' NAIMUDDIN, J.--The petitioner seeks leave to appeal from the order passed by the Punjab Service Tribunal dated 5-3-1981 passed on Appeal No,89/230 of 1974 filed under Section 8 of the Punjab Administrative Tribunals Act, 1974, (hereinafter called the Act). The appeal was from the order dated 15-3-1971 passed by the defunct-Civil Services Tribunal against the seniority assigned to him in the seniority and gradation lists of Section Officers as on 1-10-1960, 1-7-1961, 1-1-1967 and 20-6- 1970. The appeal was rejected by the Tribunal.
2. The petitioner questioned the order dated 15-3-1971 in Constitutional Petition No, 719-S of 1971 in the Lahore High Court. The petition was heard on 13-12-1973 but the judgment was reserved. On coming into force of the Act, it is claimed that the Writ Petition abated and therefore appellant filed an appeal before the Punjab Service Tribunal, Lahore, which was fixed for preliminary hearing of an objection as to its maintainability and the Tribunal overruling the objection admitted the appeal to regular hearing by its order dated 8-8-1978 but ultimately dismissed it by the impugned order.
While dismissing the appeal the Tribunal observed that the subject-matter of the appeal decided by the defunct-Appellate Tribunal and the one before it invovled the same legal points as well as identical facts. Therefore the Tribunal first considered the question whether it could sit in aappeal over the judgment of the defunct-Civil Services Appellate Tribunal. Before the Tribunal it was contended on behalf of the respondents that the judgment of the defunct-Tribunal passed under the West Pakistan Civil Services (Appellate Tribunals) Ordinance XXVIII of 1969 and Ordinance IV of 1970 stood protected under Article 264 of the Constitution. It was also submitted before the Tribunal that the normal course open to the appellant was to file an appeal before the Supreme Court if he was aggrieved by the judgment passed against him by the defunct-Tribunal for the reasons that jurisdiction of the High Court stood ousted by section 4(iii) of the Punjab Service Tribunals Ordinance, 1970 which provided that "no suit, appeal or application or other proceeding regarding any matter to which this Ordinance applies shall lie in any Court including a High Court; nor shall any such matter be inquired into or proceeded with or tried by any Court including a High Court". It was also submitted before the Tribunal that the petitioner was not entitled to take advantage of the Rule of Abatement by going to a competent forum and thus to revive his appeal from scratch particularly when the proper forum of Supreme Court was available to him. Considering the submission the Tribunal observed as follows:- "We have given our anxious thought to this legal proposition and find that the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970 was repealed by virtue of Article 212 of the Constitution and such like matters were assigned to the jurisdiction of the new Tribunal. Had the Ordinance 1970 not been repealcxl, even then the former Tribunal was functus officio under Article 212 of the Constitution read with 1974 Act. Moreover, the repeal was under the Constitution and the 1970 Ordinance was continuing under Article 268 of the 1973 Constitution. Therefore, the decision of the defunct-Tribunal was protected by Article 264. In view of this position of law as discussed above we find great force in the objection raised by the respondents."
3. However before the Tribunal the petitioner based his right of appeal on the provisions of section 8 of the 1974 Act which reads as follows:- "8. Abatement of suits and other proceedings:-- All suits, appeals and applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the establishment of the appropriate Tribunal shall abate on the establishment of such Tribunal: ' Provided that any party to such a suit, appeal or application may, within ninety days of establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."
' This claim was also rejected for the reasons that the orders of the defunct-Tribunal were protected by Article 264 of the Constitution as well as by section 4 of West Pakistan General Clauses Act, 1956. The Tribunal also repelled the claim based on section 8 of the 1974 Act for the further reasons that as the proviso to section 8 of the 1974 Act specifically provides for an appeal in respect of the subject-matter in issue in suits, appeals and applications which abate, this would mean that the remedy was not retrospective and only the matter in issue of the abated application could be considered under the said proviso. The Writ Petition of the appellant only related to one Constitutional point i.e, the interpretation of Article 225 of the 1972 Constitution.
4. In dealing with this point the Tribunal further observed: "If section 8 is treated independent of section 4 the jurisdictional limitation in the proviso would he accepted, and if it is read with Section 4 then there will be no limitation on the jurisdiction of the Tribunal because in that case the order of the former Tribunal will not remain appealable under Section 4 and only those cases will become appealable before this Tribunal which could be heard both on merits as well as on law points. We cannot remain oblivious of the fact that the defunct- Tribunal was not a departmental authority and, therefore, no appeal would lie before this Tribunal against its decisions. The Lahore High Court could not sit in judgment with regard to matters of seniority as this was debarred by Article 212 of 1973 Constitution and Article 98 (3) of 1972 Constitution."
' The Tribunal however also considered the case on merits and came to the conclusion that "the impugned notifications suffer from no malady and have been legally notified by the Governor".
