' RIAZAT ALI SAHAR, J.--- Through instant petition, petitioners seek following relief: --
(1) Declare that the Notification(s) dated 31-12-2008, 13-10-2010, 2-4-2011 and 21-12-2011 are illegal, arbitrary and in violation of Article 25 read with Article(s) 4 and 9 of the Constitution, 1973 inasmuch as they adversely affect the petitioners' seniority by granting ante-dated promotion to the respondents No(s) 3 to 80;
(II) Declare that any seniority lists issued by the respondent No 3 in reliance of Notification(s) dated 31-12-2008, 13-10-2010, 2-4-2011 and 21-12-2011, inter alia including, provisional seniority list(s) dated 24-8-2011 and 15-2-2012, are illegal, arbitrary and in violation of Article 25 read with Article(s) 4 and 9 of the Constitution, 1973;
(III) Declare that the petitioner's inter se seniority cannot be adversely affected by the grant of ante dated promotion to the respondents No(s) 3 to 80 and that the petitioners' juniors cannot be made their seniors;
(IV) Declare that the respondents No, (s) 3 to 80 are not similarly placed with those officers who were granted regular promotion in the year 2003 vide Notification dated 1-1-2003;
(V) Declare that the promotion of the respondent No(s) 79 and 80 into BS-1 7 vide Notification dated 31-3-2009 is illegal, violative of the petitioner's rights hence void ab initio;
(VI) Suspend/set aside Notification(s) dated 31-12-2008, 13-10-2010, 2-4-2011 and 21-12--2011, to the extent that they grant ante dated promotion to the respondent No(s) 3 to 80; (VII)Suspend/set aside any seniority list prepared in reliance of Notifications dated 31-12-2008, 13- 10-2010, 2-4-2011 and 21-12-2011 including provisional seniority list(s) dated 24-8-2011 and 15-2- 2012:
(VIII) Suspend/set aside Notification dated 31-3-2009 through which the respondent No(s) 79 and 80 were promoted into BS-17;
(IX) Restrain the respondent No(s) 1 and 2 from acting upon Notification(s) dated 31-12-2008, 13- 10-2010, 2-4-2011 and 21-12-2011 to the extent that ante dated promotion has been granted to the respondent No(s) 3 to 80 and further from finalizing any list prepared in reliance thereof;
(X) Restrain the respondent No(s) 1 and 2 from granting/ considering the respondent No(s) 3 to 78 for promotion into BS-1 7 prior to the petitioners;
(XI) Cost; ' Facts presented through above mentioned writ petition are as under:--- ' Petitioners are civil servants within the meaning of Civil Servants Act, 1973 and are serving under the respondents Nos.1 and 2 as Inland Revenue Officers (IRO) previously referred to as Income Tax Officers (ITO) in BS-16. The petitioners were appointed in their present post by initial appointment/direct appointment vide letters of Appointment dated 16-2-2005, 22-3-2005 and 18- 6-2005. The respondents Nos.3 to 16 and 51 to 80 were juniors to the petitioners and promoted by the respondents Nos.1 and 2 by giving ante dated promotion, thus violated the petitioners' seniority.
After the petitioners' appointment as IROs the respondent No,2 issued a seniority list in the year 2005, in which the petitioners and their batch-mates were shown at Serial Nos.136 to 210 and at Serial Nos.1 to 135 were those IROs who were promoted in BS-16 from Senior Inspectors (BS-14) in the year 2007 by granting ante-dated promotions. Prior to the appointment of the petitioners, 15 Senior Inspectors (BS-14) had approached the Lahore High Court for their promotions to the next rank through Writ Petition No,352 of 1997, which was disposed of vide judgment dated 13-10-1999 on the assurance of the learned Standing counsel for the Federal Government that post of Income Tax Officers (BS-16) to be filled 50% by promotion on the basis of seniority-cum-fitness and 50% by initial appointment as per Notification dated 5-7-1995. Subsequently the aforesaid judgment was impugned by the respondent No,2 vide Civil Petition No,1799 of 1999 before the Honourable.
Supreme Court of Pakistan and the same was dismissed vide order dated 28-2-2001.
' In pursuance of the above judgment, some Senior Inspectors (BS-14) were promoted to ITOs (BS- 16) vide Notification dated 1-1-2003 by the respondent No,2. The Para-7 of the petition reflects that without prejudice to the petitioners' case and their contention that ante-dated promotions cannot affect their inter se seniority; it is stated that the grant of ante-dated/retrospective promotion to the Senior Inspectors (BS-14) who were granted regular promotion vide Notification dated 1-1-2003 does not directly affect the seniority of the petitioners.
