By Memorandum No. A. E. 17(SL)/68 dated 9th May 1968, the Directorate of Industries and Commerce, West Pakistan, Lahore, circulated the seniority list of Class 1, Senior Scale Officers of the Directorate of Industries and Commerce. Herein the petitioner was assigned the 9th position. The relevant part of the seniority list is as follows (1) Mr. Nawazish A.I Shah. (2) Mr. N. H. Mirza. (3) Mr. Masood Hussain Shah. (4) Mr. S. A. Ahmad (Respondent No. 4 herein). (5) Mr. Mansoor Ahmad (Respondent No. 5 herein). (6) Dr. Anwar-ul-Haq (Respondent No. 3 herein). (7) Mr. A. S. Khan. (8)
Mr. F. H. Durrani. (9) Dr. Mohammad Elias Dubash (Petitioner herein). According to the petitioner his rightful place in the seniority list was at Serial No. 4 above. Mr. S. A. Ahmad, Mr. Mansoor Ahmad, Dr. Anwar-ul---Haq, Mr. A. S. Khan and Mr. F. H. Durrani.
2. Accordingly the petitioner submitted representation against the above-mentioned seniority list dated 9-5-1968. The Government of West Pakistan in the Services and General Administration Department reacted favourably and advised the Department vide U. O. No. S-111-1-29/66 dated 12- 3-1968 and U. O. No. S-111-1-29/66 dated 18-12-1968 to modify the seniority List as urgc4 by the petitioner. The Department of Industries, however, paid no hood to the above advice and took no steps to modify the seniority list which was circulated on 9-5-1968 in accordance with the said advice However, it also took no steps to notify the said seniority list in the official Gazette.
3. The petitioner finding that no action was being taken by the Department on his representation filed an appeal before the Civil Services (Appellate Tribunal) hereinafter referred to as the Tribunal, under section 4 of the West Pakistan Civil Services (Appellate Tribunal) Ordinance, 1969, praying firstly, that his seniority be declared ; secondly, that he be given the rightful place in the seniority list, and thirdly, that he be allowed his rightful promotion on the basis of his correct seniority. The following officers, of the Department were impleaded by him as respondents before the Tribunal :
(1) Mr. F. H. Durrani.
(2) Mr. A. S. Khan.
(3) Dr. Anwarul Haq.
(4) Mr. MansoorAhmad.
(5) Mr. S. A. Ahmad.
4. The Tribunal disposed of the appeal by its order dated 27-10-1970 whereby the appeal so far as it related to Dr. Anwarul-Haq, Mr. S. A. Ahmad and Mr. Manzoor Ahmad were concerned was dismissed but it was accepted as against Mr. A. S. Khan and was found to have become infructuous in so far as Mr. F. H. Durrani was concerned because the said officer had in the meanwhile been transferred to the Province of Sind. The petitioner, aggrieved by the above- mentioned order of the Tribunal, moved this Court by this Constitutional petition, under Art. 98 of the 1962 Constitution.
5. Before this Court the petitioner has contended that he was entitled to rank senior to three persons found by the Tribunal to be Senior to him. His case is that he was appointed, as a direct recruit, against a permanent post of a Deputy Director in the Directorate of Industries with effect from 2-11-1957 whereas respondent No. 3 (Dr. Anwarul Haq) was not holding the post of Deputy Director substantively on the said date. According to him, on 2-11-1957, when he was appointed substantively as a Deputy Director, Dr. Anwarul Haq was only holding substantively the post of Superintendent of Industries. It is conceded that Dr. Anwarul Haq had been earlier promoted to the post of Deputy Director of Industries (Research) for a period of six months vide Memo. No. 2398-Ind.
35/36673 dated 17-6-1955 but the said promotion was on ad hoc basis and that before the expiry of the said period of six months, the Province of West Pakistan were merged and on 14-10-1955 respondent No. 3 was posted as Deputy Director (Planning and Development). In the provincial seniority list, circulated on 2-8-1957, he was shown at serial No. 8 amongst the Deputy Directors but the nature of his appointment was described therein as "officiating". The Public Service Commission cleared his case for appointment to Class I on 31-3-1959 i.e. Long after the petitioner had been appointed substantively and he was confirmed against the permanent post of Deputy Director (Technical Education) vide Notification No. 1-1-6/59 dated 31-3-1959 with effect from 5-11-1957.
Before the said date Dr. Anwarul Haq had always been officiating as Deputy Director either against a temporary vacancy or against a temporary post. Since the petitioner held the post of a Deputy Director substantively with effect from 2-11-1957 while Dr. Anwarul Haq was confirmed against the permanent post of Deputy Director with effect from 5-11-1957 the petitioner was entitled to rank senior to him.
