1983 PLP (C (PLC(CS))

Sh. Jamal Din and others v. Government of Sind and others P L D 1976 Kar. 424 ref. (p) Punjab Civil Servants Act (VIII, of 1974)‑ ‑‑S. 6‑‑Promotion‑Appeal‑Case involving right of person to be considered for promotion, as apart from his right to challenge his fitness or otherwise to be promoted, appeal to Tribunal, held, maintainable. Muhammad Afzal etc. v. Province of the Punjab and others 1977 P L C (C.S.T.) 195 ref. K. H. Khurshid for Appellant. S. Riaz Ahmad, A.‑G. (Punjab) for Respondents Nos. 1 and

2. Sh. Muhammad Shafi for Respondent No.

3. Dates of hearing : 21st, 23rd, 28th February and 1st March, 1983. RUSTAM S. SIDHWA, J.‑This is an intra‑Court appeal preferred by Bashir Ahmad, appellant, against the judgment of a learned Single Judge of this Court dated 26‑6‑1982 passed in Writ Petition No. 1585/S‑81 whereby he dismissed the writ petition of the appellant.

2. The brief facts giving rise to this appeal are that on the retire ment of Syed Niamat Ali Shah from the post of Civil Naazar, Gujran wala, on 5‑1‑1980, the said post fell vacant for appointment through promotion. The Senior Civil Judge, Gujranwala, considered the merits of the following Naib Naazars who were working within his district and whose inter se seniority was as follows :‑ (1) Khurshid‑ul‑Haq, respondent No. 3. (2) Muhammad Bashir. (3) Nazir Hussain. (4) Bashir Ahmad, appellant. (5) Ghulam Hussain, and' (6) Abdul Rashid. On 10‑3‑1980 the learned Senior Civil Judge promoted Bashir Ahmad, appellant, who was at No. 4 on the seniority list of Naib Naazars, as Civil Naazar, Gujranwala. Khrshid‑ul‑Haq, respondent No. 3, and Muhammad Bashir, Naib Naazars, feeling aggrieved by the said order, filed depart mental appeals before the District Judge, Gujranwala. The latter withdrew his appeal, whereas respondent No. 3 pursued the same. Before the learned District Judge, respondent No. 3. took the objection that as the parties were civil servants .as defined in section 2 (1) (b) of .the Punjab Civil Servants Act, 1974, they were governed by the provisions of the said Act and as section 21 (2) proviso barred any representation on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade, neither any appeal was maintainable nor the District Judge, Gujranwala, was competent to adjudicate the' same. The learned District Judge, by his order dated 17‑3‑1981, held that though the parties were unmistakably civil servants under the Punjab Civil Servants Act, 1974, yet by virtue of section 23 (2) of the said Act, rules given in Chapter 18‑A of the High Court Rules and Orders, Volume I, stood saved and, therefore, the appeal was competent before him and he had a right of hearing the same. Taking up the case on merits, the learned District Judge held that as the learned Senior Civil Judge, Gujranwala, had not taken into consideration the recommendations of the Promotion Committee appointed by the Punjab Government under rule 4 of the Punjab Civil Servants (Appointment and Conditions of .Service) Rules, 1974, his order was in violation of the mandatory rules. Accordingly, the learned District Judge accepted the appeal, set aside the impugned order and sent back the case to the learned Senior Civil Judge, Gujranwala, with the direction that he should pass the order de nova after taking into consideration the recommendations of the Promo tion Committee. Being aggrieved by the said order, Bashir Ahmad, appellant, filed a Writ Petition (W. P. 1585iS‑81) against the same in this Court averring that no appeal lay to the District Judge, but to the Administrative Tribunal, and that the order of the learned District judge was without jurisdiction. During the arguments a number of contentions points were raised. The learned Single Judge by his judgment dated ‑2.6‑6‑1982 held that as no appeal lay to the Administrative Tribunal against an order or decision of a departmental Authority determining the fitness or otherwise of a person to be promoted to a higher post or grade, the Administrative Tribunal had no jurisdiction to hear an appeal against any order of promotion and, therefore, the High Court was com petent to examine the legality of the impugned order in its constitutional jurisdiction : that the District Judge, Gujranwala had no jurisdiction to hear the appeal as the rule relating to appeals embodied in Chapter 18,A of the High Court Rules and Orders, Volume 1, was not protected by virtue of section 23 (2) of the Punjab Civil Servants Act, 1974, as it was inconsistent with the provisions of section 21 (2) proviso of the said Act ; and that as the Promotion Committee was constituted by the Punjab Government's notification of 10‑3‑1980, and the learned Senior Civil Ju4ge, when promoting the appellant, had not taken into consideration the recommendations of said Committee, his order was without juris diction. The learned Single Judge, therefore, held that he did not feel inclined to exercise his discretion to interfere with the impugned order of the learned District Judge, Gujranwala, and he, therefore, dismissed the writ petition. Being aggrieved by the judgment of the learned Single Judge, Bashir Ahmad, appellant, has filed the present intra‑Court appeal (I.‑C.A. ‑168/82), which is now before us for disposal.

