' NASIR ASLAM ZAHID, J.---In this case, dispute between the two employees of the Sindh Government, appellant Ghulam Hussain Baloch and respondent No,1 Liaqat Ali Baloch, related to seniority.
Respondent Liaqat Ali Baloch (B.E. Mechanical) joined service of the Sindh Government on 1-8-1974 as a Supervisor in the Communications and Works Department. He was promoted as Assistant Engineer on 12-3-1975 after being cleared by the Departmental Promotion Committee. About 10 years thereafter he was promoted as Executive Engineer with effect from 11-4-1985.
' Appellant Ghulam Hussain Baloch was a selectee of the Federal Public Service Commission and he joined service of the Federal Government on 13-7-1973 as Director (Technical) (B-17) in the Ministry of Fuel, Power and Natural Resources. In November, 1973, Sindh Government, with the approval of the then Chief Minister, Sindh, requested the Federal Government to lend services of the appellant to the Sindh Government for appointment as XEN (Mechanical) (B-18) on deputation basis. There is no specific reason available on record why such request was made with the approval of the then Chef Minister for acquiring the services of the appellant from the Federal Government for a B18 post, but, from the record it follows that this was done at the behest of a Provincial Minister. Apparently, appellant also wanted to join service of the Sindh Government as it would have bestowed a Grade-18 post on him. However, at that time, appellant was still on probation and, therefore, could not be sent on deputation. The Federal Government did not agree to the request of the Sindh Government. In the circumstances, appellant decided to leave the Federal Government Service. He joined service of the Sindh Government on 213- 1974 as an ad hoc appointee in B-17 hoping that his services will be regularised. The Provincial Service Rules did not provide for direct recruitment to the post of XEN (B-18) and, therefore, with the approval of the then Chief Minister, Sindh, appellant was appointed as Assistant Engineer on ad hoc basis subject to regularisation by the Provincial Public Service Commission. Sindh Government moved the Provincial Public Service Commission on 15-1-1975 for regularisation of the ad hoc appointment of the appellant but the Commission advised the Sindh Government on 15-2-1975 that appellant should apply for the post as and when advertised by the Commission. Appellant waited for such advertisement by the Commission but then on promulgation of MLO-55, the Commission interviewed him and recommended his regularisation which became effective from 2-12-1978. He was accordingly assigned seniority in the cadre of Assistant Engineers from his date of regularisation i.e, 2-12-1978. On the basis of this seniority he was promoted as Executive Engineer with effect from 28-11-1985.
2. A chart of the dates showing the entry into service of appellant and respondent No,1 as well as their dates of further promotion is given in the impugned judgment dated 3-4-1994 of the High Court. The chart shows the following position:-- Respondent Appellant Liaqat Ali Baloch Ghulam Hussain Baloch Date of entry in service 1-8-1974 (as Supervisor)5-6-1974 (as Asstt. Engineer on temporary ad hoc basis).
Appointment on under regular basis as Asstt. Engineer.12-3-1975 In 1978 (M.L.O. 55)
Promotion as Ex-Engineer. 121-4-1985 28-11-1985
3. Appellant had been making representations for giving him seniority from the date he joined service of the Federal Government. Appellant's claim of seniority over the respondent and one other employee Aftab Ahmad Memon (since in some other service) was rejected by the departmental authority. He, therefore, filed an appeal before the Sindh Service Tribunal but it was dismissed by judgment dated 25- 9-1986. Still aggrieved, appellant filed a petition for leave before this Court but the same was also dismissed and leave was refused by order dated 14-4-1988.
