MUHAMMAD AYUB KHAN (MEMBER).---Learned counsel for the parties have been heard and record perused.
2. The appellant, Manager/Maint. Services at A.A. Factor, Pakistan Ordnance Factory, Wah Cantt. felt aggrieved by an order dated 2-1-1998 whereby he was not granted seniority despite his promotion with effect from 5-9-1988 from BPS-17 to BPS-18. This belated promotion, it is observed, was made pursuant to the order of the Lahore High Court, Rawalpindi Bench, Rawalpindi, on the basis of Writ Petitions Nos. 637 and 749 of 1991.
3. A perusal of the amended appeal indicates that besides Respondents Nos. 1 and 2, who are official respondents, namely, Government of Pakistan through the Secretary, Defence Production Division, Ministry of Defense, Rawalpindi, and P.O.F. Board, Wah Cant. through its Chairman whereas Respondents Nos. 3 to 24 are private persons but none of the latter set of respondents came form)ard for contesting the appeal.
4. It is observed that respondent No,2 has hotly contested the appeal whereas one of the remaining respondents has come forward for contesting the appeal. It is also observed that respondents Nos.
3 to 24 have been proceeded against ex parte by order dated 12-8-1998 as none of them has cared/bothered to come forward to contest the appeal and so was their case before the Honorable Lahore High Court, Rawalpindi Bench, Rawalpindi, where they all were impleaded as respondents. This aspect of ex parte order in respect of the respondents will be discussed separately shortly. The Honorable High Court has made certain observations about ex parte proceedings against Respondents Nos. 3 to 24.
5. It is also to observe that the appellant was working as Assistant Works Manager (BPS-17) under the Respondent-Factory where he was subsequently recommended by the Selection Board as Works Manager (BPS-18) against a regular vacancy in a meeting held on 19-5-1988 and as a result of which he was given officiating charge of the post with effect from 29-9-1988 and it is further alleged that he is also ripe for move-over to BPS-19 but due to one reason or another and in supersession of the earlier selection of the appellant, respondent No,1 placed the name of the appellant amongst his juniors before a subsequent Selection Board for his consideration and promotion afresh from BPS-17 to BPS-18 in a meeting of the Selection Board held on 29-5-1991 but, as luck would have it, the Selection Board, for reasons best known to it, ignored the appellant and, on the contrary, Respondent No,3 and other Assistant Works Manager, junior to him, were promoted as works Manager (BPS-18) with effect from 15-6-1991 and this reportedly wrong order, was challenged by the appellant through Writ Petition No, 749 of 1991 before the Lahore High Court, Rawalpindi Bench, Rawalpindi, and after hearing the matter the Honourable Judge, Lahore High Court, Rawalpindi Bench, in his judgment dated 4-9-1997 ruled/decided as under: "In pursuance of recommendation of Selection Board, the petitioner having been given officiating charge for an indefinite period had acquired right to hold the post as regular incumbent and the decision of Promotion Board could not be undone at belated stage. The case of the petitioner not distinguishable and being fully covered by the principle laid down in the above referred judgment PLD 1996 SC 407, I have no hesitation in holding that bringing back the petitioner to his previous position by undoing the earlier selection without justifying the same was not legal.
The petitioner having promoted as per his entitlement could not be deprived of his right to serve as such except in case of reversion. The respondents Nos. 3 to 24 have been proceeded ex parte, therefore, the decision in this petition will not affect their seniority vis-a-vis the petitioner and, if at any subsequent stage, the same is effected, it will be decided independently to this decision.
10. In the light of above discussion, without prejudice to the right of respondents Nos.3 to 24 or any other person, the decision by virtue of which the selection of the petitioner was annulled/rescinded and undone is declared illegal with the consequence that the petitioner will be deemed to be a regular promote in BS-18 as Works Manager from the date he assumed the charge of the post on officiating basis. This writ petition is allowed with no order as to costs."
6. Pursuant to the aforesaid decision on the writ petition of the appellant, Respondents Nos. 1 and 2 had to obey per force the orders of the Honorable Lahore High Court, Rawalpindi Bench, and as such while revising his promotion order, corrected the same and made effective from "5-9-1998" instead of "31-5-1995" vide Order No, 15/I dated 2-1-1998 (Annexure-A, Page-4 of the file) which is impugned herein.