3. On behalf of the appellant it was submitted that though there was no right of representation or appeal of a Departmental nature against the order of the learned Senior Civil Judge, Guiranwala, dated 10‑3‑1980, yet the Administrative Tribunal had the jurisdiction to hear an appeal against the order of the learned Senior Civil Judge dated 10‑3‑1980 and that, therefore, the order of the learned District Judge, Gujranwala, passed. in appeal was without jurisdiction and the learned Single Judge should have set aside the same by virtue of Article 212(2) of the Constitution of the Islamic Republic of Pakistan. In the alternative, it was submitted that assuming, though not admitting, that the Adminisirative Tribunal had no jurisdiction, then this Court had jurisdiction to look into the legality of the judgment of the learned Senior Civil Judge and as on 10‑3‑1980, when the order of the Senior Civil Judge promoting the appellant as Civil Naazar was passed, there was no Promotion Committee in existence, he was competent to pass the order, which he did, and the learned Single Judge should have set aside the order of the District Judge, Gujranwala, which was illegal. In this connection, it was submitted that the Punjab Govern ment's notification of 10‑3‑1980 was actually gazetted on 1‑4‑1980 and had no effect till the latter date. M.U.A. Khan v. Rana M. Sultan and another (P L D 1974 S C 228) and Sh. Jamal Din v. Government of Sind and others (P L D 1976 Kar. 424) were cited to show that the non‑consideration of the Promotion Committee did not bar the appointing authority from making the promotion.

4. On behalf of Khurshid‑ul‑Haq. respondent No. 3 it was submitted that with the promulgation of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, on 28‑8‑1974, all appointments by promotion to the posts in the Process Serving Establishment of the Civil Courts in various grades could only be made on the recommendations of the appropriate Promotion Committee and assuming there was no such Committee, it did not give any power to the learned Senior Civil Judge to act independently under the old Rules appearing in Chapter 18‑A of the High Court Rules and Orders, Volume I, which stood automatically repealed. It was also contended that no right of representation or appeal lay from any order of promotion both under the Punjab Civil Servants Act, 1974, or the Punjab Administrative Tribunals Act, 1974. In these circumstances, it was submitted that the judgment of the learned Single Judge did not call for any interference.

5. On behalf of the Provincial Government, the learned Advocate- General, Punjab, submitted that the promotion of the appellant made by the learned Senior Civil Judge, Gujranwala, on 10‑3‑1980, was not a valid promotion, but could be treated as an ad hoc promotion under rule 13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, and that the said ad hoc promotion terminated on the expiry of six months from the date of promotion on 9‑9‑1980, whereafter the same not having been further extended on ad hoc basis, the appellant stood reverted as Naib Naazar and that the question of regular promotion to the post of Civil Naazar was still open, which could be made under rule 9 of the said Rules.

