1. ' NADEEM AZHAR SIDDIQI, J.--- By this common order we intend to dispose of the appeals filed by the above appellants under Rules 20/24 read with Schedule II of the High Court Establishment (Appointment and Conditions of Service) Rules (hereinafter referred as the Rules). The 'names of the appellants and their designations are as under:-
(1) Mr. Shahnawaz Baloch, Assistant Registrar.
(2) Mr. Muhammad Usman, P.S. To Judge (now working and as Secretary Inspection Team-II).
2. (3)............. Mr. Arbab Imtiaz Khan, P.S. To Judge.
(4) Mr. Muhammad Haroon, P.S. To Judge (now working as P.S. To honourable Chief Justice).
(5) Mr. Iuhammad Sharif, P.S. To Judge.
(6) Mr. Zaheeruddin, P.S. To Judge (now Nazir/Deputy Registrar).
(7) Mr. S. Jamil Ahmed Shah, P.S. To Judge.
(8) Mr. Shahjehan Shaikh, P.S. To Judge.
(9) Mr. Shahzad Ahmed, P.S. To Judge.
(10) Mr. Muhammad Siddique, Reader to Judge.
(11) Mr. Muhammad Bashir, Reader to Judge.
(12) A representation filed by Mr. Mazhar Ali Siddiqui, Assistant Registrar, and 13 others.
3. ' All the above appeals and representation were filed challenging. Notification No, GAZ/VI.Z.7(3)(b)
4. Karachi dated 25th February, 2004, by which Mr. Kazi Muhammad Taqi was promoted to the Post of Deputy Registrar (Account's) (B-18) and Mr. S. Sadaqat Ali Shah was promoted to the Post of Administrative Officer (Maintenance) (B-18). All the appellants claim that they are employees of High Court Establishment and for more than seven years they are working B-17 and holding various posts. They submitted that in 1993 some additional posts of Private Secretaries were created and against those newly sanctioned posts the respondents were appointed as Private Secretaries on 11- 2-1996 and were assigned protocol duties and were paid special allowance of Rs,375 per month as paid to Private Secretaries to Judges. The appellants claimed that they are all senior to both the respondents and are also eligible to be considered for the promotion in B-18. The appellants further submit that both the respondents were promoted to higher posts without considering them in complete disregard to the procedure for promotion to the' higher posts. The appellants have challenged the notification of promotions of the respondents as unjustified and inequitable as seniors were not, at all, considered.
5. ' Mr. Kazi Muhammad Taqi, respondent No,1, has filed his reply in which he has stated that the appeal is not maintainable as no appeal is provided under Rule 24 of the Rules against an order passed by the honourable Chief Justice in exercise of powers vested under him under Rules 26 of the said Rules. He further submitted that the matters relating to fitness of an employee to be promoted/appointed is not open to review and that the order passed by the honourable Chief Justice to promote the fespondents is fully in accordance with the settled practice and that the appellants belong to a cadre which is separate and distinct from the cadre to which the respondent No, 1 belongs and seniority list is also separate and appellants have no locus standi to impugn the promotion of respondent No, 1 under the said Rules.
6. ' The respondent No, 2, Mr. S. Sadaqat Ali Shah, has also filed his reply to the appeals and has taken the similar objections and raised similar pleas. He further submitted that he was directly appointed as Private Secretary (Protocol) in B-17 in the year 1996 and has completed his seven years satisfactory services in 2003 but was not awarded Selection Grade B-18 for the reason that the Selection Grade was abolished in the year 2001. He further submitted that all the P.S. (Protocol) who were appointed in the year 1994 were granted B-18 before issuance of Office Memorandum No,FD/5R(1)/1-(51)/2001, dated 6th November, 2001. He also submitted that seniority of the P.S. To Judges is maintained separately from the P.S. (Protocol).
7. ' We have heard the appellants and the respondents. On behalf of the appellants Messrs Arbab Imtiaz Khan and Shahjahan Shaikh, both P.S. To Judges, have argued and the other appellants have adopted their arguments.
8. ' Mr. Arbab Imtiaz Khan has submitted that the post of Deputy Registrar hat to be filled by selection by the honourable Chief Justice ordinarily from the High Court Establishment in terms of. Rule 7 of the said Rules. He further submits that rule 26 can be invoked to remove hardships in aid of justice keeping in view the recognized principles of exercise of discretionary powers and the same cannot be invoked to favour someone to the disadvantage of the others.
9. ' Mr. Shahjehan has submitted that the order of promotion was passed under Rule 20 and not under Rule 26 of the said Rules and the same is appealable under Rule 24 of the said Rules. He further submits that he has vested right to be considered for promotion and the promotion of respondents is in violation of his vested rights. He then contended that from the note put up by the Registrar, it reveals that the same was moved to benefit the respondents and other eligible candidates were ignored.
10. ' Messrs Muhammad Bashir and Shahnawaz Baloch and other appellants present have adopted the submissions made by Mr. Arbab and Mr. Shahjehan.
11. ' Mr. Kazi Muhammad Taqi submits that orders cannot be withdrawn if taken effect and relied upon PLD 1969 SC 407 in support of his contention. He further submits that order was passed by the honourable Chief Justice in exercise, of his powers under Rule 26 which is not appealable under Rule 24 of the said Rules. He further submits that matter relating to fitness of an employee to be promoted is not justiceable. He further submits that the appellants belong to a cadre which is separate and distinct from the cadre to which the respondent No,1 belongs and separate seniority list are being prepared.
12. ' Mr. Sadaqat Ali Shah submits that promotion cannot be claimed as a matter of right. He further submits that he was directly appointed in B-17 as Private Secretary (Protocol) in 1996 and was not awarded Selection Grade B18 in terms of Notification issued by High Court on 27-8-2000. He further submits that in the High Court Establishment there has been a constant practice for maintaining separate seniority list of the officers of B-17 in their own category and the P.S. (Protocol) and P.S. To Judge are two different categories.