4. Despite his claim of seniority over the respondent having been rejected by the apex Court of the country, appellant continued to make representations to the Chief Minister, Sindh, relying upon certain obliging observations made by the Service Tribunal while dismissing his appeal. The said observations read as follows:-- "Before parting with the case we cannot help making some observations. This case presents a glaring example of a great hardship. The appellant has been the worst sufferer. His woes began, the moment he gave up his regular appointment of the Federal Government in the hope of getting a higher post, of Grade-18 under sindh Government. However, his hopes proved abortive. No doubt he too showed undue haste in severing his connections with the Federal Government but we feel that in a case like the present one the appellant was entitled to equitable treatment at the hands of the Provincial Government. After all the said Government had shown its keenness to provide him Grade-18 post. As disclosed in the summary, dated 27-3-1974, the then Minister for Communication and Works had even suggested the creation of a post of Executive Engineer Mechanical for making direct appointment of the appellant in that post. However, he was accommodated in Grade-17 post and that too on ad hoc basis. If there were legal difficulties in the way of his direct appointment to Grade-18 post, he should have at least got the lower post of Grade-17 in a regular manner, so that his seniority in that grade would have counted from the date of his appointment. The appellant could have been straightaway appointed in Grade-17 on regular basis by excluding his post from the purview of the Public Service Commission with approval of the Chief Minister, particularly when the unfortunate officer had already gone through the examination of the Federal Public Service Commission before his appointment in Grade-17 post under the Federal Government. This was permissible under Rule 10(b) of 1974 Rules read with Rule 5 of Sindh Public Service Commission (Function) Rules, 1974. Somehow this procedure was not followed for the reasons best known to the relevant authorities. As a result the appellant languished on ad hoc basis for about four years when his appointment was regularised under MLO-55 in 1978. The more tragic aspect of the appellant's case is that during the period of his ad hoc appointment, his two juniors who were merely supervisors when the appellant entered the service of Federal Government in Grad-17 were promoted to grade-17 posts and became senior to him. They were Messrs Aftab Ahmed Memon and Liaquat Ali Baloch. If so desired, the Government can help the appellant even at this belated stage. As provided in clause (a) of subsection (2) of section 9 of the said Act, promotion to a selection post is made only on merit. The Grade-18 post is obviously a selection post. If the Government is convinced that appellant in view of his background, qualifications and performance should be given preference to his immediate seniors including the respondent No,3 for promotion, he should be promoted to grade-18 post before them. If this is done, the Government's action is not likely to be challenged for two reasons; firstly it is settled law that promotion cannot be claimed as matter of right and secondly the Service Tribunal which is the only forum available to civil servants for adjudication for their service matters has no jurisdiction to go into fitness of any civil servant for promotion."
' Learned Additional Advocate-General, Sindh, has placed on record all the relevant documents including summaries for the Chief Minister on the representations of the appellant and orders thereon after the decision of this Court dismissing appellant's petition for leave regarding his claim of seniority over the respondent. Ultimately Government of Sindh issued a notification on 28-1-1991 which is as under:-- "The competent Authority is pleased to grant relief under section 24 of the Sindh Civil Servants Act, 1973, by reckoning the date of promotion of Mr. Ghulam Hussain Baloch as Executive Engineer (E&M) (BS-18) in the Communication and Works Department with effect from 11-4-1985 (the date on which Mr. Liaqat Ali Baloch was promoted as such."
' Not being satisfied with this notification, appellant made another representation to the Chief Minister and pursuant to the orders passed by the Chief Minister, another notification dated 5-8-1991 was issued by the Communication and Works Department as follows:- "In exercise of the powers conferred by section 24 of the Sindh Civil Servants Act, 1973, and in supersession of this Department's Notification No,EI (C&W) 1-8-1985, dated 28-1-1991, the Government of Sindh are pleased to direct that Mr. Ghulam Hussain Baloch, the then Assistant Engineer (E&M) BS-17 (now Executive Engineer (E&M) BS-18 shall, notwithstanding anything to the contrary contained in the relevant rules including Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, be deemed to have been appointed on regular basis with effect from 5-6-1974 and his seniority in the cadre of Assistant Engineers shall be re-fixed accordingly but he shall not be entitled to any arrears of pay becoming due as a result of re-fixation of seniority."
' Now the respondent was aggrieved by the issuance of the aforesaid notifications which made him junior to the appellant despite appellant's appeal having been dismissed in 1986 by the Service Tribunal and also his petition for leave by this Court in 1988. Respondent filed a Constitutional petition before the Sindh High Court claiming the following reliefs:-- "(a) To declare the Notifications dated 28-1-1991 and 5-8-1991 to be illegal, void, mala fide and without any lawful authority.