6. We have heard arguments of the learned counsel for the appellant, the Provincial Government and Mr. Khurshid‑ul‑Haq, respondent No. 3, and have also perused the record. By virtue of the definition of "civil servant" as contained in section 2(l)(b) of the Punjab Civil Servants Act, 1974, it cannot be denied that both the appellant and respondent No. 3 are persons who hold civil posts in connection with the affairs of the Province and, therefore, are civil servants: The Punjab Civil Servants Act has been enacted to regulate by law the appointments to and term and conditions of all services of the Punjab Province and to provide for matters connected therewith or ancillary thereto. Section 3, 4, 8, 22 and 23, which are relevant for the purposes of this appeal, are repro duced below :‑

3. Terms and conditions.‑The terms and conditions of service of a civil servant shall be as provided in this Act and the rules.

4. Appointments.‑Appointments to a civil service of the province or to a civil post in connection with the affairs of the Province, shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf.

8. Promotion.‑(I) A civil servant possessing such minimum qualifica tions as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promo tion in any higher grade of the service or cadre to which he belongs. (2) A post referred to in subsection (1) may either be a selection post or a non‑selection post to which promotion shall be made as may be prescribed ‑‑‑ (a) in the case of a selection post on the basis of selection on merit ; and (b) in the case of a non‑selection post, on the basis of seniority‑cum- fitness.

22. Saving.‑Nothing in this Act or in any rule shall be construed to limit or abridge the power of the .Governor to deal with the case of any civil servant in such manner as may appear to him to be just and equitable Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by, this Act or such rule.

23. Rules.‑(I) The Governor, or any person authorised in this behalf, may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. (2) Any rules, order or instructions in respect of any terms and condi tions of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act‑ shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." According to the mandate as contained in section 3 above, the terms and conditions of service of civil servants have to be provided "in the Act and the rules". To the extent to which the rules lay down such terms and conditions, they cannot be treated as ancillary supports or peripheral props, which can conveniently be overlooked, like regulatory or enabling provisions. Further, according to the mandate as contained in section 4 of the said Act, appointments to the civil services of the Province or to civil posts in connection with the affairs of the Province, have to be "made in the prescribed manner" by the Governor or by persons authorised by him in that behalf. Still further, according to the mandate contained in section 8 of the said Act, civil servants possessing such minimum qualifications "as may be prescribed" are eligible for promotion to the next higher posts and where the posts are selection posts, promotions have to be made "as may be prescribed" on the basis of selection on merit, and where such posts are non‑selection posts, promotions have to be made "as may be prescribed on the basis of seniority‑cum‑fitness. The mandates, as can he spelt out from sections 3, 4 and 8 of the said Act, show that the rules are an integral part of the terms and conditions of the service of civil servants and that all appointments, whether by way of initial recruitment or promotion, must conform to the requirements as set out both in the Act and the Rules.

