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Civil Appeal No. 28‑K and Civil Petition No. 125‑K of 1985, decided on 23rd April, 1985.

(On appeal from the order of the High Court of Sind, Karachi, dated 28‑11‑1984, in C.P.D. 892 of 1983).

Art. 212(3)‑‑Sind Service Tribunals Act (XV of 1973), S.4‑ Constitutional jurisdiction of High Court‑ ‑Leave to appeal granted to consider whether in view of provisions of Art. 212, High Court was competent to set aside order of Service Tribunal for fresh hearing of appeal which was dismissed by Tribunal.

‑‑‑S. 4‑‑Sind Civil Servants Act (XIV of 1973), Ss. 9 & 23 Appeal before Service Tribunal seeking promotion and benefits of pay, etc.---Dismissal of appeal as not competent‑‑Order impugned in Constitutional jurisdiction of High Court‑‑Case remanded for fresh decision on question of seniority‑‑Appeal to Supreme Court, held: Order of Service Tribunal was liable to be challenged by way of a petition under Art. 212 of Constitution before Supreme Court and no petition would be competent in Constitutional jurisdiction of High Court‑‑High Court lacking initial jurisdiction could not properly exercise powers of remand in a case which was outside its jurisdiction.‑‑[Jurisdiction].

‑‑Ss. 9 & 23, Proviso‑‑Sind Service Tribunals Act (XV of 1973). S.4, Proviso (b)‑‑Civil Service‑‑Promotion‑‑Right to‑‑Civil Servant has no vested right to promotion and prospects of promotion cannot be included in conditions of service‑‑Criteria for making promotion to higher grade implies a decision by competent authority according to individual judgment of such authority‑‑Seniority alone is not determining factor for judging suitability or fitness of civil servant for discharging functions attaching to a post in higher grade‑‑An outside forum in very nature of things cannot sit in appeal and review judgment of competent authority regarding fitness for promotion of a civil servant‑‑Appeal before Service Tribunal praying order for promotion, held, not competent.

‑‑‑S. 5‑‑Delay ‑Condonation of‑‑Plea of wrong advice given by counsel resulting in delay‑‑Court being not satisfied that advice tendered to petitioner was bona fide and genuinely mistaken, declined to condone ‑delay‑‑Petition dismissed as time‑barred.

Abdul Sattar Shaikh, Additional Advocate‑General for Petitioner

Respondent in person.

Date of hearing: 23rd April, 1985.

This judgment will govern Civil Appeal No. K‑28 of 1985 and Civil Petition for Leave to Appeal No. 125 of 1985, as common facts and common questions of law are involved in these two cases.

2. Syed Riyazul Hassan Zaidi, respondent was appointed by the Government of West Pakistan as Instructor, at the Government Commercial Training Institute, Multan, grade now equivalent to NPS 17 on ad hoc basis, vide appointment letter, dated 27‑6‑1963. He claims to have been regularized in service in the year 1970, on the recommendation of the Director of Technical Education, Sind, Karachi. On 13‑3‑1972, however, the respondent was compulsorily retired under Martial Law Regulation 114. Thereupon he made a representation under M.L.O. 23, as a result of which, he was re‑instated in service with immediate effect on 7‑5‑1978. On 31‑12‑1979, 12 officers in Grade‑17 were promoted to Grade‑18, on the recommendation of the Departmental Promotion Committee after obtaining the approval of the competent authority. As the petitioner claimed to be senior to the said officers he made representation for his promotion to Grade‑18, on the basis of seniority claimed by him with effect from the date of regularization of his service but his request did not meet with a favourable response, although according to him his representation was not finally disposed of. He, therefore, preferred an appeal under section 4 of the Sind Service Tribunals Act, before Sind Services Tribunal, at Karachi, on 18‑8‑1983.

3. On 13‑9‑1983, when the appeal was called on for hearing, neither the respondent nor his counsel was present. Consequently the Service Tribunal dismissed his appeal for default of appearance as well as on merits for the reasons mentioned in the following observations:‑

"Even otherwise the prayer is for promoting the appellant from Grade‑17 to 18 with benefits of pay etc. which is not within the jurisdiction of the Tribunal. Appeal is, therefore, dismissed."

