P L D 1993 Karachi 415 (PLP)

Applicant Ghulam Sarwar has filed this Revision Application against the judgment and the decree passed by the District Judge, Sukkur in Civil Appeal No. Nil of 1989 maintaining judgment and the decree passed by the Senior Civil Judge, Sukkur, in 'Suit No. 10 of 1989 (rejecting the plaint on 13-6-1989). ' Suit No.10 of 1989 was riled by the applicant in Court of Ist Senior -Civil Judge, Sukkur with following prayers:-- "(a) that the order bearing No.SOLR/SMC/8/61, dated 12-12-1988 subsequently amended, appointed/appointment instead of promoted/promotion appearing in the Office order No,MSGA/ Estt./20, dated i8-10-1988 in favour of defendant Sacedullah in a capacity of Fire -Officer in BS-16 is improper, illegal, mala ride, without/in excess bf jurisdiction as such void ab initio. The final order bearing - No.MSGA/Estt/2552 dated .17-12-1988 is also illegal, improper and without jurisdiction. It.may be declared that the order bearing No. MSGA(Estt.)/2466 dated 5-12-1988 reverting -the said defendant Saeedullah is proper and legal and is prayed to be maiii(ained as it was. (b) that the plaintiff is eligible, entitled having his vested legal right to be promoted as Fire Officer, in BPS-16 and as such may be ordered to be promoted and posted as Fire Officer after reverting the said defendant Sacedullah from the post of Fire Officer to any other post; (c) to grant permanent injunction restraining the defendants from calling and considering the appointment of defendant Saeedullah in the post of Fire Officer in Grade 16 as shown in above paras.; (d) to grant mandatory injunction reverting the said Saeedullah *defendant from the post of Fire Officer BS-16 and to order by said mandatory injunction promoting and placing the plaintiff in BPS- 16 in the post of Fire Officer." Admittedly under an order dated 31-5-1976 passed by the then People's Munipality Sukkur, the applicant with rive others-was appointed as Fireman in the scale of Rs.110--3--152/4--160 with effect from 1-7-1976. Under a subsequent order dated 15-8-1979 passed by the then Municipal Committee, Sukkur, the applicant was promoted to Grade 5 (290--10--350/12--470) against the post of Clerk, Tax Branch. Later on he was transferred to Municipal Fire Brigade with effect from 441979- During his posting in Municipal Fire Birgade the applicant received the following trainings: Name of course Period Name of Institute (i) Course of Fireman, No.54. (ii) Station Fire. Officers Course No.13. (iii) Fire Breathing Apparatus Course No. 4 (iv) Civil Defence, Specialist Instructors' (Casualty Service), Course No.C-30. (v) Course of Leading Fireman No.LF-2. (vi) Fire Prevention officers (Short) Course for Educational Institutions, (Course No.9). (vii) Course of Instructions in Civil Defence Basic General Training Course. From 7-1-1978 to 7 March 1978. From 23-6-1985 to 19-9-1985. From 30-3-1986 to 10-4-1986 From 11-4-1987 to 30-4-1987 From 2-11-1986 to 27-11-1986. From 6-6-1987 to 18-6-1987 From 21-6-1987 to 29-6-1987 Civil Defence Training school, Karachi National Institute of Fire Technology Islamabad. --Do-- Civil Defence Training school, Karachi -- Do National Institute of Fire Technology, Islamabad. Civil Defence Department Sukkur. After obtaining such technical qualifications, the applicant under . his application dated 8-9-1987 moved the respondent No.1 for promotion to the post of Fire Officer (Grade 16), in place of Munawar Khan, Fire officer due to retire on 4-11-1987. Applicant's request was recommended by the office including the respondent No.2. Respondent No.1 publicly invited applications for the post of Fire Officer (Grade 16) vide publication in daily 'Nawa-i-Waqt' dated 16-11-1987, The Selection and Interview Committee of the respondent No.1 recommended respondent No.3 Saecdullah working as PA. to the respondent No.2 for his appointment as Fire Officer. Accepting such recommendation, the respondent No.2 under an order dated 18-10-1988 .promoted* respondent No.3 from BPS-10 to BPS-16 and poUcd him as Fire Officer. Under his-audit objections dated 30-1.0-1988, the Resident Assistant Director, Local Fund Audit, Sukkur raised objections to the promotion of respondent No.3 on the grounds (i) that he did not belong to cadre of Fire Fighting Service and yet he was "promoted" and not "appointed" to the post of Fire Officer, (ii) that the respondent No.3 did not ppssess any prescribed qualification either educational or otherwise, (iii) that the last date for receiving the applications was 22-11-1987 but the respondent No.3 had applied for the said post on 23-11-1987, (iv) that the interview date initially fixed as 26-11-1987, was being postponed without inviting applications afresh and it was held on 1-10-1988, (v) that the respondent No.3 with his application submitted on 2541-1987 had