' SAEEDUZZAMAN SIDDIQUI, J.-This Petition under Article 199 of the Constitution is filed by the petitioners to challenge the final seniority list issued by respondent No, 1 on 5-11-1980.
' The admitted position in the case is that the petitioners who were directly appointed as Assistant Executive Engineers joined service of respondent No, 1 on 10-6-1975, 22-9-1976, 20-10-1976 and 11-6- 1975 respectively. Respondents 2 to 16 were then working as Assistant Engineers with respondent 1.
It is also an admitted position that respondents 4, 7 and 10 had applied for appointment as Assistant Executive Engineer along with the petitioners when applications for that post were invited by respondent 1 but they were not considered fit for appointment. It appears that on 11-2-1974 the Government of Sind issued notification No, SO. IX. REG (S&GAD)-8/7-74 deciding that the graduate engineer appointed either by initial appointment or by promotion, as Assistant Engineer, temporary Assistant Engineer, temporary Engineers, Assistant Electrical Inspector, Assistant Research Officer, Assistant Design Officer, Sub-Divisional Officer or to other posts in the Irrigation and Power Department, Communication and Work Department and Housing, Town Planning and Local Government Department (including Public Health Engineering Department) shall have their pay fixed in the scale of 450-50-1,000 (subject to the revision in the National Pay Scale) plus technical pay at Rs, 25 per month in accordance with the provisions of Sind Civil Service Rules, with effect from 28-3-1972. Respondent No, 1 thereafter in its meeting of the governing body held on 18-9-1974 while considering item 6 of the agenda.' "Grant of Junior Class 1 Status and pay to Graduate Engineers Appointed/Promoted as Assistant Engineers" passed the following resolution :- "Resolution No, 391.-Resolved that, in the Item Note, approval be accorded to the adoption of orders contained in Notification No, SO-IX-Reg (S & GAD) 8/7-24 dated 11-2-1974, issued by Services and General Administration Department, Government of Sind, allowing Junior Class-I Status to Assistant Engineers possessing degree in Engineering w. e. f. 28-3-1972."
' It appears that in spite of passing of the above resolution there existed difference in the cadres of Service of Assistant Engineer and Assistant Executive Engineer and, therefore, to remove the same, the governing body of respondent 1 in its meeting held on 21-5-1977 decided to re-designate Assistant Engineers holding degree in Engineering as Assistant Executive Engineer and passed the following resolution "The Governing Body vide Resolution No, 210, dated 31st May, 1977 has been pleased to accord its approval to the following :- ' All graduate Assistant Engineers who are in Grade-17 be re-designated as Assistant Executive Engineers and their seniority integrated with Assistant Executive Engineer with effect from the date of this Governing Body Resolution (i. e. 21-5-1977). At the same time, equivalent number of posts be created in the cadre of Assistant Executive Engineer and the same number of posts abolished from the cadre of Assistant Engineer."
' Thereafter respondent No,
1. Published a provisional seniority list in which the names of the petitioners appeared at Serial Nos. 23, 24, 29 and 32 and those of respondents 2 to 16 were shown at serial Nos. 42 to 57. It appears that some of the respondents made representation against the tentative provisional list issued by respondent 1 whereupon respondent No, 1 issued another revised tentative seniority showing the petitioners as juniors to the respondents. Petitioners 1 to 3 made representation against the revised tentative seniority list but respondent No, 1 did not accept their representation and a final seniority list was issued by respondent No, 1 on 5-11-1980 in which respondents 2 to 11 were shown senior to all the petitioners while respondents 12 to 16 were shown senior to petitioners 2 and 3 only. Petitioners 2 and 3 appear to have filed representation against the final seniority list but no action was taken thereon, therefor, the present petition was filed challenging the final seniority list. At the hearing of this petition the learned counsel for respondent 1, 4, 5, 7, 8 and 10 raised two-fold preliminary objections as to the maintain under sub-clause (3) of Article 8 of the K.D.A. Order against the final seniority ability of the petition. It was firstly contended that an appeal was competent list issued by respondent 1 and, therefore, the petitioner should have exhausted between the petitioner and respondent 1 being that of Master and Servant the alternate remedy available to them under the law before filing the constitute of the above contentions raised by the learned counsel for the respondents has impressed us. Article 8 of the K.D.A. Order which deals with appointment, punishment and appeal is as follows : toing petition before this Court. It is next contended that the relationship the remedy if any, available to the petitioners was by way of a civil suit for damages and not a petition under Article 199 of the Constitution. Non {{TABLE}} "8. . . . . .