The respondent subsequently applied for restoration of the appeal but the Service Tribunal dismissed this application on the ground that no sufficient cause was shown by the respondent for remaining absent on the date of hearing, as well as on the ground that the appeal had been dismissed on merits, vide, order, dated 30‑10‑1983.

4. As the respondent was dissatisfied with the dismissal of his appeal, he filed a Constitutional petition in the Sind High Court seeking to challenge the two orders passed by the Service Tribunal and prayed that the same may be set aside and his promotion be ordered from Grade‑17 to Grade‑18 with effect from 31‑12‑1979 when the general promotions were granted by the Government with benefits of pay etc. including arrears of pay. Learned Judges of the Division Bench, who heard the Constitutional petition observed in their judgment as follows:‑‑

"Mr. Muhammad Ibrahim Memon, learned Additional Advocate General appearing for the respondent has pointed out that there are two questions which are involved, namely, the question of seniority and the question of promotion. He further submits that the question of seniority is within the jurisdiction of the Services Tribunal and though in the memo of appeal in the prayer no relief as to the seniority was claimed but the above point was directly linked with the question of promotion. The impugned order of the Tribunal touches only the question of promotion and not the question of seniority. He, therefore, submits that he will have no objection if the case is remanded back to the learned Services Tribunal with the direction to decide the question of seniority."

On the basis of the aforesaid concession on the part of the learned Additional Advocate‑General, the learned Judges remanded the case to the Tribunal for fresh decision on the following issues:‑

"(1) Whether the petitioner's service stood regularised by virtue of Notification, dated 28‑2‑1970 and

(2) Whether the petitioner is entitled to seniority on the assumption that his services were regularised by the above Notification, dated 28‑2‑1970 "

It was directed that it will be open to the respondent to claim his promotion after the decision of the aforesaid issues by the Tribunal in appropriate proceedings.

5. Leave was granted to the Government of Sind from the aforesaid judgment of the High Court, dated 28‑11‑1984, to consider the question whether in view of the provisions of Article 212 of the Constitution, the High Court was competent to set aside the order of the Service Tribunal for fresh hearing of the appeal which had been dismissed by the Tribunal.

6. It has been urged by the learned Additional Advocate‑General, appearing for the appellants, that the Constitutional jurisdiction of the High Court was not attracted as this case fell within the ambit of Article 212 of the Constitution. He submitted that promotion is not the vested right of a civil servant as provided by section 9 of the Civil Servants Act, 1973, and since the prayer of the respondent in the Constitutional petition was precisely for promotion to Grade‑18, the petition was misconceived. It was pointed out that seniority is not the sole criterion for promotion as fitness is also an additional consideration for promotion which lies within the power of the competent authority to determine. On the other hand, the respondent has appeared in person and argued that his case involved the question of determination of seniority which matter lay within the ambit of the jurisdiction of the Service Tribunal.

7. That a civil servant has no vested right to promotion and prospects of promotion cannot be included in conditions of service, was a settled proposition of law even before the enforcement of the Civil Servants Act, 1973. However, the provisions of section 9 of the said Act clearly postulate that promotion to a selection post can be made on the basis of selection on merit and to a non‑selection post, on the basis of seniority‑cum‑fitness. On the plain reading of the section the criteria for making promotion to the higher grade implies a decision by the competent authority according to the individual judgment of such authority. The underlying principle seems to be that seniority alone is not the determining factor for judging the suitability or fitness of civil servant for discharging the functions attaching to a post in the higher grade. An outside forum in the very nature of thing cannot sit in appeal and review the judgment of the competent authority regarding the fitness for promotion of a civil servant. This seems to be the philosophy underlying the embargo contained in clause (b) of the proviso to section 4 of the Sind Service Tribunals Act, 1973, which provides that no appeal shall lie to the Tribunal against such order of a departmental authority for purposes of promotion to higher post or grade. It is not disputed before us that no appeal lies against an order of a departmental authority refusing to promote a civil servant.

