1. NASIM HASAN SHAH, J.---The appellant, a District and Sessions Judge, riled an appeal before the Punjab Service Tribunal directed against the seniority list of the Additional District & Sessions Judges dated 13-11-1985, which, the appellant contends, was compiled under the orders of the Governor of the Punjab. The appeal, however, was disposed of by the Service Tribunal vide order dated 18-9-1989 with the observation that as remedy provided against the impugned notification dated 13-11-1985 (namely the departmental remedy provided under section 21(2) of the Punjab Civil Servants Act) was not availed of by the appellant, hence the appeal filed by him before the Service Tribunal was incompetent.
2. The; above conclusion of the learned Service Tribunal appears to rest on the basis of certain observations made by the Court dealing with the case of Falak Sher Khah and others v. Secretary to Government of Pakistan (PLD 1989 S(" 562). Hereinafter re-producing the provisions of subsection
(2) of section 21 of the Punjab Civil Servants Act, 1974, namely- "21. Right of appeal or representation.-(1) .............................
3. (2)Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the: authority next above the authority which made the order.. it was observed as follows:- "Since no provision exits in the rules in respect of an appeal or review against the impugned order of the Secretary to the Government causing the preparation of the seniority list circulated on 2-6- 1984, a representation against it to the authority next above the said authority was necessary. The question is whether the Governor can be regarded as such an authority?
4. A reference to the provisions of Punjab Civil Servants Act, 1974, assists in answering this question. In this Act, clause (c) of section 2 defines the term "Government" to mean the "Government of the Punjab". While section 4 thereof deals with the matter ofappointments and provides:- "S.4. Appointments.--Appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf."
5. Thus, the appointing authority of the parties is the Governor.
6. Coming to the matter of preparation of seniority lists, the same is dealt with in subsection (3) of section 7, as follows:- "(3) For proper administration of service or cadre, the appointing authority shall from time to time cause a seniority list of the members of such service or cadre to be prepared."
7. In this case, the seniority list was prepared by the Secretary of the Department. This function, however, under the law (subsection (3) of section 7) is conferred upon the appointing authority namely Governor of the Province. Here, the Seniority list was not prepared by the appointing authority himself namely the Governor but the Secretary. Hence any civil servant who felt aggrieved by the said seniority list could make a representation against it to the authority next above the Secretary to the Government namely to the Governor of the Province.
8. The view of the Service Tribunal that since the seniority list framed under the orders of the Secretary to the Government need not be placed before the Governor for approval, under the Rules of Business, no representation would be necessary, cannot be accepted because merely this circumstance does not convert the order of the Secretary into the order of the Governor himself.
9. The said order will remain the order of the Secretary of the Government but in view of the delegation conferred under the Rules of Business it will be deemed to have been made competently. However, if any civil servant feels that some error has been committed by him, a representation against it would be competent under subsection (2) of section 21 to the Governor.
10. Accordingly, the view of the Service Tribunal that the respondents herein w--re under no obligation to make representation against the same to any higher authority before coming to the Tribunal, is erroneous."
11. The above dictum, however, is not applicable in the facts and circumstances of this case. In the precedent case, the seniority list was framed under the orders of the Secretary of the Government and it was being contended that as under the Rules of Business it was not necessary to place the same before the Governor for approval the said list even issued under the orders of the Secretary should be considered to be a list issued by the Governor. This Court held that even if this was correct namely that the order of the Secretary could be considered to be a list issued by the Government, this circumstance did not make the list compiled under the orders of the Secretary to the Government to be a list issued under the orders of the Governor himself. This is not the position in this case because in the present case the notification dated 13th November, 1985 (which was impugned before the Service Tribunal) was not issued under the orders of the Secretary but was issued under the orders of the Governor of the Punjab himself. This is manifest from the text of the Notification itself reproduced below:- "NOTIFICATION A tentative seniority list of Additional District and Sessions Judges in the Punjab as it stood on 10th August 1984 was notified vide this Department notification No.SV.14-4/76. (P.II) dated 4th February, 1985 and objections, if any, were invited.
12. 2.After careful consideration of the objections so received, a final seniority list of Additional District & Sessions Judges in the Punjab as it stood on 10th August, 1984 has been prepared and is hereby notified for the information of all concerned.
13. BY ORDER OF THE GOVERNOR OF PUNJAB (Sd.)
14. Muhammad Siddique, Chief Secretary NO.SV.1-1/85 Dated Lahore the 13th November, 1985."
15. In these circumstances, there being no other higher authority in the Government, no appeal/representation could be made in the heirarchy of the Government before approaching the Service Tribunal.
16. In this view of the matter the impugned order of the Service Tribunal cannot be sustained and is liable to be set aside and the case remanded to the Tribunal for adjudication on the merits.
17. However, in the meanwhile, the Punjab Subordinate Judiciary Service Tribunal Act, 1991 has been enforced. Under its provisions the exclusive jurisdiction id the matters relating to the terms and conditions of service of the members of the subordinate judiciary has been conferred on the Tribunal to be established thereunder and section 8 of this Act provides that all appeals pending before the Tribunal established under the Punjab Service Tribunals Act, 1974 relating to members of the subordinate judiciary shall stand transferred to the Tribunal established under the said Act.
18. Accordingly, the instant appeal shall now stand remanded to the last mentioned Tribunal and placed before it for adjudication and disposal. s The upshot is that this appeal succeeds and is allowed in the above terms. No Costs.