AJMAL MIAN, J.--The petitioners, who are nine in number, have prayed for the following reliefs through this petition:-
(i) to declare that Notification No.OSD (HE) 1/42-74, dated 1-2-1978 to the extent it violates para. 7
(2) of M.L.R. 118, has been issued without lawful authority and is of no legal effect;
(ii) to direct the respondent to promote petitioners Nos. 1 to 8 to the post of Assistant Professors in Grade 18 w.e.f. a date prior to i-2-1978, and, promote petitioner No.9 to the post of Professor in Grade 19 from a date prior to 1-2-1978;
(iii) to restrain the respondents, their employees and subordinates, from taking any action to the .Prejudice of the petitioners or to deprive them of their rights guaranteed to them under paragraph 7 (2) of M.L.R. 118;
(iv) to grant costs of this petition; and
(v) to grant any other/further/better relief or reliefs that this Hon'ble Court may deem fit and proper in the circumstances of the case."
It may be pointed out that the relief mentioned in sub-para. (il) was deleted by an order of this Court dated 16-5-1979.
2. The brief facts leading to the filing of the above petition are that the petitioners were serving in private colleges, but upon promulgation of M. L. R. No. 118 (hereinafter referred to as the Regulation) and nationalization of the private colleges, they were inducted into Government service with effect from 1-10-1972: Respondent No.1 issued Notification, dated 1-2-1978 upgrading the posts of Assistant Professors and Lecturers of the 'Government Cadre' and 'Nationalized Cadre' (closed cadre), in the colleges. It may be pertinent to reproduce herein below the above Notification, which reads as under:- "The Sind Government Gazette, February 23, 1978.
Education Department Karachi, The 1 February, 1978.
No. OSD (HE) 1/42-74.--The Government of Sind is pleased to accord sanction to the upgradation of the following posts of the Teachers of Government and Nationalized cadres in order to achieve the cadre strength ratio of 1:2:7 (Professors, Assistant Professors and Lecturers), with immediate effect:- GOVERNMENT CADRE:
(i) Men's section:--110 posts of Assistant Professors (Grade-18) are upgraded to the posts of Professors (Grade-19).
(ii) Women's section:-- 42 posts of Assistant Professors (Grade-18) are upgraded to the posts of Professors (Grade-19).
(iii) Men's section:-- 254 posts of Lecturers (Grade-17) are upgraded to the posts of Assistant Professors (Grade-18).
(iv) Women's section:-- 165 posts of Lecturers (Grade-17) are upgraded to the posts of Assistant Professors (Grade-18).
NATIONALIZED CADRE (Closed Cadre).
(i) Men's section:----1 post of Assistant Professor (Grade-18) is upgraded to the post of Professor(Grade-,19).
(ii) Women's section:----16 posts of -Assistant Professors (Grade-18) are upgraded to the posts of Professors (Grade-19).
(iii) Women's section:----56 posts of Lecturers (Grade-17) are upgraded to the posts of Assistant Professors (Grade-18).
The expenditure will be met out of the sanctioned budget of the Education Department for the current financial year, or demanded through the second statement of excesses and surrenders, and will be debit able from the Head 37-Education-A-University (B), Arts Colleges."
(Sd.) Muhammad H. Mama, Additional Education Secretary."
3. It is the grievance of the petitioners that for 'Government Cadre' upgrading of the posts is in hundreds, whereas upgrading of the posts in 'Nationalized Cadre' is comparatively negligible.
According to them, this has violated para. 7 (2) of the Regulation. They being aggrieved by the above notification, have filed the present petition and have prayed for the reliefs quoted herein above.
4. In support of the above petition Mr. Khalid M. Ishaque learned counsel for the petitioners has vehemently urged that the effect of sub-para. (2) of para. 7 of the Regulation is that the petitioners are entitled to be treated at par with the Assistant Professors /Lecturers of Government Colleges having equivalent qualifications, seniority and experience and since the impugned notification has violated the above guarantee, the petitioners are entitled to a writ.
