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Appeal No. 83 of 1974, decided on 4th June 1975

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-----S. 4‑Seniority‑A term and condition of service‑Question of seniority‑Within jurisdiction of Tribunal.

------S. 4‑Scope ‑ Fitness for promotion Beyond jurisdiction of Tribunal‑Appellant seeking exemption from appearing in examination prescribed for promotion‑Matter involving alteration of terms and conditions of service ‑ Not within jurisdiction of Tribunal.

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‑‑ S. 4 read with Sind Service Tribunals (Procedure) Rules, 1974, r. 9 Appeal Procedure Impleading necessary parties‑Provisions of r. 9 ‑ Mandatory ‑ Impugned order passed by Deputy Inspector General of Police‑Appellant citing only Secretary, Home Department as party ‑ Seniority also claimed but those against whose claim preferred not cited as party‑Appeal, in circumstances, held, not maintainable.

The appellant was reverted from the post of Head Constable to a Foot Constable on 8‑11‑1962 by the order of the Deputy Inspector‑General of Police. He was promoted as Head Constable 3‑3‑1962. He wants a declaration that his reversion was unjustified, illegal and in‑operative hence he may be treated as having continued as Head Constable without any break with effect from 3‑3‑6z and was entitled to consequent benefits, including seniority. He also claims that he had become over age by 4 years for the purpose of Intermediate School Course for Head Constables due to the belated decision of the authorities regarding his selection hence he was entitled to "exemption" from appearing for the said Course. In the alternative he requests that the upper age limit for the Intermediate School Course may be condoned. He had preferred an appeal to the Inspector‑General of Police, which was rejected on 23‑8‑1972 on the ground that "almost 10 years had passed since his reversion and apparently there was no justification for re‑opening the matter at this too belated stage".

The appellant had filed the suit before the District Judge, Karachi which abated on 10‑7‑1974. He presented this appeal on 3‑8‑1974.

The appellant was appointed as Police Constable in Karachi on 1‑3‑1952 and was subsequently confirmed. In 1955 he was posted in the C.I D. Branch and be passed the Law qualifying examination required for that service. He claims that after passing the said Law examination he became eligible for promotions to the rank of Head Constable, Assistant Sub‑Inspector and Sub‑Inspector of Police. He was promoted as Head, Constable on 3‑3‑1962 by Superintendent of Police C.I.D, Karachi. However, on 13th March 1962 he was directed by the Deputy Inspector‑General of Police, Karachi to appear before the Selection Board for confirmation as Head Constable C.I.D. He appeared before the Board on 26‑7‑1962 but was reverted by the Deputy Inspector‑General of Police on 8‑i 1‑1962 with immediate effect on the ground that "the appellant had neither participated in the open competition nor qualified for regular promotion". He calls this order as arbitrary, unjustified, illegal and void, He preferred an appeal to the Inspector‑General of Police, West Pakistan, Lahore who approved him for promotion as Head Constable and he was promoted on against an existing clear vacancy and is continuously holding the said post on regular basis till today. He now wants to be promoted as Assistant Sub‑Inspector of Police but has been rejected because he was over age by 4 years. He now wants us to change the terms and conditions of his service by awarding him exemption from appearing in the Intermediate Training Course, which is necessary for promotion as Assistant Sub‑Inspector or condone his upper age limit by 4 years.

The respondents have contested the appeal. They allege that the appellant had been avoiding the training course at every stage therefore he was not fit for promotion and seniority claimed by him. They allege that he was promoted as Head Constable on ad hoc and temporary basis in March 1962 but was reverted on 8‑11‑1962 due to administrative reasons and representations of his seniors. They assert that he was not approved for promotion by the Selection Board in July 1962. According to them he was not holding a clear or substantive vacancy prior to his reversion hence he could not claim any vested right in it. They further allege that the appellant was placed in the category of "an unqualified man, hence he was promoted according to his seniority and turn in 1967. He was rejected for further promotion as he had become over age by 4 years and the authority concerned did not find any reason to condone his upper age limit. They did not find any justification for re‑opening his case after the expiry of 10 years. They further allege that the suit filed by the appellant was not maintainable under the law hence the order of abatement did not give jurisdiction to this Tribunal. This last contention is not maintainable because the question of seniority was one of the terms and conditions of service and was within the jurisdiction of this Tribunal. The civil Court had therefore no option but to abate the suit due to change in Law.

From the perusal of the above said facts and the contents of the memo of appeal it appears that the appellant wants his promotion as Head Constable from a particular date viz 3‑3‑1962 though he was rejected by the Selection Board. The order of reversion in 1962 shows that the appellant had not qualified for promotion. His contention that after passing the Law qualifying examination be became eligible for promotion to the rank of Head Constable and Assistant Sub‑Inspector of Police is not correct,, The Law examination was a qualification for service in C.I.D, and not promotion to a higher rank, passing of the Intermediate School Course was the qualification for such a promotion. The appellant had admittedly not passed the said course hence he was not eligible for promotion from 3‑3‑62 as claimed by him. The question of fitness for promotion to a particular post is beyond the jurisdiction of this Tribunal hence we cannot help him.

In his second prayer he claims that he was entitled to "exemption" from appearing in the Intermediate School Course as he had become over age or that his upper age limit should be condoned because the Deputy Inspector‑General had passed an illegal order of reversion against him. This is also beyond the jurisdiction of this Tribunal. We cannot change the qualifications required for a particular post can we alter the terms and conditions of service. We cannot therefore allow the exemption from a particular examination or condone the upper age limit fixed by Rules. Exemption from a particular examination and condo nation of upper age limit do not fall within the terms and conditions of service hence the appellant cannot claim them as a matter of right. We are therefore not competent to give him the remedy claimed by him. As regards the reversion of the appellant it had taken place in November 1962 after the appellant was rejected by the Selection Board. The appellant was reverted because he was not found fit. The question of fitness is also beyond our jurisdiction.

In his first prayer clause the appellant has stated that he should be treated as having continued as Head Constable from 3‑3‑1962 without any break and was accordingly entitled to all consequential benefits including, the seniority. The nature and form of appeal shows that it was not for seniority. The appellant has neither produced the seniority list nor has he made those persons as a party against whore he claims seniority. According to Rules all the persons whose seniority was likely to be affected by the order of the Tribunal must be made a party. Therefore it cannot be treated as the appeal for seniority.

The appeal must also fail on another legal ground. The appellant has not joined all the necessary parties in appeal. He has not joined the Deputy Inspector‑General of Police who reverted him on 8‑11‑1962 nor the Inspector General of Police who rejected his appeal. According to rule 9 of Sind 1 Service Tribunals (Procedure) Rules, 1974 "the authority whose order is challenged shall be shown as respondent and in case relief is claimed against any Civil Servant, that Civil Servant shall also be shown as a respondent". The provisions of this rule are mandatory and the appellant has failed to comply with them. He has made only the Province of Sind through the Secretary to Government of Sind Home Department Karachi as respondent. Admittedly the Secretary had not passed any order against the appellant hence was not a necessary party. The appeal must therefore fail only this ground as well.

In the result we find no merit in the appeal and dismiss it with costs.

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