(b) To direct the respondents Nos.1 and 2 to act according to order dated 14-4-1988 passed by the Hon'ble Supreme Court.
(c) Grant permanent injunction suspending the opt ration of Notifications dated 28-1-1991 and 5-8-1991 till the final disposal of this petition.
(d) To grant any other relief/s deemed appropriate under the circumstances of the petition."
' By the impugned judgment dated 3-4-1994 a Division Bench of the High Court allowed the Constitutional petition declaring the aforesaid notifications dated 28-1-1991 and 5-8-1991 as illegal and void and having been passed without any lawful authority observing that the inter se seniority of the appellant and respondent shall be the same as determined by this Court vide order dated 14-4-1988 dismissing appellant's petition for leave.
' Being aggrieved by the judgment of the High Court, appellant approached this Court by filing a petition for leave. Leave was granted by order dated 6-6-1994 as follow:-- "This is a petition for leave to appeal against the judgment dated 3-4-1994 of a Division Bench of the Sindh High Court in Constitution Petition No,D-385 of 1991 filed by respondent No,1, challenging the .Seniority given to the petitioner upon the regularization of his services in Grade-17 in 1978, allowing the same in the following terms:-- ' 'We would, therefore, allow this Constitutional petition and declare the two impugned notifications dated 28-1-1991 and 5-8-1991 as illegal, void and having been passed without any lawful authority with the result that the inter se seniority of the petitioner and of respondent No,3 shall be the same as determined by the Hon'ble Supreme Court vide its judgement dated 14-4-1988 (Annexure 'F'). Under the circumstances, the petitioner is held entitled to all the benefits to which he would have been entitled if the two impugned notifications had not been passed. All the respondents are also liable, jointly as well as severally, for the costs of the petitioner in these proceedings.'
' The petitioner has filed present petition for leave to appeal.
2. In support of the above petition Mr. Akhlaq Ahmed Siddiqui, learned Advocate-on-Record appearing for the petitioner has submitted that the learned Judges of the Division Bench have misapplied the ratio decidendi of the judgment of this-Court in the case of I. A. Sherwani v. Government of Pakistan (1991 SCM R 1041) as the above Constitution petition was barred by Article 212.
3. We are inclined to grant leave to appeal to consider, whether the High Court was justified in entertaining and allowing the above Constitution Petition in presence of Article 212 of the Constitution of Islamic Republic of Pakistan.
4. The petitioner has filed a stay application for stay of the operation of the impugned judgment, the same may be fixed for hearing after notice to the respondent."
The only point on which leave has been granted is whether the High Court was justified in entertaining and allowing the Constitutional petition in the presence of Article 212 of the Constitution. We have heard the arguments of Mr. Akhlaq Ahmed Siddiqui, learned Advocate-on-Record for the appellant, Mr. Faizanul Haq, learned Advocate-on-Record for respondent No,1 and Mr. Muhammad Saleem Samo, Learned Additional Advocate-General, Sindh, for the Sindh Government. As observed, learned Additional. Advocate-General has placed all the relevant documents including summaries for the Chief Minister showing how orders under section 24 of the Sindh Civil Servants Act came to be passed in favour of the appellant. Mr. Akhlaq Ahmed Siddiqui also very vehemently argued that the High Court had no jurisdiction to entertain the Constitutional petition in view of the bar contained under Article 212 of the Constitution and if at all respondent had any grievance against the aforesaid notifications issued by the Government which refixed the seniority of the appellant to the prejudice of the respondent, the only remedy that was open to the respondent was to approach the Service Tribunal for relief. On the other hand, Mr. Faizanul Haq, learned Advocate-on-Record for respondent No,1 submitted that petitioner was able to manage a summary for the Chief Minister without mentioning dismissal of his petition for leave by this Court: appellant had strong political contacts and he was able to get the orders passed under section 24 of the Sindh Civil Servants Act on the basis of his contacts with the Provincial Minister and the then Chief Minister; and that in the circumstances the Constitutional petition filed by the respondent was maintainable.