5. We have heard the learned counsel for the petitioner as well as the Advocate-General, Punjab.
Learned counsel for the petitioner submits that once the Tribunal by the order dated 8-8-1978 had decided that the appeal before it under section 8 of Punjab Administrative Tribunals Act, 1974, against the order of the defunct-Tribunal was maintainable it could not subsequently review that order by the final order impugned in this appeal and hold that such an appeal was incompetent.
Reliance was placed on S.A.Rizvi v. Pakistan Atomic Energy Commission and another 1986 SCMR 965 wherein it was held that the Service Tribunal had no power to re-hear the appeal even if the prayer for re-hearing was regarded to be a review, and on S. Sarwat Haider and another v. Central Board of Revenue 1987 SCMR 899 which ruled that the Service Tribunal was not invested with the powers to review its own orders under any circumstances.
6. No doubt that the Service Tribunal could not review its earlier order whereby on a preliminary point it held that the appeal under section 8 of the Act against the order of the defunct-Tribunal was maintainable. But the order was open to challenge in appeal to this Court and it might have been challenged if the final order had gone against the respondents. Since the fmal order had not gone against them, therefore, the respondents could not prefer any appeal. Nevertheless we can deal with this question in the exercise of our powers under the Constitution and Order XLI, Rule 33, C.P.C.
7. Now, considering the question as to the maintainability of the appeal under Section 8 of the Act from the order of the defunct-Tribunal, we find that the question stood finally settled by the judgment of this Court in W.C.Austin v. Punjab Service Tribunal and others (1981 SCMR 554) wherein it was held that the matter decided by the Civil Services Appellate Tribunal before the promulgation of the Punjab Administrative Tribunals Act, 1974, assumed finality under section 10 (4) and to all intents and purposes determination became a past and closed transaction which could not be re-agitated either before the Tribunal under the Punjab Administrative Tribunals Act, 1974, or under the writ jurisdiction of the High Court. It may be mentioned that in this case the petitioner has agitated the question of seniority in the appeal under section 8(1) of the Punjab Services (Appellate Tribunals) Ordinance, 1970, before the Civil Service Appellate Tribunal Punjab, Lahore. The Civil Services Tribunal had accepted his appeal and set aside the order of the Government whereby seniority was revised and re-fixed. Thereafter the petitioner in that case moved the Government that the break of service may be condoned and he should be confirmed as Assistant from 1-5-1960 against a supernumerary post which should be created for giving effect to the retrospective restoration of seniority. He also filed a review petition before the Service Tribunal which was dismissed. Thereafter the petitioner filed a Constitutional Petition under Article 201 of the Interim Constitution which was dismissed in limine on the ground that the question of seniority could not be assailed under Article 201(3)(b) of the Interim Constitution as no order thereunder could be made. Against this order the petitioner filed a letters Patent Appeal. A preliminary objection was taken that the Constitutional petition as well as the appeal had abated under Section 8 of the Punjab Administrative Tribunals Act, 1974, as the only forum available before which such proceedings could lie was the Tribunal set up under the said Act. This objection was not disposed of and instead the Letters Patent Bench examined the merits of the case and held that the controversy before the Punjab Civil Service (Appellate) Tribunal related to the question of seniority alone and hence the learned Single Judge in the High Court had rightly held that the Constitutional petition was incompetent. It was further held that in the context of the Civil Servants Act, 1974, the Service Tribunal set up under the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, qualified as a departmental authority and the determination of the controversy by it was a matter relating to the terms and conditions of service. Lastly, it was held that the appeal was incompetent in view of section 8 of the Punjab Administrative Tribunals Act, 1974.
8. In seeking leave to appeal in the cited case the petitioner assailed the findings of the Letters Patent Bench that the appeal as well as Constitutional petition were incompetent. In this regard it was observed by this Court in W.CAust in's case: "He, however, failed to satisfy us that the controversy before the Civil Services (Appellate) Tribunal, Punjab, was other than the one relating to the seniority and, therefore, the conclusion of the learned Single Judge while dismissing the Constitutional petition was unexceptionable as seniority was not included within the meaning of the words "terms and conditions of service" in respect of which the order could be made. The appeal arising out of the order was also incompetent in view of section 8 of the Punjab Administrative Tribunals Act, 1974. This finding would have been apt if otherwise the appeal was maintainable. But if on the first ground the proceedings out of which it had arisen were barred then this additional reason was superfluous. We also do not agree with the view of the Letters Patent Bench that the Punjab Civil Services (Appellate) Tribunal could be rated as a departmental authority for the purpose of an appeal under the Punjab Administrative Tribunals Act, 1974, as the explanation to Section 4 takes the Tribunal out of the ambit of a departmental authority."
' We therefore, find no force in this petition and accordingly dismiss it.