1981 PLP (C (PLC(CS))

B. G. N. KAZI, J.‑The petitioner who is a Sub‑Divisional Officer (in Grade 16) in the Communications and Works Department of the Government of Sind, by this petition seeks to challenge the provisional seniority list of Officers of his grade, circulated under No. S. O. E. II(C & W) V‑2/78 dated 10th June, 1978, for information and for pointing out any discrepancy in the list within a month of issue thereof; on the ground that the Government of Sind (respondent No. 1) has not fixed his seniority in the light of observations of this Court given in decision of Writ Petition No. 27/57 reported in P L D 1957 Kar.

685. He has prayed for a declaration that the list as complied is illegal and void and that respondent No. 1, be restrained from giving effect to it by ordering promotions and transfers on its basis. He has further prayed for suspension of Notification No. S. O. E. II (C & W) 11‑15/70 dated 13‑3‑1980 under which respondent No. 2, Assistant Engineer (in Grade 17) was promoted to the rank of Executive Engineer (in Grade 18).

2. The facts giving rise to the filing of instant petition are as under: ‑

3. The petitioner was appointed as Overseer, in Sind P. W. D. on 19‑8‑1948 and was promoted as S. D. O. with effect from 15‑10‑1953. On 1‑6‑1956 he was reverted and he challenged the order of his revision by filing Writ Petition No. 27/57 which was allowed on 6th May, 1957. It was held in the decision reported in P L D 1957 Kar. 685 that reduction in rank whether of a temporary, officiating or permanent employee by way of punishment, without necessary inquiry was not only an infringement of rules 33, 49 and 55 of the Sind Civil Services (Conduct, Discipline and Appeal) Rules, but also of Article 181(2) of the Pakistan Constitution. It was further held that the petitioner was promoted perma nently to the office of S. D. O. from 2nd January, 1954. His reversion was set aside and it was directed that he be treated as holding the post of S. D. O. in Sind P. W. D. from.2nd January, 1954.

4. It is the grievance of the petitioner that in spite of the aforesaid order of this Court the Department did not give him the benefit of seniority as permanent S. D. O. with effect from 2‑1‑1954. He, therefore, made representations dated 20‑9‑1968 and 25‑6‑1977 to which no reply was made. Respondent No. 2 who was appointed as Overseer on 29‑2‑1953 and was confirmed as such on 1‑11‑1954 was shown as senior to him. . The petitioner had filed application under Article 284 of the Constitution read with section 3 of the Contempt of the Court Act, 1976 on 3‑10‑1979 which was pending and which has incidentally been dismissed on 14‑1‑1981 as the respondent No. 1 had all along considered the petitioner as S. D. O. and confirmation of the petitioner in the grade of Overseer bad no relevance, appointment even against a permanent post not being synonymous with confirmation in the post. It is clear from the averments in the instant petition that the petitioner seeks relief in respect of fixation of seniority which is undoubtedly included in the terms and conditions of service and incidentally wants to challenge the order of promotion of respondent No.

1. The question, therefore, raises whether under Article 199 of the Constitution this Court has jurisdiction in view of the provisions of Articles 212 and 240 of the Constitution. The Sind Civil Servants Act, 1973 which regulates by law the appointment of persons and the terms and conditions of service and the Sind Service Tribunals Act, 1973 under which the Sind Services Tribunal was established, were passed by the Provincial Assembly and hold the field at present. Section 4 of the Sind Service Tribunals Act, 1973 reads as under: ‑

4. Appeals to Tribunals.‑Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority, in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to hire or within twelve months of the establishment of a Tribunal whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter Provided that‑ (a) where an appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; and (b) no appeal shall lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade, and (c) subject to the provisions of section 6, no appeal shall lie to a Tribunal against an order or decision of a departmental Authority made at any time before the 1st July, 1969. Explanation.‑In this section "departmental authority" means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."