' On 14-6-2008, a provisional seniority list of BS-16 was published and circulated by the respondent No,2, resultantly some IROs were promoted as Assistant Commissioners Inland Revenue (ACIRs), which adversely affected the petitioner's seniority. On 24-8-2011, another provisional seniority list was issued by the respondent No,2. According to the petitioners the officers appearing at Serial Nos.1 to 12 were previously below the petitioners in seniority list dated 14-6-2008. Thereafter the petitioners came across a Notification No,2703-IR-III/ 2011 dated 21-12-2011 issued by respondent No,2, through which the respondent No,2 has granted ante-dated/retrospective promotion to various IROs, which is in violation of the petitioners' fundamental and constitutional rights.
' According to the petitioners, the respondent No,2 issued another provisional seniority list dated 15- 2-2011 which is incomplete and utter violation of order dated 14-2-2012 passed in C.P. No,D-619 of 2011. Thus the petitioners' prospect of promotion into BS-17 as ACIRs and their inter se seniority has been gravely affected.
2. We have heard the learned counsel for the petitioners, learned Standing counsel and the learned counsel for respondents at great length. Crux of their pleadings and arguments are as under:-- Petitioners: The respondents without filing any counter-affidavit have heavily and incorrectly relied upon the fact that the petitioners were aware of the grant of ante-dated promotions to certain respondents as early as the year 2008. This assertion is wholly incorrect as the petitioners have recently become aware of the grant of illegal ante-dated promotions.
The first provisional list issued by the FBR in respect of BS-16 was an undated list of the year 2005.
The second provisional seniority list was issued by the FBR in respect of BS-16. On 14-6-2008, when no ante-dated promotions were granted.
The judgment of the Federal Service Tribunal dated 22-77.2008 which granted ante-dated promotions i.e, after the issuance of the provisional seniority list of 2008. Without issuance of any final seniority list, several officers of BS-16 were'promoted into BS-17, some of those were the batch mates of the petitioners. Thereafter the Federal Board of Revenue issued another 'provisional seniority list dated 24-8-2011. Thereafter another provisional seniority list was issued on 15-2-2012.
The Federal Service Tribunal vide its judgment dated 22-7-2008 wrongly granted ante-dated promotion to certain employees who were not regularly promoted on 1-1-2003. The question of quota was never considered.
The respondents have miserably failed to show that there were any vacancies. No document has been filed either by the private respondents or the department/FBR to show that such vacancies were available. Furthermore, even if such vacancies were available, ante dated promotion could not have been granted in utter violation of the petitioners' seniority.
Any appointment which is made in violation of the departmental quota is an ad hoc and temporary appointment hence such appointees do not have any vested rights of seniority.
Moreover, such ad hoc appointees cannot get seniority over the petitioners who were regularly appointed in the year 2005 in accordance with the 50% quota for direct appointees in consonance with notification dated 5-7-1995 and the judgment of the Lahore High Court dated 13-10-1999 passed in Writ Petition No,352 of 1997 was abruptly violated by the respondents Nos.1 and 2.
The learned counsel for the petitioners in support of his contention relied upon the cases of S.H.M.
Rizvi v. Maqsood Ahmed (PLD 1981 SC 612), Ajmal Hassan Khan v. Government of Sindh (2012 SCMR 860) and Nasimul Haque Malik v. Chief Secretary to Government of Sindh (1996 PLC (C.S.) 921).
Respondents: The bare perusal of prayer clause reveals that the petitioners have impugned notifications dated 31-12-2008, 13-10-2010, 2-4-2011 and 21-12-2011 on the ground that the said notifications adversely affect their seniority by granting antedated promotion to respondents Nos.3 to 80 and the petitioners' impugned seniority list dated 24-8-2011 and 15-2-2012.
The petition is barred under Article 212 of the Constitution as the seniority is a part of terms and conditions of service and the petitioners as well as the respondents being civil servants, the dispute relating to their terms and conditions of service can only be agitated before the Service Tribunal.
The petition is meant to circumvent provisions of law of limitation, as the petitioners had the remedy under the rules to approach Federal Service Tribunal against notifications impugned in the petition upon expiry of statutory period prescribed under section 4(1) (a) of Service Tribunals Act, 1973, hence the petition is not maintainable and merits dismissal forthwith.
