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Constitutional Petition No. E‑483 of 1985, decided on 18th February, 1986.

‑‑‑S. 4‑‑Provisional Constitution Order (1 of 1981), Art. 9‑‑Constitu tional petition‑‑Grievance of petitioners relating to terms and conditions of their services and redress for same could be sought under Sind Service Tribunals Act‑‑Constitutional petition, held, was misconceived and dismissed in circumstances.

Aish Muhammad and 68 others v. Pakistan and 75 others 1985 SCMR 774 and Mian Amanul Mulk v. N.‑W.F.P. through Chief Secretary P L D 1981 S C 1 rel.

M. Ismail Kassim for Petitioners.

Muhammad Ibrahim Memon, Addl. A.‑G. for Respondents Nos.l and 2.

Hussain Adil Khatri for Respondent No. 3.

‑ The petitioner Mumtaz Ali Mehar, Siraj Ahmad, Muhammad Issa, Imtiaz Hussain Shah and Ghulam Raza Channa are Senior Clerks in the Registration Department, Government of Sind, posted at different places. They have filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan read with the Provisional Constitution Order, 1981, for declaration that they are entitled to be considered for promotion to the posts of Sub‑Registrars, Grade‑II (Grade‑7) in accordance with their seniority. They have also sought declaration that the appointments by direct recruitment, of the respondents Nos. 3 to 6 (Muzafar Hussain, Faqeer Muhammad, Zaffar Ali and Muhammad Ishaque) by the respondent No.2, i.e. the Inspector General of Registration, to the post of Sub‑Registrars Grade‑II, affecting their promotion, are illegal, ultra vires and without jurisdiction and contrary to the rules and directions and are liable to be set aside. They have also sought further relief in the forms of mandatory injunction to prohibit the respondents from acting upon, executing, implementing and giving effect to the appointment letters issued in favour of the said respondents Nos. 3 to 6 by the respondent No.2.

The case of the petitioners is that they are eligible for appointment, by promotion as Sub‑Registrars, Grade‑II, as was done in the case of other 12 senior clerks, who held seniority above them, and the appointment to the posts of the Sub‑Registrars, Grade‑II, of the respondents Nos. 3 to 6 by way of direct recruitment is against the Appointment and Promotion Rules for the department, and they have been adversely affected in the terms and conditions of their service. They have challenged the authority of respondent No.2, namely, the Inspector‑General of Registration, in making appointment by direct recruitment, of the respondents Nos. 3 to 6.

The learned counsel for the petitioners has urged that the petitioners have been direct the benefit of promotion to the post to Sub‑Registrars, Grade‑II, they were entitled to under the relevant service rules and the appointments of the respondents Nos. 3 to 6 to the posts available for promotion of the respondents are against the provisions of the Sind Civil Servants Act and the rules made thereunder. He has made reference to rule 4 of the West Pakistan Registration Department (Southern Zone) (Subordinate Posts) Recruitment Rules, 1962, sections 3, 9 and 26 of the Sind Civil Servants Act and rule 4 of the Sind Civil Servants (Appointment, Promotion and Transfer) Rules, 1974.

Pre‑admission notice was issued to the Advocate‑General and the respondents Nos. 3 to 6. The learned Additional Advocate‑General, Mr. Muhammad Ibrahim Memon, has contended that the petitioner's remedy lies with the Sind Service Tribunal and the petition is not maintainable. He has placed reliance on a case Aish Muhammad and 68 others v. Pakistan and 75 others 1985 S C M R 774. Mr. Hussain Adil Khatri, Advocate, appearing on behalf of the respondent No.3, also has urged that the petition is not maintainable as the grievance of the petitioners relates to the terms and conditions of their service and the matter falls within the exclusive jurisdiction of the Sind Service Tribunal.

The petitioners' grievance, precisely, is that they have been denied promotion to the post of Sub‑Registrars, Grade‑II. It appears from the rules relied upon by them that they are governed by the West Pakistan Registration Department Ministerial Establishment Recruitment Rules, 1963, whereunder the "Establishment" comprises: Superintendents, Assistants, Senior Clerks, Junior Clerks and Stenographers. Under these rules, appointments to the posts of Junior Clerks and Stenographers have to be made by initial recruitment while the other posts are to be filled in by promotion. There is a separate set of recruitment rules in respect of Sub‑Registrars in Grades I and II, with the nomenclature of "the West Pakistan Registration Department (Southern Zone) (Subordinate Posts) Recruitment Rules, 1962". Under these rules, appointments to the posts of Sub‑Registrars Grade‑II, are to be made by initial recruitment or by transfer of a person already employed in the zone in any department of Government; and the appointment to the posts of Sub‑Registrars in Grade‑I are to be made by promotion. It is evident that the rules do not envisage appointment to the posts of Sub‑Registrars. Grade‑II, by promotion, and the petitioners do not have a case for invoking constitutional jurisdiction of this Court.

As regards the appointment of the respondents Nos. 3 to 6, it appears from the comments submitted by the Inspector‑General of Registration, Sind, that they have been made in accordance with the A provisions of the Sind Civil Servants Act, 1973 and the rules made thereunder. Besides, the matter relates to the terms and conditions of the service of the petitioners and they could seek redress, if any, from the Sind Service Tribunal established under Article 212 of the Constitution. There is enlightening authority of the Supreme Court on this proposition of law in the case of Aish Muhammad and 68 others v. Pakistan and 75 others. Even the case Mian Amanul Mulk v. N.‑W.F.P. (through Chief Secretary) P L D 1981 S C 1 cited by the learned counsel for the petitioners, reflects the same view. The petition seems misconceived and is dismissed in limine.

M.Y.H./M‑4/Lb/S

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