This common order will dispose of four miscellaneous application filed by the plaintiff. C.M.A.
No,7055 of 1998 is filed under Order XXXIX, Rules, 1 and 2, C.P.C. praying for suspension of operation of Notification/Order of defendant No,1, dated 17-81998, whereby the earlier order, dated 31-3-1996 was rescinded. C.M.A. No,7056 of 1998 is filed under section 151, C.P.C. with the prayers that the ad interim injunction passed by this Court on 29-5-1998 be ordered to continue. C.M.A. No,6924 of 1998 has been filed under Order IX, Rules 9 and 13 read with section 151, C.P.C. through which it is prayed that the order, dated 2-71998 he recalled/reviewed. It is pertinent to note that on 2-7-1998, C.M.A.
No,991 of 1997 filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. was dismissed for non- prosecution. Last application is C.M.A. No, 7374 of 1998 seeking extension of order of ad interim injunction, dated 18-8-1998.
2. Filing of the abovementioned four applications is the simple result of the fact that the plaintiff's earlier applications C.M.A. No,991 of 1997 seeking interim injunction pending suit against the defendants jointly and/or severally from reverting/demoting the plaintiff from the post of Chief Controller of Buildings, K.B.C.A. (BPS-20), was dismissed in non-'prosecution. The said application was finally heard by me on 284-1998 and the order was reserved. Since there were serval questions of law which were not addressed by the parties, vide order, dated 29-5-1998, they were directed to make their further submissions. This matter then came up before another Bench on 2-7-1998 and the said application was dismissed in non-prosecution. It was an error on the part of office as they failed to point out to the learned Judge that it was a part heard matter and was fixed for re- hearing on certain legal points. Before proceeding further, I would like to refer to paras. 13 and 14 of the order, dated 29-5-1998 which read as follows:-- "(13)There are other cases also, such as, Asif Khoja v. Government of Pakistan (1997 PLC (C.S.) 776), Islamic Republic of Pakistan v. Muhammad Zaman Khan (1997 SCMR 1508), unreported orders in Suit Nos.241 of 1997 and 243 of 1997 delivered by my learned brother Mushtaque A. Memon, J., where a recent amendment made in the Service Tribunals Act, 1973 by introducing section 2-A (see Act No,XVII of 1997) was considered in reference to the employees of different organizations and corporations established or owned by the Federal Government. It is pertinent to note that it was in the year 1997 when the service under any authority, corporation, body or organization established under a federal enactment or which is owned and controlled by the Federal Government, was declared to be service of Pakistan and every person holding a post in such authority or corporation was declared to be a civil servant for the limited purpose, i,e, for the purpose of the Service Tribunals Act, 1973. None of the learned Advocates have cited any law on the point of section 2-A which are all latest and pertains to the service of corporation being owned and controlled by the Federal Government, such as K.E.S.C., Pakistan Steel Mills, Sui Southern Gas and Pakistan State Oil.
Sindh Service Tribunals Act, 1973 was amended in the year 1997 (section 3-E) extending right of appeal before Service Tribunal to an employee of a corporation. No direct law was cited at the Bar on this amendment. All that was said is much prior to the year 1994 and not thereafter where much water has flown under the bridge. It is regrettable to note that the Provincial Government has neither filed any counter-affidavit nor its written statement which has made their case very weak. It is settled law that for the purpose of rejecting a plaint or even for determining the jurisdiction of the Court, only contents of plaint are to be looked at. There are serious allegations of mala fide an irregularities being committed by the defendants which were not successfully rebutted by the defendants. In these circumstances, it will not be just and proper to non-suit the plaintiff at this stage.
(14) Before passing a final order, I would like to see the recent pronouncements of the Hon'ble Supreme Court as well as of this Court on section 2-A of the Service Tribunals Act, 1973, which is paramatria in nature to section 3-E of the Sindh Service Tribunals Act, 1973. I would also like to have assistance of the Deputy Attorney-General and the Advocate-General of Sindh in order to resolve this controversy. It was for this reasons that I have in detail discussed the facts and case-law as cited by the parties, to enable these two learned Law Officers to make their respective submissions accordingly. Therefore, further hearing is adjourned with the direction to the office to issue notice to the Dy. A.-G. and A.-G.. Sindh for the next date. Till next hearing, order of ad interim injunction to continue."
