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Civil Petitions Nos. 363‑K, 364‑K and 365‑K of 1985, decided on 24th August, 1986.

(From the order of the Sind Service Tribunal, Karachi, dated 23‑5‑1985 passed in S.A. Nos. 5, 8 of 1981 and 11 of 1982).

‑‑‑Art. 212(3)‑‑Sind Service Tribunals Act (XV of 1973), S. 4 Sind Civil Servants (Confirmation and Seniority) Rules, 1975‑‑Petition for leave to appeal‑‑Petitioner's counsel unable to controvert position taken by State Counsel before Service Tribunal that Sind Civil Servants (Confirmation and Seniority) Rules, 1975 were not applicable to cases in hand‑‑Attempt was also made by petitioner's counsel to secure leave to appeal on strength of a leave granting order made in another case but there existed no similarity between cases in hand and case in which leave was granted‑‑Leave to appeal refused in circumstances.

Abdul Sattar Sheikh, Additional Advocate‑General for Petitioners.

Muzaffar Hassan, Advocate‑on‑Record for Respondent No. l (in C.P. 363‑K of 1985).

Date, of hearing: 24th August, 1986.

The Province of Sind through the Chief Secretary has sought leave to appeal against the order of the Sind Service Tribunal, Karachi, dated 23‑5‑1985, whereby the appeals of Anwar Ali Sheikh, Dhani Bux Soomro and A.H. Mirza were allowed and it was held that they were entitled to draw pay in Grade‑17 from the date of their promotion.

2. The brief facts are that Anwar Ali Sheikh, Dhani Bux Soomro and A.H. Mirza were holding the posts of Industrial Development Officers, Grade‑16, in the Directorate of Industries, Sind. The Government of West Pakistan through its notification, dated 13‑6‑1970 in the Industries and Mineral Development Department sanctioned the creation of 23 posts of Assistant Directors in Grade‑17 in the Sind Industries Unit. On the basis of the above notification the Government of Sind ordered the promotion of the above respondents from Grade‑16 to Grade‑17 on temporary basis, vide notification, dated 28‑5‑1971 and their cases were sent to the Public Service Commission on 27‑11‑1972 for regularization. When the cases of the above respondents were pending consideration, the Sind Public Service Commission Act was promulgate and the promotion cases of the Assistant Industrial Development Officers were withdrawn from the purview of the Public Service Commission and entrusted to the Departmental Promotion and Selection Committee constituted for the purpose. The cases of the three respondents for promotion as Assistant Directors were cleared by the Departmental Promotion Committee and the summary sent to the Provincial Government for regularization of their promotion from Grade‑16 to Grade‑17 as Assistant Directors, with effect from 29‑5‑1971. The Provincial Government approved the proposal on 19‑2‑1975 and a notification was accordingly issued regularising the promotion of the above respondents from the date of their respective appointments, namely, 29‑5‑1971. Subsequently on 2‑10‑1975 new rules, namely, the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, came into force superseding the old West Pakistan Industries Service (Class I) Rules, 1962. Under rule 10 of the above Rules, seniority in the grade was to be reckoned from the date of regular appointment to the post and no appointment made on ad hoe basis could be regularised retrospectively Following the new rules, the Secretary to the Government of Sind, Industries Department, issued a fresh 'notification in 1977 in super session of the earlier notification and regularised the promotion of the respondent, with effect from 26‑2‑1975.This notification was made subject‑matter of a constitutional petition filed by Ali Anwar Sheikh and Dhani Bux Soomro in the High Court which was accepted by the Division Bench of the Sind High Court on 14‑5‑1980 holding that the notification was not issued by a competent authority. To cover up the above lacuna, fresh summary was submitted to the Martial Law. Administrator/ Governor who accorded his approval and another notification was issued on 15‑9‑1980 regularising the promotion of the respondents to Grade‑17, with effect from 26‑2‑1975. This notification was again challenged by the three respondents through constitutional petitions before the High Court but the same were dismissed for lack of jurisdiction as the matter related to the terms and conditions of service of civil servants. Thereafter the respondents, after filing departmental appeals, moved the Service Tribunal for their redress. The appeals came up before the Service Tribunal on 10‑11‑1982 when the Tribunal observed that 'the learned A.A.‑G. Mr. Hassan Akbar clearly conceded that the summary submitted to the Martial Law Administrator/ Governor after the High Court decision in the first writ petitions, contained an obvious misstatement regarding application of the 1975 Rules to the cases of the appellants (now respondents). The rules had no retrospective effect. The third and the last notification issued on 15‑9‑1980 purporting to regularise the promotions with retrospective effect from 26‑2‑1975 would till be in violation of the 1975 Rules. Mr. Hassan Akbar also stated that the first notification which was superseded after the second notification, was revived when the second notification was withdrawn by the third notification. That the third notification did not expressly cancel the first notification; so that the result was that there were two parallel notifications to remain in force while withdrawing the third and the last notification. Yet the appeals were dismissed as being non‑maintainable and barred by time. The respondents then took up the matter in appeal to the Supreme Court which vide its order dated 18‑4‑1984 remanded the case to the Service Tribunal with the direction that the appeals should be heard afresh on merits and disposed of in accordance with law.

3. After remand, the Service Tribunal examined the matter threadbare and allowed the appeals with the following observation:‑

"There is no denying the fact that the summary submitted to the Martial Law Administrator/ Governor after the High Court decision in the first writ petition contained an obvious misstatement regarding application of the 1975 Rules, to the cases of the appellants. It is also clear that the 1975 Rules has no retrospective effect. Learned A.A.‑G. has frankly conceded this position. "

4. We have heard the learned counsel for the petitioners and gone through the order of the Tribunal. The learned counsel has not been able to controvert the position taken by the learned A.A.‑G. before the Tribunal and rightly too because the new rules of 1975 were not applicable to the present cases. An attempt was made by the A.A.‑G. to secure leave to appeal on the strength of Civil Appeal Nos. 112‑K and 113‑K of 1986. We have gone through the leave granting orders and he was also made to go through them and he agreed that there was no similarity between the cases in hand and the cases in which leave had been granted. In the circumstances we find no merit in these petitions. Leave to appeal is, therefore, refused.

M . Y . H . Petition dismissed.

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