5. It is apparent from perusal of the provisions of section 4 reproduced above that for preferring appeal to the Services Tribunal pre‑conditions mentioned in provisos (a), (b) and (c) must be satisfied and it is necessary for a civil servant to exhaust the remedies by way of appeal, revision or representation provided under the rules before filing such appeal before the Tribunal.

6. There can be no doubt with regard to the bar imposed by Article 212 of the Constitution on the jurisdiction limited to such matters within which Sind Service Tribunals Act, 1973 and the Civil Servants Act, 1973 occupy the field. It is however; contended by Mr. Ansar Hussain the learned Advocate for the petitioner that this is a peculiar type of case in which at this stage even the final list of seniority of persons in grade of the petitioner is not made available and therefore, there being no alternate remedy the petitioner had filed instant petition invoking the jurisdiction of this Court. It is apparent from perusal of the main petition that the petitioner seeks declaration that the provisions list of seniority which was circulated to all the officers concerned under Government of Sind Communication & Works Department No. S. O. E. II (C & W) V‑2/78 dated 10th June, 1978, is illegal and void. As is apparent from a reading of section 4 of the Sind Service Tribunals Act, 1973, even appeal to the Tribunal does not lie before the petitioner exhausts his remedies given under the Rules to approach the various authorities. The Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, which were made under section 26 of the Sind Civil Servants Act, 1973, under rule 9 thereof make it the duty of the appointing authority in the month of January every year to cause to be prepared, or, as the case may be, revise, the seniority list of a group of civil servants doing similar duty and performing similar functions and for whose appointment the same qualifications and experience has been laid down. The provisional list was circulated to enable the Officers concerned to make objections. The petitioner would appear to have made the two represen tations already referred to before the compilation of the provisional seniority list but there is nothing on record to show that any effort was made to obtain the final list of seniority which under the rules it is the duty of the appointing authority to cause to be prepared or to revise every year. There is no affidavit, or averment in the petition that an application for obtaining copy of the final list or in the event of the same not having been prepared, a requisition for preparing the same as required by the law was ever made. It is true that in the circumstances stated, under section 4 of the Sind Service Tribunals Act, 1973, even appeal to the Tribunal does not lie but on this account it cannot be allowed to be argued that the matter does not fall within the purview of the Services Tribunal. This Court under Article 199 of the Constitution should not interfere at this preliminary stage specially when as already stated no effort appears to have been made to obtain copy of the final list of seniority. Proviso (a) to section 4 which makes it a prerequisite for filing appeal before the Tribunal that all the remedies under the departmental rules should have been exhausted should apply with greater force to the filing of constitutional petition inasmuch as under Article 199, it is a condition precedent to exercise of writ jurisdiction that there is non availability of alternate remedy. Further in view of the fact that copy of the final order of seniority has not been placed before us nor was there any effort to have it summoned, we consider the filing of the instant petition as premature and the petitioner does not appear to be an aggrieved person. There is nothing on record to indicate any effort on his part for obtaining copy of the final list from the appointing authority on the ground that he wanted to file appeal before the . Tribunal or a petition before this Court.

7. With regard to his prayer for ancillary relief of issuing order directing the authorities concerned to suspend the order of promotion of respon dent No. 2, the same cannot be considered independently of the fixation of seniority which is one of the terms and conditions of service, falling within the jurisdiction of Administrative Tribunal.

