1. MUNAWAR ALI KHAN (CHAIRMAN).--The appellant A.A. Burney joined Government service as Inspector of Taxes in the Karachi Administration when Karachi was a federal territory. With merger of Karachi with the Province of West Pakistan on 1-7-1961, by President's Order No. 9 of 1961 the appellant became the employee of West Pakistan By order, dated 6-4-1962 the Governor of West Pakistan abolished all the existing posts and offices of the Excise and Taxation Department and reconstituted the said department creating new posts in lieu thereof. However, no specific order was made with regard to the appointment and posting of the appellant in the new set-up. In absence of such order, the appellant's plea was that he continued as Inspector Taxes on the same terms and conditions which were admissible to him immediately before the merger of Karachi with West Pakistan.
2. However, to his extreme surprise the Commissioner of Karachi issued an order, dated 3rd October, 1063 by which the appellant was promoted from the post of Sub-Inspector to the Inspector, in the Entertainment Wing of Excise and Taxation Department, Karachi with effect from 17-6-1963.
3. Aggrieved by the said order the appellant made a representation, dated 19-11-1963 to the Board of Revenue, Government of West Pakistan which remained pending for about five years and it was ultimately dismissed on 13-7-1968. Thereafter, the appellant kept agitating for his seniority as Inspector to various authorities until 1st November, 1969 when West Pakistan Civil Service (Appellate) Tribunal Ordinance, 1969 came into force. Besides this, a final seniority list of Excise and Taxation Inspectors of Karachi Region was published in the Government Gazette on 17-4-1970. As the appellant was not satisfied with the seniority position assigned to him in the said list he preferred appeal (Appeal No. 149/70) to the West Pakistan Civil Service (Appellate) Tribunal, Lahore constituted under the aforesaid Ordinance. Following the dissolution of One-Unit separate Appellate Tribunal was set up for the Province of Sind and his appeal pending before the West Pakistan Tribunal stood transferred to the Sind Tribunal. The appeal was allowed by the said Tribunal vide its judgment, dated 20-1-1973, whereby the Director General Excise and Taxation Sind was directed to move the Governor of Sind to pass an order under Article 8 of President's Order No. 9 of 1961.
4. The appellant however challenged the Governor's order contained in the notification dated 6-3- 1976 referred to above and also submitted his objections against the seniority list issued on 29-1- 1976. Nothing was however heard about his representation until final seniority list was issued on 19- 12-1977 in which the same error was repeated in complete disregard of the judgment of the Sind Civil Service (Appellate) Tribunal, dated 20-1-1973. Accordingly the final seniority list was impugned by the appellant in his appeal, dated 17-1-1978 to the Chief Secretary. As no decision was taken on his said appeal within 90 days, the appellant approached this Tribunal for the desired relief. His appeal was however dismissed on legal grounds vide order, dated 10-6-1979 of the Service Tribunal. The appellant took the matter in appeal to the Supreme Court and his appeal was accepted by the said Court who remanded the case back to the Service Tribunal vide judgment of the Supreme Court, dated 24-3-1986.
5. We heard the arguments of the learned counsel for the appellant at great length and so also of the learned Government counsel. We also went through mass of written material available on record.
6. The prayer of the appellant is as under: "The appellant, therefore, prays that the Hon'able Tribunal may be pleased to admit the appeal, call for the record of the case from Respondents Nos.1 and 2 and after hearing of the parties set aside the Seniority List dated 19th December, 1977 (Annexure 'M') so far as it relates to the seniority position of the appellant vis-a-vis respondents Nos.3 to 27 and direct Respondents Nos. 1 and 2 to assign to the appellant seniority position in the cadre of Inspectors, Excise and Taxation with effect from 7-8-1954 with all the consequential benefits arising therefrom and award the costs of the appeal to the appellant."