The service matters of Civil Servants fall within the exclusive jurisdiction of the Service Tribunal in terms of section 3(2) of Service Tribunals Act, 1973 read with Article 212 of the Constitution, therefore, the petitioners cannot invoke the writ jurisdiction of this Court. Respondents Nos.3 to 80 were promoted w.e.f, 1-1-2000 in implementation of judgment of the Federal Service Tribunal, Islamabad, dated 22-7-2008 in Appeal No,944(R)CS/2007 and in pursuance of judgments of the Lahore High Court in Writ Petitions Nos.352 of 1997 and 5173 of 2005.
' The petitioners have no vested right of their promotion from a date when they were actually not in service.
The petitioners' admission that they have no objection to the ante-dated promotions as per Notification No,3-M.III/2003 dated 1-1-2003, is of no avail as the officers promoted vide above quoted notification had filed appeals before the Federal Service Tribunal, Islamabad, which were decided on 22-7-2008. The respondents, as per law, are senior to the petitioners. Further the respondents were promoted in implementation of the judicial pronouncements on the basis of seniority-cum-fitness.
By virtue of the instant Petition, the petitioners are ceaselessly agitating against the seniority and promotion of the respondents. Further they have contested the seniority list of the year 2008 and admitted that the notifications of antedated promotion were issued in implementation of the judgments of judicial forum, therefore, their grievance does not merit any consideration.
The subject matter, in respect of the answering respondent, has been heard and finally decided by the Federal Service Tribunal Islamabad and no appeal has been filed against the decision of Federal Service Tribunal and the matter has become final and the present petition is hit by the principle of res judicata, thus liable to be dismissed.
' The petition is hopelessly time barred, hence liable to be dismissed.
3. We have considered the submissions of the parties and examined the record meticulously.
4. The issue pertaining to promotion and seniority of certain employees of respondent No,2 has already been agitated before Federal Service Tribunal, Islamabad. The Federal Service Tribunal has observed that the notification of 1995 for appointment of 50% ITOs on direct quota will not affect the prospects of promotions of Inspectors against 100% quota of those employees who joined the department before the issuance of notification in the year 1995. In Appeal No,508(L) of 1999 filed by Mian Amir Bashir against Secretary (Establishment), Islamabad and others, the Federal Service Tribunal vide its judgment dated 18-3-2004 has observed as under:-- "(5) The appellant joined the service in the year 1981. The impugned notification was issued on 5- 7-1995. The question for determination is that whether this notification has any retrospective effect. The answer to this question is in the negative. This notification cannot affect the rights of the appellant to promotion to the post of AITO in BPS-16. The appellant for the purposes of promotion to the post of AITO, is to be governed by 1981 Rules, Under these Rules 100% posts of AITO are/were to he filled in by promotion. The prospects of the promotion of the appellant could not be curtailed in the year 1995 by reducing the number of posts by 50%. 1t is clearly laid down in 1982 SCMR 644, 1987 SCMR 359 and PLD 1991 SC 35 that any change in the terms and conditions of employees cannot be given retrospective effect so as to deprive the employees of their vested rights. The appellant had a vested right to be considered for promotion under the 1981, Rules which provided filling in of posts of AITOs only by promotion and not partly by direct recruitment. The notification of the year 1995 shall be applicable to those employees only who have joined service after its issuance. It would not be applicable to the employees who were already in service.
(6) For the above reasons we accept the appeal and direct that the appellant shall be considered for promotion under the 1981 Service Rules. The notification of Central Board of Revenue dated 5- 7-1995 shall not affect his rights."
5. While disposing of Service Appeals Nos.944(R)CS of 2007 and 1064(R)CS of 2007 filed by certain employees of respondent No,2, the Federal Service Tribunal, Islamabad by its judgment dated 22- 7-2008 observed as under:--- "In view of the foregoing we are of the firm opinion that the case of the appellants for consideration for promotion should have been placed before the DPC immediately upon the pronouncement of the judgment by the Hon'ble High Court in Writ Petition No,352/1997. Although the respondents filed a CPLA before the Hon'ble Supreme Court against the said judgment, Leave was refused on 28-2-2001. There was no restraint order issued by the Hon'ble Supreme Court in the said case. The appellants are thus found entitled to promotions as ITOs (BS-16) with effect from 1-1-2000, the reasonable time within which the judgment of the Hon'ble High Court should have been given effect to. This retrospective promotion shall be affected with all consequential benefits including arrears of salary in the higher scale."
