SHAFIUR RAHMAN, J.--- Leave to appeal was granted to the appellant under Article 212(3) of the Constitution to examine whether the appellant was not a civil servant for the purposes of section 2(b) of the Sindh Civil Servants Act, 1973 (hereinafter referred to as the Act) and section 2(a) of the Sindh Service Tribunals Act, 1973.
2. In the year 1976 the appellant held the post of Assistant in the Sindh High Court Establishment and was governed by the High Court Establishment (Appointment and Conditions of Service) Rules (hereinafter referred to as the Rules). In the matter of promotion to the next higher post of Superintendent he was governed by Rule 8 which provided as hereunder:- "Subject to the right of the Chief Justice to make direct appointment, vacancies in the posts of Superintendents shall be filled by promotion on the basis of seniority-cum-fitness from amongst Assistants as forming one group and Judgment-Writers and Readers as forming the second group, in the proportion of 3:2 as shown below:- First vacancy Assistant Second vacancy Judgment - Writer Third vacancy Assistant Fourth vacancy Reader Fifth vacancy Assistant Sixth vacancy Discretion of Chief Justice."
3. On 27-3-1976 three promotions as hereunder were ordered:-- 'The Chief Justice has been pleased to order the following promotions and appointments with immediate effect:--
(1) Mr. M. M. Hakk, Reader, promoted to officiate as Superintendent, High Court of Sindh and Balochistan, Karachi; in Grade No,16 vide Mr. S. M. Alvi, posted as Assistant Registrar;
(2) Mr. Abbas H. Kassim, Assistant, promoted to officiate as Superintendent, High Court of Sindh Balochistan, Karachi, in Grade No,16 vide Mr. Ansar Hussain Zaidi, posted as Assistant Registrar/Nazir.
(3) Mr. Sultan Nasir, Reader, promoted to officiate as Superintendent in Grade No,16 vide Mr. Afzal Ali, granted leave."
4. On 2-7-1976 the following order was passed:-- "On resumption of duty by Mr. Afzal Ali, Superintendent on 29-6-1976 (F.N.) Mr. Abbas H. Kassim who was promoted in his leave vacancy has been reverted to his substantive appointment as Assistant with effect from 29-6-1976 (F.N.)."
5. The background in which this order dated 2-7-1976 was passed would become clearer from the following notings made in the record :-- It is submitted that Mr. Afzal Ali, Superintendent, was granted leave for 3 months which will expire today, the 28th June, and he is due to resume his duties on 29th June, 1976. Therefore, one . Of the Superintendents, recently promoted will have to be reverted. In fact Mr. Abbas H. Kassim (Assistant) was promoted in the leave vacancy of Mr. Afzal Ali but thereafter in the vacancy of Mr. A. R. Abbasi, Mr. Younas Khatri was promoted vide orders dated 24-4-1976 of my Lord the Chief Justice.
It is submitted that Mr Abbas H. Kassim was warned to be careful in the case of "Purchase of Lawn Mower" and written warning was administered on him and kept on his Confidential file. The file is placed below. It is, therefore, submitted for favour of consideration whether:--
(1) Mr. Younas Khatri who is the junior most Superintendent, having been promoted in the vacancy of Mr. A.R. Abbassi, may be reverted; OR
(2) Mr. Abbas H. Kassim, who was appointed in the leave vacancy of Mr. Afzal All and his work was not found satisfactory as Resident Superintendent, be reverted as Assistant.
Submitted.
(Sd.)
REGISTRAR 28-6-1976 Chief Justice Duties performed by Mr.Abbas Kassim were not satisfactory. He is therefore reverted as Assistant.
(Sd.) C.J.
29-6-1976."
6. The appellant made no grievance of the order then or soon thereafter. After three years of it on 29-7-1979 he filed a service appeal challenging the order of the Chief Justice dated 31-5-1976 followed by the order dated 2-7-1976 seeking reinstatement on the post of Superintendent with effect from the date of reversion.
7. The order dated 31-5-1976 appears to be no other than what was communicated to him on 3-6- 1976 as hereunder:-- "Mr. Abbas H. Kassim, Superintendent Administration Branch, is hereby informed that his Lordship the Chief Justice has observed that he proved to be careless in the performance of his duties during the period he worked as Resident Superintendent.
His Lordship has further observed that several complaints against him were received from the Judges of this Court including Mr. Justice Mir Khuda Bakhsh Marri. He is, therefore, warned."
8. The appellate authority designated under Schedule II of the Rules was "Bench of two Judges nominated by the Chief Justice". It was entrusted to a Bench of two Judges who disposed it of on 5- 6-1980 by an order as hereunder:-- "This appeal, we have noticed, was filed after a lapse of three years and though there is some doubt as to whether the law prescribes any period of appeal, this appeal, in the nature of things, ought to have been filed within a reasonable time. Our attention has not been invited to any circumstances which would justify such a long delay in filing this appeal.
