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Civil Revision No. 6 of 1965, decided on 30th March 1966.

, S. 9 read with Specific Relief Act (I of 1877), S. 42‑Government, servant‑Decision of competent authority on promotion or seniority not in accordance with prescribed Rules‑Aggrieved Government servant can seek assistance of civil Court‑Civil Court has jurisdiction to go into matter and grant relief of declaration claimed by such Government servant‑Kashmir Service Rules, rr. 24 & 25‑Rules of Business (Azad J. & K. Government)‑Azad Kashmir Government Act, 1964.

Abdur Rahman Bhaiya v. Commissioners of Naraynaganj Muni cipality P L D 1959 Dacca 5; Maiisur Ahmad v. Province of West Pakistan P L D 1961 S C 166 ; Muhammad Aboo v. Province of East Pakistan P L D 1960 S 'C 165 ; Fatima v. Khuda Bux P L D 1959 Lah. 824 and Province of Bengal v. Harsha Nath P L D 1954 Dacca 57 distinguished.

Barkat Ali v. West Punjab Province P L D 1952 Lah. 200; Federation of Pakistan v. Z. A. Mazari P L D 1958 Lah. 472; Kamir_v. Roshan P L D 1960 Lah. 325; Safiuddin v. Moslem Ali P L D 1960 Dacca 555 and Province of East Pakistan v. K. A. Manzur P L D 1963 Dacca 211 ref.

S. 9 read with Specific Relief Act (I of 1877), S. 42 ‑ Government servant ‑ Words "legal character" in S. 42, Specific Relief Act, 1877 ‑ Meaning Government servant's claim that under Service Rules he was entitled to promotion before others‑Claim for a legal status- Such Government servant can go to civil Court or determination of his legal character which has been denied to him.

"Law of Specific Relief in India and Pakistan" by Om Prakash Aggarwala, p. 724 ref.

M. A. Hafeez Government Advocate for Petitioner.

B. A. Fdrooqi for Respondent.,

The facts leading up to this Civil Revision briefly are that Allah Ditta respondent, a Senior Clerk in the office of the Accountant‑General, Azad Kashmir Government brought a suit in the Court of the Additional Sub‑Judge, Muzaffarabad for a decla ration that under the Kashmir Service Rules and also on the basis of his seniority he was entitled to a promotion in the higher cadre of the service and that the promotion of all the clerks of his class who were junior to him to jobs of 'higher rank was in derogation of the Service Rules and was, therefore, irregular. As a conse quential relief he prayed that the defendant (Azad Kashmir Government) be directed to promote him according to his seniority.

The defendant petitioner besides contesting the claim of the plaintiff on various grounds also raised a number of preliminary v objections in the written statement. The trial Court framed the following issues in the light of these objections:----

(1) Whether the plaintiff has delivered the notice under section 80, C. P. C. to a person other than the proper defendant O. P. D.

(2) Whether the notice under section 80, C. P. C. disclosed a cause of different action from the one alleged in the plaint O. P. D.

(3) Whether the plaintiff is entitled to the relief claimed by him despite the fact that the remarks objected to by him had already been expunged from his A C R O. P. D.

(4) Whether the suit would be rendered infructuous if issues 2 and 3 are decided in favour of the defendant O. P. D.

(5) Whether the suit is not cognizable by a Civil Court and what is its effect on the case O. P. D.

(6) Whether the court‑fee paid on the consequential relief is deficient in value and if so how much is the deficiency O. P. D.

No evidence was recorded on any of the issues and the trial Court after hearing the arguments of the counsel for the parties on them decided them against the defendant. The defendant feeling aggrieved of the findings of the trial Court has filed the present revision petition.

