operative part of the said judgment is reproduced below for the convenience:-- "In the afore-referred circumstances, the appeals are partly allowed, the impugned judgments with regard to the findings qua the appellants are set aside and the Competent Authority in the Department is directed to decide the pending appeals within six weeks of the receipt of this order after hearing all concerned."
It is pertinent to mention here that, in consequence of not deciding aforesaid departmental appeal of the appellant by respondent No. 2 within statutory period of ninety days, from the date on which such application/representation was preferred in accordance with Rule 4(a) of the Sindh Service Tribunals Act, 1973, appellant's case came before this Tribunal in shape of Service Appeal No. 379/1999 alongwith other connected appeals (total 38). Eventually, the judgment of this Tribunal dated 7th April, 2005 surfaced, whereby the appeal was dismissed. Principally, the departmental appeal of 10.9.1999 became infructuous after the judgment of this Tribunal (supra), however in the circumstances after the judgment of the apex Court, followed by the fresh rejection of the pending departmental appeal; it converged intu flesh cause as stated above. As a result thereof, in our humble opinion, the instant appeal being cognate, is hit by the `Doctrine of Res-Judicata' at least at this Tribunal's level, within the meaning that; the basic ingredients of the subject-matter were the same, parties are same [PLD 1964 SC 520; 1999 PLC (C: S) 893 (Muhammad A.I Naqvi Vs. S.E.S.S.I.
And others) S.S.T.]
8. Respondents 8 to 11 in their joint written statement filed through their counsel so also in the arguments have contended that they were promoted to BS-18 vide Government of Sindh Notification dated 12.10.2002 and their such promotion to next higher grade was not challenged by the appellant in that year before any forum and so also appellant himself was promoted to BS-18 in the year 2005 i.e. Three years after answering respondents were promoted and never tried to seek anti-dated promotion at any forum, therefore for all purposes the seniority position of answering could not be dragged back in BS-17 for the seniority purpose at this belated stage.
During the argument session it has been revealed that appellant and some of the respondents have also been promoted to BS-19 as Additional Secretary. As a result thereof resurrection of issue at this belated stage would be a futile exercise. Besides, in the similar circumstances, this Tribunal has dismissed Service Appeals Nos. 99/2009, Ajmal Hussain Khan and 100/2009, Shuja-ud-Din Abro v. Chief Secretary, Government of Sindh and others, vide judgment dated 21.9.2010 upholding the said seniority list of 19.8.1999. For the afore-mentioned reasons this appeal also becomes infructuous.
9. For the foregoing reasons, we are of the considered view that the appeal is devoid of merit, therefore dismissed . No order as to cost. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.