The fact, however, remains that injustice has been done to the appellant and we will, therefore, strongly recommend that if it is possible appellant's grievance may be redressed or in the alternative as and when occasion for next promotion arises the appellant will be duly considered."
9. This appellate order was attended to by the learned Chief Justice as hereunder:-- "As at (ii) above. This would comply with the orders of the Bench. Those already promoted vide list at pp.126-127 not to be disturbed."
What was suggested in para. (ii) was as hereunder:-- "This matter Was also brought to the notice of the Hon'ble Chief Justice by the then Registrar in his note dated 15-6-1980. The Registrar in his note (pages 126-129/Notes) of File No,V.Z.(3)(a) had sought orders of the Hon'ble Chief Justice on the following proposals:--
(i) Whether M/s. Muhammad Essa and Abbas Kassim may be promoted as Superintendents in their respective Divisions and the junior-most Superintendent in that Division may be reverted; OR
(ii) they will be considered for promotion as and when the vacancy in their respective Divisions will fall vacant."
10. On 13-1-1982 the appellant was promoted again as Officiating Superintendent with effect from 7-1-1982 until further orders in a leave vacancy.
11. On 4-5-1982, the appellant filed a representation claiming seniority in avoidance of reversion which had taken place on 2-7-1976. First a report was called for from a learned Judge of the High Court. He reported as hereunder:-- Reverting to the order of the Division Bench, it would appear that no express direction has been given for promotion of Mr. Abbas Kassim. The order is only recommendatory. It has been left to the discretion of the learned Chief Justice that he may redress the grievances of the applicant immediately or in the alternative consider him for promotion when next promotion takes place. It seems second alternative was given effect to. Mr. Abbas Kassim was promoted in the next vacancy without disturbing the promotions already made. Thus on repromotion he was not restored to his original position. However, on consideration of the views expressed in the foregoing paragraph, he perhaps has a good case to be entitled to back benefits. He can be restored to original seniority by withdrawal of the order of his reversion.
Learned Chief Justice may like to call me for discussion at his convenience."
12. The Chief Justice kept the case for discussion with the reporting Judge which never took place.
This case, alongwith the confirmation question came up before the senior Puisne Judge who finally dealt with the matter on 6-10-1987 as hereunder:- "The factual position seems to be that the reversion order of Mr. Abbas Kassim has not been withdrawn by the then Chief Justice after due consideration. In this view of the matter, the dates of confirmation proposed in the office note are in accordance with the record as it stands. In the absence of withdrawal of the aforesaid order of reversion, Mr. Abbas Kassim cannot claim seniority over Mr. Sultan Nasir, who was confirmed on 25-10-1982 with effect from 1-12-1976.
In my view the office proposal be accepted as Mr. Abbas Kassim's objection has no merits for the reasons namely: (i) Mr. Justice Abdul Kadir Shaikh had ordered reversion of Mr. Abbas Kassim to his substantive post of an Assistant for.The reason that his Lordship was of the view that his work was not satisfactory (ii) Mr. Justice Abdul Hayee Kureshi opted for the second alternative suggested by Mr. Justice Fakhruddin G. Ebrahim and Mr. Justice G.M. Shah i.e, instead of withdrawing the order of reversion of Mr. Abbas H. Kassim, he was promoted against a permanent vacancy on the aforesaid date."
This order was agreed to by the learned Chief Justice on 10-11-1987 in the following words:-- "I agree. Officers mentioned on pages 136 to---are confirmed from the dates mentioned in original column against their names."
13. The appellant approached the Sindh Service Tribunal on 28-3-1988 expressing his grievances against the following orders:-- "(i) rejecting the representation dated 4-5-1982 filed by the appellant claiming seniority over Mr. Sultan Nasir, Superintendent,
(ii) overruling the objections filed by the appellant on 20-9-1987 against his confirmation as Superintendent next to Mr. Saleemuddin, Superintendent,
(iii) justifying his reversion vide notification dated 2-7-1976 as proper contrary to the judgment dated 5-6-1980 given by the Division Bench constituted of Mr. Justice Fakhruddin G. Ebrahim and Mr. Justice G. M. Shah since retired who have declared the reversion unjustified and unfair,
(iv) overruling the report dated 20-5-1982 obtained by the then Chief Justice Mr. Justice Abdul Hayee Qureshi from (Retd.) Mr. Justice Munawar Ali Khan Mughal on the question of the seniority of the appellant over Mr. Sultan Nasir, and
(v) the order dated 16-5-1985 passed by the then Hon'ble Chief Justice Mr. Justice Abdul Hayee Qureshi assigning the seniority to the appellant."