attached an unattested photo copy of a certificate front the National Institute of Fire Technology, Islamabad bearing 2-12-1987 as its date and showing that the respondent had attended a course at said Institute of Islamabad from 31-10-1987 to 3-12-1987, when the -respondent No.3 performed his duty at Sukkur from 31-10-1987 to 3-11-1987 and from 1-12-1987 to 3-12-1987 and remained on leave from 4-11-1987 to 30-11-1987 for attending to priv ate affairs. Under a letter dated 3-12-1988, the Government of Sindh Local Government Department and Housing etc., rejected request of the respondent No.2 to relax qualification and experience of the respondent No.3 for post of Fire Officer. The Government of Sindh suggested re advertisement of the post of Fire Officer. In these circumstances, the respondent No.2 under an Office Order dated 5-12-1988 withdrew his earlier order dated 18-10-1988 by which respondent NQ.3 was promoted as Fire Officer, with the result that the respondent No.3 was posted to his original post as PA. to the respondent No.2. The matter did not end with this, because under letter No.SO 1 B/SMC/8/16/88 dated 12-12-1988 Government of Sindh in Department of Local Government Department relaxed the qualification and experience of the respondent No.3, for being appointed as Fire Officer (B-16) in response to such request by the Mayor of respondent No.1, and desired -amendment in the Office Order dated 18-10-1988 whereby the respondent No.2 was required to mention in the said order (cancelled by him on 5 12-1988) that ~ the respondent No.3 was "appointed" and not "promoted" as Fire Officer. Such amendment was readily made by the respondent under his Office Order dated 17-12-1988. It was in these circumstances that the applicant Filed Suit No.10 of 1989 with prayers mentioned above. In their written statements the respondents Nos.1 and 2 admitted aras. 1 to 12 of Ahe plaint, but challenged maintainability of the suit and jurisdiction of the Civil Court. The suit was also challenged to be barred by law, nature and hit by the Specific Relief Act. On merits it was stated that the respondent No.3 was selected for the post of Fire Officer, by the Selection Committee and such recommendation was accepted by the Major and that such action of the Mayor was valid and cannot be questioned by way of suit.' Respondent No.3, did not file the written statement but moved an application for rejection of the plaint on the grounds that the suit was barred by Article 212 of the Constitution of Pakistan by Sindh Civil Servants Act, by Service Tribunals Act and by sections 42 and 56 of the Specific Relief Act. Under an order dated 13-6-1989 the trial Court held that it had no jurisdiction in the matter, that it was for the Service Tribunal to decide the case and that the suit was barred under Article 212 of Constitution of Pakistan and under Sindh Service Tribunals Act. After holding so, the trial Court rejected the plaint. Learned Appellate Court under the impugned order, maintained order of the trial Court, and dismissed the appeal in limine. Hence this Revision application. Ghulam Mustafa Korai, holding. brief for Mr. Gulbahar Korai, Advocate for the applicant argued that the applicant'was employee of an autonomous body and was not covered by the definition of "Civil Servant" given in Civil Servants Act, and Service Tribunals Act. It was further argued that the applicant was member of Local Council Service, which was created by Sindh Local Government Ordinance. In support reliance was placed on the case of Mst. Mani v. Karachi Cantonment Board (PLD 1969 Karachi 304). Mr. Manzar Alam learned counsel for the respondent No3 supported the impugned order. He was of the view that the post of Fire Officer is a selection post for which there was an advertisement and that the, applicant had no vested right to be promoted to said ' post. It was also argued that the services of the applicant as well as of the respondent No.3 are governed by, W.P. Local Council and Municipal Committee Service Rules, 1963. It was further argued that the respondent No.3 was selected by the Selection Board as Fire Officer and such recommendation was accepted by the Mayor, Municipal Corporation Sukkur, and the. ' appointment has been approved by the Additional Chief Secretary, Government of Sindh and that the applicant had no locus standi to challenge such appointment. Learned counsel for the respondent No.3 conceded that the applicant was not a "Civil Servant" or "Workman" but argued that, there was relationship of master and servant between the applicant and the respondents Nos.1 and

2. It was also argued that promotion cannot be ordered by a Civil Court and that concurrent findings of the Courts below, can not be interfered with in revision. In support learned counsel for the respondent No.3 cited the cases of.

