RASHEED A. RAZVI, J.---Through this common judgment, we intend to dispose of three appeals filed under Rule 20/24 read with Schedule II of the High Court Establishment (Appointment and Conditions of Services) Rules (hereinafter referred to as High Court Establishment. Rules) filed by three different officers/employees, who all are aggrieved by the appointment of the two employees/officers namely Ashraf Memon and Altaf Hussain as the Private Secretaries to the Chief Justice on two different occasions.
2. Brief facts of these appeals are that all the three appellants as well as the respondents were earlier serving as Stenographers in BPS-16 and were promoted to BPS-17 vide Notification dated 31- 12-1990. On 26-9-1992, through another notification, the Hon'ble Chief Justice of this Court was pleased to change the nomenclature of the post of Stenographer B-17 attached with the Judges of this Court as Private Secretary to the Judge. From the year 1992 till May, 1994 appellant No, 1 namely Manzoor Hussain served as Private Secretary to the Hon'ble Chief Justice. It is claimed by him that he was appointed as Private Secretary to Chief Justice purely on seniority basis as at the relevant time he was the most senior Private Secretary to Judge. However, on 10-5-1994, on assumption of charge by the Acting Chief Justice Mr. Justice (Retd.) Abdul Hafeez Memon (as he then was) appellant Manzoor Hussain was transferred back as Private Secretary to Judge and in his place respondent No,1 namely Muhammad Ashraf Memon was appointed as Private Secretary to the Chief Justice. On 5-12-1994, vide Order No,S.Judl. 10-1/94/795 of the Law Departthent, Government of Sindh, the post of Private Secretary to Chief Justice was upgraded from BPS-17 to BPS-18 and consequently on 8-12-1994 the same was given effect and respondent Muhammad Ashraf Memon was promoted in BPS-18 as at that time he was serving as Private Secretary to the Chief Justice. It is pertinent to note that no appeal was filed by any of the appellants or other employees against such promotion.
3. On 27-9-1995, through another notification, some three officers of this Court including respondent Muhammad Ashraf Memon were confirmed in BPS-18 with effect from 11-4-1995. In the month of May, 1996, Justice Mamoon Kazi (now Judge of Supreme Court of Pakistan) was appointed as Chief Justice of this Court and after his assumption of charge, respondent Muhammad Ashraf Memon was transferred as O.S.D. (Admn.) in the same grade while on 26-6- 1996 respondent No, 2 Altaf Hussain was promoted to BPS-18 and was appointed as Private Secretary to the Chief Justice. On 25-7-1996, appellants Nos. 2 and 3 namely Shahzad and Shahjehan filed departmental appeals and subsequently on 13-7-1997 departmental representation was filed by appellant Manzoor Hussain. According to the averments of the memo. of petition, all the said departmental representations remained undecided. As a result of this, on 10- 7-1997, appeals were filed by appellants Shahzad and Shahjehan and on 14-7-1997 by Manzoor Hussain.
4. The case of the appellants is that the appointment of a Private Secretary to Judge (BPS-17) as Private Secretary to the Chief Justice (BPS-18) amounts to promotion and that promotion and confirmation is to be made keeping in view the seniority and merit of the incumbent; that the discretion exercised by the Hon'ble Chief Justices while promoting the two respondents out of turn is violative of the principles of natural justice and equity as laid down by the Hon'ble Supreme Court of Pakistan from time to time. On the other hand, the case of respondents is that the appellants have no right to challenge their promotion in view of Rule 7 of the High Court Establishment Rules; that the promotion to the post of Private Secretary to Chief Justice is done on the basis of "seniority-cum-fitness" and, therefore, appellants cannot claim such promotion as a matter of right. Lastly, it was contended that the appeals are time-barred. All the parties have referred to several provisions of High Court Establishment Rules which read as follows:-- "7. The posts of Deputy Registrar, Assistant Registrar and Private Secretary to the Chief Justice shall be filled by selection by the Chief Justice and that of the personal Assistant to the Registrar by the Registrar ordinarily from the High Court Establishment; provided that where the appointment is made from outside, the provisions of rules 6(1) shall apply "20. Subject to the provisions of rule 7, all matters relating to appointment, promotion and seniority shall be decided by the Registrar, if specially empowered; or in the absence of such powers by the Administrative Judge; provided that an appeal shall lie against:--
(a) an order of substantive appointment, by promotion or otherwise, to a permanent post or pensionable post, the maximum pay of which is Rs,60 or more per mensem:
(b) an order of temporary appointment which is to last for more than three months in respect of a post, the maximum pay of which is Rs,60 or more per mensem; and
(c) an order fixing the seniority of any member of the establishment. Such appeal shall lie to the authorities indicated in Schedule II attached to these rules.......
