1. ' MUMTAZ ALI KAZI (CHAIRMAN).-The appellant by this appeal under section 4 of the Sind Service Tribunals Act, 1973 has challenged his appointment as Sub-Inspector, Excise and Taxation after merger of Federal Territory of Karachi into West Pakistan, under the following circumstances: ' The appellant was originally appointed as a Matriculate Clerk in the grade of a Lower Division Clerk on 3rd February 1948 and was later on promoted as an Upper Division Clerk on temporary basis. At the time of the merger of Karachi, he was holding the post of Inspector of Taxes, in the same grade as Uper Division Clerk, namely, Rs, 85-6-115/76-175/ 10-225. Under the Government of Pakistan Ministry of Home Affairs, President's Order No, 9 of 1961, The West Pakistan Administration (Merger of the Federal Territory of Karachi) Order, 1961, promulgated on June 22, 1961, the appellant's service stood transferred to West Pakistan Province. Under para. 8 (2) of the Merger Order the Governor of West Pakistan could determine the terms and conditions of service of the appellant after directing the appellant to serve in any post or capacity in any part of West Pakistan provided that the terms and conditions of service relating to his pay, pension and leave could not be varied to his disadvantage.
2. ' At the time of the merger the appellant continued as Inspector of Taxes until the cadre was re- organized when he was re-designated as Sub-Inspector Excise and Taxation in his existing scale of pay namely Rs, 85-225. This happened from 9th July, 1962, when the merger came into effect on 1st July, 1961. The appellant then made a representation to the Board of Revenue against the order, re- designating him as Sub-Inspector Excise and Taxation. Thereafter the appellant filed an appeal in the West Pakistan Civil Services Appellate Tribunal. All these questions being agitated now were raised in that service appeal also. On dissolution of the One-Unit the appeal was received by transfer and came before the Sind Civil Services Appellate Tribunal, Karachi. It was decided by the then Tribunal consisting of Mr. Justice Ghulam Rasool Shaikh as Chairman and Mr. Hamza Khan Qureshi as Member. By an order dated 23rd January 1973 it was observed in that decision that under the President's Order No, 9 of 1961, para. 8 (2), the Governor of West Pakistan alone could determine the terms and conditions of the service of the appellant. It was observed that according to the order of the Governor of West Pakistan issued on the basis of the Provincial Re-Organization Committee, 32 posts of Inspectors of Excise and Taxation had been created but there was no post of Sub-Inspector of Excise and Taxation. But later on the Excise and Taxation Authorities, equated the post of Inspector Taxes with the post of Sub-Inspector Excise and Taxation. That there was no post of Sub-Inspector in the intervening period after the merger, nor there were any orders of the Governor obtained in this respect. That the Commissioner was not competent to equate the post and make the appointment of the appellant from Inspector of Taxes to that of Sub-Inspector Excise and Taxation. The appeal was accordingly allowed and the seniority list was set aside. The Director-General, Excise and Taxation, Government of Sind was directed to move the Governor of Sind to pass orders as required under Article 8(2) of President's Order No, 9.
3. ' Since the order of the Tribunal took too long to be implemented, the appellant filed Constitutional Petition in the High Court of Sind, Karachi, being C. P. No, 1585 of 1974. This was heard by Mr. Justice Fakhruddin G. Ebrahim and Mr. Justice Ajmal Mien. It was observed by the learned Judges in their decision dated 24th September, 1979 that although a summary had been sent to Governor dated 3rd September 1975 the directions given by the Tribunal were not mentioned in the summary. They accordingly held that the petitioner was entitled only to that much relief that fresh orders in terms of the President's Order No, 9 would be obtained inviting the attention of the Governor specifically to the decision given by the Appellate Tribunal.
4. ' A fresh summary was accordingly put up before the Governor, but the same orders were passed by the Governor this time also. The appellant made a review petition and after waiting for 90 days he again filed a second service appeal before this Tribunal incorporating the same facts over again and with a prayer that the order of the Government dated 13th October, 1979, treating the appellant as a Sub-Inspector of Extise and Taxation may be set aside and they may be directed to treat him as holding the post of Inspector, Excise and Taxation.
5. ' The respondent-Government in their written statement contended that the appellant an Upper Division Clerk was holding the post of Inspector of Taxes before the merger in the scale of Rs, 85-
225. That he continued to hold the post of Inspector of Taxes till 9th July, 1962, when the post was abolished and he was re-designated after re-organization as Sub-Inspector Excise and Taxation with effect from 9th July, 1962 in the same scale of pay. That since the terms relating to pay, pension and leave remained the same, he could have no grievance. As the post of Inspector of Taxes was comparable to the post of Sub-Inspector, Excise and Taxation a notification dated 6th March, 1976 issued by the Secretary to Government of Sind, Excise and Taxation Department has been produced mentioning that the Deputy Superintendents and Inspectors of Taxes at the time of merger were redesignated with effect from 1st July,1961 as Inspectors and Sub-Inspectors respectively though the terms and conditions of their service relating to pay, pension and leave remained the same and could not be varied to their disadvantage.