3. I have heard this case at length. All the Advocates have ably argued on the points of merits as well as on the questions of maintainability of this suit. At the very outset, Mr. S.H. Qazilbash, Advocate for K.B.C.A. raised objection to the maintainability of the suit in view of section 3-E of Sindh Service Tribunals Act, 1973 read with Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution, 1973). According to the learned Counsel, since the plaintiff is admittedly an employee of Karachi Building Control Authority (hereinafter referred to as K.B.C.A.), he falls within the definition of civil servant as given in section 3-E of Sindh Service Tribunals Act, 1973. In such background, it was argued that the remedy, if any, available to the plaintiff is by way of appeal to the Tribunal as provided under section 4 of the said Act. This argument was adopted by Mr. Sayedain Zaidi, Assistant Advocate-. General who referred to the case of Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280) and contended that even if it is alleged in the plaint that the defendants acted illegally, with mala fide and the impugned order is coram non judice, still it will not displace the jurisdiction of Service Tribunal. It iwas, argued that the question involved in this suit pertains to the terms and conditions of the service of plaintiff for which only Sindh Service Tribunal is competent to adjudicate: He has supported the order of reversion/demotion by referring to Article 8 of the President's Order V of 1957. He also referred to several notifications filed by the plaintiff which are all subsequent to the date of filing of the suit and contended that all these notifications touch the terms and conditions of the service of the plaintiff and as they were passed by the competent Authority, the only competent Court to decide such question is Sindh Services Tribunal. It will be seen that on 23-2- 1997, this suit was filed by the plaintiff and thereafter, he was transferred from one place to another; several notifications were issued in this respect and he has been finally posted as Director General, Malir Development Authority (hereinafter referred to as M.D.A.). Since all the parties have referred to such subsequent developments and since these notifications have been admitted by all the parties, I would like to consider the same even for the purpose of determining the question of maintainability of this suit. I am fortified in my view by the case of Jean A and 7 others v. Federation of Pakistan and 2 others (1994 SCMR 826), where it was held by the Humble Supreme Court that in order to decide an application under Order VII, Rule 11, C.P.C. the plaint and all such documents may be considered which are admitted and only then if the suit appears to be barred, the plaint is liable to be rejected.
4. It is claimed in the plaint that in the month of October, 1979, the plaintiff was appointed as Assistant Controller (BPS-17) and in the year 1984 he was promoted as Deputy Controller K.B.C.A.
(BPS-18); that the Sindh Government on 29-10-1991 declared Karachi Municipal Corporation to be the Authority under section 4 of the Sindh Building Control Ordinance, 1979 (hereinafter referred to as the Ordinance, 1979), in respect of K.B.C.A.; that in the month of November, 1991, the plaintiff was promoted to Controller of Buildings (BPS-19) and was finally promoted as Chief Controller of Buildings K.B.C.A. (K.M.C.) w,e,f, 24-10-1994. It is this order which is being challenged by the defendants to be illegal and unauthorised. It may be perhaps for this reasons that on 6-2-1997, a letter was issued by the section Officer (General), Housing and Town Planning Department, Government of Sindh, a copy of which has been filed as Annexure 'H' to the plaint, which was addressed to the Director-General K.D.A. intimating him that the plaintiff was promoted to the post of Chief Controller of Buildings, K.B.C.A. illegally and without lawful authority and that such order is liable to be cancelled. In that letter, reference was made to the order of status quo passed by the Court of law. It was further stated that the moment the said order is withdrawn, proper notification with the approval of competent Authority would be issued cancelling the promotion. It is this letter which the plaintiff has challenged in this suit with the following prayers:-- "(a) declaring that the proposed action of the defendants or reverting the plaintiff from the post of the Chief Controller of Buildings (BPS-20), K.B.C.A., Karachi is wrongful, unjustified, illegal, void and mala fide and, as such, of no legal effect and the plaintiff is legally entitled to continue as Chief Controller of Buildings (BPS-20),.K.B.C.A., Karachi;
(b) declaring that Defendant No,2's letter, dated 6-2-1997, addressed to Defendant No,4, proposing plaintiff's reversion from the post of Chief Controller of Buildings (BPS-20), K.B.C.A., Karachi, is unjustified, illegal, void and of no legal effect as well as mala fide;
(c) granting and issuing a perpetual injunction restraining the defendants from reducing the plaintiff from BPS-20 and from the post of Chief Controller of Buildings (BPS-20), K.B.C.A., K.D.A. pursuant to Defendant No,2's aforesaid proposal/directions;
(d) ..................................
