1. ' SAEEDUZZAMAN SIDDIQUI, J.-This judgment will dispose of Constitutional Petition Nos. 1333/80, 1379/80 and 1492/80. The petitioners in all the three petitions were promoted on temporary basis to the posts of Assistant Directors, class one (Junior) in the Directorate of Industries and Mineral Development Department, Government of Sind, on 29th May, 1971. It is alleged that in September, 1974 the Departmental Promotion Committee in the Directorate of Industries and Mineral Development, regularized the appointments of the petitioners as Assistant Directors, with effect from 29th May, 1971, which it is claimed was approved by the then Chief Minister and consequently on 26th February, 1975 a Notification to that effect was issued by the Government of Sind. It appears that on 14th April, 1977/24th May, 1977, the Secretary to the Government of Sind, issued another Notification by which the earlier Notification dated 26th February, 1975 regularising the appointment of petitioners with effect from 29th May, 1971, was superseded and the promotion of the petitioners to the posts of Assistant Directors in the Directorate of Industries and Mineral Development, Sind, was regularised with effect from 26th February, 1975. As a result of this latter Notification consequential amendments were made in the seniority list which made the petitioners junior in view of their promotion with effect from 26th February, 1975. Notification dated 14th April, 1977/24th May, 1977 was challenged by the two petitioners Dhani Bux Soomro and Ali Anwar Sheikh in Constitutional Petitions Nos. 1271 and 1272 of 1978 respectively which was accepted by a D. B. Of this Court and the above notification was declared having been issued without any awful authority upon a concession made before the Court on behalf of Government of Sind by the Additional Advocate-General, that the above Notification changing the petitioners' confirmation to the posts of Assistant Directors, from 29th September, 1971 to 26th February, 1975 was not made by a competent authority inasmuch as unlike the previous notification dated 26th February, 1975 which had the approval of the Chief Minister, the latter Notification dated 14th April, 1977/24th May, 1977 did not have the approval of the equivalent authority, namely, the Martial Law Administrator, Sind.
2. As a result of the above declaration by this Court in the aforesaid petitions that the notification dated 14th April, 1977/ 24th May, 1977 was illegal and invalid, the Government of Sind, issued another notification bearing No, 80 (1)-2-5/78, dated 15th September, 1980, whereby the promotion to grade 17 of the petitioners as Assistant Directors has again been regularized with effect from 26th February, 1975. This notification is now challenged by all the petitioners as having been issued without any lawful authority and jurisdiction. Unlike the notification dated 14th April, 1977/24th May, 1977, the present notification dated 15th September, 1980 specifically mentions that the MLA/ Governor has accorded his approval to the regularization of the promotion to grade 17 of the petitioners with effect from 26th February, 1975. The result of this notification, therefore, is that the seniority of the petitioners has been disturbed. At the hearing of this petition a preliminary objection was raised by the learned counsel for the respondents jointly that these petitions are not maintainable in view of the bar contained in Article 212 of the Constitution of Pakistan, 1973 read with section 4 of Sind Services Tribunal Act, 1973. Reliance in this connection is placed by the learned counsel for the respondent on the cases of lqan Ahmed v. Government of Pakistan (1) and a latest decision of Full Bench of this Court reported as Abdul Bari v. Government of Pakistan (2).
3. The learned counsel for the petitioners on the other hand maintained that the present petitions are maintainable as the question of promotion and seniority is not outside the scope of jurisdiction of Services Tribunal constituted under Sind Civil Services Tribunal Act, 1973. It is contended by the learned counsel that the dispute relating to seniority of a civil servant falls outside the pale of the jurisdiction of the Services Tribunal constituted as aforesaid and to support this contention the learned counsel has referred to the case of Mst. Time Kulsoom v. The Chief Secretary, Government of Sind and other Appeal No, 79 of 1978 decided by the Sind Services Tribunal on 14th July, 1979. The case cited by the learned counsel for the petitioners fully supports his contention. In the above cited case the Sind Services Tribunal came to the conclusion that by virtue of section 8 of the Sind Civil Servants Act, a claim to seniority by a civil servant is not a vested right and therefore the jurisdiction of the Tribunal is barred to entertain an appeal with regard to a dispute relating to the seniority of a civil servant. The Tribunal while reaching the above conclusion specifically referred to Rule 23 of the Sind Services Tribunal (Procedure) Rule, 1974 and noted the omission of mention of "seniority" from Rule 23 which empowered the Full Bench of the Tribunal and some of its members to decide certain appeals. We are unable to agree with the view taken by. Sind Services Tribunal, in the above case. It is rightly contended by the learned counsel for respondents that the dispute relating to the seniority of a civil servant is cognizable by the Services Tribunal by way of appeal under section,4 of the Sind Services Tribunal Act, 1973 and therefore, the jurisdiction of this Court is barred under Article 212 of the Constitution of Pakistan in relation to matters pertaining to terms and conditions of SeMces of Civil Servants came up for consideration before a Full Bench of this Court, of which both of us were members, in the case of Abdul Bari v. Government of Pakistan and another(2) and at page 295 of the report in the above case the Full Bench expressed as follows :- "The plain reading of Clause (2) of Article 212 leaves no manner of doubt or ambiguity, that the jurisdiction of the High Court would be ousted in regard to, all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words "in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends" clearly make the ouster of the High Court to correspond with the matters placed within the ambit of the jurisdiction conferred on the Tribunal. If the intention of the makers of the Constitution was as is canvassed by Mr. Khalid Ishaque, then instead of the words referred to, the provision would have been to the effect that upon establishment of an Administrative Court or Tribunal of exclusive jurisdiction no other Court shall be competent to entertain any proceeding {{FOOT NOTE}}
(1) PLD 1960 SC 153 (2) PLD 1981 Kar. 290 {{FOOT NOTE}} ' in respect of any matter relating to terms and conditions of service. But the words pointed out clearly provide for the degree of the ouster of jurisdiction of the Courts in direct proportion to the scope of the jurisdiction of the Tribunal".