7. It appears from the appellant's prayer that he has assailed the seniority position assigned to him in the final seniority list dated 19th December, 1977. According to this seniority list, his seniority as Inspector Excise and Taxation Department has been reckoned with effect from 17-6-1963 when he was promoted from the post of Sub---Inspector to that of Inspector, by the order, dated 3-10-1963, of Commissioner Karachi. The appellant's contention is that his seniority in the cadre of Inspectors should be reckoned from 7-8-1954 when he was directly appointed as Inspector of Taxes in the Karachi Administration. In fact this controversy about the appellant's seniority in the cadre of Inspectors was also the subject-matter of his appeal preferred before Civil Service (Appellate)
8. Tribunal. The said appeal was decided in favour of the appellant vide the judgment, dated 20-1- 1973 of the Tribunal. The operative part of the judgment reads as under: "In the result we allow the appeal and set aside the seniority list so far it relates to the appellants and the respondents and direct the Director General Excise and Taxation, Government of Sind to move the Governor of Sind to pass orders as required by Article 8 of the President's Order No. 9 (Merger of Federal Territory of Karachi Order)."
9. It is clear from the above judgment that although the impugned seniority list relating to the appellant was set aside, yet the Director General Excise and Taxation, Government of Sind was directed to obtain the order of Governor of Sind, as contemplated by Article 8 of President's Order No.9 of 1961 (Merger of Federal Territory of Karachi). As per direction of the Appellate Tribunal, the Governor, Sind passed the necessary order on 6-3-1976. For understanding the implications of the order it may be convenient to reproduce it as under: NOTIFICATION Karachi, dated the 6th March, 1976. No.7 18 71-Estt/1041.---In pursuance of sub-clause
(a) of clause (2) of Article 8 of the West Pakistan Administration (Merger of Territory of Karachi)
10. Order, 1961, the Governor of Sind is pleased to order that consequent upon the merger of Karachi with the defunct-West Pakistan Province Deputy Superintendents and Inspectors working at Karachi at the time of the merger on both the Excise and Taxation sides (including incumbents of posts of Upper Division Clerks designated as Inspectors) shall with effect from 1st July, 1961 be deemed to have been absorbed in the Provincial Cadre posts of Inspectors and Sub-Inspectors respectively and be governed in relation to the terms and conditions of their service by all such laws and rules as are respectively applicable to the last mentioned posts; Provided that the terms and conditions of service relating to pay, pension and leave applicable to them at the time of the merger shall not be varied to their disadvantage.
11. M.M. Usmani, Secretary to Government of Sind."
12. The appellant has taken exception to the Governor's order on several grounds. The first contention of the learned counsel for the appellant was that the order of the Governor does not conform to the requirements of Article 8 of the President's Order 9 of 1961, inasmuch as that it does not define or sets forth appropriate cadre nor is it specific in indicating as to who is appointed as Inspector and who is appointed as Sub-Inspector. The other objection of the learned counsel was that the order was not in consonance with the observations made by the Sind Civil Service (Appellate) Tribunal.
13. According to him the Tribunal has observed in its judgment that no posts of Sub-Inspectors existed in the new set up as they were never created under the order of the West Pakistan Governor, dated 6-4-1962 by which the Excise and Taxation Department was reconstituted and, therefore, treating the appellant as Sub-Inspector during that period was contrary to the observations of the Tribunal.
14. "3. No Court or person shall call or permit to be called in question--
(i) the Proclamation;
(ii) any Order made in pursuance of the Proclamation or any Martial Law Order or Martial Law Regulation; (i.e) any finding, judgment or order of a special Military Court or a summary Military Court."
15. No doubt the merger Order (President's Order 9 of 1961) was issued in pursuance of the proclamation and as such it could net be called in question in any Court which obviously includes this Tribunal. But the issue before us does not involve the vires of President's Order 9 of 1961 but the validity of the order passed by the Governor under the said order of the President. In other words it is to be determined if the Governor's order impugned in this appeal is in accordance with Article 8 of the President's Order 9 of 1961. Para. 2 of the above Article which is relevant for our purpose reads as follows: "(2) Notwithstanding anything to the contrary contained any law for the time being in force or in the conditions of service of the persons referred to in clause (1) the Governor of West Pakistan may determine the terms and conditions of service to be applicable, as from the appointed day to all such persons and may, in particular--
(a) include such persons in the appropriate cadre of persons serving in connection with the affairs of the Province of West Pakistan;
(b) direct any such person to serve in any post or capacity and in any part of West Pakistan; and
(c) award any punishment or penalty to any such person; Provided that the terms and conditions of service relating to pay pension and leave of any such person shall not be varied to his disadvantage."