5. No doubt, the notifications which were challenged by the respondent in the Constitutional petition adversely affected the seniority of the respondent and in such cases the remedy for the aggrieved civil servant is by way of appeal before the Service Tribunal and other Courts have no jurisdiction to entertain any proceedings for redress of grievances in connection with terms and conditions of service of a civil servant. However, in the special facts and circumstances of this case, the bar of Article 212 was not attracted. The entire background of the case has already been recited with some detail. Appellant wanted his seniority to be fixed from an earlier date that is from the date of his appointment on temporary/ad hoc basis on 5-6-1974 so that he could become senior to the respondent. He approached the Service Tribunal but his appeal was rejected. Despite the fact that obliging observations were made by the Service Tribunal, appellant being aggrieved by the judgment of the Service Tribunal, filed a petition for leave before this Court and, by order dated 14-4-1988, the petition was dismissed and leave was refused. In the said order this Court after referring to the facts of the case and the applicable rules came to the conclusion by holding as follows:-- "The position that emerges is that respondent No,3 was appointed earlier to the petitioner in a regular manner and is entitled to be reckoned senior to the petitioner whose appointment was regularised long afterward in 1978."
' After this Court having held that respondent was entitled to be reckoned senior to the appellant, the Government could not pass any order which would affect inter se seniority of the two civil servants as this would amount to bypassing the orders passed by this Court.
' When the appellant was making representations to the Chief Minister, Sindh, for giving him seniority over The respondent, he was actually asking the Government to bypass the orders of this Court through the device of an order under section 24 of the Sindh Civil Servants Act. In one of the summaries for the Chief Minister dated 10-6-1990, the then Chief Secretary, Sindh, opposing the proposal of the Department to give seniority to the appellant made the following comments:-- "15. The present summary of the C&W Department suffer: from serious omissions in that it does not present the case in its proper perspective.
16. The case of Mr. Ghulam Hussain Baloch has at different times been considered and disposed of by--
(i) Sindh Service Tribunal.
(ii) Supreme Court of Pakistan.
(iii) S&GAD, Regulation Wing.
17. In an earlier reference from the C&W Department on 22-8-1989 (Flag 'S') to the Regulation Wing of Services and General Administration Department the following categorical statement was made: 'This Department is of the view that since the appeal(s) filed by Mr. Ghulam Hussain Baloch, have been dismissed at the level of Supreme Court he is not entitle(d) for the benefit of hardship at this stage.'
18. The above reference was made. One year and four months after the announcement of judgment of the Supreme Court of Pakistan in this case on 14-4-1988. Mr. Ghulam Hussain Baloch had filed a petition before the Supreme Court of Pakistan claiming seniority over Liaquat Ali Baloch and Aftab Ahmad Memon, the later having since left the department for joining The District Management Group (DMG)/. A similar appeal had earlier been dismissed by the Sindh Service Tribunal in September, 1986. The Supreme Court in its judgment (copy placed at Flag 'U') had upheld the judgment of the Service Tribunal and dismissed the petition of the officer concerned. The Honourable Supreme Court in its judgment did not give much weight to the observations of the Sindh Services Tribunal so extensively quoted in the summary. In fact in the judgment of the Supreme Court no mention has been made of it at all.
19. Section 24 of the Sindh Civil Service Act reads as follows:-- 'Nothing in this Act or in any rule shall be construed to limit or abridge the power of Government to deal with the case of any civil servant in such manner as may appear to it to be just an equitable: ' Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule.'
20. Section 24 specifically deals with such cases where the right of the civil servants has been established but no remedy is avalilable under the Rules/Law. The Government has been given the power to deal with the cases of such civil servant in a manner as may appear to be just and equitable.
However, in this particular case the Supreme Court of Pakistan, the highest judicial authority in the country, has not found reason to establish any right of the applicant. No case can, therefore, be made out to provide relief to the petitioner under section 24 of the Sindh Civil Service Act.
