1. HAMZA KHAN M. KURESHI (CHAIRMAN).-These two appeals regarding seniority arise out of the same circular letter (Annexure `H') issued by respondent No. 1 on 9-10-73. Both the appeals involve common questions of law and facts and would therefore be disposed of by this single judgment.
2. The brief facts leading to this appeals are that appellant Aftab Ahmad Siddiqui was appointed as a Clerk in the combined office of the Revenue Commissioner for Sind and Secretary to Government, Revenue Department, on 9-10-1954 after qualifying himself through Public Service Commission Sind. He was promoted as Assistant in the Sind Secretariat, Revenue Department with effect from 7-2-1955. Appellant Mohd. Siddiqi Makhdoom joined service as a. Clerk in the same office on 16-1- 1950. He was promoted as Assistant in the Sind Secretariat, Revenue Department, with effect from 31-3-1953. Both of them were confirmed as Assistants prior to the establish--ment of West Pakistan Province. After Integration both the appellants were transferred to the office of Commissioner, Hyderabad Division under the orders of the Government of Sind and they took over there on 14-10-
55. Both of them remained there as Assistants and used to get the same pay till the office of the Commissioner, Hyderabad was abolished by the Government of Sind with effect from 19-3-72 as a measure of re-organization of the administration. Thereafter the staff of the Commissioner's office, including A the appellants, were declared surplus and were placed in the surplus pool where they were regularly paid their salaries. Both the appellants were absorbed in the same capacity in the Sind Secretariat on 26-4-1972. The appellants claimed to be in continuous service as Assistants and wanted inter se seniority in the Sind Secretariat under rule 9 of West Pakistan Secretariat (Ministerial Service) Rules, 1963. This was, however denied to them issuing the above-mentioned circular letter dated 9-10-73. The appellants made a joint representation to the Chief Secretary, Government of Sind (respondent No. 1) but it was rejected on 18th November 1974. They filed the present appeals on 16-12-74. Both the appeals are within time.
3. The respondents have contested both the appeals. The factual position is more or less admitted by them. It is admitted in para 4 of the written statement that the existing terms and conditions of service of the appellants were protected but it is denied that any future benefits to the appellants were guaranteed touch less their seniority. This contention is misconceived. The appellants do not claim any future benefits but they want protection of their earlier rights, which accrued to them in the Sind Secretariat when they were promoted as Assistants. They claim that their seniority as Assistants was protected by law and it could not be disturbed through the policy letter dated 9-10-
73. There is any amount of force in appellant's version. The respondent's case is that on the creation of West Pakistan Province the appellants were declared surplus and absorbed in the Office of the Commis--sioner, Hyderabad hence they cannot claim the benefit of continuous service. They, however admit that the appellants could claim the benefits of Secreta--riat pay but not its inter se seniority. The respondents have not produced any proof that the appellants were declared surplus on the creation of West Pakistan Province. They admit that the appellants worked as Assistants in the Commissioner's Office. They urge that on abolition of the Office of Commissioners in Sind the appellants and other staff members became surplus and were subsequently absorbed as fresh recruits in the Sind Secretariat in equal posts viz. Assistants according to Rule 266 of Sind Civil Service Rules and they could not therefore claim the benefits of Rule 9 of West Pakistan Secretariat (Ministerial Service) Rules, 1963 with retrospective effect as they were not the members of that Secretariat. We have heard the Advocates of the parties at full length and also carefully considered the documents produced by them. It would be proper to quote the document (Annexure H) under which the appellants have been affected and which has given them the cause of action. It is dated 9-10-1973 and reads as under: "I am directed to say that the question of fixing the seniority of the staff who have been absorbed in various offices after abolition of the offices of the Divisional Commissioners, had been under consideration of the Government. The Law Department, have not advised that under rule 266 of the Sind Civil Service Rules, all persons rendered surplus on account of the abolition of their posts in the Commissioner's office bad option to accept compensation pension or transfer/absorp--tion in another establishment without any guarantee of their seniority in the new establishment of their absorption. The seniority of these officials absorbed in any of the offices under Government of Sind is therefore to be decided in accordance with the defunct West Pakistan Government Policy contained in their Circular Letter No. SOXII (S & GAD) 2-36/68, dated the 8th January, 1969 and the will hereto be treated as direct recruits in the new offices of their appointments. The previous service rendered by them under the abolished offices will count towards their pension and leave only.