(1)
(1-A) . . . . . {{TABLE}}
(2) Subject to any rules for the time being in force, the power of making appointments and promotions to posts in the service of the Authority, of granting leave to Officers and servants, holding such posts, of censuring, fining, withholding promotion from, reducing, suspending, removing or dismissing such officers and servants for any breach of departmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct, and of discharging such officers and servants from the service of the Authority for any other reason, shall be exercised by the under-mentioned authorities :-
(a) in the case of posts the monthly salary or the maximum monthly salary of which does not exceed Rs, 750 and officers and servants holding such posts the Director-General ;
(b) in the case of posts the monthly salary or the maximum monthly salary of which does not exceed one thousand rupees and servants holding such posts the Chairman ;
(c) in the case of posts the monthly salary or the maximum monthly salary of which does not exceed Rs, 1,500 and officers and servants holding such posts the Governing Body ; and
(d) in the case of posts the monthly salary or the maximum monthly salary of which exceed Rs, 1,500 and officers and servants holding such posts-the Governing Body with the previous sanction of the Provincial Government : ' Provided that a servant of the Central Government or the Provincial Government or a local authority whose services have been lent to the Authority shall not be so punished except by an authority which would have been competent to inflict such punishment if his services has not been so lent, and the Director-General, the Chairman, or the Governing Body, as the case may be, shall be entitled only to make recommendations in that behalf to such authority.
(2-A) . . . . . . . .
(3) An officer or servant of the Authority against whom an order under ^lause (2) imposing any punishment has been passed, may appeal :-
(a) to the Governing Body, if the order was passed by the Director-General ; and
(b) to the Provincial Government, if the order was passed by the Governing Body or the Chairman.
(4) The Governing Body may, upon appeal made to it under sub-clause (a) of clause (3), enhance the punishment awarded by the Director-General, but an appeal, shall lie to the Provincial Government against such enhancement.
9. (1) The meeting of the Governing Body shall be held at such times and at such places as may be prescribed by regulations : Provided that until such Regulations are made, such meetings shall be convened by the Chairman.
(2) To constitute a quorum at a meeting of the Governing Body, not less than four members, including the Chairman, shall be present.
(3) The Chairman shall preside at every meeting at which he is present, and if the Chairman is absent from a meeting a member of the Governing Body present and chosen for the purpose by the Members present shall preside at the meeting.
(4) Each Member, including the Chairman shall have one vote, and in the event of an equality of votes, the Chairman shall have a second or casting vote."
A reading of the above provision of appeal will show that an appeal is competent only against an order passed under clause (2) of Article 8 of the order imposing punishment on an employee of the K. D. A. We are unable to agree with the learned counsel for the respondents that the publication of final seniority list showing the petitioners as junior to the respondents amounted to a punishment within the meaning of sub-clause (2) of Article 8 of the K. D. A. Order. We further find that against the revised tentative seniority list issued by respondent No, 1, the petitioners did make a representation to the Director-General of respondent ,No, 1 as admitted in the comments of respondent No, 1 but the same was rejected by the competent Authority. In these circumstances the petitioners could not be asked to approach the same authority again against the final seniority list who has already rejected the representation of the petitioners. We, therefore, overrule the first objection of learned counsel for the respondent that the petitioners had failed to exhaust the alternate remedy available to them under the K. D. A. Order before filing the present petition. The second preliminary objection of the learned counsel for the respondents jointly is that since the relation between the petitioners and respondent No, 1 is that of "Master and c Servant" no writ would lie against respondent 1. In support of their contention the learned counsel for the respondents referred us to the cast of Wali Ahmed Khan v. Government of Sind and others and several other cases noted therein but we find that all these cases are distinguishable as they were filed by dismissed employees who had challenged their dismissal from service by way of writ petitions with a prayer for re-instatement in service., In the case before us the petitioners have neither challenged their dismissal from service nor have they sought any re-instatement. They have simply challenged the action of respondent No, 1 (issuance of final seniority list) being in violation of statutory rules of service framed by it under K. D. A. Order of 1957. The learned counsel for respondents, have not been able D to refer us any decision or a provision of law which barred the jurisdiction of this Court under Article 199 of the Constitution from considering such a question. The learned counsel for respondents 4, 5, 7, 8 and 10 also raised further contention that the jurisdiction of this Court is also barred under Article 212 of the Constitution as the grievance of petitioner related to terms and conditions of their service. We find it difficult to assimilate this last contention of learned counsel. Article 212 in our view has no application to the cases of the present petitioners who are admittedly not in the service of Pakistan or its provinces. We accordingly find no substance in the preliminary objections raised by the learned counsel for the respondents and overrule the same.
' On merits the learned counsel for the respondents jointly urged before us that respondents 2 to 16 having been given the status of Grade-17 officer in terms of general body Resolution No, 391 of respondent No, 1 dated 17-9-1974 they should rank higher in seniority to the petitioners in terms of that resolution. We are unable to agree with the contention of learned counsel for the respondents.