7. A perusal of the record shows that respondent No,2 i,e, Pakistan Ordnance Factories, Wah Cantt. through its Chief Administrative Officer, P.O.F. Board, Wah Cantt. had engaged a counsel who has filed objections whereas respondent No,1, Government of Pakistan, Secretary, Defence Production Division, Ministry of Defence, Rawalpindi, has neither filed written objections nor anybody appeared on its behalf and for this reason we do not agree with the written statement/parawise comments filed on 3-8-1998 through Mr. Tanveer Lodhi, Chief Administrative Officer, P.O.F. Board, Wah Cantt. that they can also be construed on behalf of respondent No,1 and hence the words: "On behalf of the respondents" under concluding para. at Page 5 of the parawise comments are misnomer and misleading.
Parawise comments cannot be legally construed to have been filed on behalf of respondent No,1.
They can simply be construed to have been filed by respondent No,2 only.
8. We have gone through the paradise comments which appear to be absolutely devoid of substance and law. No legal proposition of some weight has been either proved or seriously agitated. Objections for the sake of objections carry no weight and ultimate legal effect. We have already reproduced above the operative part from the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi, wherein right of the appellant has been upheld legally but despite this there crept in some misunderstanding in the mind of the contesting respondent that the writ petition does not affect seniority of the private respondents Nos. 3 to 24 who were proceeded against ex parte. In the amended appeal again respondents Nos. 3 to 24 have been arrayed in the service appeal before us but they have not bothered to come forward and contest the appeal before this Tribunal and hence they were placed ex parte. Similar was their case before the Honorable Lahore High Court, Rawalpindi Bench, Rawalpindi, where they also did not safeguard their interest pertaining to seniority etc. Legally an incumbent/party when arrayed as respondent/defendant, if does not turn up for contesting the cause/suit/appeal, he/it does so at his own cost and risk and the prayer, if allowed, shall have damaging effects against his/their rights.. Orders of a Court of law have far-reaching effects and these cannot be circumvented and curtailed to the detriment of a party in whose favour a "clear and un ambigucius verdict has been given.
9. The basic point for consideration in respect of seniority is the date on which an incumbent enters' into a cadre/service and a Seniority List in that respect is also a basic document. Promotion is always based on seniority and there is no doubt about the seniority of the appellant which stands confirmed and on the basis of which he was earlier approved by the concerned IY.P.C./authority as Works Manager (BPS-18) but for unknown reasons his promotion order was not implemented and through conduct of unwarranted proceedings he was superseded and ignored but his right was duly upheld through availing an extraordinary/quick/efficacious and speedy remedy under the writ jurisdiction by the Honorable Lahore High Court, Rawalpindi Bench, Rawalpindi, which has got the jurisdiction to interfere in a case:
(i) When an authority exercises powers not vested, in it; or
(ii) it has got the authority to exercise such powers but misuses it etc. In the instant case, the appellant was considered under the second head and the wrong order passed by the Respondents was put at naught/set aside once for all. The question of seniority also stands settled for the reason that the persons impleaded in the writ petitions as well as in the appeal before this Tribunal at Serial Nos. 3 to 24 have never bothered to come forward in defence of their right, if any, and now it can be presumed that they have no right to seniority over the appellant and for that reason they did not opt to contest the writ petition as well as the present service appeal before this Tribunal.
10. In fact all the State functionaries/authorities are legally bound to work fairly and honestly in the performance of their duties and anybody deviating therefrom in violation of the rules, on the subject, thereby renders himself liable to punitive and disciplinary action under the Efficiency and Discipline Rules and for this reason they shall also take care that unnecessary proceedings are not initiated in their departments/offices. Freqbent violation of the rules is derogative of the public interest and also adveriely affects smooth running of the day-to-day work/administration and it also creates despondency amongst the subordinates/incumbents besides avoiding expenses.
11. In view of the above and the hard facts, duly supported by law and normal course of judicial proceedings, this appeal succeeds and is hereby accepted with a special cost of Rs,10,000 (Rupees ten thousand only) for the reason that due to unwarranted and wrong conduct of the Administration (respondent No, 2), the appellant has suffered twice and extraordinary expenses were incurred in connection with the writ petition as well as the present service appeal. The cost is awarded to the appellant under section 35-A, C.P.C., 1908, as amended by the Civil Law Reforms Act, 1994 (PLD 1995-Statute Portion). The amount shall be recovered from the person who illegally and un-warrantedly prevented the appellant from his due rights and shall not be a burden on the P.O.E. exchequer.
12. A copy of this judgment, however, shall be sent to all concerned who contested the appeal.