KARAM ELAHHEE CHAUHAN, J.-This is an appeal by special leave granted on 2'-3-1978 in C. P. S. L. A.
No. K/40 of 1978 against an Order dated 4.12-1977 of the Sind Service Tribunal whereby a service appeal of the petitioner bearing No. 81 of 1977 was dismissed as not maintainable.
2. The relevant facts of this case, pleaded in the petition for special leave to appeal, are that the petitioner was Working as a Professor of English-cum-Principal of a privately, owned educational institution known as Pakistan College, Khairpur when Martial Law Regulation No. 118 was published in the Gazette of Pakistan Extraordinary on 1-4-1972. According to para. 4 of the said Regulation all privately managed colleges vested in or in common terminology were nationalised by) the Provincial Govern--ment of the area within which they were situated with effect from 1-9-1972 and according to sub-para. (2) of para. 7 "As from the first day of October 1972, the teachers all privately managed colleges and privately managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifica--tions, seniority and experience in the colleges and schools maintained by the Government are entitled."
3. In para. 8 of the petition for special leave to appeal it is mentioned that while the petitioner was fighting for his seniority (which no longer is in issue before us) he was fair the first time described as 'Teacher of English' instead of 'Professor of English' in a letter from the Section Officer, Government of Sind addressed to the Director, College Education, Karachi dated 23-6-1976 copy of which was sent to the Principal of St. Patrick Government College, Karachi, where the petitioner in those days was posted, along with a letter of the Deputy Director dated 22-7-1977. A perusal of the letter dated 23-6-1976 shows that the petitioner had earlier filed a representation praying that he may be awarded higher scale of pay (i.e., Professor's grade) w.e.f. 1-9-1972 namely the date of the nationalisation of private schools and colleges. This letter No. S. O (N) 2-S 15/75 which is contained at page 45 of the paper-book reads as follows;----- "The Director College Education Govt. Of Sind, Edu. Deptt. No. S. O.
Karachi(N)2-S(I5)/75 Karachi Dt.23-6-1976.
Subject.-Representation of Syed Ali Reza Shah Naqvi Teacher of St. Patrick's Govt. College, Karachi for award of Professor's Grade.
Reference.-Your letter No. 5-23-1973-Adm-III-2580 dated the 8th June 1976 on the above subject.
I am directed to say that Syed Ali Reza Shah Naqvi was not considered for award of higher scale of pay from 1-9-1:972 on suitability basis. It may kindly be noted he was not senior enough to be awarded higher scale on seniority basis.
Moreover, an enquiry is under way against him regarding utilization of grant-in-aid to Pakistan College, Khairpur.
(Sd.)
(Prof. A. Q. Saliem)
Section Officer (Nationalisation)."
4. Para. 3 of the petition (page 8 of the paper book) states that "this order was not passed by the Secretary of Education, Government of Sind but was passed by the Section Officer". In para. 9 of the petition it is pleaded that "the petitioner submitted a representation/appeal before the Secretary, Education, Government of Sind, Karachi, on 5-8-1976 against the decision dated 23-6-1976 made by the Section Officer. The actual representa--tion is contained at pages 46 and 47 of the paper book. It was forwarded by the Director of College, Education. Karachi Region on 16-9-1976 (page 48 of the paper book). The petitioner was informed .That the decision already taken .On 7-10-1976 holds good. The letter dated 7-10-1976 is at pages 51 and 52 of the paper book and reads as follows;------- "The Director College, EducationNo. S. O. (N)-2=S (15)-73 Govern-- Karachiment of Sind Education Depart-- merit, Karachi Dt./7-10-1976.
Subject.-Representation of Syed Ali Reza Shah Naqvi, Teacher of English, St. Petrick's Govt. College, Karachi, for award of Professor's grade.
I am directed to invite a reference to your letter No. 5/23-1973Adm. III-3835 dated 16th Sept. 1976 on the above subject and to say that the matter has been considered more than once and it was found that Mr. Syed Ali Reza .Shah Naqvi was not senior enough for the award of grade 19 or IS on seniority basis. Nor he was considered for the award of higher grade on suitability basis. Moreover, in the National Pay Scale Rules, 1974, minimum qualifica--tion for direct recruitment is Ph. D. The decision already communicated to you vide this Department's letter of even No. Dated 23rd June 1926 stands good.