6. In Appeals Nos.929(R)CS of 2007, 1017(R)CS of 2007, 1018(R)CS of 2007, 1019(R)CS of 2007 and 1029(R)CS of 2007 filed by Muhammad Naeem Khan and others, the Federal Service 'Tribunal Islamabad in its judgment dated 5-10-2009 has observed as under:--- "Further, the appellants had a vested right to be considered for promotion under the 1981 Rules which provided filling in of posts of AITOs only by promotion and not partly by direct recruitment.
Moreover, the notification of 1995 shall be applicable to those employees only who have joined service after its issuance and would not be applicable to the employees who were already in service of the respondents before its issuance. We are fortified by the FST's judgment dated 18-3- 2004 passed in Appeal No,508(L) of 1999 titled Man Amir Bashir v. Secretary, Establishment Division, Islamabad and 2 others which has identical points.
' Foregoing in view, we accept the appeals and direct the respondents to consider the appellants for promotion under the 1981 Service Rules with a period of three months. The CBR's notification dated 5-7-1995 shall not affect their rights."
7. In another Service Appeal filed by the employees of respondent No,2 before Federal Service Tribunal, Islamabad, the Federal Service Tribunal in its judgment dated 29-4-2010 while disposing of the appeal directed the respondents to consider the case of the appellants for antedated promotion in light of the Federal Service Tribunal's judgment dated 22-7-2008 within a period of two months from the date of receipt of the judgment in the office of respondents.
8. In another Service Appeal filed by the employees of respondent No,2 before Federal Service Tribunal, the Federal Service Tribunal in its judgment dated 30-4-2011 observed as under:--- "In the case of Harmed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and others (1996 SCMR 1185) it has been held that benefit of the judgment of the Supreme Court, High Courts and the Federal Service Tribunal has to be extended even to non-litigating employees who were similarly placed. On this principle of law laid down by the apex Court of Pakistan the appellants are also entitled to consideration for grant of pro forma promotion subject to their eligibility and suitability. In our view an anomalous situation would arise if the juniors get pro forma promotion but the seniors do not get it. To avoid this situation we accept the appeals and direct the respondents to consider the claims of the appellants for grant of pro forma promotion on merits. The eligibility and suitability of every appellant shall be considered on its own merit. The process may be expedited, preferably within a period of four months from the date a copy of the judgment is received in the office of respondents. "
9. The antedated promotion granted to the respondent at Sr.No,77 w.e.f, 31-12-2004 vide FBR Notification No,2196-M-IV-2010 dated 13-10-2010 was again contested by the respondents before Federal Service Tribunal Islamabad, by filing Miscellaneous Petitions Nos.1491, 1093 to 1097, 732, 742 of 2010-11, with the contention that the FBR failed to implement properly the order of Federal Service Tribunal in letter and spirit. The Federal Service Tribunal Islamabad, after examining the facts and circumstances of the case, in its order dated 14-6-2011 observed as under:--- "Perusal of record reveals that the judgment of this Tribunal have been partially implemented by issuing notification dated 13-10-2010 whereby petitioners at serial Nos.1 to 21 have been given antedated promotion w.e.f 1-1-2000 but the same benefit has been denied to the petitioners namely Syed Haroon Rasheed and Wajid Ali w.e.f 1-1-2000 and granted the same w.e.f 31-12-2004 which is not in accordance with the spirit of FSTs judgment dated 22-7-2008. It should have been made w.e.f, 1-1-2000 with the directions to the respondents to give full benefits of the FST judgment (supra) dated 22-7-2008 including the ante-dated promotion to the petitioners in BS-17 and BS-18 w.e.f, 14-9-2004 and 25-8-2008 respectively as the same benefits have already granted in other cases vide notification dated 25-4-2009, 13-3-2009 and 31-3-2009. With this direction, the MPs are disposed off accordingly."
10. In Civil Petition No,1152 of 2001, filed by the respondents before the Honourable Supreme Court impugning the order dated 24-5-2011 passed by this Court in C.P. No,D-619 of 2011, the Honourable Supreme Court held as under:--- 'Learned counsel for the petitioner states that petitioner-department is ready to promote the respondents with effect from 1-1-2000 by giving effect to the notification which was issued on 1-1- 2003; however, he states that in one of the para of the said notification, certain conditions have been imposed, namely, the promotion shall take effect from the date of their joining, subject to the condition that no disciplinary proceedings/enquiry are pending against above Senior Inspectors (BS-14)/Inspectors (BS-14). Needless to observe that in view of the judgment relied upon by the learned High Court in the case of Hameed Akhtar Niazi v. The Secretary Establishment Division, Government of Pakistan (1996 SCMR 1185), the effect has been given to the notification, as has been noted herein above, therefore, it would have an effect with its all terms and conditions.
