2004 PLP (C (PLC(CS))

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment of the Service Tribunal dated 25‑7‑1998 and order dated 15‑5‑2000.

2. The brief facts of the case are that Muhammad Imtiaz Khan, respondent herein, who was serving in Health department as Operation Theater Technician in grade B‑9, after exhausting departmental remedy, filed an appeal before the Service Tribunal challenging the notification dated 15‑5‑1994 on the ground that no quota for promotion as Chief Operation Theatre Technicians in B‑16 was fixed for diploma holder from Pakistan Institute of Medical‑Sciences (PIMS). He alleged that the relevant rules of 1984 were amended in the year 1994 wherein such quota for promotion in case of Radiographer Technicians has been fixed but Operation Theater Technicians have been discriminated against. His appeal was dismissed by the Service Tribunal in the first instance but on appeal to this Court, the case was remanded to the Service Tribunal to decided the same afresh according to the observations made by this Court. The Service Tribunal, after rehearing Muhammad Imtiaz, respondent, accepted his appeal vide its judgment dated 25‑7‑1998 observing that the amended rules were discriminatory because no provision was made for diploma holder Operation Theatre Technicians who were qualified from PIMS, Islamabad, for promotion as Chief Operation Theater Technicians in grade B‑16 as was done in case of other technicians of like c4tegories. Consequently, a direction was issued to the concerned authorities by the Service Tribunal to amend the relevant rules and allocate 25 % quota to the Operation Theatre Technicians for promotion as Chief Operation Theatre Technicians. On the basis of aforesaid judgment of the Service Tribunal, respondent has filed an application to Service Tribunal for the implementation of its judgment dated 25‑7‑1998. He also filed an application for interim injunction against pro forma respondents to maintain status quo during the pendency of the said application. The appellants, herein, challenged both the judgment of the Service Tribunal dated 25‑7‑1998 and the interim relief dated 15‑5‑2000 alleging that the appellants were unaware of the judgment of the Service Tribunal dated 25‑7‑1998 because they were not impleaded as a party and that the aforesaid judgment of the Service Tribunal issuing the direction for amendment of the rules and promote the respondent as Chief Operation Theatre. Technician was not sustainable on legal grounds.

3. Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellants, has contended that the appellants were not arrayed as party in the appeal in which the judgment was passed by the Service Tribunal on 25‑7‑1998. He has contended that the appellants when came to know about the impugned judgment of the Service Tribunal, they obtained the relevant copies and filed appeal in this Court without delay. He has submitted that the appeal against the judgment of the Service Tribunal dated 25‑7‑1998, reckoned from the date of knowledge of the appellants is within time. He has relied urn a case reported as Raja Abdul Majid v. Syed Abdul Latif Shah 2000 PLC (C.S.) 161, in which the appeal filed by the aggrieved civil servants who were not impleaded as party before the Service Tribunal, their appeal was held within time from the date of their knowledge. He has submitted that in the present case an affidavit has also been filed alongwith the appeal regarding the absence of the knowledge of the appellants which has not been controverted by filing a counter affidavit. The learned counsel has further submitted that the copy of an application purported to have been filed by the appellants before the Chief Secretary has been placed on record to prove the earlier knowledge of the appellants but the‑ same is not attested copy of the original and cannot be read into evidence in support of the contention of the respondents that the appellants had the knowledge of appeal much earlier than they have mentioned in the memorandum of appeal.

4. In reply, Syed Nazir Hussain Shah, Advocate, the learned counsel for the respondents, has argued that as the certified copy of the original application could not be issued because it was in noting part of the file. However, the learned counsel could not give any plausible explanation as to why the respondents did not file any counter affidavit with regard to the knowledge of the appellants or the non‑issuance of the said copy. Thus, we have no alternative but to hold that as the appellants were not party before the Service Tribunal, the present appeal was filed within time reckoned from the date of their knowledge.

5. Next it has been argued by the learned counsel for the appellants that the respondents could not challenge the vires of departmental rules directly; the said rules can only be challenged if the same were interpreted to the disadvantage of respondent No.1. He has relied upon an unreported case of this Court entitled Khawaja Ghulam Muhammad v. Azad Government 2001 PLC (C.S.) 321 in support of his contention. He has further submitted that. the Service Tribunal could not issue direction to the Government to amend the departmental rules in view of the dictum of this Court reported as Muhammad Khaliq v. Zaheer Ahmad 2000 PLC (C.S.) 706 wherein it has held that in view of section 5 of the Service Tribunals Act, the Service Tribunal has only the power to set aside, very or modify an order appealed against and not to issue a direction to amend the rules.

