1985 PLP (C (PLC(CS))

AJMAL MIAN, J. ‑ The present petition has been filed by the two petitioners. Petitioner No. 1 Mateen‑ul‑Hassan Khan was appointed in the Revenue Department on 20th November, 1947 in the Treasury Office Nawabshah as "B" Grade Clerk, whereas petitioner No. 2 Khurshid Ahmed was appointed on 14th October, 1953 at Khairpur Mirs (the then State) as "D" Grade Clerk, respectively. It is the case of the petitioners that they were subsequently absorbed in West Pakistan Treasury and Accounts Service. After that they passed the Subordinate Treasury and Accounts Services (Accounts Clerk) departmental examination in the years 1968 and 1967, respectively held by the Commissioner of Khairpur Division. The petitioner No.1 from the date of his appointment till 7th January, 1973 worked in the Treasury Office Nawabshah wherefrom he was transferred to the Karachi Treasury Office on the above date. He joined his duties at Karachi on 8th January, 1973 and since then has been working as Accounts Clerk in the Treasury Office, Karachi without getting any seniority and promotion benefits. Whereas petitioner No. 2 was transferred from Khairpur to Nawabshah in November, 1973 and thereafter on 5th August, 1974 he was transferred to Karachi Treasury Office and since then he has been working as such. It seems that the petitioners' names were not included in the seniority list and, therefore, they approached the Government of Sind, Finance Department. It seems that petitioner No. 1 approached the Ministry of Finance, Govern ment of Sind, in response to which the Officer‑on‑Special Duty issued direc tive to the Deputy Commissioner. South, Karachi, dated 15th December, 1976 which reads as follows :‑ "GOVERNMENT OF SIND FINANCE DEPARTMENT No. F D (T R) (21)/74, Karachi, dated 15th December, 1976. To The Deputy Commissioner (South), Karachi. Subject : ‑Promotion of Assistant Accountants and Accountants. Reference : Application of Mr. Matinul Hassan Khan Accounts Clerk, Karachi Treasury on the subject noted above. Mr. Matinul Hassan Khan Accounts Clerk belonged to the Divisional cadre of Khairpur (now Sukkur Division) within the purview of rules 4 and 5 of West Pakistan, Subordinate Treasury and Accounts Service, 1962. His transfer from Khairpur to Karachi Division, therefore, amounts to change of cadre and consequently he will be placed below all the qualified Accounts Clerks in Karachi Treasury from the date he joined at Karachi. His seniority may be fixed accordingly under intimation to him. (Sd.) (KHAN MUHAMMAD SEEHAR) Officer on Special Duty (Treasuries) Government of Sind."

2. After that both the petitioners approached the Commissioner of Karachi with the same request. In response to which the Commissioner of Karachi issued directive, dated 17th December, 1977 which reads as follows:,‑ "OFFICE OF THE COMMISSIONER, KARACHI. No. CK/GNS‑2 (XIII)‑22/75 Karachi, the 28th December, 1977. Below orders of the Commissioner, Karachi passed on the representa tation of Mr. Matinul Hassan Khan, Accounts Clerk, Karachi Treasury regarding fixation of his seniority in Grade‑8 N.P.S. Order of the Commissioner, Karachi "Applicant heard. I have seen the directive of the Government on page 61 of the file. Mr. Matinul Hassan Khan should be placed below all qualified members of Grade‑8 who were qualified and are working in Karachi Treasury, but above those who were unqualified. Same will apply to the case of Mr. Khurshid Ahmed." (Sd.) (PARVEZ AHMAD BUTT), Commissioner, Karachi. 7th December, 1977 No. CK/GNS‑2 (XIII)‑22/75, Karachi the 24th December, 1977 Copy forwarded for information and necessary action :‑ (1) The Deputy Commissioner (South), Karachi. (2) The Treasury Officer, Karachi. (3) The Officer on Special Duty (Treasuries), Finance Department, Government of Sind, Karachi, with reference to his letter No. F D (T R) 1 (21)/74, dated 28th March, 1977. (4) Mr. Matinul Hassan Khan, Accounts Clerk, Karachi Treasury. (S. ALI HASNAIN), Assistant Commissioner (General) for Commissioner, Karachi." It is the case of the petitioners that since the above directives were not com plied with, they have filed the present petition. (b) In support of the above petition Mr. Naqshbandi learned counsel for the petitioners has urged that since the above orders have not been com plied with though under law they were to be complied with, the petitioners have the right to come to the Court for a writ or direction in the nature of mandamus.

3. On the other hand Mr. Sattar Shaikh learned Additional Advocate- General appearing for the respondents has contended that this Court cannot deal with the question of the seniority of the petitioners by virtue of the bar provided under Article 212 of the Constitution of 1973. Reliance has been placed on the case of Khalil-ur‑Rehman and others v. Government of Pakistan and others (P L D 1981 Kar. 750), in which a Full Bench of this Court while dealing with the question of retirement inter alia held that the jurisdic tion of the High Court is ousted in regard to all such matters which fall within the authority of Tribunal to adjudicate even though the Tribunal is conferred with jurisdiction limited to some of matters relating to terms and conditions of service. It was further held that once it is shown that an appeal is competent before the Service Tribunal, the matter will lie outside the plea of the jurisdiction of the High Court.

4. We have considered the import of the above Full Bench Judg ment and we are in respectful agreement with the proposition of law propounded therein. But the question in issue is, whether the petitioner can file an appeal before the Service Tribunal for the enforcement of the above‑quoted orders which were admittedly passed by the competent authorities. In our view, a Service Tribunal has no jurisdiction to issue a writ or direction in the nature of a mandamus for enforcement of an order passed by a competent authority in favour of a civil servant. An appeal of a civil servant is competent before the Service Tribunal if he is aggrie ved by any final order whether original or appellate made by depart mental authority in respect of any terms and conditions of his services. In the instant case the orders which are sought to be enforced are not adverse orders nor the petitioners are aggrieved by the above orders. The grievance of the petitioners is that in spite of the legal obligation on the part of the subordinate to the authorities which had issued the above two orders the same‑remained uncomplied with in spite of the expiry of several years. In our view in such a case the appropriate remedy is in the form of a writ petition. We, therefore, allow the above petition and direct respondent No. 2 to ensure the compliance of the above two orders. There will be no order as to costs. A. A. Petit ion allowed.