4. (Sd.)
5. Deputy Secretary (Regulation)."
6. It is admitted that the appellants were originally appointed in Sind Secretariat and promoted as Assistants in the same Secretariat prior to 14-10-1955. It is also admitted that existing terms and conditions of service of the appellants were protected according to the Establishment of West Pakistan Act, 1955. It is also admitted that the appellants were posted as Assistants in the office of the Commissioner, Hyderabad and used to get the same pay as they used to get in the Sind Secretariat. It is therefore clear that the pay and the status of the appellants were protected as required by law. The position of the appellants did not alter till the office of Commis--sioner Hyderabad was abolished in March 1972. The appellants therefore continued to have the same protection and would be entitled to maintain their original seniority as Assistants. There is no proof that the appellants were declared surplus at the time of Integration. The appellants' case all along is that they were not declared surplus but were transferred to the Com--missioner's Office on 14- 16-1955. Their service conditions regarding pay and status were protected. Their position admittedly remained the same till the office of the Commissioner Hyderabad was abolished on 19- 3-1972. On this date they were declared surplus and were subsequently absorbed in the Sind Secretariat on 26-4-72. During the intervening period they continued to get the same pay of the same grade. They were not selected for discharge as required by Rule 266 nor was any option for accepting another appointment or transfer to another establishment obtained from them. The question would therefore arise whether the provisions of the above-quoted letter were applicable to the case of the appellants? The letter clearly lays down that under Rule 266 of Sind Civil Service Rules, all persons rendered surplus on abolition of the Commissioner's office "had the option to accept compensa--tion, pension or transfer/absorption in another establishment without any guarantee of their seniority in the new establishment". According to Rule 266 only those persons were required-to 'exercise option who were selected for discharge. The rule reads as under: "If a Government servant is selected for discharge owing to the abolition of his permanent post or owing to a change in the nature of the duties of that post, he shall unless he is appointed to another post, the conditions of which are deemed by the authority competent to discharge him, to be at least equal to those of his own, have the option-
(a) of taking any compensation pension or gratuity to which, he may be entitled for the service he has already rendered, or
(b) of accepting another appointment or transfer to another establish--ment even on a lower pay, if offered, and continuing to count his previous service for pension."
7. It is admitted position that the appellants were not selected for discharge after the office of the Commissioner Hyderabad was abolished. They were also not transferred or appointed to a post carrying less pay or change in the nature of duties. They were working as Assistants in the Commissioner's office and were posted in same position in the Sind Secretariat to which establishment they already belonged. There was no need for taking their option and it was not obtained from them. If they were selected for dis--charge then obtaining of option from them was obligatory on the Government. However, when they were not selected for- discharge nor any option was obtained from them, the provisions of rule 266 would not be applicable to them.
8. Consequently the terms and conditions of their service could not be changed to their disadvantage as guaranteed by section 8 of the West Pakistan Act, 1955 which held the field when they were transferred as Assistants to the Commissioner's office on 14-10-1955. There was no break of their service as Assistants. . Therefore their continuous officiating as Assistants would be the determining factor for their seniority in that grade. They were transferred and posted in the Commissioner's Office. They were promoted as Assistants in the Sind Secretariat andhad 2 to 4 years such service there before they were transferred to the Commissioner's Office where they served in the same capacity for 161 years. There is nothing on record to show that the appel--lants were declared surplus at the Integration or were posted to the Com--missioner's Office on their own option. They were transferred to the Commissioner's Office by the Govt. with full protection of all the terms and conditions of their service. They were original employees of the Sind Secretariat and would revert back to their parent department when the Commissioner's Office was abolished.