13. ' We have heard the parties to the proceedings and perused the record. From the perusal of record it appears that the promotion of respondents was effected on the basis of a summary put up by the then Registrar on 23-2-2004 for the perusal of the then honourable Chief Justice. The following proposals were put up before the honourable Chief Justice:---
(1) The post of Administrative Officer (Maintenance) may be upgraded from B-17 to B-18.
(2) Kazi Muhammad Taqi (P.S. Protocol) may be promoted as Deputy Registrar (Accounts).
(3) Syed Sadaqat Ali Shah (P.S. Protocol) may be promoted as Administrative Officer (Maintenance).
14. ' From the perusal of the note put up by the then Registrar it is clear that no other officer of the High Court Establishment was considered for promotion except the respondents and the proposals were approved by the then honourable Chief Justice on 24-2-2004.
15. ' The appointments, promotions and conditions of service of the employees of High Court of Sindh are governed under the High Court Establishment (Appointment and Conditions of Service) Rules.
16. Authorities of appointments and promotions are provided under Rules 6, 7 and 20 of the said Rules.
17. Under Rule 7 the honourable Chief Justice is empowered to fill the specified post by selection ordinarily from the High Court Establishment and under Rule 20 the Registrar if specifically empowered; or in the absence of such powers the Administration Judge was empowered to decide all matters relating to appointment, promotion and seniority. From the perusal of Rule 7 and Rule 20, the contention of the appellants appears to be correct that they belong to High Court Establishment and they have vested right to be considered for promotion and preparation of office note for promotion of two employees ignoring others who were eligible for promotion is not proper rather discriminatory. The contention of the respondents that they belong to separate cadre and only they deserved promotion has no force as in the Rules there is no such cadre or category under the nomenclature of P.S. (Protocol). The P.S. (Protocol) were first time appointed in 1996 and are getting Special Allowance of Rs,375 as paid to the Private Secretaries to Judges. The Private Secretaries to Judges and Private Secretaries (Protocol) belong to High Court Establishment and in promotion the P.S. (Protocol) cannot claim precedence or preference over Private Secretaries to Judges who are also eligible to be considered for promotion in BPS.18.
18. ' Before proceeding further it will be advantageous to produce Rules 7 and 26 of the High Court Establishment (Appointment and Conditions of Service Rules which read as under:--- "26. Nothing in these rules shall be deemed to limit or abridge the powers of the Chief Justice to appoint or promote any person who has neither passed nor qualified at any examination held by the Public Service Commission or under these rules or to deal with the case of any person in such manner as may appear to him to be just and equitable."
19. ' Rule 7 of the said Rules deals with the filling of posts of "Deputy Registrar, Assistant Registrar, Private Secretary to the honourable Chief Justice and the Personal Assistant to the Registrar" read as under:--- "7. The posts of Deputy Registrar, Assistant Registrar and Private Secretary to the Chief Justice shall be filled by selection by the Chief Justice and that of the Personal Assistant to the Registrar by the Registrar ordinarily from the High Court Establishment; provided that where the appointment is made from outside, the provisions of Rule 6(i) shall apply."
20. From the above provision it is clear that the promotion to the above posts are to be filed by selection by the honourable Chief Justice from the High Court Establishment which means that all the employees who are other wise eligible are to be considered for such promotion. The posts mentioned in Rule 7 are selection post and there is no requirement of law to fill the same on the basis of seniority-cum-fitness basis. Rule 7 read with Rule 26 gives vast powers to the honourable Chief Justice to select any employee from the establishment and to promote him. The decision taken by the honourable Chief Justice under Rules 7 and 26 are not justiciable and no appeal has been provided under Schedule II of the said Rules and only decisions taken under Rules 20 and 23 were made appealable.
21. ' In an earlier unreported decision in the case of Manzoor Hussain and 2 others v. Altaf Hussain and another a learned Division Bench of this Court comprising of Justice Mrs. Majida Razvi and Mr, Justice Rasheed A. Razvi (as their lordships were then) dealing the question of right of appeal has held as under:- "... Appeals are provided vide Rule 24 which envisages that an appeal shall lie only against an order passed under Rules 20 and 23 to the authorities as provided in Schedule II to these Rules. It is and pertinent to note that the orders passed under Rules 20 and 23 are made appealable and not the order passed under Rules 7, 17, 18 and 19 or any other Rule."
22. ' In the same decision the learned Division Bench while dealing with the power of honourable Chief Justice further held as under:--- "...Indeed, Rule 26 of the High Court Establishment Rules which is similar to the provisions of section 23 of the Civil Servants Act, 1973 and section 24 of the Sindh Civil Servants Act, 1973, extends powers to the Chief Justice to appoint or promote any person who is qualified or otherwise, as he may choose in his discretion or to deal with the case of any person in such manner which may appear to him to be 'just and equitable'. Such powers are meant to be used sparingly and in rare situations to enable the Chief Justice to effectively run the High Court. It cannot be used to defeat the other provisions of the High Court Establishment Rules."
23. Since the decision was taken by the honourable Chief Justice in B exercise of his power under Rule 7 read with section' 26 of the said Rules, the appeals being not maintainable are dismissed.
24. ' Before parting with this order we feel that to appreciate the proper working of the employees and to avoid heart burning which may cause inefficiency amongst the employees it will be proper to direct the Registrar of this Court that in future whenever any post is required to be filled by promotion all the employees of High Court Establishment who are eligible for promotion be considered for selection/promotion and then matter be submitted to the honourable Chief Justice for his decision.