16. If the impugned order of the Governor examined in the light of above para.. We cannot persuade ourselves to agree with the learned counsel of the appellant that the said order does not meet the requirements of Article 8 hereinabove. The order of the Governor clearly shows that consequent upon the merger of Karachi with the defunct West Pakistan Province, Deputy Superintendents and Inspectors working at Karachi at the time of merger on both Excise and Taxation sides including the incumbents of upper division clerks designated as Inspectors shall be deemed to have been absorbed in the Provincial Cadre posts of Inspectors and Sub-Inspectors respectively, with effect from 1st July, 1961 (the date of merger) and further that they will be governed in relation to terms and conditions of their service by all such laws and rules as are respectively applicable to the said posts. It is further stated in the order that the terms and conditions of service relating to pay, pension and leave as were applicable to the holders of the said posts at the time of merger shall not be varied to their disadvantage. Thus, the Governor's order not only refers to the cadre of posts but also mentions the terms and conditions to be applied to them. Therefore, we are of the view that the contention of the learned counsel for the appellant is not tenable.
17. As for his argument that the Governor's order is not consistent with the observations of Sind Civil Service (Appellate) Tribunal, it may be pointed out that while observing in its judgment that the posts of Sub-Inspectors did not exist (at the relevant time) the learned Tribunal directed that the Governor's order as required by Article 8 of President's Order 9 of 1961 may be obtained. Obviously the observations of the Tribunal could not be construed to have placed any restriction on the Governor's order. On the contrary it was left open to the Governor to make the necessary clarification in this regard. Accordingly we see no inconsistency between the observations of the Tribunal and the Governor's treating the posts of Inspectors existing in Karachi Administration immediately before the merger of Karachi with West Pakistan as posts of Sub---Inspectors of Excise and Taxation. Merely because the posts of Sub---Inspectors were not specifically created, the Governor was not prohibited from passing the order as he did, treating the posts of Inspectors existing before the merger of Karachi as the posts of Sub-Inspectors. By force or such order, even if the posts Sub---Inspectors, did not exist, they stood created.
18. Apart from the above, the learned Government counsel drew our attention to the case of Syed Shahanshah Hussain Rizvi decided by this Tribunal by its judgment, dated 3-5-1981. On perusal of the judgment we find that precisely the same points as are involved in the present case were involved in the abovementioned case. After due consideration of the arguments advanced at the Bar, our predecessor Tribunal rejected the appeal of Syed Shahanshah Hussain Rizvi. In the concluding pare of its judgment, it observed: "After approval of the Governor, the Orders were given effect to, and since Governor had all powers under the President's Order, the appellant could not challenge the orders before the Service Tribunal."
19. Since this case is on all fours with the case of Shahanshah Hussain, we see no reason to take a different view in the present case particularly when there is nothing to show that the judgment in the said case has been set aside by the Hon'ble Supreme Court in appeal. However, the learned counsel for the appellant had to distinguish the case of Shahanshah Hussain from this case submitting that unlike the appellant Shahnashah Hussain was initially appointed as clerk. Despite this argument it is not denied by the learned counsel that at the time of merger of Karachi Shahanshah Hussain too held the post of Inspector of 'taxes. Therefore, the argument of the learned counsel was of no consequence.
20. Assuming for the sake of argument that contrary to the finding of our predecessor Tribunal in the case of Shahanshah Hussain Rizvi, the impugned order of Governor is subject to scrutiny by this Tribunal still as pointed out above we see no illegality about the order. It is perfectly valid and is in accordance with the requirements of Article 8 of President's Order 9 of 1961. Having arrived at this conclusion, we have no choice but to hold that the appellant was only Sub-Inspector Excise and Taxation from the date of merger of Karachi with West Pakistan until he was promoted as Inspector by the order, dated 3-10-1963 of Commissioner, Karachi. In the final seniority list dated 19th December, 1977 the inter se seniority of the appellant in the cadre of Inspectors is shown to have been determined with effect from 17-6-1963, the date from which he was promoted to the post of Inspector as per above Commissioner's order. It is not the case of the appellant that any person appointed /promoted as Inspector after the date of his promotion (17-6-1963) has been shown senior to him. Therefore we see nothing wrong with the seniority list impugned in this appeal which is accordingly without merit. The appeal is, therefore, dismissed with no order as to costs.
21. A.A./124/Sr.S