6. In reply, Syed Nazir Hussain Shah Kazmi, Advocate the learned counsel for the respondents, has argued that the points agitated by the learned counsel for the appellants were not raised at the time of hearing of appeal before of the Service Tribunal and, as such, the same cannot be agitated before this Court. He has relied upon the cases reported as Mrs. Farooq Bibi v. Abdul Khaliq 1999 CLC 1358 and Dr. Muhammad Sarwar Ahmed v. The University of AJ&K 1998 SCR 350, wherein it has been held that if a point is not raised in a Tribunal or Court below, the same cannot be raised for the first time before this Court.

7. We have given due consideration to the arguments raised at the Bar. It may be observed that this Court, after discussing the case‑law on the point reflected above in Ghulam Muhammad's case, referred to above, has held as under:‑‑ "It is evident from the case‑law cited by the learned counsel for the parties that vires of departmental rules can be gone into by the Service Tribunal only if the rules have been interpreted to the disadvantage of a civil servant adversely affecting the terms and conditions of his service. Except the unreported case of this Court titled Muhammad Imtiaz Khan v. Azad Government of the State of Jammu and Kashmir (Civil Appeal No. 18 of 1995) decided on 17‑5‑1995, in all other cases relied upon by the learned counsel for the appellant, the rules were challenged before the Service Tribunal after the same were interpreted to the disadvantage of a civil servant. So far as Imtiaz's case is concerned, the question as to whether the departmental rules can be independently challenged before the Service Tribunal or not was not subject‑matter of controversy between the parties, the point was not raised and no finding was given on any such point by this Court. However, the case was remanded to the Service Tribunal with the direction that it should also consider the point relating to the vires of the departmental rules and decide the matter afresh according to law ..if the same were not interpreted to the disadvantage of a civil servant. It is clear from the provisions contained in rule 4 of Appeal Rules, 1991 and section 4 of the Service Tribunals Act that the appeal etc. are competent to the concerned authority only if a order has been passed regarding the terms and conditions of service of a civil servant. There is no provision in the rules or Service Tribunals Act to the effect that the departmental rules can be challenged even if the same were not interpreted to the disadvantage of a civil servant." In the instant case, the respondents directly challenged the relevant departmental rules as being discriminatory and sought 25% quota for Chief Operation Theatre Technicians as was done in case of Radiographer 'Technicians. When the appeal was filed by the respondent to the Service Tribunal, the relevant rules had not been interpreted to his disadvantage. Thus, the appeal to the Service Tribunal challenging the departmental rules was not competent. It is correct that the Service Tribunal passed the impugned judgment after the case was remanded by this Court. However, the aforesaid point was neither agitated before this Court nor before the Service Tribunal after the remand. Thus, we are of the considered view that the Service Tribunal could go into the vires of the departmental rules, i.e., on the basis that the same were discriminatory', because special quota was not reserved for Chief Operation Theatre Technicians.

8. The contention of the learned counsel for the appellants that the Service Tribunal could not issue direction under section 5 of the Service Tribunals Act for amending the rules must also prevail because the jurisdiction which has been conferred under section 5 of the Service Tribunals Act does not postulate any direction to the Government for, amending the departmental rules. For convenience, section 5 of the Service Tribunals Act is reproduced as under:‑‑ "

5. Power of Tribunal.‑‑(1) A Tribunal, may, on appeal, confirm, set aside, very or modify the order appealed against." It is evident from what has been stated above that the directions given by the Service Tribunal to amend the relevant rules could not be given as has been held by this Court in Khaliq's case, referred to above. In the light of what has been stated above, we accepted the appeal and set aside the judgment of the Service Tribunal dated 25‑7‑1998. Consequently, the stay order dated 15‑5‑2000 issued by the Service Tribunal to maintain the status quo is also not sustainable and is hereby set aside. The contention of the learned counsel that as the points discussed above were not raised before the Service Tribunal, the same cannot be raised before this Court is not sustainable because the appellants were not impleaded as party before the Service Tribunal. In the light of what has been stated above, the appeal stands accepted as indicated above with no order as to the costs. H.B.T./14/SC(AJ&K) Appeal accepted.