7. Section 2 (1) (e) of the Act defines "rules" as "rules made or deemed to have been made under this Act". Rules made under the Act are those which, under section 23 (1) of Act, are made by the Governor or his delegate, whereas rules deemed to be made under the Act are those which, under section 23 (2), are rules, orders or instructions dealing with the terms and conditions of civil servants duly made or issued by competent authorities and which are in force immediately before the commencement of the Act, to the extent to which they are not inconsistent with the provisions of the Act. On 28‑8‑1974 the Punjab Civil Servants (Appoint merit and Conditions of Service) Rules, 1974, were gazetted. These are, the rules made by the Governor under section 23 (1) .of the Punjab Civil Servants Act, 1974. The said rules of 1974 basically deal with appoint ments to posts by initial recruitment, appointments to posts by promotion, transfer or deputation and ad hoc appointments. Rule 2 (f) defines a "Committee" as a Departmental Promotion Committee or a Departmental Selection Committee. Rule 3 states that appointments to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time ; that appointments by promotion or transfer shall be made in accordance with Part 11 and by initial recruitment in accordance with Part III of the rules ; and that appointments shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time, Rule 4 inter alia provides for constitution of Departmental Promotion and Selection Committees in all Department and Offices of the Government and states that the Departmental Promotion Committees shall make selections for appoint ment by promotion or transfer to posts in or under a Departmental or Office for which it is constituted in Grade‑18 and below. Rule 5 states that where an appointing authority, other than the Chief Minister, does not accept the recommendation of a Committee or Board, it shall record reasons thereof and obtain orders of next higher authority and act accordingly. Rule .6 designates the various authorities competent to make appointments to the various grades. Rule 7 states that a person appointed to a post in a grade against a substantive vacancy shall remain on proba tion for a period of two years, if appointed by initial recruitment, and for a period of one year, if appointed otherwise ; provided that the appointing authority may extend the period of probation by a further period not exceeding two years in all. Rules 3 to 7 appear in Part I headed "General". Rule 3 talks of appointment to posts by initial recruitment arid promotion. The ward "appointment" is used in a general sense to cover all types of appointments i: e. by initial recruitment and promotion. Rule 7, which deals with appointments to substantive vacancies, states that the period of probation in case of appointments by initial recruitment will be two years and for other appointments, one year. This rule, therefore, also deals with appointments to substantive vacancies through promotion. Rule 6, which deals with authorities competent to make appointments to various grades, also can be pressed into service to deal with, appointments by promotion, as the appointing authority fox the next higher post is itself the competent authority for promotion to that post. Part II deals with appointments by promotion, transfer or deputation. Rule 9, which fails in Part II, states that appointments by promotions or transfer to posts in various grades shall be made on the recommendations of the appropriate Committee or Board and that such promotions, including pro forma promotions, shall not be claimed as of right by any Civil Servant. A close inspection of all these rules show that the Rules of 1974 do not cover the whole range of terms and conditions of services of the Province of the Punjab. The object of the 1974 Rules appears primarily to bring about a codification or uniformity in the procedure relating to appointments to posts by initial recruitment, promotion, transfer or deputation and ad hoc appointments and matters connected therewith, such as probation confirmation, seniority, tests for promotion, etc. Since the 1974 Rules purport to codify the procedure relating to the matters stated above and the mandate contained in sections 4 and 8 of the Punjab Civil Servant Act, 1974 directs that appointments by initial recruitment and promotion should be made in the prescribed manner full compliance of the rule becomes a mandatory duty on the part of the appointing or promoting authority to comply.