5. On the other hand Messrs Manzoor Ali Khan, Advocate and Abdul Sattar Shaikh Assistant Advocate-General appearing for the respondents have submitted as under:
(i) that the above petition is hit by Article 212 of the Constitution and therefore, is not competent; and
(11) that even on merits the petitioners have no case, as there has not been any violation of sub- para. (2) of para. 7 of the Regulation 6. It may be observed that on merits both the learned counsel for the parties have referred to the judgment in the case of Province of Punjab v. Syed Bashir Ahmed Bukhari reported in PLD 1982 SC 27, in which the Hon'ble Supreme Court has construed above sub-para. (2) of para. 7 of the Regulation. In our view, if we were to hold that the abovest petition is not competent, it will not be proper to touch upon the merits of the respective contention as to the merits of the case. We, therefore, intend to examine the question of maintainability of the above petition.
7. Mr. Khalid M. Ishaque, in reply to the above contention of the learned counsel for the respondents as to the maintainability of the petition, has referred to section 4 of the Sind Service Tribunals Act, 1973 (hereinafter referred to as the Act) and has urged that the petitioners are claiming a relief through this petition, which is barred by clause (b) of above section 4 as far as the Service Tribunal is concerned. It has, therefore, been contended by him that since the jurisdiction of the Service Tribunal is barred, this Court has jurisdiction in the matter. It may be partinent to reproduce hereinbelow section 4 of the Act, which reads as follows:- "4. 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 later, 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;
(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."
8. A plain reading of the above section indicates that any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any term and condition of a service, has been given the right to file-.An -appeal before the A Service Tribunal within thirty days of the communication of such order or within twelve months of the establishment of the Tribunal, whichever is later. It may also be noticed that under clause (b) it has been provided that 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.
9. The question in issue is, as to whether the jurisdiction of the Service Tribunal in the instant case is barred by above clause (b). In order to resolve the above controversy, it will be necessary to examine the nature of the impugned notification. It is to be ascertained, whether it determine the fitness or otherwise of the petitioners to be appointed to or to hold a particular post or to be promoted to a higher post or grade.
10. Both the learned counsel in furtherance of their respective contentions have referred to the case of Iqan Ahmed Khurram v. Government of Pakistan and others reported in PLD 1980 SC 153 in which the Hon'ble Supreme Court has construed proviso (b) to section 4 of the Service Tribunals Act, 1973 which is parallel to clause (b) of section 4 of the Act and has observed as follows:- "As to the ground concerning the non-maintainability of the petition the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules via-a-via section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Baluchistan and others PLD 1976 Quetta 59 and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree.
This is a common grievance in the other two petitions and they would also be hit by the same bar.
We may here point out that a distinction has to be drawn between a case where the eligibility of an Officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in super-session of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal."
A perusal of the above-quoted passage indicates that according to they view of the Supreme Court, the jurisdiction of the Service Tribunal' will be barred in respect of a decision holding that a person is not entitled to a particular post or to be promoted to a higher grade, but where the rules relating to promotion are changed and the vires of such rules is involved, the Service Tribunal will have jurisdiction.
11. In our view, the impugned notification under the latter category. The impugned notification does not determine the eligibility of the petitioners as to the; to hold particular pests or to be promoted to higher grade. The impugned notification ha-- been issued in order to achieve the cadre strength ratio of 1: 2: 7 (Professors, Assistant Professors and Lecturers) between the 'Government Cadre' and the `Nationalized Cadre' (Closed Cadre). It is a notification containing a policy decision, which according to the petitioners violated the guarantee as to the terms and conditions of service contained in para.7 (2) of the Regulation. In our view in terms of the above-quoted passage of the Supreme Court Judgment, the Service Tribunal is competent Court to adjudicate upon the above question. We, therefore, hold that the petition is not maintainable and it is dismissed with no order as to costs.