1. MUSHTAK ALI KAZI (CHAIRMAN).-These tire two connected appeals under section 4 of the Sind Service Tribunals Act, 1973, directed against the order of Deputy Commissioner, Nawabshah and the order of Com--missioner, Sukkur Division passed in departmental appeals regarding fixation of seniority of the appellants as Assistants in the Revenue Department in District Nawabshah.
2. The facts pertaining to these appeals are not disputed. Appellant Azam Shah entered in service as Junior Clerk on 14th July, 1953 while appellant Fazal Hussain was appointed in the same grade on 30th September, 1953. The three respondents entered service much later. Mr. Sharafuddin Abbasi came for Lasbella district in the year 1954, Mr. Muhammad Hassan Lashari was appointed Junior Clerk on 13th July, 1957 and Mr. Muhammad Mithal on 27th January, 1968. Thereafter the appellants and respondents were appointed as Senior Clerks and were then promoted as Assistants on ad hoc basis. Appellant Azam Shah was promoted as Senior Clerk on 29th April 1970. Appellant Fazal Hussain was also promoted as Senior Clerk on the same date. In case of respon--dents, Mr. Sharriuddin was appointed Senior Clerk on 1st February, 1970 while the other the respondents did not receive their promotions as Senior Clerks. By an order of the Departmental Promotion Committee dated 20th July, 1978 with Syed Musharraf Ali, Deputy Commissioner, Nawabshah as Chairman, the ad hoc promotions as Assistants of the appellants and respondents were regularized and they were placed in the following serial order :-
(1) Mr. Muhammad Mithal Abro.
(2) Mr. Sharafuddin Abbasi.
(3) Mr. Muhammad Hassan Lashari.
(4) Mr. Syed Azam Shah.
(5) Mr. Fazal Hussain Opal.
3. This was also the order of seniority given in the seniority list of Assistants of Nawabshah District dated 24th July, 1978.
4. The appellants filed objections and then preferred appeal against fixation of their seniority before the Commissioner, Sukkur Division. The Commissioner rejected their appeals and upheld the contention of Mr. Sharafuddin Abbasi that he was promoted as Senior Clerk on 1st February 1970 before the appellant and other respondents Mr. Muhammad Mithal Abro and Mr. Muhammad Hussan Lashari had been promoted directly from their position as Junior Clerks, They had not acted as Senior Clerks at any time. They were, however, taken up on account of their qualifications by diverting two posts from the quota of direct recruits and promoting them against those posts.
5. The position that emerges from the recital of the above facts is, that the appointment of the appellants as well as the respondents on regular basis as Assistants was made with effect from the same date namely 20th July, 1978. Question, therefore, arises as to how their seniority should have been determined under the relevant rules, since the appointments were made in the year 1978 on regular basis the rules applicable to their case would be the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975. Under rule 11 interse seniority of civil servants appointed on the same date shall be determined in the case of persons appointed by promotion on the basis of their interse seniority in the lower grade and in the case of persons appointed by initial recruitment viz-a-viz persons appointed by promotion, on the basis that the persons appointed by promotion shall rank senior to the persons appointed by initial recruitment. In case of persons not covered by the clauses the persons older in age shall rank senior to the persons younger in age.
6. Respondents Mr. Muhammad Hassan Lashari and Mr. Muhammad Mithal Abro do not claim that they were appointed as direct recruits because in that case they would rank junior to the persons appointed on the same date by way of promotion. Therefore, the appellants as well as the respondents are deemed to have been promoted as Assistants on regular bass on the same date, Under rule 11 (b) of the seniority rules, their seniority has to be determined on the basis of their inter se seniority in the lower grade. Since respondents Muhammad Mithal and Muhammad Hassan Lashari had never acted as Senior Clerk the lower grade for their purpose would be the grade of Junior Clarks. In that grade both the appellants were senior to them having been appointed for earlier than the respondents.
7. The case of Mr. Sharafuddin Abbasi would be slightly different. The lower grade as applicable in his case and the case of the two appellants would be the grade as Senior Clerk. In this grade Mr. Sharafuddin Abbasi was appointed on 1st February, 1970 while the appellants were appointed on 29th April, 1970. Mr. Sharafuddin Abbasi will, therefore, rank senior to the two appellants as Assistant.