(e) ..................................
5. During the pendency of this suit; the Minister, Housing and Town Planning, Government of Sindh, vide his letter, dated 3-4-1997 reinstated the plaintiff as Chief Controller, K.B.C.A. (BPS-20) and directed the concerned Secretary to issue notification; that on 12th May, 1997, the plaintiff was reinstated as Chief Controller, K.B.C.A. (BPS-20), Voice Mr. S.H. Misbah. But only two days after, the said notification was cancelled by the Chief Secretary, Government of Sindh. After dismissal of plaintiff's earlier application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. No,991 of 1997) for non- prosecution, fresh notification was issued on 17th August, 1998 reverting/demoting the plaintiff. The operation of the said notification was suspended by this. Court. On 12-1-1998, the plaintiff was transferred and posted as Director-General, Bureau of Supplies and, Price, Government of Sindh, with immediate effect and he served in that capacity till 31-3-1998 when his service were again transferred back to his 'parent department i,e, K.D.A.' by the order of Chief Secretary, Government of Sindh. The fact that the plaintiff has now been posted as Director-General, M.D.A. (BPS-20) by Government of Sindh is not disputed by any of the parties.
6. In support of plaintiff's case as to the maintainability of the suit as well as for grant of injunction, Mr. Farogh Nasim has referred to the cases Asif Ali Khoja v. Government of Sindh (1997 PLC (CS)
776), Mrs. Anisa Rehman v. P.I.A.C. and another (1994 SCMR 2232), Dr. Ahmed Saiman Waris v. Dr. Naeem Akhtar and others (PLD 1997 SC 382), Al-Jehad Trust and others v. Federation of Pakistan and others (PLD 1996 SC 324) and the case of Malik Asad Ali v. Federation of Pakistan and others (PLD 1998 SC 161). In the case of Khalid Mahmood Wattoo (supra) a Full Bench of Hon'ble Supreme Court has considered nearly all the leading cases on the point of jurisdiction of Civil Courts, High Courts and Service Tribunal. In that case, reference was made to the following cases:--
(i) Federation of Pakistan and another v. Sheikh Abdul Aziz (1998 SCMR 91);
(ii) Rana Muhammad Sarwar v. Government of Punjab and another (1990 SCMR 999);
(iii) Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department and others (1997 SCMR 169);
(iv) Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others (1997 SCMR 167);
(v) Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539);
(vi) Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others (1992 SCMR 365);
(vii) Khalilur Rehman and others v. Government of Pakistan and others (PLD 1981 Kar. 750);
(viii) Muhammad Hashim Khan and others v. Province of Balochistan and others (PLD 1976 Quetta 59);
(ix) loan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153);
(x) M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 22) and (xi)Government of Pakistan v. Muhammad Yasin, and another (PLD 1997 SC 401).
7. After reference to the aforesaid cases and particularly to the decision of a Full Bench of this Court in the case of Khalilur Rehman (see also Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290) it was held in Khalid Wattoo's case (supra) that the orders, whether interim or final even if mala fide, ultra vires or coram non judice, fell within the ambit of Services Tribunal and jurisdiction of Civil Courts including High Court is ousted as a result of barring provisions of Article 212 of the Constitution, 1973. All the cases referred by the parties in this suit pertain to the terms and conditions of the civil servants. In so far as this plaintiff is concerned, he is an employee of K.B.C.A. a statutory body established by virtue of the Ordinance, 1979. He is to be treated a civil servant, for a limited purpose i,e, for maintaining an appeal before a Service Tribunal. Such right was conferred on such employees as a result of introduction of section 3-E in the Sindh Service Tribunals Act, 1973 through an amendment in the year 1994. It would be advantageous to quote sections 2(aa) and 3- E of the above statute:-- "(2) Definitions.---In this Act, ....(aa) 'Corporation' means a Corporation or Institution set up or established by a Provincial enactment."
