SYED MUHAMMAD ZAFAR BABAR; MEMBER - The appellant an Assistant Director General in the Employees Old Age Benefit Institution (EOBI), Zonal Office, Gujranwala feels aggrieved of the decision of the Departmental Appellate Committee dated 20.12.1997 incorporated in Office Order No. 38/98, dated 6th February, 1998 whereby the earlier decision of the Appellate Committee taken on 12th April, 1997 and 20th May, 1997 wherein the seniority list of the appellant was fixed above. Mr. Abdul Hameed Chaudhry, respondent No. 4, was suspended. The appellant also feels aggrieved of the Office Order No. 43/98, dated 13th February, 1998 which reads as under:- In pursuance of the decision of the appellate committee of the Board taken on 20th December, 1997 the existing seniority rules/guidelines/regulations etc. Notified by the Institution under its Circular No. 99, dated 12th February, 1981 shall continue to remain in force till such time the new rules are framed."
2. Through this appeal under Section 22 of the Civil Servants Act, 1973 the appellant has prayed that his appeal be accepted and the impugned order dated 20.12.1997 be quashed and its operation be suspended and the respondent be directed not to interfere into the seniority as determined by order dated 12.4.1997 and confirmed vide order dated 20.5.1997.
3. We have heard the arguments of the counsel appearing for the parties and also gone through the record.
4. The record shows that the appellant challenged the impugned office order dated 6.2.1998 before the Lahore High Court, Lahore in Writ Petition No. 2154/98 which was dismissed on 11.2.1998 whereafter the appellant filed an Intra Court Appeal No. 89/98 which was with drawn on 27.4.1998.
The present appeal has been filed on 4.5.1998.
5. The learned counsel for the appellant has vehemently argued that the seniority of the appellant having been validly corrected/fixed by the competent authority at serial No. 4 (just above Mr. Abdul Hameed Ch, respondent No. 4) vide order dated 12th April, 1997 and confirmed by the Appellate Committee on 20.5.1997 could not be legally and validly suspended by the impugned order. While going through the record it seems that the issue of seniority of the appellant was re-opened and re-considered during the course of meeting of the Appellate Committee which was constituted to decide the appeals under Regulation No. 33 of EOBI Regulations, 1980. This meeting was held under the chairmanship of the Secretary, Labour, Manpower and Overseas Pakistanis Division/President of the BOT, Mr. Arshad Tanveer Employer's representative and Mr. Nabi Ahmed, Employees' representative to BOT. The findings of the Committee on the relevant issue are as Under: - "The committee observed that the issue of non-existence of legally framed seniority rules as pointed out in its meeting of 12th April, 1997 was not based on tacts as the institution had already circulated the same in 1981 duly approved by the Labour, Manpower and Overseas Pakistanis Division. After detailed discussion on the appeal it ranspired that decisions of the Appellate Committee given earlier as referred to above were incorrect. The committee therefore took the following decisions: -
(a) Labour, Manpower and Overseas Pakistanis Division should issue necessary instructions to EOBI to frame comprehensive seniority rules for submission to the Board and the Federal Government for approval.
(b) The decisions of the Appellate Committee taken on 12th April, 1997 and 20th May, 1997 in cases of Mr. Khalid Javed Ch. Vs. Abdul Hameed Ch. And Mr. Munir Javed Toor Vs. Mr. Muhammad Ahmad should be suspended and the EOBI's existing seniority rules/guidelines/regulations etc. Would remain in force till such time the new rules are framed and approved by the Board and the Federal Government.
(c) M/s. Munir Javed Toor, Khalid Javed Ch. And Abdul Hameed Ch. May also be issued notices to plead their cases before the Appellate Committee in its next meeting".
It was as a result of this meeting of the Appellate Committee (minutes of which are appended with the memo, of appeal from pages 24 to 30) that the impugned Office Order No. 38, dated 6th February, 1998 came into existence,
6. The learned counsel for the appellant argued that the decision/resolution of the Appellate Committee dated 23.12.1997 having been passed to the detriment of the appellant without hearing him should be set aside as the right had vested in him since 20th May, 1997.
7. The learned counsel for the respondents, on the other had, argued firstly that the appellant being an employee of EOBI was not a civil servant and thus he could not invoke the jurisdiction of this Tribunal: secondly that the appeal filed under Section 22 of the Civil Servants Act, 1973 was incompetent under the law and thus liable to dismissal, thirdly the appeal was incompetent as no departmental appeal had been filed and lastly the appeal was barred by time.
8. On the point that the appellant is not a civil servant and thus incompetent to come before this Tribunal, the learned counsel for the respondents referred to an un-reported judgment of the honourable Supreme Court in Civil Appeal No. 160-K/98 titled .Kissan Vs. EOBI but he did not supply us with a copy of the judgment and therefore, it cannot be said with finality if the appellant is not a civil servant.
9. As regards the maintainability of this appeal under Section 22 of the Civil Servants Act, 1973, we agree with the learned counsel for the respondents and find that the appeal before this forum under the said provisions of law was incompetent and misconceived because Section 22 of the Civil Servants Act, 1973 provides a departmental forum to the aggrieved employee/civil servant and the only provisions before this Tribunal is under Section 4 of the Service Tribunals Act, 1973. And this brings us directly to the maintainability of this appeal because admittedly no departmental appeal or representation has been filed and thus it would be hit by the provisions of Section 4(1)(a) of the Service Tribunals Act, 1973 which bars any appeal to this Tribunal unless the aggrieved civil servant has preferred an appeal or application or representation to the departmental authority......Lastly, the appeal is also barred by time as it was filed on 4.5.1998 against an order of 13.2.1998 which should have been filed within one month. The last to observations regarding the incompetency of the appeal in the absence of representation and the appeal being barred by time have been made on the assumption that description of the provisions at the titled of the appeal would not render an appeal incompetent meaning thereby that though the appeal is purported to have been filed under Section 22 of the Civil Servants Act, 1973, yet we may consider that it has been filed under Section 4 of the Service Tribunals Act, 1973. But we must mention here that the learned counsel for the appellant did not take this stand.
10. After due consideration we feel that the impugned conclusion/resolution 6f the Appellate Committee can even otherwise withstand the test of scrutiny because through this resolution they have directed the Manpower and Oversea.) Pakistanis Division to issue necessary instructions to EOBI to frame comprehensive seniority rules and about the reversal of the earlier decision of the Appellate Committee dated 20th May, 1997, they issued notices to the appellant and to one Mr. Munir Javed Toor to plead their cases afresh before the Appellate Committee in its next meeting.
So, they did not close the door of reversal to the appellant who could have made representation or appeal before the said Committee laying down his on point of view. To our mind the earlier decision of the Appellate Committee (in favour of the appellant) in the absence of any seniority/service rules was arbitrary which the Appellate Committee subsequently has tried to streamline by asking the concerned department to make comprehensive rules of seniority.
11. In view of the above, we find that this appeal for all the foregoing reasons is liable to be dismissed. It is accordingly dismissed with no order as to costs. Parties be informed. 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.