8. He would, therefore, rank higher to Mr. Azam Shah and Mr. Fazal Hussain as held by Mr. Rafiq Hussain Agha, Commissioner, Sukknr Division in departmental appeal of Mr. Sharafuddin Abbasi.
9. According to the above discussion, the seniority inter se of the appellants and respondents under the seniority Rules would be as under :-
(1) Mr. Sharafuddin Abbasi.
10. (2)Mr. Azam Shah.
(3) Mr. Fazal Hussain.
(4) Mr. Muhammad Hassan Lashari.
(5) Mr. Muhammad Mithal.
11. It has been contended by Mr. Azizur Rehman's on behalf of the respon--dents that the District Promotion and Selection Committee with Deputy Commissioner. Nawabshah as Chairman is to be considered on par with the Public Service Commission in respect of the selection and promotion of Assistants. Therefore, the seniority fixed by them should not be disturbed even though it is not in accordance with the rules. The reply to this argument is that the Promotion and Selection Committee did no have the discretion to fix the seniority when the competent authority had framed the rules governing seniority in such cases. Where there was a contravention of the rules in fixation of the seniority the Service Tribunal could certainly interfere to prevent any injustice in fixation of such seniority. The Committee could fix the seniority only according to the'' Seniority Rules and they had no discretion to fix such seniority solely on administrative grounds on consideration of the qualifications of the candidates promoted. This principle was enunciated in the case of Pakistan v. Abdul Hamid (PLD 1961 SC 105).
12. It has next been argued by Mr. Azizur Rehman's that seniority not being a term and condition of service or a vested right, the Tribunal would have no jurisdiction in cases of determination of seniority. Regarding, this argument there is decision of Supreme Court in the case of Bashir Ahmed Khan v. Muhmood Ali Khan Chaudhry and other (PLD 1960 SC 195). It was held by the Supreme Court in that case as under :- "It cannot be denied that every officer in a graded service has a vested right to a proper place in the seniority list. This is of the highest importance to him, as well as to the maintenance of proper discipline and order within the service, and consequently to the public interest which is deeply involved in the maintenance of a proper spirit of order and a discipline within the service. There-- fore, the giving by the High Court of a considered interpretation of the Rules by which the somewhat complex question of place--ment, up on the same list of officers who entered that list through different channels, so far from being an inconvenient interference with the day-to-day control of that service by the Government is indeed an action calculated to assist the Government in exercising such control peacefully and harmoniously."
13. Perhaps the confusion has occurred on account of the wordings of section 8 of the Sind Civil Servants Act, 1973. It is stated in section 8 that, "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." Under section 4 of the Sind Service Tribunals Act, the jurisdiction of the Service Tribunal extends to any final order relating to the terms and conditions of service. Under the Service Tribunal Rules, 1974 rule 8, every memorandum of appeal shall be accompanied by a copy of the seniority list if the appeal relates to the seniority Under Section 3 of the Civil Servants Act, the terms and conditions of service of a civil servant shall be as provided in this Act and the Rules. Under Article 212 of the Constitution, the Tribunals have the exclusive jurisdic--tion in respect of the matters relating to the terms and conditions of the persons in service of Pakistan. Reading all these provisions together it becomes evident that the place in the seniority list being a right relating to status is of per-amount importance to a civil servant, and the future appointments and promotions depend upon the position in the senio--rity list. The question of seniority cannot, therefore, be excluded from terms and conditions of service as contemplated under Article 212 of the Constitution! Even the Service Tribunal Rules provide the procedure in respect of appeals relating to seniority inter se and they have not been excluded under section 8 of the Civil Servants Act.
14. Recently the matter relating to seniority of civil servants was agitated by filing Constitution Petitions to the High Court being Petitions Nos. 1333 of 1980, 1379 of 1980 and 1492 of 1983 A. If. Mirza v. The Province of Sind etc., a Division Bench of the Sind High Court held that a dispute relating to seniority is the matter pertaining to the terms and conditions of service of a civil servant and Civil Service Tribunal has therefore the exclusive jurisdiction to deal with such cases.