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Civil Appeals Nos. K‑93, K‑94 and K‑100 of 1980, decided on 24th March, 1986.
(On appeals from the judgments dated 4‑6‑1979, 7‑7‑1979 and 10‑6‑1979 of the Sind Service Tribunal in Appeals Nos. 34/79, 37/77 and 46/78).
-----Ss. 8 & 4‑Questions of seniority of civil servant can be agitated before Service Tribunal and Tribunal has the jurisdiction to decide these questions in course of an appeal before it.
A. H, Mirza v. Province of Sind and others 1982 P L C (C. S.) 599 approved.
Inspector‑General of Police, Punjab, Lahore and others P L D 1985 S C 159 ref.
Muhammad Ali Sheikh, Advocate Supreme Court (absent) and Yousqf Rafi, Advocate‑on‑Record (absent) for Appellants.
Sayeed A. Sheikh, Advocate‑General Sind, Hafiz S. A. Rehman, Advo cate Supreme Court and Muzaffar Hussain, Advocate‑on‑Record (absent) for Respondents Nos. 1 to 3.
Remaining Respondents : Ex parte.
Appellant in person.
Sayeed A. Sheikh, Advocate‑General Sind, Hafiz S. A. Rehman, Advo cate Supreme Court and Muzaffar Hussain, Advocate‑on‑Record (absent) for Respondent No. 1.
Respondents Nos. 11 and 14 in person (absent).
Remaining Respondents : Ex parte.
Manzoor Ali Khan, Advocate Supreme Court and Shabbir Ghaury. Advocate‑on‑Record (absent) for Appellant.
Sayeed A. Sheikh, Advocate‑General Sind, Hafiz S. A. Rehman. Advocate Supreme Court and Muzaffar Hussain, Advocate‑on‑Record (absent) for Respondents Nos. 1 and 2.
A. A. Dastgir, Advocate‑on‑Record (absent) for Respondent No. 14.
Respondents Nos. 3 to 13 and 15 to 23 : Ex parte.
Date of hearing : 24th March, 1986.
This order will dispose of three appeals, namely, Civil Appeal No. K‑93 of 1980 (Mukhtar Ahmad Junejo v. Province of Sind and others), Civil Appeal No. K‑94 of 1980 (Ikramuddin Syed v. The Chief Secretary to Government of Sind Karachi and others) and Civil Appeal No. K‑100 of 1980 (Syed A. A. Burney v. The Chief Secretary, Government of Sind, Karachi and others) because they all raise a common question, to wit : whether the Sind Service Tribunal is competent to entertain appeals about seniority disputes
The Sind Service Tribunal was of the opinion that resolution of questions of seniority was not a matter which could be agitated before it and appeals on such questions could not be brought before the said Tribunal. While discussing this question the Tribunal took note of the provisions of section 8 of the Sind Civil Servants Act (XIV of 1973); namely :‑
"8. (1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade to be prepared, but nothing herein contained shall be construed to confer an v vested right to a particular seniority in such service, cadre or grade, as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil 'servants belonging to the same service or grade, whether serving in the same department or office or not, as may be prescribed ;
(3) Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed ;
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade:
Provided that civil servants who are selected for promotion to a higher grade in one batch shall, on their promotion to the higher grade, retain their inter se seniority as in the lower grade."
(Underlining* is ours).
And observed that whereas, according to the said section it was incumbent upon the administration to prepare the seniority list but the said provision of law did not, however, confer any "vested right" to a particular seniority to the civil servant in such a service, cadre or grade as the case may be. Accordingly the Tribunal observed that when no vested right with regard to seniority has been conferred on civil servants no vested right can be said to have been taken away of a civil servant by fixation of his seniority at a particular position. The Tribunal also observed that seniority was not one of the terms and conditions of service. Consequently, a civil servant cannot invoke the jurisdiction of the Service Tribunal to vindicate or establish anything which was not a right. On this reasoning it was held that the Jurisdiction of the Tribunal was not attracted to questions relating to seniority matters, by virtue of section 8 and no appeal lay under section 4 of the Sind Service Tribunals Act, 1973 against any order relevant to this question.
It appears that as the Sind Service Tribunal was taking this view on this subject, a civil servant (Mr. A. H. Mirza), who was aggrieved by the fixation of his seniority by the departmental authorities decided to challenge the same by filing a constitutional petition before the Sind High Court at Karachi. A question, therefore, arose before the said High Court whether the jurisdiction of the Service Tribunal was barred from adjudicating the dispute (relating to seniority) and if there was no other remedy available to the civil servant except to approach the High Court by way of a writ petition This question was considered in depth by a Division Bench of the Sind High Court which came to the conclusion that this was not so. The learned Judges were of the view that seniority was one of the terms and conditions of service of a civil servant and even though it was not a "vested right" by virtue of 'section 8 of the Sind Civil Servants Act, 1973, the Service Tribunal had the jurisdiction to adjudicate upon a dispute relating to seniority and its jurisdiction in this respect was not barred. On the other hand, it was held that disputes relating to questions of seniority were exclusively within the jurisdiction of the Service Tribunal and, therefore, the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, 1973 was barred on account of the provisions of Article 212(2) of the Constitution. The judgment of the Sind High Court is reported as A. H. hfirza v. Province of Sind and others (1982 P L C (C. S.) 599).