As regards fixation of his pay in National Pay Scale on 1-9-1972 it should have been got fixed through the Accountant General, Sind, in grade 17 long ago as has been done in other similar cases. Had this been done the point that he is drawing the same pay even today which he was drawing on 1-9-1972 would not have arisen. The Accountant General may kindly be told to fix his pay in Grade 17 according to rule early.
I am further directed to say that the recommendation of the Director to consider the case and at least to award grade 18 to Mr. Naqvi is not supported by any rules Govt. Orders. Such unsupportable proposals should not be forwarded to the Directorate in future.
(Sd.)
(Prof. A. Q. Saleem)
Section Officer (Nationalisation)."
5. Taking up the position that the aforesaid information was conveyed to him on 28-9-1977, the petitioner filed a Service Appeal under section 4 of the Sind Service Tribunals Act XV of 1973 against the communication order dated 23-6-1976 and 7-10-1976. In this - appeal he alleged that the refusal to give him "Professor's grade" was really a degradation of his rank and was a punishment under Rule 4 of the Sind Civil Servants (E & D) Rules, 1973. . This appeal was rejected, as earlier stated on 4-12-1977 and the Tribunal held that; "(a) Order dated 23-6-1976 was passed by the Education Secretary and was appealable to the next higher authority namely the Chief Secretary but as admittedly no such appeal was filed against that Order, therefore, the appeal before the Tribunal was not competent due to clear bar contained in proviso (a) to section 4 of the Sind Service Tribunals Act of 1973.
(b) That the appeal before the Tribunal against the original order was time barred but the petitioner relied on order, communication dated 7-10.1976 and submitted that limitation should be reckoned from the date of its communication, i.e. 28-9-1977 as according to him, this i.e. Order dated 7-10-1976 was communicated to him on that date. The Tribunal held that this Order was not passed in any appeal and could not be considered as a starting point of limitation by itself.
(c) that the petitioner had prayed for being placed in a higher grade but such a claim for being promoted to a higher grade was barred by proviso (b) to section 4 of the Sind Service Tribunals Act, 1973 for being taken up in appeal before the Tribunal."
6. Leave had been granted to examine the correctness of the above findings. We have heard the learned counsel of the parties at length and also gone through the record as contained in the paper book. In our opinion, the appeal has no merit and is liable to be dismissed for the reasons hereinafter following:
7. At this stage it is necessary to refer to section 4 of the Sind Service Tribunals Act XV of 1973 which reads as follows: "4. Appeals to Tribunals.-Any civil servant aggrieved by any final order, whether original or appellant, 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 riles, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or applica--tion 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 tile 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.
8. Section 23 of the Sind Civil Servants Act XIV of 1973 which deals with departmental appeals reads as follows;---- "Right of appeal or representation.-(I) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed, be made within thirty days of the date of such order.
(2) Where no provision for appeal or review exists under the rules in respect of any order or class of order, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order; Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."
9. All this may be read along with Sind Civil Servants (Appeal) Rules, 1975 which were published in the Gazette of Sind Part IV-A dated 26-6-1975 and are printed at page 256 of the "New Civil Service Laws (Federal and Provincial), 1978" by Nisar Ahmad Pannoon (Mansoor -Book House, Lahore).
According to these rules if the order was passed by a Regional Head, then an appeal lay to the Head of the Attached Department concerned and if there is no Head of the Attached Department then to the Secretary of the Department concerned. If the Order is of the Head of the Department then to the Secretary unless he is of a lower grade in which case, appeal lay to the Chief Secretary.
Against order of the Secretary of Department, an appeal lies to the Chief Secretary, etc.