"24. An appeal shall lie only against an order passed under rules 20 and 23 of these rules to the authorities indicated in Schedule II........"
"26. Nothing in these rules shall be deemed to limit or abridge the powers of the Chief Justice to appoint or promote any person who has neither passed nor qualified at an examination held by the Public Service Commission or under these rules or to deal with the case of any person in such manner as may appear to him to be just and equitable."
5. Before dilating upon the case on factual grounds, we would like to deal with the legal objections raised by the respondents to the maintainability of these appeals. It was vehemently contended by the respondents that all these appeals are barred by limitation. None of them has pointed out any specific provision of law under which, according to them, the appeals are barred. In so far as the provisions of High Court Establishment Rules are concerned, no limitation is prescribed for filing an appeal. There is also no provision for filing any departmental appeal. According to Schedule II to the High Court Establishment Rules appeals are to be filed against the order of Registrar before the Administrative Judge. The order of Administrative Judge is appealable before the Chief Justice. But when the Chief Justice is acting as Administrative Judge, or under Rule 23(b), appeal would lie before a Bench of two Judges to be nominated by the Chief Justice. In the present case, appeal against the promotion of respondent Muhammad Ashraf Memon was filed on 13-7-1996 after a delay of one year and seven months after his promotion, while the appeals of the appellants Shahjehan and Shahzad were filed on 5-7-1996. All the three appeals have not only challenged the appointment, confirmation and promotion of respondent Muhammad Ashraf Memon but have also called in question the appointment, promotion and confirmation of respondent No,2 Altaf Hussain which was done on 26-6-1996. It has not been denied by the respondents that earlier to the present appeals, all the three appellants filed representations which were not decided. In fact, these departmental appeals should have been treated as appeals under High Court Establishment Rules and placed before a Bench of two Judges nominated by the Hon'ble Chief Justice. We are fortified in our view by the rule laid down in Abbas v. The Hon'ble Chief Justice, High Court of Sindh and 2 others (1993 SCMR 715) where following observations were made in connection with a departmental appeal:-- "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. Director-General/Joint Secretary, Ports and Shipping Wing Ministry of Communications and 2 others 1983 PLC (C.S.) 709 Federal Tribunal."
6. In the case of Abbas (ibid), the appellant was serving as Assistant in this Court. On 27-3-1976, he alongwith two officers was promoted as Superintendent in Grade-16. However, on 22-7-1976, he was reverted to his substantive position as Assistant in view of resumption of duty by another Superintendent who was on leave. The appellant made no grievance of the order till 29-7-1977 when he filed service appeal challenging the order of Chief Justice of this Court dated 31-5-1976.
The said appeal was disposed of by a Division Bench of this Court vide order dated 5-6-1980 on the grounds of long delay. It was observed by this Court that the injustice to the appellant continues and, therefore, it was recommended that if possible, the appellant's grievance may be redressed or in the alternate as and when occasion for next promotion arises, the appellants promotion may be considered. In the circumstances of present appeals, it may be safely held that there is no delay in calling in question the promotion and confirmation of respondent Altaf Hussain as Private Secretary to Chief Justice. But, at the same time, it could be said that there is delay and laches on the part of appellants to challenge the promotion and confirmation of respondent Muhammad Ashraf Memon which was done after a delay of one year and seven months. In case, these appeals are treated to be validly instituted appeals against respondent Altaf Hussain and if they succeed, then to allow the other respondent, Muhammad Ashraf Memon to continue with his post would on the ground of lapse of time not be just, fair and proper. In our view, holding of an office unlawfully could be termed to be a continuing wrong. For reference, see the case of Mr. Fazl-ul-Quadir Chowdhry and others v. Mr. Muhammad Abdul Hague (PLD 1963 SC 486 at 552). In order to avoid any misconception or misinterpretation, we would like to direct the Registrar of this Court to place the proposal before the Hon'ble Chief Justice to consider the possibility of introducing provision of limitation in the High Court Establishment Rules for preferring an appeal against the orders as specified therein.
