1988 PLP (C (PLC(CS))

DR. A. Q. QAZI (MEMBER).‑‑This order shall govern and dispose of Appeals Nos. 17, 18, 19, 20 and 21 of 1986. All the appellants were High School Teachers of the Nationalised High Schools and have challenged following two orders. The seniority list of the Head Masters Grade‑17, Government (Nationalised) High Schools of Hyderabad Region Hyderabad Sind, issued vide Government of Sind Notification No. S.O. (E.IV) Misc. 41/78; dated 7th February, 1985 and an Order No.S.I.(E‑IV) Misc. 79 dated 29th September, 1985 in which (the subsequent order) some of the teachers of the Nationalised Schools of Grade‑17 of the Directorate of School Education Hyderabad Region have been awarded Selection Grades.

2. Before we enter the discussion on facts and law, it would be appropriate to give a case history to all these appeals. Appellants were teachers of Private High Schools of Hyderabad Region (in loose context) when policy of Nationalisation was announced and all the private schools were taken over under MLR‑118 promulgated in 1972 for that purpose. It is the claim of the appellants that their position in the seniority list has been wrongly mentioned and that they are placed junior to some other Head Masters and it is further their claim that based on this seniority list (which in their earlier claim is not correct) a selection grade has been awarded to as many as 10 Head Masters of the Nationalised High Schools of Directorate of Schools Hyderabad Region which is a consequential act and as such the selection orders being based on the earlier alleged defective and incorrect seniority list are illegal and hence void in eyes of law. It is further averred on behalf of the appellants in the memo of appeal that MLR‑118 provided protection to the teachers of the Nationalised Schools inasmuch as their seniority as Head Masters was to be protected for all purposes and that any law subsequently framed would not affect status anti date. It is also said in the memo of appeal that according to Rule 10 of the Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975, the seniority of civil servants was to be counted from the date of the regular appointment and that private respondents against whom they claim seniority were regularised much later than the appellants who claim to have been regularly appointed in accordance with the provisions of MLR‑118 of 1972. It is further the stance of the appellants that the award of the selection grade to the private respondents is wrong and erroneous since the very seniority list on which it was based is impugned and it is full of errors and omission. The appellants have prayed at the Tribunal (i) to question the impugned seniority list. (11) to quash the order awarding selection grade (S‑18) issued subsequent to the issuance of seniority list.

3. In the written statement on behalf of the official respondents it is denied that MLR‑118 of 1st October, 1972 conferred upon the appellant any vested right regarding seniority and that MLR‑118 provided protection to their pay only. It is stated on behalf of the official respondents that subsequent to the promulgation of MLR‑118 of 1972 all the Head Masters/Head Mistresses were taken over as such in Government service on nationalisation and such ad hoc absorption would not confer, any right till such time their seniority was decided by the Government and their appointments were regularised and notified separately. It is further the stance of the Government that Sind Civil Servants Act of 1973 and the Rules made thereunder are not applicable to the case of the appellants as the appellants were taken over prior to that 1973 i.e. promulgation of the Act. It is further averred on behalf of the official respondents that the seniority list issued vide Order No. S.O. (E‑IV) Misc‑41/78 dated 2‑2‑1985 is correct. They have also referred to rule 4(i) of the Punjab Nationalised Schools (Men & Women Section) Teaching Parts Rule 1974 which has been upheld by the Supreme Court of Pakistan in Civil Appeal No.l of 1981 and the respondents hold the view that Rules 10(1) and 10(2) of Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975 as quoted by the appellants are not applicable to them and they were to be governed by the erstwhile West Pakistan (Class‑II Administration Branch (Men Section) Rules 1963.

4. We have heard the appellants and their Advocate Mr. Aftab Ahmed Shaikh in long deliberation and we also heard in details Mr. Abdul Ghafoor Mangi the learned A.A.G. and Mr. Rashid Akhtar Qureshi for the official respondents. We have also examined the record which could be made available to us.

5. Following points emerged at this Tribunal as we examined this difficult case and we shall summarise these points:‑ (i) Whether this appeal is hit by limitation inasmuch as the present seniority list is provisional and not final. (ii) Whether with the issuance of the new final seniority list dated 21‑5‑1987 issued by the Education Department, and subsequent to the provisional seniority list, that the present appeal has become infructuous. (iii) Whether the award of the selection grade in B‑18 to the 10 Head Masters on the basis of provisional seniority list is legally valid. We shall deal with the 1st point in detail and it appears to us that other two points are consequential.