9. It makes no difference if the said office was abolished after the Dissolution of West Pakistan Province because their position had not altered. They enjoyed the same pay and status all the time. They were not given any promotion in the meantime hence they would continue to enjoy the same protection. The seniority of the appellants as Assistants would be determined on the principle of their continuous officiating in that grade. If they were considered as fresh recruits in the Sind Secretariat in 1972, then how would their service as Assistants in the same office prior to Integration be accounted for? If they were considered as fresh recruits, then the statutory guarantee given to them by the West Pakistan Act would have no meaning. These guarantees would protect all the conditions of their service till they got promotion to a higher grade. No promo--tion was admittedly given to them till the office of the Commissioner was abolished. They would therefore get their original seniority from the date of their promotion of Assistants in the original Sind Secretariat. It would be a great injustice if their continuous service of 18 to 20 years in the same grade was washed off or ignored. In that case their juniors would become senior to them and they would suffer an irreparable loss for no fault of theirs. This would not only be against the principles of natural justice but also against the contents have relied. It is a clear case of repatriation to the parent department and not of absorption in the Sind Secretariat. Here administra--tive reorganization would not affect the terms and conditions of service of the appellants to their disadvantage. Our view is supported by the order of the Government dated 22-2-76 produced by the appellants as a precedent. By this order one Muhammad Rafiqe Moughal originally posted as Assistant Secretary in the defunct Directorate of Guddu Barrage, Sukkur was "reverted to his parent office i.e. the Sind Secretariat" and was posted as P. A. to the Secretary, Home Department. On the same analogy the appellants would also be reverted to their parent office, namely the Sind Secretariat, after the office of the Commissioner was abolished.
10. We therefore allow both the appeals and hold that the appellants are entitled to count their past service as Assistants in the former Sind Secretariat as well as in the Commissioners Office for the purpose of seniority and other service benefits. We also declare that rule 266 of Sind Civil Service Rules, Volume I is not applicable to the case of the appellants. Each party is left to bear his own costs.
11. ABDUL KADIR (MEMBER).-The judgment written by my learned colleagues has been placed before me on 16-11-76 by the Reader attached to the Tribunal for writing my judgment.
12. The matter as placed before this Tribunal arises out of the following facts The appellants contend that on the eve of Establishment of West Pakistan they were holding the posts of Assistants in the then Sind Secretariat Ministerial Establishment. On integration, the entire establishment was merged in the West Pakistan Secretariat but as all the incumbents of Sind Secretariat could not be absorbed in the Secretariat Establishment at Lahore, the appellants and some others were transferred to Non-Secretariat offices. The appellants were originally borne on the Ministerial Establishment of the Revenue Commissioner/Revenue Secretary, which was combined with Secretari--at Establishment. The appellants were retained in the Ministerial Establish--ment of the newly created offices of Divisional Commissioners.
13. The appellants further contend that their terms and conditions of service were protected by section 8(3) of Establishment of West Pakistan Act, 1955 and as such despite their transfer to Non- Secretariat Departments, they retained their status as members of Secretariat Establishment with regard to rank, seniority, leave, pension etc. Consequently they claim that they continued to be the Assistants in the Ministerial Establishment of the Secretariat.
14. On dissolution of West Pakistan both the appellants were taken up in the Sind Secretariat Establishment and under the provisions of dissolution of West Pakistan namely Presidential Order 1 of 1970, the terms and conditions of service were again protected on the same analogy as in the year 1955 On the basis of these contentions the appellants claim that they have officiated continuously as "Assistant" in the Secretariat Establishment from the date of their promotion prior to the Establishment of West Pakistan and to that effect they have sought declaration from this Tribunal.
15. However appellants contend that cause of action for filing this appeal accrued to them when Government of Sind issued a decision on 19-10-1973 holding that for the period from 14-10-1955 upto dissolution of West Pakistan, the previous services rendered by them shall count towards pension and leave only but they shall not be entitled to seniority in the Secretariat Establish--ment as claimed by them. The appellants submitted a Departmental Represen--tation on 20-12-1973 to the Chief Secretary, Government of Sind praying that they are entitled to seniority as Assistants in the Secretariat Establishment from the date of their promotion as before Establishment of West Pakistan. This representation appears to have been followed by four more representa--tions dated 16-1-1974, 24-1-1974, 9-4-1974 and 27-5-1974. The Government of Sind vide order dated 18-11-74 rejected all these representations whereafter the appellants preferred these appeals on 16-12-1974 impugning the last mentioned order dated 18-11-1974. In present appeals the appellants have impleaded one person in each appeal as Respondent No. 2 without mentioning in the memo of their appeal as to how the appellants claimed any relief against the said respondents. This was also done as subsequent amendment.