6. Coming to the case of Mr. S. A. Ahmad, petitioner submits that he was entitled to rank senior to him because on 2-11-1957 when he was appointed against a substantive vacancy against a permanent post of a Deputy Director, Mr. S. A. Ahmad was only holding the post of Superintendent, Government Weaving Factory, Shahdara. No doubt the post of the Weaving Superintendent was redesignated as General Manager but the seniority of the General Manager, Weaving Factory, could not be integrated with that of the Deputy Director because the incumbent of the said post held an isolated post, whose duties and responsibilities were quite different from those of the Deputy Director. Furthermore the incumbent of the said post was not eligible for promotion to the post of a Joint Director, and in this connection it was pointed out that before the amendment in the Rules took place on 6-11-1964, Mr. S. A. Ahmad could not possibly have been promoted as Joint Director and his promotion to the said post was illegal and unjustified.
7. So far as the case of the petitioner viz-a-viz respondent No. 5 (Mr. Mansoor Ahmad) is concerned, it is submitted that Mr. Mansoor Ahmad was holding substantively the post of Assistant Director in the Department of Supply and Development of the Central Government and was promoted to officiate as Deputy Director (Development) in the said Depart--ment of the Central Government with effect from 7-5-1955. He first got himself transferred to the Provincial Directorate of Industries on deputation with effect from 8-4-1957 as officiating Deputy Director (Development). Thus, on 2- 11-1957 when the petitioner joined the Provincial Directorate of Industries, Respondent No. 5 was a regular employee of the Central Govern--ment. He was sent back to his Parent Department vide Provincial Govern--ment Notification dated 18-3-1959 as his services were not needed. The subject of "foreign purchase", which was being handled by the Central Govern--ment Department of Supply and Development (Supply Wing) was transferred to the Provincial Government and some of the staff of the supply wing of the Department of Supply and Development of the Central Government which had become surplus was promised to be accommodated by the Provincial Government along with the transfer of the work. In that arrangement, the Central Government again placed the services of Mr. Mansoor Ahmad at the disposal of the Provincial Government and thus he again joined the Provincial Directorate of Industries as officiating Deputy Director (Development) with effect from 2-11-1959 vide Notification No. 1-1-6/59, dated 4-12-1959. It is submitted that he still holds and maintains his lien in the Central Government against the post of an Assistant Director and should not be deemed to be a servant of the Provincial Government at all. In the alternative it is submitted that even if he is considered to be an employee of the Provincial Government he is to be taken as having joined the Provincial Industries Department on 2-11-1959 as an officiating Deputy Director.
8. The Tribunal discussed the claim of the petitioner to rank senior to Dr. Anwarul Haq as follows :--- "The appellant (petitioner herein) claims to have been appointed to a permanent vacancy of Deputy Director Industries (Research) through the Public Service Commission w.e.f. 2nd November 1957 by notification dated the 28th November 1958. This notification notified the appellant's appointment against the permanent post of Deputy Director of Industries (Research) w.e.f. 2nd November 1957 on probation for a period of two years, with service being terminable on one month's notice on either side, but the actual letter of appointment by which he was appointed, issued on the 30th November 1957. (That letter is Annexure 'K' on page 77 of the writ file). The appellant (petitioner herein) was appointed temporarily to the post of Deputy Director of Industries (Research) Class I Senior for a period of six months or until a selectee of the West Pakistan Public Service Commission was available, whichever was earlier. On, being so appointed, he signed the charge report w.e.f. 2nd November 1957, but in the same report Mr. Anwarul Haq did not hand over until the 10th December 1957. It follows as a necessary conclusion that as his appointment could not precede the issue of letter of appointment, he could not have been appointed to the service before 30th November 1957 and that the post of Deputy Director of Industries (Research) which was then held by Dr. Anwarul Haq respondent was not vacated by him until 10th December 1957. To that extent the mention of appointment of the appellant w.e.f. 2nd November 1957 is incorrect.
The challenge thrown to the seniority of S. A. Ahmad was rejected by the Tribunal with the following observations:- "He (Mr. S. A. Ahmad) was promoted as Joint Director (Industries Estates) on 1-8-1964 and he took over on 10-8-1964. His promotion as Joint Director was delayed pending a change in the rules making General Manager eligible for promotion as Joint Director. The rules were so amended on 6th November 1964. Because the rules were amended subsequently to the appointment of Mr. S. A.