Mr. M. A: Hafeez, learned counsel for the petitioner did make a half‑hearted attempt to argue on the first 4 issues but then perhaps realising the futility of it he did not press his arguments. His main contention, however, was that the plaintiff being a public servant was admittedly governed by the Kashmir Service Rules in the matter of appointment, dismissal, discharge, seniority and promotion, etc. The appointing authority on the grounds of merit and ability can only make his promotion under the Rules. The appointing authority in his case after due considera tion of the facts entered in his service book has not deemed it proper to promote him to the next higher grade. The fact that he was senior to some un‑named clerks who were allegedly upgraded in supersession of his claim does not entitle him to a preference over them in the matter of promotion because the principle of seniority comes into play only in those cases where the merit and ability of some Government employees are approximately equal. In the present case, according to him the plaintiff has neither, cited any instance indicating that the Rule of merit and ability has been ignored nor he has referred to a particular case of promotion in which any clerk of approximately equal merit and ability has been promoted in disregard of his seniority. In such circumstances, he has contended, that his seniority if at all it exists will not help him in view of the provisions of Rules 24 and 25 of the Kashmir Service Rules. He has further argued that the rules contained in the Kashmir Service Rules are statutory Rules made and applied by the Government under the powers vested in it by the Constitu tion which in the case of our Government is the Rules of Business and Azad Kashmir Government Act, 1964. These rules have, therefore, the same force of law as an enactment passed by the Legislature of the State. He has urged that the plaintiff as such cannot take shelter behind section 9, C. P. C. and invoke the juris diction of the Civil Court in the matter of his promotion. The Civil Courts are impliedly barred from taking cognizance of such a suit and it is particularly so when the plaintiff as in the present case is not entitled to any legal character. He has cited Abdur Rahman Bhaiya v. Commissioner of Narayungunj Municipality (P L D 1959 Dacca 5(7)), Manzur Ahmad v. Province of West Pakistan (P L D 1961 S C 166), Muhammad Aboo v. Province of East Pakistan (P L D 1960 S C 165), Fatima v. Khuda Bux (P L D 1959 Lah. 824) and Province of Bengal v. Harsha Nath (P L D 1954 Dacca 57).

In reply Mr. B. A. Farooqi learned counsel for the respon dent has contended that Rules 24 and 25 of the Kashmir Service Rules lay down certain conditions and procedure according to which the seniority of a Public Servant should be determined. If the competent authority does not strictly adhere to these rules and proceeds to determine the question of seniority of a Government employee arbitrarily and without taking into consideration his merit and ability it would be contrary to the spirit and intention of the relevant rules and it would certainly be a proper case for the provision of assistance by the Courts in giving interpretation of those rules. A further point made out by him was that if the competent authority disregards the provisions of Service Rules applicable to the case of a Public Servant that means that the authority has deprived the employee of a legal status to which he is entitled under the Rules and in that case the Public Servant has no alternative but to seek a declaration under section 42 of the Specific Relief Act and section 9 of the C. P. C. In support of the points made out by him the learned counsel has relied on Barkat Ali v. West Punjab Province (P L D 1952 Lah. 200), Federation of Pakistan v. Z. A. Mazari (P L D 1958 Lah. 472), Kamir v. Roshan (P L D 1960 Lah. 325), Safiuddin v. Moslem Ali (P L D 1960 Dacca 555) and Province of East Pakistan v. K. A. Mansur (P L D 1963 Dacca 211 (220)).

Before examining the authorities cited by the learned counsel for the parties ' I would like to deal with the most important question involved in this case, i.e. whether the mere existence of the Kashmir Service Rules in itself is sufficient to create a bar for the Civil Courts to go into the matter of seniority of the Public Servant or they can interfere if the competent authority has ignored the rules in determining the seniority of an individual. The Kashmir Service Rules no doubt is a self‑sufficient Code which contains provisions in respect of the appointment, seniority, promotion, dismissal and discharge, etc. of Government Servants and under the rules certain officers of high rank have been authorised to deal with the cases involving such questions yet these officers cannot interpret the Rules arbitrarily and capriciously and it is imperative that they must abide by the directions contained in them. This is not only logical but is also in conformity with the views of various High Courts in India and Pakistan. The consensus of opinion is that where the competent authority take a decision on the seniority or promotion of a Public Servant in a manner which is not in keeping with the rules and thereby deprives him of his legitimate rights, the sufferer can seek the assistance of the Civil Courts for inter pretation of the Rules applicable in his case and the Courts in the interest of justice and equity must come 'to his rescue. The Civil Courts of course will desist from interfering in a case where there has been correct interpretation of the Rules by the appointing authority. In such cases the appointing authority would be taken to be the final authority unless there is a provision in the Rules for a further appeal. In this view of the matter I am constrained to agree with the learned counsel for the respondent that where there has been a glaring departure from the prescribed procedure the Civil Courts must step, in and grant the relief of declaration claimed by an aggrieved Public Servant. It does not stand to reason that the law can be so rigid as to deprive an aggrieved person of his right to seek justice from a Court of law. The only exception to this general rule has been pointed out above and beyond that there is no express or implied bar for the Courts to take cognizance of suits wherein the interpretation of Service Rules is involved. In Federation of Pakistan v. Z. A. Mazari Mr. Justice Kaikaus has gone a step further than this and held that Civil Courts' jurisdiction is not barred in any of the service cases. The facts of that case were that an order of discharge of a Pakistan Commissioned Military Officer was passed by the Military authorities whereas such order under section 16, Army Act should have been passed by the prescribed authority which in that case according to Rule 13 was the Central Government and it was urged that because under section 113 (ii) of the Army Act Rules were effective as if they had been enacted in the Act itself, the order of discharge being opposed to the provisions of the statute was void. It was held that:‑---