7. The second objection raised by the respondents is that the order of their appointment/promotion was passed by the Chief Justice under Rule 7 which is not appealable. Reliance was placed on Schedule II which provides for appeal in reference to Rules 20 and 24 when Chief Justice himself is the Administrative Judge or when he is acting under Rule 23(b). In such a situation, an appeal is to be referred to a Bench of two Judges nominated by the Chief Justice. It was, therefore, argued that in the instant case, neither the Chief Justice was acting as Administrative Judge nor any order was passed either under Rule 20 or 23(b). It will be seen that Rule 20 is made subject to the provisions of Rule 7 and provides that all the matters relating to appointment, promotion and seniority shall be decided by the Registrar, if specially empowered, or where there is no such power then by the Administrative Judge with the right of appeal to challenge the order of substantive appointment by promotion or otherwise where maximum pay is Rs,60 or more per mensem. In sub-clause (c) to Rule 20, it is provided that if an order is issued fixing the seniority of any member of the Establishment, then appeal against such an order shall lie to the authorities mentioned in Schedule II to the Rules. It was argued that since the impugned orders did not fall within the purview of Rule 20 or 23, no :appeal lies under Rule 24. In other words, it was argued that if an order is, passed by a Chief Justice under Rule 7, it is not appealable.
8. Before considering the above legal objections, we have noted that it has become matter of common practice that the Judges on their elevation as Chief Justice have appointed persons of their choice as Private Secretaries. One of the instance cited is of Mr. Safdar Jang who was appointed as Private Secretary to Chief Justice by the former Chief Justice of this Court late Justice Abdul Hai Qureshi. The second instance is of Mr. Sadiq Zafar who was also made Private Secretary to Chief Justice Ajmal Mian (now Chief Justice of Pakistan). It is alleged by the appellants that both these officers were junior amongst Stenographers and were given preference over the others. Now, the situation is totally changed. These Stenographers are called Private Secretaries and are in BPS- 17 in comparison to the post of Private Secretary to the Chief Justice who enjoys BPS-18.
9. It is settled law that the right to appeal is a substantive right created by statute, and not created by implication. In the case Muhammad Ishaq v. The State (PLD 1956 SC 256), it was observed that the right of appeal in this country being created by statute is a substantive right. In Muhammad Aslam v. The State (PLD 1959 SC (Pak.) 119), same view was followed by the Supreme Court. In the case of Hussain Bux v. Settlement Commissioner, Rawalpindi (PLD 1970 SC 1), Hon'ble Supreme Court., while dealing with the question of the right to seek review of an order or judgment held, inter alia, that the right of appeal is substantive right and not a mere procedure. Again, in the case of Muzaffar Ali v. Muhammad Shafi (;PLD 1981 SC 94), while following the ratio of case of Hussain Bux (supra), it was held by a Full Bench of the Hon'ble Supreme Court that it is well-settled that a jurisdiction or right of appeal does not exist merely on the doctrine that the appeal is continuation of the original proceedings but it is to be created or granted by a statute. It was further observed that once such t ight of appeal is granted and if it is invoked, only then the proceedings in an appeal are considered as a continuation of the trial. But the basic fact remains that appellate jurisdiction is to be bestowed by a statute d statute alone. (For further reference, see Bahadur v.
Muhammad Shoaib and 9 others (PLD 1981 Karachi 788), Habib Bank Ltd. v. The State (1993 SCMR 1853) and Muhammad Parvez v. Federation of Pakistan and others (1998 SCMR 1270).