"(3-E) Employee of a Corporation to be deemed to 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 shall, for the purpose of this Act, be deemed to be a civil servant."
8. By virtue of above amendments in the Sindh Service Tribunals Act, 1973, the K.B.C.A. falls within the definition of Corporation and, therefore, any person holding a post in. K B.C. A. for the purpose of the said Act is to be deemed to be a civil servant. Section 4 provides that an appeal would lie to the Service Tribunal if a civil servant is aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of service of such civil servant. Therefore, in order to oust the jurisdiction of a Civil Court, it must be shown that the order was passed by a departmental authority touching the terms and conditions of the service.
Under Explanation to section 4 of the said Act the "Departmental Authority" has been defined as an authority other than the Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants. This Explanation is also provided in the Service Tribunals Act (Act LXX of 1973) which was interpreted by the Hon'ble Supreme Court in the case of I.A. Sharwani and others v. Government of Pakistan and others (1991 SCMR 1041 at 1060) as an authority "competent" to make an order in respect of the terms and conditions of the civil servants. In that case the impact' of Article 212 of the Constitution, 1973 read with section 4 of the Service Tribunals Act was summarized by Ajmal Mian, J. (now Chief Justice of Pakistan) who spoke for the Full Bench in the following manner:-- "(9) From the above quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has- the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the , jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service." (Emphasis added)
9. The above view was reiterated by another Full Bench of Hon'ble Supreme Court in the case of Dr. Ahmad Salman Waris (PLD 1997 SC 382 at 390). Following rule was laid down in order to oust jurisdiction of a Civil Court. It reads as follows:-- "....Therefore, in order to make a matter exclusively coganizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212, of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant and that it is not covered by the exceptions mentioned in proviso b(i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are non-existent in a case then, the bar contained in Article 212, of the Constitution will not be operative." (Emphasis added)
10.In so far as the plea of Mr. Farogh Nasim that the order reflected in Annexure 'H' to the plaint is interim in nature and, therefore, the plaintiff is entitled to file this suit is concerned, it has been fully answered by a Full Bench of this Court in the case of Abdul Bari (supra). The other two conditions that the plaintiff should be a civil servant and the act or order impugned must fall within the terms and conditions of the service are also fulfilled. Admittedly, the plaintiff being in service of K.B.C.A. falls within the definition of a civil servant for the limited purpose of maintaining an appeal before the Services Tribunal and, secondly, his reversion also falls within the scope of terms and conditions of his service. So far as the fourth condition that the order under challenge should be passed by the departmental authority is concerned, it was argued by Mr. Farogh Nasim that a Section Officer of Government of Sindh, who has passed the order under challenge (Annexure 'H'), is not the departmental authority. He has referred to section 4 of the Ordinance, 1979 whereby the Provincial Government has been authorized to appoint any authority for the purpose of above Ordinance, It is not in dispute that on 25-4-1996 through Notification No,S.O.II(KDA) 10-102/78-91, Government of Sindh declared the K.D.A. to be the authority as provided under section 4 of the Ordinance, 1979. On query by the Court, Mr. Syedain Zaidi, learned A.A.-G., Sindh has referred to Article 8 of the K.D.A.
Order, 1957 amended vide Ordinance IV of 1979 which has defined the 'authority' for withholding promotion, reduction, reverting or dismissing etc. etc. the employees of K.D.A. It would be advantageous if clause (2) of Article 8 as amended is reproduced:-- "(8) Appointment, punishment and appeal.---(1) The authority may appoint such officers, advisers and employees as it considers necessary for the efficient performance of its functions, on such terms and conditions as it may deem fit.