10. Examining the case in the light of the above text, if the basic order appealed against was of 23- 6-1976 which was so shown in the appeal before the Tribunal then that order was departmentally app salable in its independent place to the Chief Secretary because it is now conceded that it was passed by the Secretary, Education, but no appeal against that order to the appropriate authority admittedly was made. The petitioner has himself described this order in the opening page of his appeal before the Tribunal as being of the respondent herein namely Secretary, Education, Government of Sind, and as such the position turns out to be quite clear namely that the. Petitioner had not filed any departmental appeal under the Sind Civil Servants Act XIV of 1973 reproduced above; against the relevant order, therefore, the appeal before the Tribunal, without exhausting departmental remedy of appeal, was incompetent under proviso (a) to section 4 of the Sind Service Tribunals Act, 1973 reproduced above.
In this respect reference may also be made to the opening part of the appeal of the petitioner before the Tribunal where he stated on page 23 that;----- "Being aggrieved and dissatisfied with the order No. S. O. (N)
2. S. (15)/73 dated 23rd June .1976, issued by the respondent de-categoris--ing the appellant and awarding him junior scale as well as decision dated 7-10-1976 communicated to the appellant on 28-9-1977 rejecting the representation review application the appellant respectfully submits that this Hon'ble Tribunal may be pleased to call for the record and proceedings of the case and after being satisfied with legality, propriety or otherwise of the proceedings be pleased to set aside the same."
This leaves no room for doubt as to which is the order which according to petitioner's own pleadings decategorised him and awarded him the junior scale. The Tribunal, under the circumstances, examined maintainability of the appeal in that context and held it as barred as stated earlier. On the basis of the case as pleaded before the Tribunal the order of the Tribunal, therefore, suffers from no infirmity.
11. When confronted with the above, the learned counsel for the petitioner argued that failure to appeal to the Chief Secretary was due to the ignorance of correct law on the subject and was not a deliberate 8 mistake on the part of his client, and as such should be ignored by this Court. We regret, we cannot override the clear provision of the statute and hold an appeal before the Tribunal as competent which otherwise was incompetent due to the clear bar contained in section 4 of the aforesaid Act. This is apart from the fact that even otherwise ignorance of law is no excuse. .
Learned counsel then argued that his client again approached the Secretary against the Order dated 23-6-1976, and also made representa--tion to' the Education Minister and the Martial Law authorities as pleaded by him in para. 4 of his appeal before the Tribunal, therefore, he could in this way be considered to have filed the appeal before the competent authority namely the Chief Secretary. This plea has no merit. The order to be appealed against was that of 23-6-1976 against which no appeal is time or in any competent forum, viz. The Chief Secretary was filed and mere representations of the petitioner here and there could not be a substitute of the requisite appeal. In this view of the matter the other finding of the Tribunal that appeal against the relevant order before it was barred, is also correct. Same appears to be the position of the finding of the Tribunal that if the petitioner was trying to have grads 1 or 19 or in the form of a promotion and if it was refused to him then appeal against an order refusing to grant a promotion was not maintains before the Tribunal under proviso (b) to section 4 of the Sind Service Tribunals Act XV of 1973. That this was the nature of the claim of the petitioner is supported by letter dated 7-10-1976 which, with reference to a representation made for that purpose, said that such unsupportable proposals should not be forwarded to the Directorate in future:-
12. Learned counsel attempted to argue that his client bad a strong case which should have been entertained by the Tribunal and relief should have been granted to him in respect of the scale of pay and grade and that his seniority should have been fixed accordingly. In this respect he also referred to Fazal Elahi Ejaz and 22 others v. Government of Punjab and 13 others (PLD 1977 Lah.
549), which according to him, contains correct construction and interpretation of the rules, instructions and other texts and material relevant on the subject. As we have held that the Order of the Tribunal holding the appeal before it as incompetent is quite lawful, therefore, there is no occasion on our part to embark upon that exercise and consequently we reserve our views on the enunciation of law as made in Fazal Elahi Ejuz v. Govt. Of Punjab and leave it over for examination in some more proper and well maintained case. All that, however, we need for the present observe is that as the writ petition in the aforesaid case was dismissed by the High Court as having abated under Article 212 of the 1973 Constitu--tion, therefore, from that viewpoint any exposition of law on the merits of the subject-matter involved therein must be treated as obiter.