10.It is an admitted position that the two respondents were appointed as Private Secretaries to the Chief Justice by the two respective Chief Justices at the relevant time while exercising powers under Rule 7 of the High Court Establishment (Appointment and Conditions of Services) Rules. This rule provides, inter alia, that the Chief Justice shall appoint Private Secretary by selection, firstly from the High Court establishment and in case the appointment is made from outside of High Court Establishment, it shall be made in accordance with the provisions of Rule 6(1) which provides consultation with the Governor or with the Public Service Commission as the case may be. Appeals are provided vide Rule 24 which envisages that an appeal shall lie only against an order passed under Rules 20 and 23 to the authorities as provided in Schedule II to these Rules. It is pertinent to note that the orders passed under Rules 20 and 23 are made appealable and not the order passed under Rules 7, 17, 18 and 19 or any other Rule. Rule 17 empowers the Chief Justice to fix the scale of pay and allowances with the approval of Governor. Rule 18 empowers the Chief Justice to withhold increments of the gazetted officers except Superintendents and Private Secretaries. Rule 18 deals with the fixation of seniority of the members of establishment. Rule 20 deals with such matter relating to appointment, promotion and seniority which is to be decided by the Registrar if specially empowered or in the absence of such powers, by the Administrative Judge. Any order of substantive appointment made by these two officials by way of promotion or otherwise are made appealable including an order of temporary appointment which may last for more than three months. Rule 23 deals with the penalties which are to be imposed upon the members of the High Court establishment.
11.The question which requires consideration is whether filling-in of a post of Private Secretary to the Chief Justice amounts to promotion, thus, bringing the same within the scope of Rule 20. The posts which are mentioned in Rule 7 are classified as ''selection post" and there is no requirement of law to fill the same on seniority-cum-fitness basis, the distinction being that when a post is required to be filled on seniority-cum-fitness basis, the senior employee may not have a right to promotion but he has certainly a legal right to be considered for promotion and non-consideration of his case by the appointing authority may be termed as illegal. In selection post, however, there exists no such right for a senior employee. Therefore, there appears to be logic behind the scheme to exclude orders passed under Rule 7 from appellate jurisdiction under Rule 24. It will be seen that Rule 20 is made operative subject to the provisions of Rule 7 and is neither independent nor to the exclusion of the same. It was argued by the appellants in support of maintainability of these appeals that the order of appointing the, two respondents as Private Secretaries to the Chief Justice by the Hon'ble Chief Justice was in the capacity of the Administrative Judge. This plea is misconceived in view of the definition of Administrative Judge given in Rule 2 of High Court Establishment Rules.
12. Against the maintainability of these appeals, the respondents have heavily relied upon Rule 26. It was contended that this Rule has given unlimited powers to the Chief Justice to appoint any person whether or not he has passed or qualified at an examination held by Public Service Commission or under this Rule. According to these respondents, powers conferred on the Chief Justice by virtue of Rule 26 do not make his orders appealable under Rule 24, and that it is only the orders of Registrar or the Administrative Judge which have been made appealable. Indeed, Rule 26 of the High Court Establishment Rules which is similar to the provisions of section 23 of the Civil Servants Act, 1973 and section 24 of the Sindh Civil Servants Act, 1973, extends powers to the Chief Justice to appoint or promote any person who is qualified or otherwise, as he may choose in his discretion or to deal with the case of any person in such mannei which may appear to him to be 'just and equitable'. Such powers are meant to be used sparingly and in rare situations to enable the Chief Justice to effectively run the High Court. It cannot be used to defeat the other provisions of the High Court Establishment Rules. To be precise, Rule 26 cannot be used to give seniority.
Apparently, these Rules have been framed under Article 208 of the Constitution and are special to the extent that they are applicable only to the employees of the High Courts, who, though in service of Pakistan, cannot be called civil servants as defined by the Civil Servants Act. We are fortified in our view by the views expressed by the Hon'ble Supreme Court in the case Registrar, Supreme Court of Pakistan v. Qazi Wali Muhammad (1997 SCMR 141). It is the case of the appellants that the two impugned orders do not appear to be just and equitable as these appointments were made out of turn and without merits. Reliance was placed on the following reported case:--
(i) Messrs. Gadoon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641);
(ii) Ahsanullah A. Memon v. Government of Sindh and 3 others (1993 SCMR 982);
(iii) Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab and 2 others (PLD 1991 SC 35);
(iv) N.-W.F.P. and another v. Dr. Irfan Mir and 2 others (1995 SCMR 1690);
(v) Muhammad Islam and 5 others v. General Manager, Pakistan Railways (1995 PLC (C.S.) 85);
(vi) Government of the Punjab and 4 others v. Muhammad Awais Shahid and 4 others (1991 SCMR 696); and
(vii) Controlling Authority, N.-W.F.P. and another v. Abdul Salam, Secretary, N.-W.F.P. Board of Technical Education (PLD 1993 SC 200).