6. ' The questions raised in the present service appeal and the issues involved are the same that were raised in the previous service appeal and decided by the Sind Civil Service Appellate Tribunal. The matter is res judieata as the questions raised in the subsequent appeal have already been decided by any speaking judgment. The plea of res judicata is not confined to the provisions of section 11, C. P. C. But it can be invoked under general principles of law. These principles will apply to decisions of the Appellate Tribunal also though the plea had not been specifically raised in the written statement.
7. ' The learned counsel on behalf of the appellant has argued that an order of Governor of West Pakistan regarding the re-organization dated 6th April, 1962 had been passed under which 9 permanent posts and 23 temporary posts of Inspectors of Excise and Taxation had been created for Karachi with the same scale of pay as already sanctioned for the corresponding posts in the Excise and Taxation Department West Pakistan. The learned counsel Mr. Fazle Ghani Khan has accordingly argued that this notification could not be subsequently cancelled and a fresh notification issued by the Department dated 8th July, 1964 appointing the appellant and others as Sub. Inspectors. In this respect the decision of the Supreme Court reported in PLD 1969 SC 407 has been quoted. That although the authority issuing an order can rescind that order, the power of rescinding would not be available if the said order had been acted upon creating certain rights which have become vested in the individuals.
8. ' Mr. A. A. Mohammadally, A. A.-G. On behalf of the Goverment has however rightly pointed out that the order of the Government of West, Pakistan dated 6th April, 1962 was a general order giving effect to the report of the Reorganization Committee. The order was not made applicable to any individuals and the order was to be given effect to from the date to be notified subsequently. That there was, therefore, no question of any rights having become vested in any individuals.
9. ' The learned A. A.G. Has then pointed out that the orders of the Governor relating to the appointment of Sub-inspectors, Excise and Taxation have been passed on 6th April, 1962, and 18th April, 1962, and under section 4 (c) of the Sind Service Tribunals Act, 1973, no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before 1st July, 1969. That appeal against these orders would not therefore be maintainable. Mr. Fazie Ghani Khan has however pointed out that the impugned order is Annexure-P, being the order passed by the Excise and Taxation Department dated 5th December, 1979, stating that the petitions of the appellant dated 25th October 1979, and 10th November, 1979 had been considered and filed.
10. Presumably these petitions were in the nature of reminders or review applications and the orders on these petitions could not be considered to be final orders original or appellate made by a departmental authority within the meaning of section 4 of the Sind Service Tribunal Act, 1973.
11. ' Admittedly the orders passed by the Governor are not original or appellate orders passed by a 'departmental authority'. These orders have not been passed by the Governor in his capacity as the Chief Minister. The orders have been passed under Article 8 (ii) of the President's Order No, 9 regarding the terms and conditions of the civil servants absorbed from Federal Territory of Karachi into the Province of West Pakistan. These are in the nature of orders passed under the Constitution by the Governor as nominee of the President. These orders would, therefore, appear to be outside the scope of section 4 of the Sind Service Tribunal Act, 1973.
12. ' In any case, all that was required to be done under Article 8 (ii) of the President's Order No, 9 was, that the terms and conditions of such civil servants were to be determined by the Governor of West Pakistan. The only restrictions placed on his powers were that their terms could not be varied to their disadvantage relating to their pay, pension and leave ; barring that they could be directed to serve in any post or capacity in any part of West Pakistan. There has been no violation of para. 8 (ii) of the President's Order No, 9 so as to create any cause of action for adjudication by the Service Tribunal. All that the previous decisions of the Tribunal and the High Court required was that the orders in this respect could not be passed by the Department concerned but by the Governor and the observations of the Tribunal and the High Court were to be incorporated in the summary placed before him 'for the purpose. The A. A.-G. Has produced the copy of the last summary in which not only these orders were mentioned but they were placed on board as An-flexures 'A' and 'B' according to para. 7 of the summary. It was suggested that 32 posts of Inspectors In Excise and Taxation at the time of merger were to be included in the cadre of Sub-Inspector of Excise and Taxation in the pay scales allowed to the officials of the same designation in West Pakistan. After approval of the Governor, the orders were given effect to, and since Governor had all powers under the President's Order, the appellant could not challenge the orders before the Service Tribunal.