' Plaintiff has filed this suit for declaration and permanent injunction against the defendant.
2. The prayer clause of the plaint is as follows:-- "(1) Declare that the appointment of defendant 4 in Grade-17 and fixing his seniority in Grade-16 with effect from 8-1-1968 is illegal and ultra vires and fixing of defendant 5 in Grade- 16 with effect from 7-9-1965 is also illegal and ultra vires.
(2) Declare that plaintiff is senior to defendants 4 and 5 as he is holding continuous appointment in Grade-16 with effect from 1-5-1968 and is confirmed in the same scale of pay prior to defendants 4 and 5.
(3) Declare that the orders of defendants 1 and 3 pertaining to defendants 4 and 5 regarding fixing the seniority of defendants 4 and 5 and allowing promotions as such are illegal, mala fide, ultra vires and of no legal consequences.
(4) Declare that the acts/orders of defendants 1 to 3, doing illegal favours to defendants 4 and 5 are mala fide, illegal and of no legal consequences.
(5) Grant and issue permanent injunction restraining the defendants 1 and 2 for not denying the plaintiff's legal character rights, status and interest in service as a member of the Sindh Local Council (Engineering Service) for fixing his seniority and promotions."
3. The defendants were served who have filed the written statements. Thereafter issues were framed and evidence was also recorded and matter was fixed for arguments.
4. On 23rd October, 1995 matter was fixed for arguments and Court passed the following order:-- "Mr. Rasheed Akhtar for Plaintiff.
' Mr. Himayat Ali Pirzada for Defendants Nos. 1 to 3. Mr. Manzoor Ali Khan for defendants Nos. 4 and 5.
' According to Mr. Manzoor Ali Khan, the plaintiff has since been retired from service and secondly an amendment is notified by the Government of Sindh whereby suits, appeals or applications relating to the terms and conditions of service of a person holding a post in a corporation pending in any Court immediately before the commencement of the Sindh Service Tribunals (Amendment)
Act, 1994 shall abate, for consideration of these legal objections also.
' By consent the matter is adjourned to 2-11-1995 at 11-00 a.m."
3. On 6-11-1995 arguments of the learned counsel for the parties were heard. Mr. Manzoor Ali Khan has contended that plaintiff has been retired from services and that since The Sindh Services Tribunals (Amendment) Act, 1994 indh Act No, XXXI of 1994 has been notified, therefore, the suit stands abated. He has referred section 3 and the amendment, so effected is as follows:-- "It is hereby enacted as follows:--
(1) This Act may be called the Sindh Service Tribunals (Amendment) Act, 1994.
(2) It shall come into force at once.
2. In the Sindh Service Tribunals Act, 1973, hereinafter referred to as the said Act, in section 2, after clause (a) the following new clause shall be inserted:--
(aa) "Corporation" means a Corporation or Institution set up or established by a Provincial enactment."
(1) In the said Act, after section 3-D, the following sections shall be inserted:-- E) EMPLOYEE OF A CORPORATION TO BE DEEMED F)
' CIVIL SERVANT.
' Notwithstanding anything contained in any law, service of Corporation is hereby declared to be the service of the Province and every person holding a post in the Corporation, not being a person who is on deputation to the Corporation shall, for the purpose of this Act, be deemed to be a civil servant."
E) Abatement of pending cases of an employee of the Corporation.
' All suits, appeals or applications relating to the terms and conditions of service of a person holding a post in a Corporation pending in any Court immediately before the commencement of the Sindh Service Tribunals (Amendment) Act, 1994, shall abate."
' Mr. Manzoor Ali Khan has referred sections 78(1), 85, 86 and 87 of the Sindh Local Government Ordinance, 1979 (Sindh Ordinance No, 12/79) which are reproduced as follows:- "78.--(1) There shall be constituted a service known as the Sindh Councils Unified Grades comprising such posts in councils in such scales of pay as may, from time to time, be specified.
85.--(1) There shall be constituted a Board to be called the Sindh Local Government Board.
(2) The, Board shall consist of a Chairman, Vice-Chairman and such number of members as may be appointed by Government.
(3) The Chairman and Vice-Chairman of the Board shall perform such functions and exercise such powers as may be prescribed.
86.--(1) The Board shall perform such functions and maintain such funds as may be prescribed.
(2) The Board shall with the approval of Government employ such number of employees as may be necessary, on such terms and conditions (and they shall be liable to such disciplinary action and penalties) as may be prescribed.
(3) Government may, from time to time, specify that a post in the Board shall be filled by persons belonging to the Sindh Councils Unified Grades or any other service.
87. The expenditure on the maintenance of the Board shall be borne by the councils by making contribution at such rate as may, from time to time, be fixed by Government."