13.In the case Muhammad Iqbal Khokhar (supra) the Governor of Punjab while exercising powers under section 22 of the Punjab Civil Servant Act, 1973 granted seniority to the respondent No, 2 and relaxed the condition of 5 years service. It was held by the Supreme Court as "forced seniority" and violative of the rights of others. It was further held that such discretion as of section 22 should be exercised within the limits of justice and equity. It was further held that what is just and equitable would vary in each case, depending upon its facts and circumstances. In another case, namely, Ahsanullah Memon (supra), the Chief Minister of Sindh exercised his powers under section 24 of the Sindh Civil Servants Act, 1973, which was challenged by the appellant who felt aggrieved by grant of such seniority. It was held by the Hon'ble Supreme Court that such power is to be exercised fairly, reasonably and in a manner which may not prejudice or take away any interest or right of a third person. Same view was upheld by a Full Bench of the Hon'ble Supreme Court in the case of Gadoon v. WAPDA (supra)' where it was held that in cases where authorities have been given wide power and discretion, they have to act reasonably, fairly and without any ulterior motive. Recently, there was an amendment in the General Clauses Act, 1897 whereby section 24-A was introduced which reads as follows:-- "24-A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment.
(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
14. It is well-settled principle of law that all authorities, executive or judicial, should exercise discretion conferred upon them through law, in most reasonable, fair, judicious and equitable manner. The power to exercise discretion does not authorise them to act arbitrarily, discriminately and with mala fide. This principle is equally applicable to the Chief Justice of a Provincial High Court upon whom the law laid down by the Hon'ble Supreme Court is equally binding. But this is not the case of the appellants. What they are claiming is that by virtue of their seniority over the two respondents, they were more eligible and entitled to be appointed as Private Secretary to Chief Justice. The present case is not the case of eligibility but is of be fitness. The Chief Justice of a Provincial High Court being the most senior Judge is well-aware of the caliber and other merits of the staff of the High Court Establishment. Unless it is shown that the exercise of discretion by the Chief Justice is colorable exercise, motivated with mala fide, it will not be fair and just to interfere with the same. The cases cited by the appellants do not lend support to them as in all those reported cases there was a remedy of appeal available to the aggrieved parties which fact makes the present case distinguishable. However, for the present, we would not like to touch the merits of the case as we are inclined to dispose of these appeals on the short ground that the impugned orders are not appealable.
15. Before parting with this judgment, we are constrained to observe that the Islamic - administration of justice requires that an aggrieved party should be entitled to test the correctness of a decision which results in a feeling of deprivation of his rights. It is also settled that the principle of natural justice is now an integral part of system of 'Adl' and 'Ehsan'. We are fortified in our view by the cases Pakistan and others v. Public-at-Large and others (PLD 1987 SC 304), Federation of Pakistan and others v. Publicat-Large (PLD 1988 SC 202), Pakistan through Secretary, Ministry of Defence v. General Public (PLD 1989 SC 6) and Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232). These principles now form a part of many service laws in Pakistan which fact is evident from the recent introduction of section 2-A in the Service Tribunals Act, 1973 and section 3- E in the Sindh Service Tribunals Act, 1973. These rules should also be made part of the High Court Establishment Rules which is now need of the time in order to bring them closer to the Islamic injunctions. We, therefore, direct Registrar of this Court to place the following before the next Full Court Meeting of the High Court for their consideration:--
(a) Part II Rule 3 of the High Court Establishment be revised and the* new/revised cadre of the Establishment be incorporated.
(b) Rule 24 of the High Court Establishment (Appointment and Conditions of Services) Rules be amended and all orders passed by the Chief Justice, Senior Puisne Judge and Registrar be made appealable.
(c) Some time limit, preferably 60 days, be fixed for filing appeal by an aggrieved person.
(d) The provision of consultation as mentioned in Rule 6 be omitted with the view to safeguard the independence of Judiciary.
With the above proposals but with heavy hearts, we dismiss all the appeals.