6. The provisional list was issued on 7‑2‑1985 under cover Letter No.S.O.(E‑I) Misc‑41/78 and a part of it which is reproduced to read as under:‑ "If any officer (B scale‑17) feels that the position assigned to him in the seniority list is not correct he can prefer an appeal against it within 15 days from the date of receipt of the seniority list duly supported with the documentary evidence and attested copies of the relevant documents should also please be submitted...."It is therefore very clear from this cover letter that accompanied list is very provisional/ tentative and does convey anywhere the sense of any finality. In order to facilitate the understanding of section 4 of Sind Service Tribunal Act 1973 which governs the right of appeal, we shall read proviso 4 of the aforesaid Act; "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 him (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 period of ninety days has elapsed from the date on which such appeal, application or representation as so preferred .." A plain reading of this proviso bars the jurisdiction of the Service Tribunal to the fact that a final, original or appellate order is necessary for warranting the intervention of the Tribunal under the Act. It has been stated at the bar and in para 13 of the written statement that "this is a tentative seniority list, subject to its finalization or receipt of objections from other aggrieved persons, like the appellant and will be decided in the final seniority list. It is, therefore, wrong for the appellant in going to the Tribunal, being without legal cause of action", we tend to agree with this statement made at the bar and also in written and believe that till the provisional list has not been finalised and circulated the intent of the department could not be treated with suspicion, inasmuch as the department has not availed fully of the opportunity of examining and finalising the objections in due course of time. It is the rightful' duty of the departments to finalise a list and cause of action accrues only after that the list has been finalised, aggrieved person (if any with this final list) avails of the opportunity of representing against the final list to a competent administrative authority within 30 days and then if his grievance is not redressed he could seek the remedy in appeal at the Service Tribunal in pursuance with section 4 of the said Act. The learned A.A.G. has relied upon the case law of S.H.M. Rizvi v. Maqsood Ahmad P L D 1981 S C

612. This case deals with a Service Tribunal decision; wherein the Tribunal has been taken some different view in respect of the provisional seniority list and had declared it to be competent, the concluding para 10 of this Supreme Court decision is reproduced to read as under:‑ "The Proviso (a) to subsection (1) of section 4 of the Service Tribunals Act relied upon by the learned counsel for the respondent has not the slightest effect of detracting from the finality of the order to be appealed against. What it accomplishes is that even a final order should not be brought before the Service Tribunal if a right of appeal, review of representation to a departmental authority is provided under the law, unless that right has been availed of and the specified number of 90 days has elapsed to be to encourage, ensure and emphasize the redress of service grievance within the departmental hierarchy before ventilating them in the Service Tribunal. As there was no final order ever passed on the objection of the respondent nor was the seniority list finalized his appeal was not competent under section 4 of the Service Tribunal Act... In absence of any other argument against this case law produced by the learned Assistant Advocate‑General for the 'respondents the above decision proves fatal to the appellants and the appeal could not be sustained on this citation alone.

7. Mr. Abdul Ghafoor Mangi the learned Assistant Advocate‑General has further argued on the dates which relates to the appeal to Service Tribunal being time‑barred. We hold that in view of earlier limitation (quoted in the earlier para) these dates now become immaterial and of no necessity.

8. A very serious objection has been raised by Mr. Aftab Ahmed Shaikh, the learned counsel of the appellants. Let us restate his objection. "Can the Administrative Authority without finalising the list award a selection grade which is based on the same provisional/ tentative seniority list. This has certainly provoked our thought and we shall revert to this later in our decision.

9. The learned Assistant Advocate‑General has drawn our attention to a Notification No.S.Q.(E‑IV) 24/87 dated 15‑5‑1987 of the Government of Sind Education and Culture Department in which they have issued the Final seniority list of Head Master (B‑17) Nationalised High School Hyderabad, Sukkur Region. This document is properly gazetted and its Appendix is a final seniority list which has been issued in continuation with any provisional seniority list issued on 7‑2‑1985 and which is called in question. We believe that this is the last list. Appellants may move against this final list if they so desired in accordance with law. Mr. Aftab Ahmed Shaikh the learned counsel for the appellants has assailed this final seniority list on the ground that this Final seniority list is a ditto copy of the provisional seniority list impugned at this Tribunal and it is an attempt on the part of the Department to make to the present impugned appeal as infructuous. We shall not dwell upon this allegation of Mr. Aftab Ahmed Shaikh as we are not entering discussing the merits of the case. We are constrained to say that appellants now have a Final Seniority list and they can now properly appeal against it in accordance with law, if they so desired. There is no reason for us to suspect the bona fides of the Department until and unless they appeared prima facie bad and malicious. On the contrary, the department has finalised the list.

10. Now we shall revert to the second part of the plea referred to in para. 8 of this order. It has been seriously objected by Mr. Aftab Ahmed Shaikh the learned counsel for the appellant that in pendency of the finalisation of the provisional list, selection grade (B‑18) has been awarded to as many as 10 Head Masters of the Nationalised Schools of Hyderabad Region and the list has actually been acted upon. We repeat and say that we are not entering/discussing the merit of this case and particularly of this point in view of earlier limitation. Even otherwise we feel that award of the selection grade is not wholly and strictly on the basis of seniority. It is the efficiency, competence and merit of the officer that mainly determine the award of the selection grade. The contention of the learned counsel that selection grade has been awarded keeping in view the provisional seniority list, therefore, cannot be sustained.

11. Mr. Aftab Ahmad Shaikh has constantly assailed the delay in issuance of the seniority list and it has been his pain and agony to show that the department has not prepared and issued the list and has not endeavoured to do so in time. To meet this we shall again refer back to the same case law P L D 1981 S C 612 and read that: "In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent ( for the objection filed in 1976 remains to date un-disposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all ligitimate grievances of civil servants." In view of all above reasons that we have developed in detail we dismiss all the appeals with no order as to costs. Before we part let us make a candid observation; we observe with regret that the department has issued three delayed provisional lists in succession without finalising any of these lists in a period of a year, as is laid down in Clause (9) of the Probation, Confirmation I and Seniority Rules, 1975 and read with Clause (8) of the Sind Civil Servants Act of 1973. Let us hope that the department will take cognisance of this observation and conform to this requirement of law in future. A.A. 1136/SR.S Appeals dismissed.