(2) Learned counsel for respondents states that the notification has to be effected in terms of the Service Tribunal's judgment dated 22-7-2008 passed in Service Appeal No,829(R)CS of 2005, without adhering to any condition imposed by the notification dated 1-1-2003.
(3) After hearing the learned counsel for both the parties, we are of the considered view that the notification dated 1-1-2003 shall take place with effect from 1-1-2000, in all terms and conditions noted therein.
(4) In view of above, petition stands disposed of."
11. Thus the petitioners' appointment/induction as IROs on direct quota of 50% is itself a controversy.
In the light of Federal Service Tribunal's decisions as mentioned above their appointment against direct quota was required to be made after promotion, against the 100% quota, of those Inspectors who were in service before the issuance of notification dated 5-7-1995.
12. The contentions of petitioners that all the officers/employees of respondent No,2 were promoted under the hard and fast rule in view of the judgments passed by the Federal Service Tribunal, but the notification dated 21-12-2011 reflects that many officers have not been granted promotions subject to seniority-cum-fitness. The relevant paragraphs of the said notification are as under:---
2. The DPC also considered the cases of retired officers on panel but did not find them eligible for ante-dated promotion in BS-16 in light of judgment of Hon'ble Lahore High Court in case of Mr. Dilawar All and others (2006 PLC (CS) 1034) and Hon'ble Supreme Court of Pakistan in case of Mr. Muhammad Aslam Sultan v. General Manger of Pakistan Railways (2005 PLC (C.S.) 1400) that retrospective promotion to a retired Civil Servant is not admissible under the law.
3 1t was also recommended by the DPC that officers on penal who are junior to Mr. Shabbir Hussain, IRO (Last beneficiary who has been granted ante-dated promotion w.e.f 31-12-2004, may not be granted ante-dated promotion in view of non-availability of vacancies at the point of time.
4 The DPC also considered the cases of other litigants who are still Inspector (BS-14) and observed that they are not eligible, for ante-dated promotion being juniors and have not been promoted as IRO (BS-16) so far.
13. The contentions of the private respondents are that they were already in service rather prior to the appointment of petitioners and they were entitled for promotions to their next rank, therefore, in consequence of certain judgments passed by Federal Service Tribunal, they were promoted by giving ante-dated promotion even after appointment of petitioners and if they had been promoted as per their turn, as earlier, subject to the seniority-cum-fitness, irrespective of the notification dated 5-7-1995, they would have attained more seniority than the petitioners, therefore, the original seniority of the petitioners would not be affected in any manner. The above contentions were already discussed before the Federal Service Tribunal by filing certain service appeals.
14. Admittedly the petitioners were appointed in the years 2005 and 2006 much prior to the appointment of private respondents in the department. The private respondents were deprived of their promotion owing to Notification No,674(0/95 dated 5-7-1995 whereby 50% quota for promotion and 50% for initial/direct appointment has been prescribed. Some of the private respondents had impugned the notification dated 5-7-1995 before the Federal Service Tribunal by filing certain appeals (supra).
15. So far as the question of other officers, who were not parties in the earlier litigation and were promoted antedated, is concerned, in this regard the Hon'ble Supreme Court of Pakistan in the case of Hameed Akhtar Niazi at page 1193 has observed as follows:--- "16. 1n our view, it will be just and proper to remand the case to the Tribunal with the direction to re-examine the above case after notice to the affected persons and to decide the same afresh in the light of above observations. We may observe that if the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of the civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to the other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."
16. In support of contentions of petitioners, the learned counsel for the petitioners relied upon the following case-law:---
(i) 2012 SCMR 860 (Ajmal Hassan Khan v. Government of Sindh). In this case it was averred that "such seniority list came to be challenged by the appellants in service appeals before the Sindh Service Tribunal, which were decided vide common judgment dated 7-4-2005 and were dismissed. The matter came before this Court where it was pointed out that the appeals filed by the appellants against the seniority list dated 19-8-1999 before the Departmental Authority were not decided."
