1. GHULAM RASOOL SHAIKII (CHAIRMAN)...--This appeal has been filed claim--ing seniority which was rejected by the Department.
2. At the outset it may be pointed that the persons who are likely to be affected by the seniority claimed by the appellant have not been impleaded. Consequently the appeal suffers from the major serious infirmity and is no maintainable in the absence of the civil servants who are likely to be affected in case the claim of the appellant is allowed.
3. Then there is another serious infirmity as no appeal against seniority is maintainable. Section 3 of the Sind Civil Servants Act, Sind Act No. XIV of 1973 dated 5th December, 1973, lays down that the terms and conditions of service of a civil servant shall be as provided in this Act and the Rules. So section 8 of the Act is decisive with regard to the maintainability of the appeal relating to seniority.
4. 'This section reads as under :-
(1) For proper administration of a service, cadre or grade, the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or grade 'to be prepared, but nothing herein contained shall be construed to confer any vested right to a particular seniority in such service, cadre or grade, as the case may be.
(2) Subject to the provisions of subsection (1), the seniority of a civil servant shall be reckoned in relation to other civil servants belonging to the same service or grade, whether serving in the same Department or office or not, as may be prescribed.
(3) Seniority on initial appointment to a service, grade or post shall be determined as may be prescribed.
(4) Seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade: Provided that civil servants who are selected for promotion to a higher grade in one batch shall on their promotion to the higher grade, retain their inter se seniority as in the lower grade.
5. Although according to the aforesaid section it is incumbent upon the administration to prepare the seniority list but at the same time this section lays down that this does not confer any vested right to a particular seniority in such a service, cadre or grade as the case may be. Thus the vested right with regard to seniority has not been conferred or in other words any such right has been taken away. So the seniority is not one of the terms and conditions of service. Consequently a civil servant cannot invoke the jurisdiction of this Tribunal to vindicate or establish anything which is no a right. It therefore, follows that by virtue of the aforesaid section the jurisdiction of this Tribunal is barred and no appeal lies under section 4 of the Sind Service Tribunals Act, 1973.
6. The learned counsel for the appellant, however, invited our attention to rule 8 (f) (ii) and rule 9 of the Sind Service Tribunal (Procedure) Rules, 1974. Rule 8 (f)(ii) lays down that every memorandum of appeal shall be accompanied by a copy of the seniority list if the appeal relates to the seniority.
7. Rule 9 provides that the civil servant against whom the relief has been claimed should be impleaded as respondent. By referring to these rules, the learned counsel intended to convey that the right of appeal against seniority was contemplated and, therefore, the appeal was maintainable for two reasons, viz. Firstly the appeal against seniority required the annexation of the list of seniority with the memo. Of appeal and secondly only in case of an appellant against seniority a civil servant could be impleaded as respondent.
8. We are unable to understand the fallacy of the idea entertained by the learned counsel. By putting forth such an imaginary proposition he intended to convert the procedural rules into substantive provision creating vested right. The rules have been framed to lay down the procedure to be followed in case the appeals are maintainable and are filed but do not create any right of appeal or confer any such right upon a civil servant. The impleading of civil servant as respondent is not confined to seniority alone but a civil servant can be a respondent in case of an appeal relating to promotion as well although the appeal against promotion is barred. Not only this but there are various other grievances with which a civil servant suffers yet all those grievances are not appealable. Take for instance the case of transfer or assigning a particular duty which, is within the sphere of his ordinary duty.
9. Substantive provision in respect of seniority is embodied in section 8 of the Sind Civil Servants Act, 1973 under which the rules are framed. It need not be emphasized that the rules can never supersede the provisions or the conditions laid down by the Act itself: To accept the contention of the learned counsel is to make the Act subservient to the rules.
10. Even the rules are of no avail to support the contention raised by the learned counsel. On the contrary the contentions are demolished by rule 23 of the Sind Service Tribunal (Procedure) Rules, 1974 which empower the Full Bench of the Tribunal or some of Members of the Tribunal to decide certain appeals and it is pertinent to note that the word "seniority" nowhere appears. Thus it is plain enough that the Legislature never intended that the question of seniority be agitated before this Tribunal. I have already pointed out that there are several other grievances which are although provided in the rules but no appeal against the redress of those grievances is entertainable by this Tribunal.
11. In result the appeal is dismissed.