Ahmad as Joint Director, the appellant contends that his promotion as Joint Director was invalid and he ranks senior to him. There is no force in this contention. It is obvious that Mr. S.A. Ahmad joined in Class I Senior in March 1951, whereas the appellant did not come into service before November 1957. Mr. Ahmad was, therefore, senior to him by six years and the appellant has not superseded him. Therefore, we hold that he has been correctly shown senior to the appellant."
10. The Tribunal held Mr. Mansoor Ahmad (respondent No. 5) senior to the petitioner on the following grounds :- "The next man in seniority is Mr. Mansoor Ahmad., He was appointed as Deputy Director in the Central Government on 7-5-1955 and was transferred to the Provincial Government on 9-10-1959 consequent upon the transfer of subject of purchase from the Central Government of the Provincial Government. The terms of transfer are to be found in S&GAD's letter dated the 5th April 1063, Annex F. The principle followed by the Government of West Pakistan for determining seniority is the date of continuous officiation in the same grade or in comparable grades. Therefore Mr. Mansoor Ahmad is entitled to count his service from 7-5-1955, a date earlier than the appointment of the appellant.
Mr. Mansoor Ahmad was promoted as Joint Director on 28th December 1965 long before the appellant was so promoted. Seniority is claimed over Mr. Mansoor Abmad on the ground that he joined the West Pakistan Industries Directorate on 2-11-1959 vide notification dated the 4th December 1959 as officiatingDeputy Director but he cannot be treated as new entrant into service since his services were transferred from the Central Government with a right to count his continuous appointment in a grade or a comparable grade for the purpose of seniority. It was also argued against him that as he is shown on deputation by the Central Government, he should not have to be treated as an employee of the Provincial Government. It is therefore contended that the protection available in letter dated 5-4-1963 is not available to him but whether this letter be applicable or not we are satisfied that the Provincial Government agreed to take certain officers on the transfer of the subject of purchase undertaking to give them seniority on the basis of continuous appointment and such transferred officers were entitled to count their seniority on that basis. Mr. Mansoor Ahmed is not governed by the provisions in Para. 17 of the Integration Circular Letter, as was contended on behalf of appellant, but by the conditions under which he was taken over by the Provincial Govern--ment, he cannot therefore rank junior to the appellant."
11. In support of this constitutional petition before this Court, Mr. Saeed Akhtar, learned counsel for the petitioner, has submitted that the petitioner's date of appointment is 2-11-1957 and the Tribunal had nojurisdiction to modify the order of the Appointing Authority allowing the actual date of' the petitioner's appointment as 2-11-1957. As the petitioner was appointed on 2-11-1957 as a direct recruit, while the date of substantive appointment of respondent No. 3 as Deputy Director was 5-11- 1957 as such the latter was junior to the petitioner, both under para. 17(c) of the Integration Circular dated 25-11-1955 as well as under rule 9(2)(a) of the West Pakistan Industries Service (Class I)
Rules, 1962. So far as the case of respondent No. 4 was concerned it is submitted, that the Tribunal had misconceived the submissions of the petitioner. According to him the argument raised was to the effect that respondent No. 4 who was a Weaving Superintendent General Manager, Weaving Factory, Shahdara held a totally different kind of a post to the post of a Deputy Director and that his seniority could not be fixed alongwith that of the Deputy Directors. In this connection it was pointed out that a similar submission was made so far as Mr. A. S. Khan, Chief Inspector of Boilers was concerned which submission had been accepted by the Tribunal. The same principle was applicable to the case of respondent No. 4 and therefore, the decision of the Tribunal holding respondent No. 4 as bracketable with the Deputy Directors for the purpose of seniority, was without jurisdiction, being contrary to the principle that the seniority has to be reckoned in a grade among the same class of officers carrying same or similar duties. Consequently, the name of Mr. S. A.
Ahmad was liable to be deleted from the impugned joint seniority list. As far the case of respondent No. 5 is concerned, it is submitted that he was not a member of the Provincial Industries Service Class I, but was a permanent employee of the Central Government and held his lien under the Central Government against the post of an Assistant Director in the former Supply and Development Department. It was argued that the Tribunal had wrongly held that para. 17 of the Integration Circular of 1955 was not applicable to his case. It was submitted that any kind of assurance contained in paragraph 6 of the Provincial Government letter dated 20-10-1959 stood overruled by the provisions of Para. 17 of the Integration Circular nor was the respondent legally protected by the assurance contained in the letter dated 5-4-1963, relied upon by the Services Tribunal.