' The Honourable Supreme Court in the judgment (supra) has also held as under:--- "The fact that when the appellants were promoted to the posts of Section Officers, there was no vacancy for them for promotion against such posts was not disputed before us and it was rather admitted as a matter of fact that their promotion as Section Officers were against the quota reserved for direct recruits."
(ii) 1996 PLC (C.S.) 921 (Nasimul Haque Malik v. Chief Secretary to Government of Sindh). In this case the Honourable Supreme Court of Pakistan has held as under:--- "The findings of the Tribunal are thus in direct conflict with the dictum laid down by this Court in Azam Ali's case supra. The result is that as regularization, of the promotee in 1977 was not against the vacancies reserved for promotion in terms of section 9 of the Sindh Civil Servants Act, 1973, for which alone they were eligible for promotion, their promotion would be regular from the date that a vacancy reserved under the West Pakistan Co-operative Service (Class 11) Rules, 1963 for departmental promotion occurred."
(iii) PLD 1981 SC 612 (S.H.M. Rizvi v. Maqsood Ahmed). In this case the Honourable Supreme Court of Pakistan has also held as under:--- "The Civil Servants (Appeal) Rules, 1977 enforced on January, 1977, read along with section 22 of the Act exhaust the remedies available to a civil servant for redress of the grievances within the Department. It is either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent (for the objection filed in 1976 remains to date undisposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants.
We accept this appeal, set aside the judgment of the Service Tribunal and dismiss the service appeal of the respondent as incompetent. The parties are left to bear their own costs."
17. With profound respect the contents of the cases as cited by the learned counsel for the petitioners are distinguishable to the facts and circumstances of the instant petition for the reasons that in the above cited cases the petitioners at the first instance had approached the Sindh Service Tribunal and Federal Service Tribunal then they impugned such orders before this Court and the Honourable Supreme Court respectively, but here through the instant petition the petitioners have directly approached this Court by invoking writ jurisdiction.
18. The matter also pertains to the dispute of seniority in between the petitioners and respondents.
In this regard it is clarified that the question of seniority of the Civil Servants comes within the definition of terms and conditions of Civil Servant, which can be resolved by filing appeals before Sindh Service Tribunal Under Section 4 of the Sindh Service Tribunal Act, 1993, and the jurisdiction of this Court is barred under Article 212 of the Constitution of Pakistan.
'SECTION 4 OF THE SINDH SERVICE TRIBUNALS ACT, 1973 'Appeals to Tribunals. --- 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 or within twelve months of the establishment of a tribunal whichever is latter 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 Sindh 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 a decision of a departmental authority determining 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; 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)
' In the case of I.A. Sharwani v. Government of Pakistan, reported in 1991 SCMR 1041, the Hon'ble Supreme Court has held as under:--- "However, we may clarify that a civil servant cannot bye pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the fundamental Rights."
' In the case of Mukhtar Ahmed Junejo v. Province of Sindh, reported in PLD 1986, Supreme Court 560, the Hon'ble Supreme Court has held as under:--- "We are in agreement with the above views of the Sindh High Court. In fact, the same view, namely that questions of seniority can be agitated before the Service Tribunal and it has the jurisdiction to decide these questions in the course of an appeal before it, was given effect to in the case of Inspector General of Police, Punjab, Lahore and others (1) for more or less the same considerations which the Sindh High Court has seen fit to advert to in some detail."
19. So for as the question of issuance of Provisional Seniority Lists dated. 24-8-2011 and 15-2-2012, is concerned, both lists as per their contents were issued in accordance with the Civil Servants (Seniority) Rules, 1993. The para 2 of both the lists reflects that the opportunity of representation has been provided to the employees and the copies of said lists have been placed on Website, which is sufficient to provide the opportunity of representation to the employees of respondents Nos. 1 and 2, subsequently a Notification dated 21-12-2011 regarding promotions of the employees has been issued as final order of the competent authority, therefore, this Court cannot interfere in the above cited lists.
20. The petitioners have filed instant petition to invoke constitutional jurisdiction without exhausting the available remedy. We under the constitutional jurisdiction cannot suspend/set aside notifications dated 31-12-2008, 13-10-2010, 2-4-2011 and 21-12-2011 regarding granting ante-dated promotions to the respondents, which is outcome of judgments/orders dated 18-3-2004, 22-7- 2008, 5-10-2009, 29-4-2010 and 30-4-2011, passed by Federal Service Tribunal.
21. In view of above, the instant petition id dismissed along with listed applications.