HIGH COURT OF SINDH, KARACHI
C.P No.D-682 of 2013
Before
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Muhammad Iqbal Mahar
03-06-2016 Benish Qureshi, advocate for the Petitioner
Mr.Yasir Hussain Shah, advocate for Respondent Nos. 2 & 3
M/s Arshad Hussain Khan, Muhammad Ehsan and Haqdad Khoso, advocate for the Respondent No.4.
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O R D E R
MUHAMMAD ALI MAZHAR—J.,In compliance of the last order dated 31.05.2016 Mr. Arshad Hussain, learned counsel for the Respondent No.4 has submitted a copy of application filed by the Respondent No.4 in the Federal Service Tribunal for withdrawal of his Appeal No.1116(R)CS/2011.
2. In-fact the Petitioner has sought the Declaration through this Petition against the respondents No.2 and 3 that they are not at liberty to pass any order whatsoever with regard to the seniority of the Petitioner against Respondent No.4 as orders to this regard have already been passed by them and thus the matter before them is now past and closed transaction which has attained finality and the appropriate forum for the Respondent No.4 was to prefer an appeal against the orders passed by the Departmental Authority before the Federal Service Tribunal and not before the Department / Authority. At the same time in paragraph-23 of the Petition, Petitioner has clearly stated that he received a letter on 06.11.2012 from the General Manager (Finance) / Chairman of the Committee with reference to the appeal against seniority and was advised to appear before the Committee for personal hearing on 14-11-2012 for the purpose of investigation regarding seniority dispute between the Petitioner and Respondent No.4. Due to earlier decision of the Seniority the respondent No.4 was also aggrieved so he moved appeal in the Federal Service Tribunal but during pendency of his appeal the committee announced its decision and reached to the conclusion that Respondent No.4 is eligible to be placed above the petitioner and another employer Shaukat Hussain Baloch and since the committee has decided this issue in favour of the respondent No.4 therefore, he submitted an application in the Federal Service Tribunal, Islamabad, for withdrawal of his pending appeal.
3. On the contrary, the learned counsel for the Petitioner argued that committee report was not officially circulated but she admits that the seniority of the Petitioner was up-set due to committee report. She further argued that earlier the seniority was settled and the petitioner was found senior but in subsequent investigation report seniority has been up-set therefore she has approached this Court for Declaration to discard the subsequent fixation of seniority. To a question raised by this Court whether any representation or appeal has been filed by the petitioner to the competent authority, the learned counsel responded that the enquiry report was not officially circulated therefore, no such appeal or representation was filed.
4. In our view, the appropriate remedy for the Petitioner was to file appeal / representation in accordance with the law to the competent authority. The learned counsel for the Respondent No.4 at the same time invited our attention to the Page 465 of the Court file which is an order passed by the learned Federal Service Tribunal, Islamabad in Appeal No. 1116(R)CS/2011 dated 04-02-2013 whereby the Respondent No.4 was allowed to withdraw the appeal. The learned counsel pointed out that counsel for the Petitioner was present in the Federal Service Tribunal at the time of withdrawing the appeal which shows that the petitioner was in the knowledge of entire proceedings and committee report and even through this petition the petitioner has again obtained all relevant information through the replies submitted by the respondents.
5. In our view the appropriate remedy is to file appeal or representation to the competent authority by the Petitioner and in case of any grievance the Petitioner may approach F.S.T. The learned counsel for the National Highway Authority and the Respondent No.4, have no objection if the Petitioner files appeal and / or representation to the competent authority in accordance with the Law. The learned counsel for the National Highway Authority has also assured that if any departmental representation or appeal is filed, the same shall be decided by the competent authority in accordance with Law and in case the Petitioner is found aggrieved, he may file the appeal in F.S.T. Learned counsel for the Petitioner is satisfied. The petition is disposed of accordingly with pending applications.
J u d g e
J u d g e
BrohiPS