8. The main question that arises in the present appeal is whether the appointment made by the learned Senior Civil Judge on 10‑3‑1980 can be sustained. It is admitted on all sides that on this date the notification of 10th March, 1980, whereby, Selection and Promotion Committees were established to deal with initial appointments and promotions to posts in Grades 1 to 15 belonging to the Process Serving Establishment, had not been gazetted. Under section 2 (41) of the Punjab General Clauses Act, a notification does not become effective till it is gazetted. If any authority is required for this view, Abul A'la Maudoodi v. Government of West Pakistan (P L D 1964 (W. P.) Kar. 478) and Muhammad Suleman etc. v. Abdul Ghahi (P L D 1978 S C 190)' may be cited. The notification of 10th March, 1980, was gazetted on 1st April, 1980. As such, it was effective from 1st April, 1980, and not from 10th March, 1980. It is the contention of the learned counsel for .the appellant that as the learned Senior Civil Judge, Gujranwala, was the appointing/promoting authority, he could promote the appellant as Civil Naazar on 10‑3‑1980 and that the non7constitution of the Promotion Committee by that date did not invalidate his action. In this connection, learned counsel for the appellant has relied on M. U. A. Khan v. Rana M. Sultan and another and Sh. Jamal Din and others v. Government of Simi and 5 others. Learned counsel for the appellant has also submitted that failure to constitute the Promotion Committee did not render section 8 of the Punjab Civil Servants Act, 1974, nugatory and unworkable and that a vacuum could not be allowed to continue in the civil service so as to obstruct proper promotions being made, when they became due. The learned counsel also submitted that section 23 (1) of the Punjab Civil Servants Act only permitted the Governor to make rules as were "necessary or expedient for carrying out the purposes of the Act" and that as the constitution of the Promotion and Selection Committees was not necessary or expedient for carrying out the purposes of the Act, their reference 'in the rules was ultra wires of the Act and since the old rules appearing in Chapter 18‑A of the High Court Rules and Orders, Volume 1, held the field, under which the learned Senior Civil Judge could make the promotions, the same made by him on 10th March, 1980, was legal and valid. It was lastly contended that though the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, came into force in 1974, Departmental Selection and Promotion Committees to deal with initial recruitment and promotion of the lower grade process serving staff was not made till April, 1980, during which time a large number of selections and promotions were made and if this Court were to hold that the appellant was not validly promoted, it would open up a Pandora's Box and dislodge a large number of employees selected and/or promoted during this period. We have given our anxious consideration to these submissions. Section 8 of the Punjab Civil Servants Act, which deals with promotions, or refers to two mandates. First, that a civil servant to be eligible for promotion to a higher grade of the service of cadre to which he belongs, must possess such minimum qualifications "as h may be prescribed". Second, that promotion `shall be made as may be prescribed", on the basis of merit, if the post is a selection post and on the basis of seniority‑cum‑fitness, if the post is a non‑selection post. The minimum qualifications for eligibility for promotion to the post of Civil Naazar is contained in the old rules appearing in Chapter 18‑A of the High Court Rules and Orders, Volume I, Since the minimum qualifications for eligibility are not provided in the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, those provided by the old rules appearing in Volume I of the High Court Rules and Orders will prevail, as in any case they are not inconsistent with the Punjab Civil Servants Act, 1974. As regards the procedure relating to the mode and manner how promotions should be made, the same are contained in Part II of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Any provision dealing with the said procedure in the old rules appearing in Chapter 18‑A of the High Court Rules and Orders, Volume I, would automatically stand impliedly repealed. Rule 9 of the 1974 Rules clearly states that appointments by promotion "shall be made on the recom mendations of the appropriate Committee or Board.". The word "shall" shows that the recommendations of the Promotion Committee are mandatory the mandate, therefore, as contained in section 8 of the Punjab Civil Servants Act, 1974, read with rule 9 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, is, therefore, clear that the appointing Authority shall not promote any person to a post without considering the recommendations of the appropriate Departmental Promotion Committee of Board. In these circumstances, it cannot be said that the rules can be flouted on ground of expediency. M. U. A. Khan's case is distinguishable. In that case, under section 4 (1) of the Mines Act, 1923, the Provincial Government could appoint a duly qualified person as Chief Inspector of Mines. Under section 29 of the said Act, the Provincial Government could make regulations consistent with the Act for a number of purposes, including that provided by clause (a), namely, for providing the qualifica tions to be required by a person for appointment as Chief Inspector or Inspector of Mines. Section 4 of the Mines Act, 1923, did not include any stipulation showing that the appointment of Chief Inspector of Mines was to be subject to or could not be made until the regulations were framed. Accordingly, the Supreme Court held that the failure of the Provincial Government to frame the necessary regulations did not have the effect of preventing the Provincial Government from appointing a Chief Inspector of Mines. The observations of Mr. Justice S. Anwarul Haq in the said connection, which are relevant, may be reproduced here with advantage :‑‑