6. Mr. Rasheed Akhtar for plaintiff has referred section 87 of the Sindh Local Government Ordinance, 1979 and has also referred Notification No,SLGB/LCS/CA0/85/81.
"NOTIFICATION ' No, SLGB/LCS/CA0/85/81.--In exercise of the powers conferred by subsections (1) and (2) of section 78 and section 103 of the Sindh Local Government Ordinance, 1979, the Government of Sindh are pleased to:--
(i) constitute a Service known as the Sindh Councils Unified Grades comprising the posts in various Councils in the Province and the Sindh Local Government Board mentioned in the Schedule below;
(ii) direct that the West Pakistan Local Councils and Municipal Committees Service Rules, 1963 shall as far as possible apply mutatis mutandis to the said service."
' Mr. Rashid Akhtar has also referred heretoabove Sindh Services Tribunal (Amendment) Act and has stressed that in view of this amendment suit will not abate and he will prefer that suit may be decided on merits.
7. Mr. Manzoor Ali Khan has cited at the bar celebrated reported judgment of the Full Bench of this Court (1) PLD 1981 Karachi 290 (Abdul Bari v. Government of Pakistan and 2 others). According to the authority the following questions were referred to the Full Bench by D.B: comprising of learned Chief Justice and Mr. Justice Ajmal Mian (as his Lordship then was):-- "(i) Whether the petitions are barred by Article 212 of the Constitution?
(ii) Whether the competent authority can retire a civil servant at any time after his completing 25 years' service or alternatively the said power to retire a civil servant can be exercised at or about the time when the civil servant is due to complete 25 years of service?
(iii) Whether the power to retire under section 13 (ii) of the Civil Servants Act, 1973 is absolute or is regulated by rules?
8. After hearing the counsel for the parties the learned Full Bench unanimously felt that intention behind the referring order did not seem to be referred all the petitions for final disposal to the Full Bench but, specified questions of law formulated by the Bench were referred for opinion to them.
Accordingly the learned Full Bench reframed the first question so as to read as under:-- "(i) Whether petitions under Article 199 of the Constitution seeking to challenge orders of retirement under section 13(ii) of the Civil Servants Act, 1973 are barred under Article 212 of the Constitution."
' After hearing the learned counsel for the parties the learned Full Bench observed as under:-- "17. For the aforesaid reasons, we have come to the conclusion that the answer to the first question referred to us as modified by this Bench is in the affirmative and the petitions which seek to challenge the orders of retirement under section 13(ii) of the Civil Servants Act, 1973 are barred under Article 212 of the Constitution.
18. In view of the aforesaid answer to the first question, it is not necessary to decide the other two questions referred to this Bench.
(2) C.P.D. 1384/95 Syed Tanweer Ahmed Naqvi v. The Administrator, K.M.C. And 2 others. In this matter the learned D.B. Of this Court has held as under:-- "Even otherwise the petitioner being a civil servant or an employee of a Corporation set up under an Act, the only remedy available to him in law would be to approach the Sindh Service Tribunal as created under the provision of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and thus under the provision of this Article this Court will not exercise jurisdiction in the matter."
8. It would be pertinent to refer the order of appointment of petitioner which reads as follows: "GOVERNMENT OF WEST PAKISTAN BASIC DEMOCRATICS, SOCIAL WELFARE AND LOCAL GOVERNMENT ' To ' The Commissioner, K,hairpur Division, Khairpur.
' Memo. No,SO(BD-IV) 14/47-66 Dated Lahore the 1st May, 1968.
' SUBJECT: REQUEST FOR MR. MUHAMMAD ASHRAF SOOMRO FOR APPOINTMENT AS ENGINEER IN LOCAL COUNCIL SERVICE.
' Reference your letter No,5-LCS/68, dated 7-2-1968 on the subject noted above.
' Government have approved the appointment of Mr. Muhammad Ashraf Soomro an Engineer in the vacancy that might not be available in any local body of your Division. His posting orders may therefore be issued under intimation to the Government and a formal proposal for the relaxation of the condition with regard to the qualification prescribed for the post of Engineer if any and the terms and conditions of his appointment may please be sent to the Government for approval.
(Sd .) K.B. Qureshi, Section Officer IX."
10. The Sindh Local Government Board is a creation of Sindh Local Goyernment Ordinance, 1979.
11. I have gone through the material placed with the matter and have also minutely considered the provisions of Sindh Local Government Ordinance, 1979, Amendment referred heretoabove and the case law cited by Mr. Manzoor Ali Khan.
12. I -am of the firm view that petitioner being a civil servant or an employee of a Corporation set up under the Act remedy available to him under the law would be to approach the Sindh Service Tribunal, as created under the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1979.
13. Upshot of the above discussion is that suit stands abate.