13. Before us the petitioner tried to plead that initially the seniority list was issued by the respondent (Secretary, Education) on 26-5-1973 in which the petitioner was shown at S. No. 430 and was placed in grade 17. The petitioner filed an appeal against the seniority list in July 1975, and to be more precise on 21-7-1975 wherein, according to his own wording, he pointed out that;----- "his service as lecturer in college had actually started in 1964 and not on 1-4-1968 as incorrectly mentioned in the seniority list. The petitioner further pointed out that he worked as lecturer upto 1966 and thereafter as an Assistant Professor upto 31-3-1968 and worked as a Professor from 1-4- 1968 till the date of nationalisation and onwards. He pointed out that the seniority list had been prepared in contravention of the spirit of section 8(3) (a) of the Establishment of West Pakistan Act, 1955 inasmuch as the terms and conditions of his service had been adversely affected. He requested that his seniority be fixed in the scale/grade of Professors of the Region/Province and NOT among the lecturers as had been erroneously done while preparing the seniority list--- A copy of this appeal dated 21-7-1975 is contained at pages 37 and 38 of the paper book. All this was being shown to us by way of introduction and it was clarified thatseniority was not the subject-matter of any dispute before us. Continuing that subject further it was stated that on 24/25-10-1973 there was announced by the respondent, Le. Secretary, Education the scales of pay and grades of professors but the name of the petitioner was not contained in it. He was allegedly shocked to notice this omission of his name, and, therefore, he immediately made a representa-- tion to Mr. Dur Muhammad Upto the then Education Minister of Sind and also another representation to the 'respondent Secretary of Education on 9-11-1973. Afterwards, several representations and reminders were submitted to the respondent Secretary who by order dated 23-1-1976, for the first time, officially intimated the appellant of the impugned decision This was being referred to show that actually the grievance of the petitioner dates as far back as to 26-5- 1973 and 24/25-10-1973 and that against seniority list dated 26-5-1973 he had filed a comprehensive appeal dated 21-7-1975 cited at pages 37 and 38 of the paper book which it was pleaded, was sufficient to fulfil the requirements of filing a departmental appear or review on the subject as a whole. Similarly, against the announcement by Secretary, of grades of Professors, dated 24/25-10-1973, the petitioner filed representa--tion. He further submitted that Sind Acts XIV and XV of 1974 were, in fact, not in force at that time and, therefore, the requirement of filing a departmental appeal as contemplated therein could not. Be applied to orders passed before their promulgation.
14. The contention has no merit as the petitioner in this respect is trying to make out a case different from the one advanced in his appeal before the Tribunal where he claimed quashment of orders dated 23-6-1976 and 7-10-1976 and filed an appeal against these specific orders and not against any other order. The availability of the departmental appeal in the circumstances had to be examined with reference to those orders which he sought to be set aside. If in this context the Tribunal held that the order dated 23-6-1976 was appealable to the Chief Secretary, its finding cannot be held unlawful merely because there were certain other order of which the petitioner also felt aggrieved and had been challenging or making representations against them in one form or another at different levels. We have quoted in extenso from the memorandum of appeal of the petitioner before the Tribunal which supports the observations made by us above.
15. However, the plea taken will not advance the case of the petitioner because if the basic orders were dated 26-5-19 73 and 24/25-10-1973 and 25-1-1976 (as is now pleaded) then they were appealable under section 4 of the Sind Act XV of 1973 before the tribunal within 90 days of the communication of the concerned impugned order or within 12 months of the establishment of a Tribunal with one exception "that no appeal shall lie to the Tribunal against an order or decision of the departmental authority made at any time before 1-7-1969" as laid down in Khan Falzullah Khan v. Government of Pakistan (PLD1974SC291). This shows that the Act authorised appeals even against orders passed before its promulgation. In this view of the to matter, assuming without conceding if the appeal before the Tribunal was to be considered against the aforeasid three orders dated 26-5-1973, 24/25-10-1973 and 23-1-1976 then also it was clearly time barred and filed much beyond the prescribed period of limitation. In this context we need not go into the question as to which were the Rules relevant for the departmental appeals prior to the promulgation of the Sind Civil Servants Act XIV of 1973 or Rules made thereunder.
16. The result is that looked at from whatever angle this appeal has no merit and is dismissed, leaving the parties to bear their own costs.