It is not disputed before us by the learned counsel for respondent 1 that as against Executive Engineers and Assistant Engineers belong to different cadres of service and that the cadre of Assistant Executive Engineer (Civil) was higher to that of Assistant Engineer (Civil). In fact is Schedule II to the Karachi Development Authority (Employees Service) Regulation, 1973 under the heading "Technical Gazetted and NonGazetted Posts of Engineering Wing Department", the post of Assistant Executive Engineer (Civil) is listed at Serial No, 11 while the post of Assistant Engineer (Civil) is listed at serial No,
13. The scale of pay for . Assistant Executive Engineer (Civil) is Rs, 450-1,000 plus Rs, 50 per month as technical pay whereas the scale of pay of Assistant Engineer is Rs, 350-925 plus Rs, 25 per month as technical pay. In the column "Method of Recruitment and Conditions for Promotion" against the post of Assistant Executive Engineer (Civil) it is mentioned that 25% of this post is Grade-17 shall be filled in by promotion of Assistant Engineer in Grade-16 on the basis of seniority-cumfitness and 75 % posts of Assistant Executive Engineers in Grade-17 shall be filled in by initial recruitment of candidates holding degree. In so far the qualifications for appointment to the posts of Assistant Executive Engineer and Assistant Engineer under the rules are concerned, both are the same. These facts are substantially admitted in the comments filed by respondent No, 1 in the case. After reading the comments in the case filed by respondent F No, 1 and after going through the Service Regulations of respondent No, we are in no doubt that Assistant Executive Engineer and Assistant Engineer belong to two different cadre of service and that the cadre of service of Assistant Executive Engineer is superior to that of Assistant Engineer. During the course of argument the learned counsel for respondent No, 1 had placed before us the original file containing the working paper on item 3 of the agenda of the meeting held on 21-5-1977 which related to the redesignation of Assistant Engineers holding degrees as Assistant Executive Engineers and we found that "the necessity" for passing the resolution dated 21-5-1975 was felt by respondent No, 1 as the Assistant Engineers who were given junior Class I Status by virtue of Resolution No, 391 dated 17- 9-1974 in spite of this resolution continue to occupy a lower cadre of service as compared to Assistant Executive Engineer. Therefore, this difference in cadre of service of Assistant Executive Engineer and Assistant Engineer was sought to be removed by passing the resolution dated 21-5-1 1977. The following extract from the working papers produced before us gives the background for passing the resolution dated 21-5-1977 :- "According to K. D. A. Employees (Service) Regulations, 1973, the prescribed qualification for initial recruitment of Assistant Engineers and Assistant Executive Engineers is a Degree in Engineering/A.
M. I. E. With regard experience for Assistant Executive Engineers. A Engineering Graduate is appointed as Assistant Engineer in Grade-17, or as Assistant Executive Engineers in the same grade i. e.
17. There is no difference in grade and qualification, and both, are Sub-Divisional Officers but their cadres are different. This has resulted in heart burning to such Assistant Engineers who have the same qualification and grade as Assistant Executive Engineer, but are designated as Assistant Engineers which is inferior cadre-as the seniority of both the cadres is being maintained separately. Besides promotions to the higher rank of Executive Engineer is made from amongst the cadre of Assistant Executive Engineer; and then from the cadre of Assistant Engineers-although holding the same qualification and grades. Further it is pointed out here, that a reference for change of cadre of Sub-Divisional Officers i. e., A. E's/A. E. Es. Was made to the Government just after adoption of Government's notification under reference. Since then the case is lying undecided with the Government. Under Article 4 of K. D. A. Order, 1957 the Governing Body is competent to create or abolish any post in any cadre, the reference made to the Government in this behalf can, therefore, be withdrawn the approval of the Governing Body in this respect.
' It may be pointed out here, that at present 50 % of the total posts of Sub-Divisional Officers are operative in the cadre of A. E. E. In Grade-17, and 50% in the cadre of A. E. In Grades 16 and 17 to rectify the anomolies."
After considering carefully the resolution dated 21-5.1975 passed by respondent 1 redesignating Assistant Engineers working in Grade-17 as Assistant Executive Engineers, and after reading rule 32(1) (a) of the Karachi Develop. Ment Authority Employees Service Regulation 1973, we are of the view that the Assistant Engineers who were re-desiguated as Assistant Eexecutiv Engineer pursuant to the resolution of respondent No, 1 dated 21-5-1977 were entitled to claim their seniority in the cadre of Assistant Executive Engineer from the date of their entry in that cadre and, therefore, the assignment of seniority that the Assistant Engineers by respondent No, 1 from the date they were given Junior Class I status in the cadre of Assistant Engineer was ultra vires of rule 32(1) (a) of K. D.
A. Employees Service Regulations, G 1973. There can be no doubt that the cadre of service of Assistant Engineer was not only different but was also inferior to that of Assistant Executive Engineer. We, therefore, hold that the final seniority list dated 5-11-1981 prepared by respondent No, 1 giving seniority to respondents Nos. 2 to 16 from the date they were given junior class I status in the cadre of Assistant Engineer was illegal and without lawful authority and we accordingly quash the same. The respondent No, 1 is directed to prepare the seniority list of petitioners and respondents 2 to 16 in accordance with rule 32(1) (a) of Karachi Development Authority Employees Service Regulation, 1973 in the light of the above observation. As the petition was very hotly contested by respondents 1, 4, 5, 7, 8 and 10 only they alone will bear the cost of this petition. 1982 PLC (C S) 1