16. The Government filed the written statements denying the contentions of the appellants. But respondent No. 2 in each appeal did not contest appeals obviously because they had nothing to lose if the appellants earned the relief prayed for.
17. The facts and law involved in the matter give rise to the following issues:
(1) Whether the appellants in each appeal was borne on the Cadre of Ministerial Establishment of Sind Secretariat and what was their substantive posts in the Establishment?
(2) Whether the appellants were transferred to non-Secretariat posts retaining their rank in the Secretariat Establishment?
(3) What was the status of the appellants on the eve of dissolution of West Pakistan?
(4) Whether the appellants have continuously been officiating as Assistants in the Secretariat Establishment w. e. f. their promotion in the Sind Secretariat prior to Establishment of West Pakistan?
(5) Whether orders of Sind Government dated 9-10-1973 and 18-11-1974 are null and void?
(6) Whether the appeals are not maintainable?
18. My findings on these issues would be as under:
(i) Not proved.
(2) Not proved.
(3) Appellants were Assistants in the Ministerial Establishment in the office of Divisional Commissioner and not in the Secretariat Establish--ment.
(4) Negative.
(5) Both the orders are quite legal and proper,
(6) Appeals are not maintainable in law.
19. Findings Issue No. 6 -At the very outset will discuss on the maintainability of the appeals.
20. In effect the appellants have impugned the order dated, 8-1-1969 passed by the Government of West Pakistan. This order has been produced before us. As a matter of fact even the order dated, 9-10-1973 specifically mentions C that the decision taken by Govt. of Sind is consequence of the decision already West Pakistan vide order dated 8-1-1969. The only taken by Government of We inference that could be drawn is that Government of Sind while issuing order dated 9-10-1973 consciously felt that they were not competent to upset the orders passed by the Government of West Pakistan in 1969. If the appellants were aggrieved against this order dated 8-1-69, they could have either moved the Government of West Pakistan for review of the order or they could have approached West Pakistan Civil Service (Appellate) Tribunal, which was constituted on 5-11-1969.
21. The order dated, 8-1-1969 definitely affected the seniority of the appellants. It came into existence while the appellants were serving in the office of Divisional Commissioner, Hyderabad. It has neither been contended that the appellants were not aware of this order nor it could be possible that the appellants did not know about this order for the simple reason that the order itself shows that it was circulated in the offices of all Commissioners. In fact the appellants have themselves produced this order which raises a clear indication that the appellants were fully aware of this order yet the fact remains that the appellants did not avail of either of their aforesaid remedies. In this view of this matter, the appellants are estopped from impugning the said order dated 8-1-1969 before this Tribunal much less because in the present appeals also, they have not sought away relief against the order dated 8-1-1969. The appeals would therefore not be main--tainable because even if the order passed by the present Sind Government in 1973 and 1974 are set aside, the order dated 8-1-1969 shall continue to operate against the appellants. Moreover this order has been passed before 1-7-1969 and under the provisions of section 4, proviso (c) this Tribunal will not be competent to adjudicate upon legality and propriety of the order dated 8-1-1969.
22. Yet another aspect of the case is that the appellant has claimed seniority retrospectively. Every question of seniority invariably affects other officials against whom the appellants claim seniority.
23. In the present appeals in case it is held that the appellants are entitled to count their seniority from the dates claimed by them, some Assistants in the Secretariat Establishment are bound to be adversely affected. It was therefore duty of the appellants to specifically imp lead such Assistants as respondents as were likely to be affected by award of seniority to the appellants as claimed by them as required by rule 8, clause (c) of Sind Service Tribunal (Procedure) Rules, 1974. In the absence of such assistants who are likely to be affected, this Tribunal will not be in a position to give any effective declaration to the benefit of the appellants and declaring as junior officials who are not before us. The appeals therefore are not maintainable for non joiner of necessary parties.
24. However in the present appeals the appellants have impleaded one official as respondent No. 2 but, the appeals do not set out clearly the relief claimed against these nominated respondents as required by rule 8 (d) of Sind Service Tribunal (Procedure) Rules, 1974. It is obvious that these respon--dents were in collusion with the appellants to facilitate them to get relief, which in effect is likely to injure the interest of Assistants who are not cited as respondents before us.