12. On behalf of the Government of the Punjab and the Director of Industries (respondents Nos. 2 and 6) two preliminary objections were taken namely:
(a) that the present petition was. Not competent because questions pertaining to the determination of seniority of civil servants could not be entertained by this Court in exercise of its jurisdiction under Art. 98 of 1962 Constitution in view of the bar contained in clause (b) of Art. 98(3);
(b) that the matter of fixation of seniority of Government Servants was within the exclusive jurisdiction of the Services Tribunal and not open to review by this Court in view of the provisions of section 4(3) of the Punjab Civil Services (Appellate Tribunal) Ordinance, 1970, which lays down that "no suit, appeal, 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 enquired into proceeded with or tried by any Court including a High Court" and of the provisions of section 12 (4) according to which "a final order by the Tribunal shall be given effect to by the competent authority any shall not be questioned in any manner by or before any Court including a High Court."
13. On merits it was submitted that the findings of the Appellate Tribunal were correct and unexceptionable. The private respondents also adopted a similar stand in their written statements.
In addition, respondent No. 5 raised a further preliminary objection to the effect that as the final seniority list contemplated by section 6 of the Ordinance had not so far been notified the petition was liable to be dismissed as premature.
14. The objections raised with regard to the maintainability of this petition are serious. Under Art. 98(3)(b) of the 1962 Constitution, an order cannot be made under clause (2) of Art. 98 on the application made by or I relation to any other person in the service of Pakistan in respect of the terms and conditions except a term and condition that is specified in the Constitution. It is not disputed that the question of seniority is not a term A and condition of service specified in the 1962 Constitution and, therefore, and order in pursuance of a petition under Art. 98 which hats the effect of' interfering with an order made by the competent authority in relation to the seniority of persons in the service of Pakistan cannot be made by this Court. In this connection, it would be profitable to reproduce the following passage from the judgment of the Supreme Court in M. R. Qureshi v.
Government of West Pakistan (1) :- "Article 98 of the Constitution confines the jurisdiction of the High Court, as regards the enforcement of conditions of service of public servants only to those terms and conditions, which are specified in the Constitution, and which are found scattered in various Articles thereof. Art. 178 in subsection (2) requires that the terms and conditions of public servants shall be as prescribed by rules, except in the case of person whose terms and conditions of service are specified in the Constitution itself. Subsection (3) of Article 178 provides that once appointed the terms and conditions of the public servant are not to bevaried to his disadvantage, in so far as they relate to remuneration or age fixed for superannuation. The result is that the grievance of a public servant with regard to the disturbance of seniority does not attract the constitutional remedy under Article 98 of the 1962 Constitution, as it does not fall within the category of the cases for which such a remedy could be competently invoked."
Inspector-General of Police, West Pakistan, Lahore v. Mohammad 1drees Khan (PLD1970SC279), Dr. Mohammad Amin Durrani v. Government of West Pakistan etc. PLD1966SC99) and Mohammad Akhter Hussain v. Government of West Pakistan (PLD 1970 SC 146). The same view was taken by the Supreme Court in the case of Mohammad Yousaf v. Pakistan Western Railway (1972SCMR1as is evident from the following passage occurring at page 3 of the report; . . . . ..If they were asking for being given their proper seniority according to their proper grade, then this was not a matter in respect of which they could proceed under Art. 98 of the Constitution of 1962."
15. Mr. Saeed Akhtar, learned counsel for the petitioner, conceded that the questions relating to fixation of seniority of civil servants were not amenable to review, under the provisions of Art. 98 of the 1962 Constitution but argued that in the present petition the memorandum of the Government dated 9-5-1968, whereby the impugned seniority list was circulated was not being challenged and that the said determination wave immune from examination by this Court but what was questioned was the validity of the judgment passed on appeal by the Tribunal. It was contended that if the Tribunal had not applied the correct law or failed to apply its mind to the case, its order could be declared to be without lawful authority and of no legal effect and that the Tribunal could be directed to decide the matter in accordance with the law. This Court was, he submitted, not being asked to go into the question of seniority but to see' if the Tribunal had acted lawfully. In this connection, he relied upon the judgment of the Supreme Court in the case of Jamal Shah (PLD 1966 SC 1), where the Supreme Court has observed that despite the ouster of the jurisdiction of the High Court by Art. 171 of the Constitution it could examine the determinations of the Election Tribunal in certain exceptional situations.