We think it would be useful to reproduce some of the observations of the Sind High Court while discussing the above question :‑
"It is rightly contended by the learned counsel for respondents that the dispute relating to the seniority of a civil servant is cognizable by the Service Tribunal by way of appeal under section 4 of the Sind Service Tribunals Act, 1973 and, therefore, the jurisdiction of this Court is barred under Article 212 of the Constitution of Pakistan in relation to matters pertaining to terms and conditions of services of civil servants. This question also came up for considera tion before a Full Bench of this Court, of which both of us were members, in the case of Abdul Bari v. Government of Pakistan and another P L D 1981 Kar. 290 and at page 295 of the report in the above case the Full Bench expressed as follows :‑
"The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all such matters which fell within the ambit of the seniority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words in respect of any matter to which the jurisdiction of such Adminis trative Court or Tribunal extends' clearly make the ouster of the High Court to correspond with the matters placed within the ambit of the jurisdiction conferred on the Tribunal. If the intention of the makers of the Constitution was as is canvassed by Mr. Khalid Ishaque, then instead of the words referred to, the provision would have been to the effect that upon establishment of an Administrative Court or Tribunal of exclusive jurisdiction no other Court shall be competent to entertain any proceeding in respect of any matter relating to terms and conditions of service. But the words pointed out clearly provide for the degree of the ouster of jurisdiction of the Courts in direct proportion to the scope of the jurisdiction of the Tribunal."
The Division Bench went on to add :‑
"In view of the above observation of Full Bench in the case of Abdul Bari the ouster of jurisdiction of this Court under Article 199 in relation of service matters of a civil servant corresponds to the extent of jurisdiction which is exercised by the Services Tribunal in that regard. A look at the scheme of Sind Civil Servants Act, 1973, will show that the whole Act is divided in 5 different parts which are headed as Chapters I to V. Chapter I contains section 2 only which defines various expressions. Chapter II begins from section 3 and ends with section 23 and is headed as "Terms and Conditions of Service of Civil Servants". Chapter III is headed as Miscellaneous and consists of sections 24 and 25. Chapter IV contains section 26 which gives rule‑making power to the Govern ment and Chapter V contains the repealing section 27. Section 3 of the Act which is the first section under the heading "Terms and Conditions of Service of Civil Servants" states that the terms and conditions of service of a civil servant shall be those as provided in this Act and the Rules. Section 8 which is in Chapter II deals with the seniority of the civil servants and makes it obligatory on the authority to prepare and maintain a seniority list of the civil servant. We are, therefore, in no doubt that a dispute relating to the seniority is the matter pertaining to the terms and conditions of service of a civil servant.',
The High Court in the course of this judgment, also observed that :‑
"The fact that the above law provided that no vested right could be claimed by a civil servant to a particular seniority by virtue of preparation of seniority list, in our view, does not mean that the jurisdiction of the Tribunal is barred from adjudicating the disputes relating to seniority of such civil servant. We are also unable to subscribe to the view taken by the Tribunal that the omission of the expression "seniority" from rules 23 of the Service Tribunals (Procedure) Rules, 1974 spells out the ouster of jurisdiction of Tribunal to the disputes pertaining to seniority of civil servants. The rules referred by the Sind Service Tribunal are undoubtedly a subordinate legislation and there can be no manner of doubt' that these rules can neither abridge nor enlarge the right of appeal which is conferred on the aggrieved civil servant by virtue of section 4 of Sind Service Tribunals Act, 1973."
The High Court then reproduced the provisions of section 4 of the Sind Service Tribunals Act and went on to observe:---
"The above provision did not provide any bar on the jurisdiction of Tribunal to hear appeal with regard to disputes pertaining to seniority of a civil servant. We are, therefore, clearly of the view that an, appeal under section 4 of the Sind Service Tribunals Act is maintainable before the Service Tribunal constituted under the Act relating to a dispute with regard to seniority of a civil servant."
We are in agreement with the above views of the Sind High Court. to fact, the same view, namely, that questions of seniority can be agitated before the Service Tribunal and it has the jurisdiction to decide these questions in the course of an appeal before it, was given effect to in the case of Inspector‑General of Police, Punjab, Lahore and others (PLD 1985 SC 159) for more or less the same considerations which the Sind High Court has seen fit to advert to in some detail.
The result is that these appeals must succeed. The orders passed by the Sind Service Tribunal in all these cases are set aside hereby and all the three appeals remanded to the Tribunal for determination of the questions of seniority arising therein, in accordance with law. In view of ‑the delay that has already occurred, the Tribunal may give priority to these cases. The parties, in all the cases, are left to bear their own costs.
M. B. A. Appeal allowed.
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