4. In view of the above observation of the Full Bench in the case of Abdul Bari the ouster of jurisdiction of this Court under Article 199 in relation to service matters of a Civil Servant corresponds to the extent of jurisdiction which is exercised by the Services Tribunal in that regard. A look at the scheme of Sind Civil Servants Act, 1973, will show that the whole Act is divided in 5 different parts which are headed as Chapters I to V. Chapter 1 contains section 2 only which defines various expressions.
5. Chapter II begins from section 3 and ends with section 23 and is headed as "Terms and Conditions of Service of Civil Servants." Chapter HI is headed as Miscellaneous and consists of sections 24 and
25. Chapter IV contains section 26 which gives rule making power to the Government and Chapter V contains the repealing section 27. Section 3 of the Act which is the first section under the heading "Terms and Conditions of Service of Civil Servants" states that the terms and conditions of Service of a Civil Servant shall be those as provided in this Act and the Rules. Section 8 which is in Chapter II deals with the seniority of the Civil servant and makes it obligatory on the authority to prepare and maintain a seniority list of the civil servant. We are therefore in no doubt that a dispute relating to the seniority is the matter pertaining to the terms and conditions of service of a civil servant. In the case of Mst., Ume Kulsoom relied upon by the learned counsel for the petitioners the Sind Services Tribunal held that the disputes relating to seniority is not cognizable by the Services Tribunal in view of subsection (1) of section 8 which states that no vested right to a particular seniority is conferred on the civil servant. We are unable to see how the jurisdiction of Tribunal could be deemed to have been taken away by this provision of law which only states that no vested right could be claimed to a particular seniority in such service by a civil servant by virtue of preparation of 'seniority list by the Government. The fact that the above law provided that no vested right could be claimed by a civil servant to a particular, seniority by virtue of preparation of seniority list, in our view, does not mean that the jurisdiction of the Tribunal is barred from adjudicating the disputes relating to seniority of such civil servant. We are also unable to subscribe to the view taken by the Tribunal that the omission of the! Expression "seniority" from Rules 23 of the Services Tribunal (Procedure)1 Rule, 1974 spells out the ouster of jurisdiction of Tribunal to the disputes1 pertaining to seniority of civil servants. The rules referred by the Sind Services Tribunal are undoubtedly a subordinate legislation and there can be no manner of doubt that these rules can neither abridge nor enlarge, the right of appeal which is conferred on the aggrieved civil servant by virtue of section 4 of Sind Services Tribunal Act, 1973. Section 4 of the Sind Service Tribunals Act is as follows :- "4. Appeal to Tribunuls.-Any Civil Servant aggrieved by any final order, whether original or appellate, 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, 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 rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application 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 decision of a departmental authority determining-
(1) the 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 ; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement from service.
6. 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.
7. ' This section in clear terms provides that any civil servant aggrieved by any final order whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service may within 30 days of the communication of such order to him prefer an appeal to the Tribunal having jurisdiction in the matter. The only exception made to such an appeal is provided in proviso (b) (i) (ii) which provides that an appeal before the Tribunal will not be competent with regard to an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to the higher post or grade or the quantum of departmental punishment and penalty imposed on a civil servant as a result of departmental enquiry except where the penalty imposed is dismissal, removal, reduction in rank, or compulsory retirement from the service. The above provision did not provide any bar on the jurisdiction of Tribunal to hear appeal with regard to disputes pertaining to seniority of a civil servant. We are, therefore, clearly of the view that an appeal under section 4 of the Sind Services Tribunal Act is maintainable before the Services Tribunal constituted under the Act relating to a dispute with regard to seniority of a civil servant. We accordingly overrule the view expressed by the Sind Services Tribunal in the case of Mst. Ume Kulsoom with regard to the maintainability of an appeal before the Services Tribunal relating to a dispute pertaining to the seniority of a civil servant. Since we have reached the conclusion that an appeal in each of these cases is maintainable before the Sind Services Tribunal the jurisdiction of this Court under Article 199 of the Constitution is barred to entertain these petitions. Before parting with these cases we may also mention here that it was admitted before us that the petitioners in all the three cases have already availed of the remedy before the Tribunal by filing appeals which are, pending before the Tribunal.
8. ' We accordingly dismiss these petitions as not maintainable 'It leave the parties to bear their own costs.