ANWAR ZAHEER JAMAL!, J. ~ This civil petition for leave to appeal is directed against the judgment dated 17.6.2011, passed by Sindh Service Tribunal, Karachi ("the Tribunal") in service appeal No. 116 of 2009, whereby the said service appeal of petitioner Dr. Azim-ur-Rehman Khan Meo was dismissed, inter alia, being barred by the principle of "res-judicata", in view of the earlier round of litigation.
2. This litigation between the parties, which only relates to inter-se seniority of the petitioner and respondents No. 4 to 9, has a chequerred history. For the purpose of this petition, to sum up, a reference to the order of this Court dated 28.4.2009 passed in Civil Appeals No. 1233 to 1251 of 2005, remanding the case to departmental authority would suffice, which reads, as under:--- "This order shall dispose of Civil Appeal Nos. 1233 to 1251 of 2005 directed against the consolidated judgment dated 7.4.2005 passed by the Sindh Service Tribunal vide which the appeals of the appellants against seniority list dated 19.8.1999 were dismissed.
2. Learned Advocate General Sindh submits on Court query that the original seniority list dated 24.3.1998 was superseded by the list issued on 19.8.1999 because certain persons had died and some of them had retired and the list needed modification/rectification.- Adds that the appeals filed by the appellants against the seniority, list dated 19.8.1999 before the Departmental Authority were not decided and it would be in the interest of justice if those appeals are decided in the first instance as those according to his instructions are still pending, In these circumstances, he submitted that Provincial Government would have no objection if the instant appeals are partly allowed and the impugned judgment to their extent is set aside.
3. Learned counsel for the respondents does not join issue with learned Advocate General on the stand taken by him.
4. In the above-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.".
3. Now the grievance of the petitioner before us is that though the departmental competent authority was required to decide the seniority grievance of the petitioner within six weeks of the receipt of said order after hearing ail concerned, but instead of doing so, it disposed of the said appeal of the petitioner in a mechanical manner, vide order dated 27.8.2009, by simply mentioning that Chief Secretary/appellate authority has considered his appeal and rejected the same, without any discussion or reference to any material for disentitlement of the petitioner from his requisite relief of seniority against private respondents. Further the grievance of the petitioner is that when he approached the Tribunal against such order of the departmental authority, there, too he was non-suited on the basis of some technical grounds, which have no legal basis. As in the earlier order of the apex Court, referred to above, it was observed that matter with regard to inter-se seniority of the petitioner and private respondents was to be decided by the competent authority on merits.
4. Mr. M. M. Aqil Awan, learned ASC for the petitioner firstly invited our attention to the seniority list dated 24.3.1998 to show that in this list name of the petitioner appears at serial No. 143, while the names of private respondents No. 4 to 9 appear at serial Nos. 202 to 207, excluding the name of respondent No. 3/promotee, whose name appears at serial No. 163, and against whom now this petition is not being pressed. He thereafter made reference to the decision taken by the high powered committee in its meeting held on 28.1.1999, which shows that the provisional seniority list of Section Officers issued on 24.3.1998 was treated as final list to settle the issue of seniority once for all. Relying on these two documents, in brief, submission of learned Sr. ASC for the petitioner is that once the seniority list dated 24.3.1998 attained finality in all respects and it was not challenged by any of the private respondents, how could Secretary (Services) S&GA Department issue another seniority list dated 19.8.1999, wherein names of private respondents were placed higher at serial Nos. 33 to 37 & 39 and the name of petitioner at serial No. 52, without any subsequent order of the competent authority or justification to this effect shown by the Secretary (Services) S&GA Department.
5. Mr. Ansari Abdul Latif, learned Sr. ASC for respondents No. 6 to 9 has not been able to controvert the above-noted facts. But his main submission is that during the pendency of this seniority dispute much water has passed under the bridge, inasmuch as, private respondents No. 4 to 9 to this petition have been promoted from Grade-17 to Grade-18 and then to Grade-19, therefore, now seniority dispute over the list pertaining to Grade-17 has lost its utility at this belated stage. He also made reference to the earlier judgment of this Court in the case of Amal Hussain Khan v. Chief Secretary, Government of Sindh & others (2012 SGMR 860), in an attempt to show that identical petition of some other officers was dismissed by this Court and such judgment will have strong bearing on the fate of this petition.
6. We have gone through the judgment so referred by learned Sr. ASC and seen that in this case issue of inter-se seniority between direct appointees and promotees was subject-matter of adjudication, which was resolved in the light of cases reported as Federation of Pakistan v. Azam AH (1985 SCMR 386), Nasimul Haque Malik v. Chief Secretary to Government (1996 PLC (CS) 921), therefore, it has no relevancy to the dispute involved in the present petition, as here the petitioner as well as private respondents, both belong to direct appointee group. Insofar as the merits of the case are concerned, we find mush substance in the submission of the learned ASC for the petitioner that seniority list dated 24.3.1998 was disturbed by subsequent seniority list dated .
19.8.1999 without any basis or any legal determination of inter-se seniority between the parties and thus such arbitrary act of official respondents cannot be sustained. Admittedly, private respondents No. 4 to 9 were appointed in the year 1994 on regular basis, therefore, they could not have been allocated seniority on the basis of their appointment in the year 1991 as against the present petitioner who was appointed on regular basis on 25.10.1992. Insofar as other contention of Mr. Ansari, learned ASC that this dispute relates to the seniority list of grade-17 officers and with the passage of time now private respondents as well as the petitioner are in Grade-19, is concerned, we may observe that inter-se seniority list is to be corrected on the basis of seniority list dated 24.3.1998 and the parties are to be placed in seniority list accordingly without disturbing their subsequent promotions in Grade-18 and Grade-19. With these observations, this petition is converted into appeal and allowed. Consequently, impugned judgment of the Tribunal as well as order of the departmental authority challenged before the Tribunal are set aside and the seniority of the petitioner is restored against the private respondents No. 4 to 9 as per seniority list dated 24.8.1998.
As per statement made at the bar by Mr. M. M. Aqil Awan, learned Sr. ASC for the petitioner, this petition as against respondent No. 3, he being promotee, is dismissed as not pressed.