8. There can be no controversy that the grievance of the respondent was that he was entitled to be promoted from Grade‑17 to Grade‑18, which is clear from prayer clause of his appeal before the Service Tribunal, which reads as under:‑

"It is prayed that your honour may be pleased to allow the appeal and order promotion of the appellant from Grade‑17 to 18 with effect from 31‑12‑1979 when the General Promotions were granted and to pay the arrears of pay and other benefits accordingly."

In the light of these admitted facts, we are unable to disagree with the order of the Service Tribunal that the appeal before it was not competent as the prayer was for promotion.

9. This being the position, we are at a loss to understand how the High Court could permit the respondent to change the very nature of his case from one of promotion to a case for determination of seniority. We are also of the view that the learned Additional Advocate‑General, who represented the Government before the High Court was not to the circumstances of this case, justified in making a concession, despite the fact that in the prayer clause of the memo. of appeal filed by the respondent before the Service Tribunal no relief as to, seniority was claimed, that the case be remanded to the Service Tribunal for determination of the question of seniority. Quite apart from this, there were other legal hurdles in altering the nature of the case in this manner and directing the Service Tribunal to adjudicate upon the question of seniority in this case. The proceedings before the Service Tribunal essentially are of civil nature and the rules of procedure framed by the Service Tribunal quite clearly indicate that the parties are to state their respective cases in the form of pleas in their pleadings, upon which issues are raised for determination by the Tribunal. The Sind Service Tribunal Procedure Rules, 1974, thus plainly confined the parties to their pleadings and on the well‑recognized principles, no party can be allowed to set up entirely new case in any subsequent proceedings altering the nature of his case as contained in the memo. of appeal before the Service Tribunal. The other reason that militates against the course adopted by the High Court is that the question of seniority in this case was not determinable in isolation but was relatable to the rights to seniority enjoyed by other officers against whom the petitioner was claiming seniority. In the absence of the affected civil servants, who would be necessary parties to the appeal, the decision on the question of seniority would be inconclusive and in any case the appeal would not be competently framed before the Service Tribunal. Lastly the two issues referred to the Service Tribunal for determination, even if decided in favour of the respondent would furnish no ground for the Service Tribunal to grant the prayer in the appeal, for the obvious reason that the Tribunal is not competent to order promotion of a civil servant. This further shows that the remand of the case would be an exercise in futility having no bearing on the claim preferred by the respondent before the Tribunal in the prayer clause. It was open to the respondent to have claimed the right to seniority at the appropriate time in appropriate proceedings, and there is no doubt that such a question could have gone to the Service Tribunal, but in the present case the claim of the respondent, being for promotion the appeal was plainly not competent.

10. There is yet another aspect of this case which may also be mentioned. As discussed above respondent's appeal with a prayer for promotion was not competent before the Service Tribunal. However, even if it is construed to be a case of seniority then the order of the Service Tribunal was liable to be challenged by way of a petition under Article 212 of the Constitution before this Court and no petition would be competent in the Constitutional jurisdiction of the High Court. Therefore, the High Court lacking initial jurisdiction could not properly exercise the powers of remand in a case which was outside the jurisdiction.

11. In the result the order of the High Court is set aside and Appeal No. 28‑K of 1985 is allowed with no order as to costs.

12. Civil Petition for leave to Appeal No. 125‑K of 1985 has been filed by Syed Riyazul Hassan Zaidi against the orders of the Sind Service Tribunal, Karachi, dated 13‑9‑1983 and 30‑10‑1983, whereby his appeal was dismissed and the application for restoration of the said appeal was also dismissed. This petition is barred by 438 days. The petitioner has sought condonation of delay on the ground that as a result of wrong advice given by his counsel he filed a Constitutional petition in the High Court. We are not satisfied with this explanation as clearly the High Court had no jurisdiction in matters relating to the terms and conditions of the civil servants. As explained in the foregoing judgment of the appeal arising out of the order of the High Court, the proper course for the petitioner was to file the present petition within time. However, he filed this petition only after the petition of the Government from the order of the High Court was admitted to regular hearing and that also with a delay of 10 days. We are not satisfied that advice tendered to the petitioner to file a Constitutional petition was bona fide and genuinely mistaken. This petition is, therefore, dismissed as barred by time.

M. I. Appeal allowed.

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