(i) Muhammad Ramun Qureshi v. Federal Government and others (PLD 1986 FSC 200). (ii) Zilla Council, Sargodha v. Punjab Labour Appellate Tribunal (1989 PLC 478 (2)). (iii) Government Of N.-W.F.P. Health and Social Welfare Department v. . Dr. Shaikh Muzaffar Iqbal and others (1990 SCMR 1524). (iv) Najab Khan v. Col- Said Shah and another (1975 SCMR 291). (v) Shah Gul and others v. Mst, Shamim Akhtar and others,(1990 SCMR 110). Mr. Abdul Sattar Chohan, learned counsel for the respondents Nos.1 and 2 challenged maintainability of the suit and argued that a Civil Court had no jurisdiction to order promotion and that the suit filed by the applicant was barred by section 56 of the Specific Relief Act: It was also argued that in a Revision Application, concurrent findings by the Courts below cannot be interfered with. Reliance was placed on the case of Shahzada M. Umar Baig (PLD 1970 SC 139). Clause (1) of Article 212 of the Constitution of Pakistan relates to creation of Administrative Courts or Tribunals to exercise exclusive jurisdiction inter alia in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. Clause (2) of Article 212 excludes jurisdiction of other Courts to deal with a matter to which jurisdiction of an Administrative Court or Tribunal extends on establishment of such Administrative Court or Tribunal under Clause (1) of Article

212. Provisions of Clause (2) of Article 212 shall apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly if at the request of that Assembly. made in the form of a resolution the I Parliament by law extends the said provisions to such a Court or Tribunal. In pursuance of Article 212 of the Constitution of Pakistan the Provincial legislature of Sindh enacted Sindh Service tribunals Act, 1973 to provide for the establishment of Administrative Tribunals to be called Service Tribunals for exercising exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants and for matters connected therewith or ancillary thereto. Section 3 of said Act empowered the Government of Sindh to establish one or more Tribunals to exercise jurisdiction' under the said Act. Jurisdiction of such Tribunal or Tribunals is defined by section 4 of the said Act. A Tribunal set up under the said Act is exclusively competent to entertain and decide an appeal filed by an aggrieved 'civil servant' in respect of any of the terms and conditions of his service. As per clause (a) of section 2 of said Act, "Civil Servant" means a person who is or has been a member of the Civil Service of the province or holds or has held a civil post in connection with the affairs of the province and for the purpose of any proceeding under said Act includes a person who is or has been dismissed, discharged, removed or retired from such service or post As a consequence of the order of the departmental authority. Applicant Ghulam Sarwar at no stage of his service career has held a post in connection with affairs of the Province of Sindh. He has never remained as member of civil service of Sindh Proiince. He was initially appointed as Fireman by the People Municipality, Sukkur. He was promoted to Grade-5 by Municipal Committee, Sukkur. As Fire Service Clerk applicant was time employee of the Municipal Corporation, Sukkur. Hence by no stretch immagination the applicant can be treated as a "Civil Servant" within the meaning of clause (a) of section 2 of said Act. Once it is established that the applicant is not a "Civil Servant" he goes out of the pale of Sindh Service Tribunals Act as well as Article 212(2) of the Constitution of Pakistan. At the same time it cannot be said that the applicant had no right to make jurisdiction of the Civil Court by challenging an order affecting him. As employee of the respondent No.1, the applicant was governed by the Sindh councils Unified Grades Service Rules I and 2, framed by the Government of 1h by virtue of section 103 of the Sindh Local Government Ordinance, 1979. The cases cited on behalf of respondent No.3 do not apply to this case., in case of Muhammad Ramzan Qureshi (PLD 1986 FSC 200) a distinction drawn between the employees of Government and other employees including employees of statutory corporations and on this point plethora of case-law was discussed and it was held that the civil servant has been provided constitutional safeguard in respect of the conditions of his service, but the law has been unexceptionable in respect of employees of Local Government, the statutory corporations or companies and that relationship between such Local Government, Corporations or Companies and their employees is contractual hat of master and servant, the only exception being where statutory guards either by law or by statutory rules framed by the Government have been provided. In the present case, the applicant is governed by the statutory mentioned above and hence his relationship with the respondent No.1 is not that of master and servant. In the case of Zilla Council, Sargodha v. Punjab Labour Appellate Tribunal (1989 PLC 478(2)) the Constitutional jurisdiction not exercised by Lahore High Court because claim of the employees of i Council for regularization of services with effect from 1-7-1973 was accepted by the Labour Court and by the Labour Appellate Tribunal. In the of Government of N.