14. The reliefs sought for by him were as hereunder:-- "It is prayed by the appellant that after perusal of the relevant record of the Hon'ble High Court of Sindh including the relevant office note, the order dated 6-10-1987 passed by the Hon'ble Chief Justice which amounts to double decision on the very same issues (Note: Judgment dated 5-6- 1980 of the Division Bench is on the same issues), be set aside and the relief as recommended in the judgment of Division Bench, authenticated report dated 20-5-1982 of Mr. Justice Munawar All Khan Mughal and the order dated 16-5-1985 of the Hon'ble Chief Justice Mr. Justice Abdul Hayee Qureshi be given to the appellant including any other relief as deemed necessary by the kind authority."
15. The Service Tribunal did not entertain the appeal for the following two reasons:-- "(i) Obviously the impugned order does not relate to the terms and conditions of service arising from said Act and rules. It speaks of the decision under High Court Rules referred to above which are applicable to the High Court employees including the appellant. Accordingly this Tribunal cannot interfere in this case.
(ii) It was disclosed by the learned counsel for the appellant, in course of his arguments that appellant had preferred the departmental appeal to the Chief Minister. As stated above he also produced the appeal alongwith enclosures in original. These documents were not produced at the time of presentation of the present appeal. Therfore the belated production was afterthought.
Although the said documents seemed to have been received by the Dispatch Clerk of High Court on 1-12-1987, yet there is no indication that the same were forwarded to the Chief Minister. In any case the appeal did not lie to the Chief Minister. As provided in Schedule II of the High Court Rules appeal was to be preferred to a Bench of two Judges nominated by the Chief Justice, since the impugned order was passed by Single Judge and the same was endorsed by the Chief Justice. But no such appeal was filed. Thus even the mandatory requirement of law of exhausting departmental remedy was not complied with before filing the present appeal."
16. The learned counsel for the appellant has contended that the Rules framed by the High Court were saved, continued, and deemed to be the Rules framed under the Act on the strength .Of section 26 of the Act. According to him the first reason given by the Tribunal was untenable and misconceived. The second ground was equally untenable once it was found that the appeal in time was filed in the High Court notwithstanding its being incorrectly addressed to the Chief Minister. He has also drawn our attention to Manzoor Hussain and 37 others v. Province of the Punjab 1989 PLC (C.S.) 42 Lahore High Court and Mubarak Ali Khan and 7 others v. Government of the Punjab through Secretary, Finance Department, Lahore and another (1990 CLC 136 Lahore) to contend that members of the High Court establishment have been held to be not civil servants. He has also gone into the merits of the claim.
17. So far as merit of the case is concerned, we would not examine it for the first time, there being no finding by the Tribunal on it. That exercise would be outside the leave granting order and outside our jurisdiction under Article 212(3) of the Constitution.
18. As regards the penultimate submission, we would not undertake an examination of it because the Tribunal has not recorded any finding on it. Besides, the appellant having himself invoked the jurisdiction of the Service Tribunal cannot be permitted to express doubts about it. Additionally, it is not a question on which leave to appeal has been granted under Article 212(3) of the Constitution.
19. In recording the finding that the order challenged by the appellant did not relate to the terms and conditions of service arising from. The Act and the rules framed thereunder, section 26 of the Act was ignored. Section 26 of the Act reads as hereunder:-- "26. Rules.---(1) Government or any person authorised by it in this behalf, may make such rules as appear to be necessary or expedient for carrying out the purpose of this Act.
12) Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and .In force immediately before the commencement of this Act shall, so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
The Rules under which the orders were passed related to the terms and conditions of the service of the appellant. The High Court had a statutory authority to frame those rules. Article 241 of the Constitution also made a provision for continuance and applicability of such rules in the following words:-- "241. Existing rules. Etc. To continue. --Until the appropriate Legislature makes a law under Aricle 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government."
20. Reading section 26 of the Act and Article 241 of the Constitution together, the High Court Establishment Rules would be deemed to be rules C framed under the Act and for that reason any violation of it justiciable before the Service Tribunal.
21. As regards the second ground of not filing the proper appeal before the appellate authority, once the Tribunal came to the conclusion that an appeal was filed before the High Court though it was not properly addressed and it was not returned by the High Court, it should have been treated as an appeal because notwithstanding the incorrect description, the appeal lay to the two Judges of the High Court. The Service Tribunals have been taking a more liberal view of such dereliction as would appear from the decision in Shujaat Ali Qarni v. Diector-General/Joint Secretary, Ports and Shipping Wing, Ministry of Communications and 2 others 1983 PLC (C.S.) 709 Federal Service Tribunal.
22. The appeal is accepted. The order of the Service Tribunal declaring the appeal to be incompetent is set aside and the case is remanded to the Service Tribunal for decision on merits.
No order is made as to costs.