"The order though it was not in accordance with a statute or rules, did not infringe a legal right of the discharged officer. There was, therefore, no cause of action."

It was further held by Kaikaus, J. in that very case that:

"It was not correct to say that the Civil Court had no juris diction in such matter. The Civil Court decides against the military servant because of' the terms of his engagement. The decision of the Court is that he has, on account of these terms, no right to continue in service. When a Court decides that a person does not possess a particular right, which right is of a civil nature, it is not holding that it has no jurisdiction. Juris diction only means a jurisdiction to decide. When the Court gives a finding as to the term of engagement and determines that the civil right claimed by the plaintiff does not vest in him, the Court has exercised jurisdiction and has given a decision on the merits against the plaintiff."

Similarly in Sufiuddin v. Moslem Ali, Barkat Ali v. West Punjab Province and Kamir v. Roshan the principle that the jurisdic tion of Civil Courts is not ousted in any matter unless there is express enactment to that effect by the Legislature or the result falls as a necessary intendment of the law was upheld It is thus clear that orders passed by a Special Tribunal or a competent authority under statutory Rules would only be sacrosanct if they are passed with jurisdiction. Only in that case the correctness of the orders cannot be impeached in general Civil Courts other wise the order or the decision of the competent authority could be questioned in a Court of law of Civil Jurisdiction and the Court as such would be fully competent to go into it and give its own interpretation and this view would surely be in accordance with the provisions of section 9, C. P. C. which provide that the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly-barred.

Mr. M. A. Hafeez has not been able to point out how the jurisdiction of the civil Courts in this case is impliedly barred. Neither the constitutional statute which is Rules of Business in this case nor any other enactment of the State has been referred by him wherein it has been provided that such suits as that of the plaintiff cannot be taken cognizance of by the Civil Courts. I would, therefore, say that the question of any express or implied bar does not arise here.

As for the authorities cited by him I have perused them all and they mostly pertain to writ jurisdiction of the High Courts. How ever, in none of them it has been held that the jurisdiction of the Civil Courts in cases governed by Service Rules is completely barred. One of the cases cited by him was Province of Bengal v. Harsha Nath. It is a Single Bench case in which Ibrahim, J. has held that.

"A public servant may sue for arrears of pay but he cannot sue for declaration that he was in the selection grade during a certain period."

A Division Bench of that very Court in Province of East Pakistan v. K. A. Mansur cited by the learned counsel for the respondent comprised of Chaudhury, J. and M. R. Khan J. has expressed a contrary view and held:

"The Civil Court is competent to see whether Service Rules and departmental instructions have been complied with or not irrespective of their having any force of law."

Another case relied on by the learned counsel for the petitioner is Mansur Ahmad v. Province of West Pakistan. That was an appeal by special leave involving a question as to the correct order of seniority of three members of West Pakistan Forest Service Class I. The question was raised in the High Court in the Form of a petition for a writ of mandamus or any other appropriate writ to establish that one of the three petitioners was entitled to be placed above the other two officers in the seniority list. The claim was laid on the foundation of a rule in the Punjab Government Service (War) Amendment Rules, 1943, namely the Rule 6. It was held in that appeal that:

"To determine question of seniority is ordinarily not a pur pose for which a writ of mandamus can be regarded as suitable. Service conditions of Government servants are required by the Constitution to be made the subject of express rules, and it is in fact the case that there are sets of rules applicable to all services including the Provincial Forest Service Class I., It was provided by the late Government of India Act of 1935 that the Governor in respect of a Provincial Service had power to deal with the case of any officer subject to the rules, as to him may seem fit in accordance with justice and equity, provided that the officer should not be treated less favourably than the rules in terms required. That may, and in the opinion of the Court, should be interpreted as a provision reserving to the Governor the power of final application of the rules, so that it would be only in a rare case that the assistance or intervention of the Courts should be required, for such application. The present is a case which is specialised in this respect by the circumstances that at different times, the Provincial Government has given contrary decisions affecting the seniority of these three contesting officers, and consequently the occasion is a proper one for the provision of assistance by the Courts in giving a definitive interpretation of the relevant instruments."