8. It has been contended on behalf of the petitioner that since the jurisdiction of the Tribunal to entertain or decide question of promotion is barred under section 4 of the Sind Service Tribunals Act, 1973 the petitioner's only remedy lies in filing the instant petition. The question with regard to exercise of such jurisdiction had come up for decision before this Court in Muttaqi Hussain Rizvi v. The Province of Sind and another (P L D 1978 Kar. 703). That case however was not covered by any exception to section 4 aforesaid, as the civil servant had been ordered to be reverted after he was given show‑cause notice and inquiry was held against him. It was held, that the matter was within the jurisdiction of the Services Tribunal and the jurisdiction of all Courts including the Superior Courts was barred and the petitioner's suit in respect of his reversion or claim for promotion was not maintainable. Incidentally, the question whether the claim for promotion could be agitated was also considered. It was observed as under: ‑ "So far as the question of promotion to higher post or grade is concerned it is also excluded from the purview of the Tribunal and consequently there is no bar under the constitution to entertainment of suits by the civil Courts in regard to such a matter. The question, however, may be considered whether and if so in what circumstances, claim to promotion is a vested right and can be enforced through a civil suit or by invoking the writ jurisdiction of the superior Courts." It was observed that the word "eligible" in the sense in which it is used in section 9 of the Civil Servants Act, 1973 means only "legally qualified" to be promoted but does not mean entitled to or having a vested right to promotion. The learned Single Judge further observed as under:‑ "I am accordingly of the humble view that despite the enactment of Civil Servants Act, specifically providing how promotion is to be made to the higher posts or grades a claim to promotion is not a vested right and cannot be enforced through a civil suit or by invoking the constitutional jurisdiction of superior Courts. It may be pointed out that mere seniority even if in the case of a non selection post will not entitle a person to promotion, as even in the such cases the basis of promotion is seniority‑cum‑fitness, and fitness can appropriately be determined only by competent adminis trative authority. However, the right to be considered for promotion, is a vested right and if the eligible person is not considered for promotion, or a person not otherwise qualified under the rules is promoted illegally or against the rules, in such cases the aggrieved person can enforce his right to be considered for promotion or object to the person not qualified for promotion being promoted, through a civil suit or by invoking the constitutional jurisdiction of superior Courts, since this matter is not within the purview of the Services Tribunal." Since the right to be considered from promotion also depends on the fixation, of seniority which is a matter within the competence of the Administrative Tribunal to decide, the mere fact that ancillary relief involving question o, promotion has been prayed for, does not make any difference with regard to the question of jurisdiction.

9. Reverting to the facts of the case, it was for the petitioner to show that he had applied for getting copy of the seniority list and further that be had exhausted all his remedies under the departmental rules in respect of the right of appeal etc. There is also nothing on record to show that the petitioner in the first instance had approached the Sind Services Tribunal or that any order to the effect that the Tribunal had no jurisdiction had been passed. Mr. Ansar Hussain, the learned Advocate for the petitioner tried to explain that although there is no order of the Tribunal denying jurisdiction, the Tribunal had given such decision which is mentioned in the order of this Court in Revision Application No. 213/75 which is on the record of this petition. The order of the Services Tribunal produced in the aforesaid copy of the order reads as under: ‑ "Heard Mr. Dilawar Hussain, for the applicant. The decree of the civil Court was passed in favour of appellant in the year 1969 for seniority and pro forma promotion. The Advocate says that the seniority of the appellant is already fixed by the Department but the question of his promotion is not yet finalized. This Tribunal has no jurisdiction to hear appeal regarding promotion. The appeal is accordingly dismissed for want of jurisdiction."

10. The reference in the order of the Services Tribunal is obviously to proviso (b) to section 4 of the Sind Service Tribunals Act, 1973, and we do not see how the aforesaid order prevented the petitioner from getting the final order of seniority from the appointing authority and exhausting his right of departmental appeal in case the authority had refused to grant copy of the order fixing seniority. It is not easily understood how the petitioner could have been advised to avoid the prescribed legal procedure, by pass the Service Tribunal and to invoke the discretionary jurisdiction of this Court under Article 199 which can only be invoked it there is no alternate remedy available under the Law. It would amount to putting a premium on a blatant disregard of legal procedure to hold that if a civil servant disregards the prerequisites for filing appeal in matters within the purview of a Service Tribunal, he can invoke the discretionary jurisdiction of this Court on the ground that he cannot seek remedy before the Tribunal.

11. For the reasons given above, we are of the opinion that the remedy sought is misconceived and it is not a fit case for interference. The petition is accordingly dismissed but in the circumstances of the case there, will be no order as to costs. Petition dismissed.