-W.F.P. Health and. Social Welfare Department ( SCMR 1524) it was held that Civil Servant could not have any vested ~ in respect of the terms and conditions of a post, which was higher to the which he was holding. It was also held that no one can claim a vested right promotion or in the terms and conditions for promotion to a higher post and the Government has the right to enhance the qualifications and the standards for recruitment and promotion, in order to maintain efficiency in service. In the case of Shah Gul and others (1990 SCMR 110) it was held that High Court under revisional jurisdiction is not to interfere with a finding of fact, of Court below, unless it is based on misreading of evidence or has been arrived at, by overlooking some material evidence. In the case it was further that when the material circumstances arc overlooked by the trial Court as well as by the appellate Court, the interference by the High Court in revisional jurisdiction is justified. In the case of Najab Khan (1975 SCMR 291) the concurrent findings given by the Courts below were based on a correct appraisal and interpretation of oral as well as documentary evidence and the entire evidence was considered in its proper context and it was found to be fully sustaining the concurrent findings given by the three Courts below on the questions involved which were primarily of facts and hence interference was declined. All these cases are distinguishable and they do not apply to the present case, where the applicant is neither a "Civil Servant" nor a "Worker" or "Workman". In the case of Shahzada Muhammad Umar Baig v. Sultan Mahmood Khan and another (PLD 1970 SC 139) cited by learned counsel for the respon.dents Nos.1 and 2, it was held that it was a serious matter for the Court's consideration whether it would be right to issue an injunction to a public department which would obviously disturb its working and it would not issue such injunction unless compelling reasons demand that course. In the cited case~ suit was riled by a Government servant, while in the present case suit was filed by an employee of a municipality who was not a Government servant or a civil servant and who was not seeking injunction against a public department to the extent of disturbing its working. Cited case is therefore, distinguishable. In the case of Evacuee Trust Property Board and another v. Muhammad Nawaz (1983 -SCMR 1275) it was held that where the powers of the master to deal with the service matters of his employee were regulated by statutory rules, such an' employee was entitled to claim declaratory decree ,regarding validity of his removal or dismissal from service. It was also held that where statutory rules govern the service conditions of an employee then the pleasure of the master stands surrendered to the extent the matter is covered by the relevant rules. The trial Court rejecte d the plaint on the ground that the suit was barred by Article 212 of the Constitution of Pakistan and by Sindh Civil Servants Act and by Sindh Service Tribunals Act. The trial Court assumed the applicant to be "Civil Servant". The appellate Court without properly applying its mind to the case chose the convenient way of following the footsteps of the trial Court by jumping to the conclusion that the Civil Court had no jurisdiction because this was a service matter regarding illegal promotion. Both the Courts have fallen into error by taking the view that the suit filed by the applicant was not triable in a Civil Court. Such view militates against the view taken by the Supreme Court of Pakistan in the case of Muhammad Nawaz (1983 SCMR 1275). Consequently the judgments and the decrees of the two Courts below are set aside and applicant's suit is remanded to Ist Senior Civil Judge, Sukkur for disposal according to Law. The trial Court to proceed with the suit from the stage at which the plaint was rejected and call upon the defendants other than the defendant No.1 to rile written statements within a reasonable time to be fixed by the Court. The trial Court to frame the issues covering the factual points as well as the legal objections raised by the defendant No.3 or to be raised by the other defendants. The Civil Revision is disposed, of accordingly with no orders as to costs. AA./G-338/K