21. It is pertinent to observe that even the regularisation of Mr. Ghulam Hussain Baloch in 1978 own entirely to the MLO-55 whereby ad hoc appointees were regularised ostensibly on compassionate grounds. In a purely bypothetical situation the case of Mr. Ghulam Hussain Baloch would have lingered on for still longer period for his regualrisation but for MLO-55. It is indeed unfortunate that Mr. Ghulam Hussain Baloch has to suffer the consequences of his own unilateral and hasty decision to quit his job, in Grade-18, while he was still on probation with the Federal Government, for an ad hoc appointment in the Provincial Government in Grade-17.
22. In my opinion, if section 24 is stretched in this case, we might end up causing injustice to Mr. Liaquat Ali Baloch, against whose seniority Mr. Ghulam Hussain Baloch has unsuccessfully represented in different Judicial forums.
23. The representation of the officer, therefore, needs to be rejected and he may be advised to refrain from making further representations having exhausted the legally available remedies."
6. In our view the Chief Secretary, Sindh, advised the Chief Minister, Sindh, correctly, that, though section 24 of the Sindh Civil Servants Act gives powers to the Government to deal with the case of any civil servant in such manner as may appear, to be just and equitable, in this case, the highest judicial authority in the country had not found established by right of the appellant and, therefore, no case was made out to provide relief to the appellant under section 24 of the Act. It was further pointed out by the Chief Secretary that is section 24 was stretched in this case it might result in causing injustice to the respondent against whose seniority appellant had unsuccessfully represented in different judicial forums (and finally in this Court).
7. According to section 24, nothing in the Sindh Civil Servants Act or in any rule shall be construed to limit or abridge the power of Government to deal with the case of any civil servant in such manner as may appear to it to be just and equitable, but this plenary power is not unlimited and in any case not be construed to give any power to the Government to ignore or bypass any judgment of this Court relating to a particular case or sphere in respect whereto power is sought to be exercised under section 24 of the Act. As observed, this Court by order dated 14-4-1988 dismissed the leave petition of the appellant specifically observing that respondent was appointed earlier to the appellant in regular manner and is entitled to be reckoned senior to the appellant whose appointment was regularised long afterward in 1978. To reiterate this Court by the said order held that respondent was senior to the appellant and this specific order could not be nullified by resorting to the plenary powers available to the Government under section 24 of the Act.
8. Reference may also be made here to Article 190 of the Constitution which reds as under:- "190. Action in aid of the Supreme Court. --All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."
The entire controversy relating to inter se seniority of the parties initiated by the appellant finally stood settled by order dated 14-4-1988 of this Court when the leave petition of the appellant was dismissed.
In view of Article 190 of the Constitution, Government of Sindh was under a Constitutional duty to ensure that the said order was enforced and respected in letter and also in spirit. Purporting to exercise power under section 24 of the Act and disturbing the inter se seniority of the parties, the Government was not fulfilling its Constitutional responsibility under Article 190 of the Constitution to act in aid of this Court.
9. In our view, in the special facts and circumstances of this case, bar of Article 212 of the Constitution was not attracted. In the Constitutional petition filed by the respondent under Article 199 of the Constitution, respondent was in effect seeking a direction from the Court against the Government not to ignore or bypass the order dated 14-4-1988 of this Court finally reckoning the inter se seniority of the parties and to act in aid of the Supreme Court as enjoined by Article 190 of the Constitution. It was not a matter relating to terms and conditions of service of the parties. The basic question involved in the Constitutional petition was whether the order dated 14-4-1988 of this Court could be bypassed or ignored under the garb of an order under section 24 of the Sindh Civil Servants Act, 1973 and our answer is in the negative.
10. We are of the view that the most important fact that the inter se seniority of the parties had been finally settled by order dated 14-4-1988 of this Court while dismissing the leave petition field by the appellant, was not specifically brought to the notice of the Bench Al of this Court when this matter was fixed for hearing of the leave petition before this Court. On this ground and for reasons aforesaid the order granting leave to appeal to the appellant is, therefore, liable to be recalled,
11. Accordingly we recall the order dated 6-6-1990 of this Court granting leave to appeal to the appellant with the result that this appeal stands dismissed with costs.