25. In this context there is one more ground on which the appeal appears to be not maintainable. In the opening para of the appeals the only order that is impugned is 18-11-1974. However in the prayer clause relief has been sought that the order dated 9-10-1973 may also be set aside. Be as it may, Section 4 of Act lays down that an appeal shall not lie unless the aggrieved civil servant has preferred an appeal or application for review before the Departmental Authority. In the present case the Departmental Authority against the order dated 9-10-1973 was the Government and not the Chief Secretary. Under Article 129 of the Constitution of the Islamic Republic of Pakistan, 1973, the executive authority of the Provincial Government is to be exercised by the Chief Minister by himself or through his Ministers or Officers with delegated authority. In October 1973, no delegation of powers by the Chief Minister had been promulgated. Therefore the review petition if any was to he filed before the Chief Minister. The order dated 9-10-1973, clearly mentions that the decision had been taken by the Provincial Govern--ment and not by any Secretary or Chief Secretary, which made it incumbent that the review application should have been addressed to be Chief Minister.
26. The appellants have however placed before us a copy of the representation dated 20-12-1973 but scrutiny of this petition will show that it is genera) representations to the Chief Secretary but was certainly not review petitions against the order 9-10-1973. Even in the memos of appeals, it has not been pleaded that the representations dated 20-12-1973 were filed as review applica--tions against order date 9-10-1973. Since the appellants have come to this Tribunal without filing review applications against the order dated, 9-10-1973, the present appeals must fail as not maintainable under proviso (a) of Section 4 of The Sind Service Tribunals Act, 1973. For all these reasons, the appeal to me appears to be not maintainable and I hold accordingly.
27. Issues No. 1, 2 and 4.-All these issues can be answered together because they will touch the various points of law commonly involved.
28. The appellants have claimed to be members of Ministerial Service of Sind Secretariat as it existed before Establishment of West Pakistan. The appellants have produced before us documents by which appellant in appeal No. 225 of 1974 by name Mr. Aftab Ahmed Siddiqui vide order dated 4-2- 55 was still officiating clerk and w. e. f. 7-2-1955 he was promoted to act as Assistant against the leave vacancy caused by one Sheikh going on leave. No other order has been produced in his case. The order therefore clearly shows that his promotion as Assistant was only a stop gap arrangement against leave vacancy. In his capacity as clerk also he was still officiating in the Secretariat. This means he was not holding substantially any po3t in the Secretariat Establishment.
29. In Appeal No. 226 of 1974 Mr. Makhdoom M. Siddiqui has however produced an order dated 1-4- 1965 showing that he was still officiating as clerk and he was promoted to act as Assistant w. e. f.
30. 13-3-1953, against the post of Mr. A. Majid Qureshi who was relieved. No order has been produced in this case to show that he was promoted against substantive vacancy.
31. However another order has been produced dated 10-10-55, which in the preamble mentions that the persons named in the Annexure `D' thereto are provisionally confirmed. His name in the Annexure appears at Serial No. 27, which mentions that he has been provisionally confirmed against the post held by Mr. Nisar Ahmed as Junior Assistant but Mr. Nisar Ahmed himself by the same order in the same serial No appears to be provisionally confirmed as Junior Assistant w. e. f.
32. 5-4-1950. If the confirmation of Mr. Nisar Ahmed was still provisional, Mr. Makhdoom could not claim substantive appointment against a lien held by Mr. Nisar Ahmed. Particu--larly so because in his status as clerk Mr. Makhdoom was still officiating and no order has been produced to show as a clerk or as an assistant Mr. Makh--doom was finally confirmed against a substantive vacancy.
33. Consequently Mr. Makhdoom also on the eve of Integration was only an officiating clerk in the Secretariat Establishment.
34. In this view of the matter, on 14-10-1955 both the appellants were only officiating clerks in the Sind Secretariat and did not hold any substantive posts in the Secretariat Establishment.
