1988 PLP 769 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑‑This appeal is directed against an order passed by Sind Services Tribunal, Karachi, dated 3rd September, 1980, whereby the appeal filed by the appellant under section 4 of the Sind Service Tribunals Act, 1973, was dismissed on a preliminary point, that the appeal was incompetent since the appellant, before approaching the Tribunal had not filed a departmental appeal against the original order before the proper authority.

2. The appellant was appointed to a post in the cadre of Provincial Civil Service (Executive Branch), in National Pay Scale No.17, on 6th April, 1973. Subsequently Government issued another Notification dated 1st July, 1975, purporting to promote the appellant as Assistant Commissioner Grade‑17 on regular basis with effect from 1st July, 1975. Since the appellant was claiming to have been appointed on regular basis with effect from the date of the first mentioned notification i.e. 6th April, 1973, he made a representation to the Chief Secretary against the second notification. Before, however, any decision could be given on the representation, by yet another notification dated 29th July, 1977, the appellant alongwith some other officers was purported to have been "promoted as Assistant Commissioner (former P. C .S . EE) on purely temporary and ad hoc basis". The appellant once again made representation against this notification as well before the Chief Secretary, on 1st December, 1977. The appellant was communicated the decision rejecting his representation, which has been regarded by the appellant himself as a decision of both his representations.

3. Aggrieved by the aforesaid decision on his representation, the appellant filed an appeal before Sind Service Tribunal, Karachi, under section 4 of the Sind Service Tribunals Act, 1973. At the hearing of this appeal, on a preliminary objection raised on behalf of the Government, the" Tribunal has taken the view that the two impugned notifications having been issued by the Chief Secretary, an appeal there from lay to the Chief Minister under the Sind Civil Servants (Appeal) Rules, 1975, and since the appellant failed to file such an appeal before the Chief Minister, the appeal before the Tribunal was not maintainable. The argument of the Government was that at the time of second impugned notification of the year 1977, the departmental appeal lay before the Martial Law Administrator as the office of the Chief Minister was no longer in existence and the power of the Chief Minister was vested in the Martial Law Administrator. The Tribunal upheld the preliminary objection and dismissed the appeal as incompetent by the order now impugned before us.

4. Leave was granted to consider the contention that the Sind Government Rules of Business, 1973, having been amended by insertion of new rule 17‑A on 31st January, 1978, there was no authority competent to exercise the powers of the Chief Minister in regard to service appeals and representations under the Sind Civil Servants (Appeal) Rules, 1975, consequently the representation addressed by the appellant to the Chief Secretary was properly presented to be disposed of according to the prevalent instructions if any by the Martial Law Authorities for disposal of such appeals.

5. Mr.Imam Ali Kazi learned counsel appearing on behalf of the appellant has brought to our notice rule 17‑A which was inserted by way of amendment in the Sind Government Rules of Business, 1973, by the Government of Sind, on 31st January, 1978, published in the Sind Government Gazette of 9th February, 1978. This rule reads as follows; "17‑A, Notwithstanding any‑thing contained in these rules, Martial Law Administrator Zone 'C' and the Secretary concerned shall, during the period of Martial Law, exercise the powers of Government in the cases submitted to the Chief Minister and Minister concerned respectively: Provided that the Secretary shall exercise the powers subject to the instructions, if any, given to him from time to time by the Martial Law Administrator Zone 'C` and Chief Secretary." On the strength of this amendment it is forcefully contended by the learned counsel that the plea of the respondents is untenable that the representation of the appellant was not addressed to the proper authority, in so far as the same lay to the Chief Minister according to the Appeal Rules, 1975, and as there was no Chief Minister after 5th July, 1977, the same had to be addressed to the Martial Law Administrator Zone 'C' who was exercising the powers of the Chief Minister. The learned Services Tribunal when confronted with the amendment of Rules on 31st January, 1978, took the view that from this it cannot be inferred that previous to the said amendment, "the Martial Law Administrator did not possess the powers of the Chief Minister, in that he was running the entire Government whereas the Chief Secretary and other Secretaries were working under him".

6. The question before us is not whether the Martial Law Administrator, at the relevant time, did or did not possess the powers of the Chief Minister. The question is whether under the applicable Rules, any Martial Law Authority was designated as the competent authority for the purpose of entertaining and deciding departmental appeals, so that aggrieved civil servants may have addressed their appeals to such designated authority. It is not denied that the appellant did prefer a representation calling in question the impugned notifi cation. If the rules were not amended at the time of making representa tion or filing of appeal by the appellant, as was done later or, in February, 1978, designating the authority who will exercise powers of the Chief Minister, merely because generally the powers of Chief Minister were being exercised by the Zonal Martial Law Administrator will not, in our opinion render an appeal not directly addressed to him incompetent in law. In such a situation the office of the Chief Minister having been abolished during the operation of the Martial Law, the only course open to the appellant was to address his appeal or representation to the Chief Secretary who could then forward the appeal to the competent authority in accordance with the prevailing instructions. We cannot, therefore, subscribe to the view that prevailed with the Service Tribunal on this question. It follows, therefore, that there was no legal infirmity in the representation filed by the appellant. Thus, the preliminary objection raised on behalf of the respondent was of no substance and the appeal before the Service Tribunal could not properly be held to be not maintainable by virtue of the proviso to section 4 of the Service Tribunals Act.

7. Learned counsel for the respondents, however, contended that the representation filed by the appellant seeking to call in question the earlier notification dated 1st July, 1975, was not submitted to proper authority as at that time the Chief Minister was in office and yet the appeal was not addressed to him but to the Chief Secretary. In this connection it may be pointed out that in the present appeal we are not concerned with the notification of the year 1975, but the later notification dated 29th January, 1977, which was the one against which appeal was filed before the Service Tribunal. The filing of the departmental appeal in respect of the earlier notification was, therefore, plainly not relevant so far as the subsequent notification under challenge was concerned. There is, therefore, no substance in the contention advanced by the learned counsel for the respondent.

8. The result is that this appeal succeeds and is accordingly allowed. The case shall be remanded to the Service Tribunal for a fresh decision on merits. In the circumstances of the case there will, however, be no order as to costs. M.Y.H./A‑187/S Appeal accepted.