"Now in the present case, if the Legislature had intended that the appointment of the Chief Inspector of Mines could not be made at all until such time as rules or regulations had been framed in terms of section 29 (a), of the Act, then section 4 (1) of the Act would have been so worded as to include a stipulation to the effect that the appropriate Government may by notification in the official Gazette, appoint a person qualified in accordance with the regulation made under section 29 (a) of the Act, to be Chief Inspector of Mines ...... The relevant section, however, does not contain any such prescrip tion, but contemplates only that the appropriate Government may appoint a `duly qualified person' to be Chief Inspector of Mines. It is, therefore, clear that effect could be given to the command of the Legislature even without the framing of the regulation under section 29 (a) of the Act. As a result, the failure of the Provincial Government to frame the necessary regulation under section 29 (a) of the Act did not have the effect of preventing the appointment of the Chief Inspector of Mines who holds a public office and is called upon to perform duties of a public nature concerning the working of mines in the Province." In the instant case, section 8 of the Punjab Civil Servants Act, 1974, clearly states that promotion shall be made "as may be prescribed", which obviously means prescribed by the rules. In these circumstances, the failure of the appointing Authority to promote the appellant; without considering the recommendations of the Departmental Promotion Committee, would have the effect of rendering the said section nugatory. In Sh. Jamal Dins case, section 15 of the West Pakistan Finance Act, 1963, and similar sections in subsequent West Pakistan Finance Acts of 1964 and 1965, provided for imposition of a tax on hotels described as primary education surcharge. The surcharge was levied on and could be collected from all persons who used the amenities and entertainment provided by residential hotels. Section 20 of the Finance Act empowered the Provincial Government to frame rules about the procedure and the terms of collection of the surcharge imposed by that Act. The rules about the tax imposed on hotels were framed on 24th December, 1963 and the notification declaring the hotels of the petitioners to be residential hotels was so issued on the said date. It was contended on behalf of the hotel owners that the tax imposed by the Finance Act could not be levied before the framing of the Rules and issuance of the notification. Adverting to the case of M. U. A. Khan, the Division Bench of the Karachi High Court held that as the tax could be levied by the Provincial Government at the rate mentioned in the relevant. section and the statute specified both the person or persons liable to pay tax and the manner in which the persons paying the same could reimburse the same themselves, the mandate of the Legislature was clear in the section and could be enforced without the rules. In the instant case, as already held by us, the mandate of the Legislature cannot be enforced without proper compliance of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. In these circumstances, both the cases cited by the learned counsel for the appellant are distinguishable and do not advance his cause. As regards the second submission made on behalf of the appellant, namely, that the requirement of the Promotion and the Selection Committee as envisaged by the 1974 Rules, was neither "necessary nor expedient for carrying out the purposes of this Act, the said submission must be rejected outright. The 1974 Rules bring about uniformity in respect of matters relating to appointment to posts by initial recruitment, promotion, transfer and deputation and ad hoc appointments. To provide proper safeguards, the Governor of the Punjab considered it necessary and expedient to provide for the constitution of Promotion and Selection Committees Which could make recommendations to the appointing/promoting Authori ties when they made their initial recruitments and promotions. It cannot, therefore, be said that reference to such Promotion and Selection Committees in the 1974 Rules is ultra vires of the Punjab Civil Servants Act, 1974. In these circumstances, we hold that the, action of the learned Senior Civil Judge in promoting the appellant as Civil Naazar on 10‑3‑1980, without securing and considering the recommendations of the Departmental Promotion Committee, was illegal and without jurisdiction.

9. On behalf of the appellant it was also contended that the Punjab Administrative Tribunal in the instant case had the jurisdiction to hear an appeal against the order of the learned Senior Civil Judge dated 10‑3‑1980, and that since the order of the learned District Judge, Gujranwala, passed in appeal, was without jurisdiction, the learned Single Judge, who heard the constitutional petition should have set aside, the same. We are not impressed with this argument. We are again entering trodden ground. It is now almost established that no appeal lies to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be promoted to a higher post or grade. If any authority is required for this view, Abdul Mannan Khan v. Director Social Welfare, Punjab, Lahore (1975 P L C (C.S.T.) 129), Iqan Ahmad Khuram v. Government of Pakistan (P L D 1980 S C 153) and Mian Amanul Mulk v. N.‑W.F.P. Through Chief Secretary (P L D 1981 Pesh. 1) may be referred. However, in cases involving the right of a person to be considered for promotion, as apart from his right to challenge his fitness or otherwise to be promoted, in appeal to the Tribunal is maintainable. See Muhammad Afzal etc. v. Province of the Punjab and others (1977 P L C (C.S.T.) 195). The present case falls in the latter category, for which there is no right of appeal to the Tribunal.

10. The upshot of the above discussion is that the order of .the learned Senior Civil Judge dated 10‑3‑1980 promoting the appellant was illegal and without lawful authority. In these circumstances, the learned Single Judge rightly felt disinclined to exercise his discretion to interfere with the impugned order of the learned District Judge. Our inclinations are no less different. We, see no illegality in his judgment. We, therefore, dismiss this appeal. Parties shall bear their own costs. Appeal dismissed.