16. The contention of the learned counsel for the petitioner that the jurisdiction of this Court to entertain a petition directed against the order of the Services Tribunal was not barred, despite the ouster clauses contained in sections 4(3) and 12(4) of the Ordinance is, subject to certain qualifications, correct. The circumstances in which interference may be called for would no doubt be exceptional as pointed out in the case of Jamal Shah afore-cited. The Supreme Court therein held that despite the bar in respect of orders passed by Election Tribunal, laid down by Art. 171 of the 1962 Constitution, the High Court was not prohibited to exercise jurisdiction under Art. 98 of the Constitution where the said Tribunals had passed orders which were in direct contravention of the mandatory provisions of law under which they were required to act or where the Tribunal passing the order lacked the competence to hear the matter or the members constituting the Tribunal stood disqualified by bias or otherwise. In the case of orders passed by the Services Tribunal a similar bar has been provided for in the Ordinance, setting up the Tribunal, as was provided in Article 171 of the Constitution in matter of Election disputes. However, in the Constitution itself questions of seniority already stand excluded from the purview of review by the High Courts by virtue of Cl. (3 of Art. 98. Thus the High Court will not have the jurisdiction to examine matters falling within the purview of Clause (3) of Art. 98 but only where the impugned determination of the Appellate Tribunal falls within the ambit of Clause (2) of Art. 98. In other words only where the order impugned ha been passed without lawful authority. The question as to when an order passed by a competent authority can be deemed to be an order without lawful authority has been discussed in a very recent judgment of the Supreme Court reported as Raunaq All etc. v. Chief Settlement Commissioner (PLD 1973 SC 236an the view has been expressed that an order which is wholly without jurisdiction would be liable to be interfered with. The relevant observations are :- "It is no doubt true that `there is a clear distinction between an act wholly without jurisdiction and an act done in the improper exercise of that jurisdiction. Where there is jurisdiction to decide, then as it has often been said there is jurisdiction to decide either rightly or wrongly and merely a wrong decision does not render the decision without jurisdiction. To amount to a nullity, an act must be non--existent in the eye of law that is to say, it must be wholly without jurisdiction or performed in such a way that the law regards it as mere colourable exercise of jurisdiction or unlawful usurpation o jurisdiction."
17. In the light of the above principle enunciated by it, the Supreme Court went on to consider whether the verification orders passed by a certain claims authority could be held to be an order without jurisdiction and a nullity because it had not acted in accordance with the circulars of the Claims Commissioner, Pakistan, directing the Claims Officers to treat claims for Zamindaris and tenancy interests in claims filed under Schedule V-A as claims under Schedule V, leaving out Jagirs and Muafis. The Court held that "if the Claims Officer had misinterpreted these instructions or misapplied them and treated even Jagirs and Muafis as Claims in respect of properties under Schedule V. Then they had no doubt decided wrongly but not without jurisdiction. I am, therefore, unable to agree that on this ground the verifications orders could be treated as a nullity."
18. In the present case, too, the petitioner is contending that the Tribunal has wrongly interpreted the notifications bearing on the question of the date of petitioner's appointment, that it has not correctly appreciated the scope of the provisions of the Integration Circular of 1955 and the Rules of 1962, that it has treated a person to be in the service of the Provincial Government, due to misreading certain letters and instructions which could not have been understood in their manner in which they were construed by the Tribunal and lastly that a person who was not entitled to be included in the joint impugned seniority list (namely Mr. S. A. Ahmad) was allowed to be promoted to the post of a Joint Director on the basis of an amendment in the rules carried out in 1964-Rules, which was not justified. Assuming, without conceding that the above criticism is correct, the effect of it would only be that the decision of the Tribunal was wrong. However, on account of these alleged errors its order could not be treated as without jurisdiction and a nullity in law. The petitioner's own case was that he should have been placed at No. 4 in the impugned seniority list rather than at No. 9. Thus the question fang for consideration by the Tribunal was with regard to the correct fixation of seniority of the officers concerned. Its decision on such a question is final. It is not even contended that the Tribunal was wrongly or illegally constituted or that it did not have the jurisdiction to decide this matter or that it exercised its jurisdiction in a, colourable manner.
Consequently the decision rendered by it could, at the utmost, be described as erroneous. It clearly was not without jurisdiction. Therefore, the order of the learned Service Tribunal, not being without lawful authority, did not fall within the ambit of the provisions of Art. 98(2) of the Constitution and hence not amenable to correction by this Court.
19. Even otherwise no hardship or injustice has been caused to the petitioner. Respondent No. 3 has since retired from service and only Mr. S. A. Ahmad and Mr. Mansoor Ahmad, who were held senior to the petitioner, are still in service. The petitioner, as well as the above-mentioned two officers have all been promoted as Joint Directors. The last two mentioned officers are 4 or 5 years older to the petitioner in age and both of them entered into Government service long before the petitioner.
Even in equity he has not made out any case in his favour.
20. The upshot is that no ground for interference has been made out in this writ petition and it is accordingly dismissed, leaving the parties to bear their own costs.