1981 PLP (C (PLC(CS))

B. G. N. KAZI, J.‑‑The petitioner seeks to challenge the allocation to Province of Sind of respondent No. 3 on the dissolution and disintegration of the Province of West Pakistan by the then Government of West Pakistan and Director of Labour Welfare West Pakistan in whose place as successors he has named the Government of Sind and the Director of Labour, Sind as respondents 1 and

2. He also prays for a declaration that respondent 3 who was domiciled in Bahawalpur be sent back to the Province of Punjab and for the post of Deputy Director held by him the petitioner should be considered as eligible for promotion. On an application made on behalf of respondent No. 3 Secretary to the Government of Punjab, Department of Labour was brought on record as respondent No. 4.

2. The facts giving rise to the filing of this petition briefly stated are as under

3. In 1957 the petitioner on selection by the Central Public Service Commission was appointed. Inspector of Factories at Karachi which at the time was a centrally administered area. After merger of Karachi into West Pakistan he was re‑designated as Labour Officer and worked in that capacity up to 8‑8‑1963. He was confirmed with effect from 1962 and was promoted as Assistant Director Labour Welfare in August 1963 and worked as such at various places in West Pakistan some times even holding charge of the post of Deputy Director in addition.

4. Respondent No. 3 was appointed as Assistant after qualifying in the Ministerial Services Examination held by Pakistan Public Service Commission on 15‑5‑1952 in the Department of Central Labour Commissioner. He was promoted as Labour Inspector and posted in the office of Labour Commis sioner (Federal Capital), Karachi w. e. f. 9‑12‑1957. The post of Labour Inspector was re‑designated as Labour Officer and was included in Central Services Class II (Gazetted) in 1958. He was appointed as Labour Officer (Federal Capital), Karachi with effect from 1‑4‑1958 and continued working as such till he was transferred to Government of West Pakistan as Labour Officer on 10‑2‑1962 in pursuance of the West Pakistan (Merger of the Federal Territory of Karachi) Order 1961 when the Organisation of the Labour Commission (Federal Capital) in which he was employed as Labour Officer was taken over by the Government of West Pakistan and therefore, he was appointed as Labour Officer in the Government of West Pakistan on 10‑2‑1962. It is asserted by him that he was never declared as surplus.

5. It is uncontested factual position that respondent No. 3 on migration from Lucknow, in India in 1948, had settled in Karachi and when he appeared at the Ministerial Services (Assistants) Examination held by Pakistan Public Service Commission in July 1951 he had submitted domicile certificate from Karachi where he was settled and therefore, at the time of his entry in Government service he was domiciled at Karachi. Whereas it is the case of the petitioner that respondent No. 3 who had applied for and obtained domicile certificate for Bahawalpur in 1963 in consonance with the Policy of the Government as appearing in letter of S & G A Department No. SOXII (S. & G. A. D.) 8‑6/64 dated 19-4‑1966 with regard to settlement of displaced persons in a District other than the provisional address shown at the time of entry into service, it is the case of Respondent No. 3 that although he had obtained a domicile certificate of Bahawalpur it was without permission of the Government and therefore, Government did not accept it. He admits that although in the seniority list circulated under Memo. No. 6334 dated 8‑4‑1970 his domicile was shown at Bahawalpur, the error was detected and rectified vide Government of West Pakistan Memo. No. Lab. (1) 1‑18/63 dated 28‑4‑1970.

6. Be that as it may the matter as to the domicile of respondent does not make any difference in his allocation to the Province of Sind and, therefore is of no consequence to the decision of this petition.

7. The Province of West Pakistan (Dissolution) Order, 1970 which was promulgated on 30th March 1970 as the President's Order No. 1 of 1970 in Article 2 thereof provided that the order and any order made under Article 20 shall have effect not‑withstanding anything to the contrary contained in the Provisional Constitution Order or any other law for the time being in force. Article 20 aforesaid gave the power to the President by Order to make such provisions as may appear to him to be necessary or expedient for, inter alia, appointment and transfer of Officers and other authorities for the purposes of new Provinces and their powers and functions and allocation of members of any service constituted in connection with the affairs of the Province of West Pakistan and the Constitution of corresponding services for such Province; and the settlement of inter se seniority of Officers in such a newly constituted service. Article 21 provided that any question or doubt as to the interpretation of any provision of the order or any other order made there under by the President or a Governor including an order made under Article 2C shall be resolved by a decision of the President and such decision shall be final and not liable to be questioned in any Court. The allocation of among others the petitioner and respondent No. 3 was made pursuant to the order, of the President of Pakistan passed under Article 20 aforesaid. There is no plea taken by the petitioner that the order of allocation of respondent No.3 to the Province of Sind was referred for decision to the President. The petitioner himself has produced copy of letter of the Chief Secretary to the Government of West Pakistan No. S O R I. (S&GAD) 5.9/70 dated 12th May 1970 on the subject of implementation of decision regarding allocation of personnel which makes it clear that the administrative structures for the new Provinces as recommended by One Unit (Re‑organization) Committee had been approved by the President and further that the criteria for the allocation of officials who were not members of all Pakistan Services, had been approved by the President as stated in the aforesaid letter. The first criterion mentioned is worded as under :‑ "Pre‑integration recruits will revert to the Province in which they were originally recruited ; " It was only post‑intergration recruits who were allocated to the Province of domicile. In the instant case as already stated it is admitted position that respondent No. 3 was initially recruited in Government service in the Province of Sind at Karachi. The question of his domicile therefore, is of no importance at all where his allocation to the Province of Sind is concerned.

8. Respondent No. 3 under Article 8 of the President's Order No. of 1961 namely the West Pakistan Administration (Merger of Federal Territory, of Karachi) 1961, as from the date of the merger shall be deemed to be person serving under the Government of West Pakistan even though before the appointed day he was serving under the Federal Government. As already stated he was never treated as surplus officer at any time.

9. In the circumstances stated above the Constitutional petition filed by the petitioner is altogether misconceived. It is further apparent that the real intention of the petitioner in filing the Writ Petition was to agitate for his promotion and therefore, in the prayer clause he has made it clear that in' case the allocation to the Province of Sind of respondent No. 3 is held to be illegal the post of Deputy Director presently held by the respondent No. 3 will fall vacant and should be filled by the petitioner. A question whether the petition had abated under Article 212 of the Constitution after the establishment of the Sind Services Tribunal was considered by this Court in the order dated 14‑3‑1979 and it was pleaded by Mr. Z. U. Ahmad that the petition is in the nature of quo warranto petition challenging the appointment of Respondent No. 3 and as such the abatement is not involved. It was, therefore, held that prima facie no such abatement was involved. It may incidentally however, be stated that in matters regarding promotion which can be considered to be a term and condition of service even the Services Tribunal has no jurisdiction. In the counter affidavit filed on behalf of the Punjab Government inter alia it was explained that respondent No. 3 was rightly promoted as Deputy Director Labour Welfare vide orders dated 10‑6‑1970 on the recommendation of the ordinary Selection Board vide Minutes dated 17‑4‑1970 as the Board had observed that the record of the petitioner was poor and, therefore, he was passed over.

10. For the reasons already given we find no substance in this petition which is accordingly dismissed with costs. Appeal dismissed.