Even from this authority it is clear that the jurisdiction of the Civil Courts in service cases is not altogether barred and it may be invoked in those cases where the competent authority has not dealt with a case in accordance with the Rules or has acted beyond jurisdiction.

Muhammad Aboo v. Province of East Pakistan was also relied on by the learned counsel for the petitioner. All that was laid down in that cage was that:‑---

"So far as suitability for promotion to a particular post is concerned the sole judge is the Government and Courts are unable to interfere except possibly in cases of proved mala fides."

In the present case the plaintiff has alleged unfairness on the part of the competent authority in the matter of determination of his seniority. Whether this unfairness is the result of mala fides of the competent authority or not is yet to be ascertained in the course of the trial in the trial Court. It would, therefore, be fair and just if the plaintiff is afforded an opportunity to establish the allegations made by him in the plaint.

In S. A. H. Bokhari v. Government of Pakistan and another (P L D 1959 Lah. 814) cited by the learned counsel for the petitioner it was laid down that:‑---

"Ordinarily, when question arises in some proceedings in a Court which class of public servants a person in Government employ belongs to, it would be for the Court to determine it, but when an authority competent to do so has determined the class to which a public servant belongs, the Court's jurisdiction to give a decision would not exist."

In the instant case only an enquiry can disclose if the seniority of the plaintiff and other ministerial officers of the same class in which the plaintiff is placed has been determined by the competent authority and whether in doing so the principle of merit and ability was adhered to or not. For this reason too it would be necessary that the matter be adjudicated by a Civil Court.

Now as for the contention of the learned counsel for the petitioner that a suit for the declaration of the kind sought by the plaintiff was not maintainable for the reason that he was not entitled to any legal character I am again of the opinion that there is no force in it. The words legal character' in the section are wide enough to include the status of a person. As commented by Om Prakash Aggarwal in his book Law of Specific Relief in India and Pakistan' at page 724 "a man's status or legal character is constituted by the attributes which the law attaches to him in his individual and personal capacity. There can be some attributes which may be said to belong humanity in general so long as it does not deviate from the normal type. But individuals may have characteristics peculiar to them, and these peculiar characteristics will constitute the status of each. For instance an adopted son is not quite the same as a natural‑born son, and with neither can be placed on an even footing an illegitimate son. The rights of a son, again, may differ from those of a daughter and the married woman in the eyes of law may be a different person from a widow, or even a divorcee. The legal character and position of each may be differentiated." At the same page the learned author has quoted from the book of the famous English jurist Holland. The quotation is:

"The chief varieties of status among natural persons may be referred to the following cases: (1) Sex; (2) minority; (3) patria protestas and manus; (4) converture ; (5) celibacy; (6) mental defect; (7) bodily defect; (8) rank, caste and official position; (9) race and colour; (10) slavery; (11) profession; (12) civil death; (13) illegitimacy; (14) hearsy; (15) foreign nationality ; (16) hostile nationality. All of the facts included in the list, which may be extended, have been held, at one time or another, to differentiate the legal position of persons affected by them from that of persons of the normal type."

After explaining this, the learned author has concluded by saying that the legal character as such means the status or the position which a person occupies in the eyes of the law. The plaintiff con tends that under Service Rules governing him he was entitled to a promotion before all those employees of his class who have already been promoted by the competent authority. He is obviously claiming a legal status to which he is entitled under rules. For the determination of this status or in other words legal character which has been denied to him by the competent authority he can surely go to the Civil Court under section 9, C. P. C. read with section 42 of the Specific Relief Act.

In view of the fact that the findings of the trial Court on issues 1 to 4 and 6 have not been assailed in an effective manner by the learned counsel for the petitioner, it seems futile to enter on a discussion upon them. They are upheld.

For the foregoing discussion I do not see any reason to inter fere with the finding of the trial Court on any of the issues and I accordingly reject the revision petition. As, an important legal point was involved in the case I leave the parties to bear their costs.

S. A. H./S. Q. Petition dismissed.

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