35. The appellants have deliberately not produced before any orders by which they were transferred/absorbed in the Non-Secretariat office of Divisional Commissioner. There is no, material on record to establish the names of their transfer to the office of the Divisional Commissioner. Ought it be that they were transferred as officiating clerks, which was only the position they really held in the Secretariat Establishment. However if they claim guarantees and protection under section 8 of Establishment of West Pakistan Act, 1955, it was for them to produce before the Tribunal the record to establish that they continued enjoying the terms and conditions of service as were available to them before transfer to non-Secretariat Establish--ment. This could have been done*by producing the orders of transfer and the record of scales of salary drawn by them in the Commissioner's Office.
36. Appellant Makhdoom M. Siddiqui has however produced a certificate issued by the Assistant Commissioner (General), Hyderabad that lie has been transferred from Secretariat to the office of Commissioner w. e. f: 14-10-1955. This certificate is of no avail to him for various reasons. Firstly the officer who issued this certificate does not mention on what basis he has issued this certificate.
37. Secondly whether he was competent to issue this certificate and lastly the appellant cannot be permitted to circumvent substitution of evidence namely original order of transfer, entry in the Service Book etc. by a certificate which appears to have been procured one and does not further the cause of the appellants because, the question as to what was the nature of transfer and what terms and conditions of service continued to be enjoyed by the appellants are left a begging.
38. On the contrary we have before us the order dated 8=1-1969 passed by the Government of West Pakistan wherein it is clearly laid down that the appellants alongwith others should be treated as direct recruits in the Depart--ments in which they were absorbed. As already explained, this order dated, 8-1-1969 remains in fact and is operative up to present date. I have already discussed that it would be beyond the jurisdiction of this Tribunal to adjudicate upon the validity or propriety of this order. However it may even be contended that an order is to be ignored if it was passed with total ouster of jurisdiction but such cannot be the case before us because the Government of West Pakistan did have the jurisdiction to pass this order. At the most it may be said that the power vested in the Government was not 1, overly exercised but that would be only improper exercise of jurisdiction and will certainly not amount to ouster of jurisdiction. Consequently it does not lie within the domain of jurisdiction of this Tribunal to ignore the decision passed by the Government of West Pakistan in 1969.
39. For all these reasons I find no alternative except holding that w. e. f. 14-10-1955, the appellants became direct recruits in the office of Divisional Commissioner and they cease to be borne on the Secretariat Establishment in any capacity. I further hold that no sufficient proof has been furnished that the appellants were transferred to non-Secretariat Department retaining their terms and conditions of service as were available to them in the Secretariat. I further hold that the appellants have not been able to that the appellants continued to officiate as assistants in the Secretariat, Establish with effect from their so-called promotion as Assistants as order before establishment of West Pakistan.
40. All that the appellants could be entitled to would be that their previous service shall count towards pay, pension and leave and nothing more far fetched attempt to claim seniority, promotion etc. could never be available to them as has been observed by their Lordship in the Supreme Court in case reported in PLD 1962 S. C. 45).
41. Issue No. 3-The law involved in the case of appellants has been thoroughly discussed by me above and I have already held that by establishment of West Pakistan, the appellants came to the office of ions,! Commissioner as direct recruits. The same would be the position if on dissolution of West Pakistan they are again taken up in the Secretariat from Non-Secretariat Department. They have been taken up in the Secretariat Establishment presumably because they would be entitled to better terms conditions of service and superior cadre a compared to the ministerial establishment in the Non-Secretariat Department. As such in the no Secretariat as consequence of dissolution of West Pakistan they shall hay to start as direct recruits in the Secretariat in the capacity in which tip;., were transferred retaining their pay pension and leave but not seniority.
42. Issue No. S.----On findings on issue No. 6, I have already held that the order dated 9-10-1273 passed by Government of Sind is in effect only clarification and giving effect to the order dated 8- 1-1969 passed by Government merit of West Pakistan. Similarly the order dated, 1-1-1974 is only in continuity with the order dated, 9-10-1973. These orders could therefore on the face of it not be appeal able orders. In view of the findings on issue No. 1 to 4 there is no scope left except to uphold the said orders passed by Government of Sind.
43. Nothing more than what has been discussed above has been projected to substantiate that the orders passed by Government of Sind are in any matter illegal and liable to be set aside.
44. I hold accordingly.
45. For all these reasons the present Appeals Nos. 225 of 1974 and 226/74 merit rejection.
46. COURT ORDER By majority decision both the appeals are allowed with no order for costs.