(1-A)
(2) Subject to any rules for the time being in force, the power of making appointments and promotions to posts in the service of the Authority, or granting leave to officers and servants holding such posts, of censuring, finding, withholding promotion from, reducing, suspending, removing or dismissing such officers and servants for any breach ofclepartmental rules or discipline, or for carelessness, unfitness, neglect of duty or other misconduct, and of discharging such officers and servants from the service of the Authority for any other reason, shall be exercised by the undermentioned authorities:--
(a) .........................................
(b)........................................
(c)........................................
(d)........................................
(e) in the case of holders of posts in Grades-19 and 20, the Governing Body with sanction of the Provincial Government."
11. Perusal of Article 8 of the K.D.A. Order, 1957 indicates that subject to any rule the power of making appointments and promotions to posts in the service of 'authority' and other matters such as censuring, finding, reducing, suspending, removing, dismissing, discharging and withholding promotion of an employees of Grades-19 and 20 the authority is the Governing Body which is required to pass such orders as reflected in sub-clause (2) with sanction of the Provincial Government. The constitution of the Governing Body has been given in Article 5 of K.D.A. Order, 1957 which shows that it consists a Chairman, a Director-General and five other members to be appointed by the Provincial Government and that the Commissioner of Karachi Division shall be Ex-officio Chairman of the Governing Body. It has not been shown by the defendants that Annexure 'H' to the plaint or that the subsequent reversion of the plaintiff to BPS-19 was passed by the departmental authority competent to pass Such order in line with Article 8 of K.D.A. Order, 1957. I am of the view that even if an order is passed illegally or without jurisdiction but it is passed by the departmental authority still the Services Tribunal has the jurisdiction to consider the same. But the jurisdiction of Services Tribunal will not be attracted where an order is passed by an outsider or by an alien to the 'departmental authority' who is not competent to pass such order. None of the counsel appearing for the defendants, who themselves have vehemently relied upon Article 8 of K.D.A. Order, 1957, placed any material to show that the orders under challenge were passed by the Governing Body of K.D.A. with the sanction of the Provincial Government. It is observed that neither the Provincial Government nor the Governing Body of K.D.A. are competent to act independently of each other in passing any of the orders covered in clause (2) of Article 8 without concurrence of each other. In such circumstances, I am of the tentative view that the jurisdiction of this Court is not barred by virtue of Article 212 of the Constitution, 1973.
12. It was also argued by Mr. S.H. Qazilbash and Mr. Zafar Hadi Shah that the applications filed by the plaintiff seeking interim injunction have become infructuous and that he cannot seek any post of his choice. Admittedly, the Provincial Government has now posted the plaintiff in BPS-20 as Director-General M.D.A. and that the defendants are correct to say that no civil servant is entitled to seek posting of his choice by resorting to the Civil Courts. In the instant case, the plaintiff is seeking temporary injunction from his reversion/reduction from the post of Chief Controller, K.B.C.A. as well as from grade BPS.20 till disposal of the suit. In so far as transfer or removal from the post of Chief Controller, K.B.C.A. is concerned, to that extent the plaintiff's application has become infructuous.
However, the plaintiff is still in Grade-20 and his prayers that he may not be reverted or demoted is very much alive keeping in view the post conduct of the defendants. The plaintiff was made a rolling stone being transferred from one post to another. Time and again, I expressed my reservation and asked the learned counsel for the defendants to satisfy me whether an employee of a Corporation could be posted and transferred to service of Province as it was done in the case of plaintiff when he was appointed Director-General, bureau of Supply and Prices, which post, in my tentative view, is exclusively meant for the civil servants as defined in the Civil Servants Act, 1973 and not for the employees of the statutory corporations. No satisfactory reply came from the side of the defendants. It was also feebly contended by the learned counsel for the defendants that after introduction of section 3-E in Sindh Service Tribunals Act, 1973, the rule laid down in the case of Anisa Rehman's case (1994 SCMR 2232) is no more attracted. This impression is absolutely wrong.
The principles of natural justice are still available to the plaintiff and, .thus, the rule laid down by the Humble Supreme Court in the above case is fully attracted. It is observed that whenever the departmental authority competent to pass an order reflecting adversely on the terms and conditions of a civil servant, though it may be strictly in accordance with law, it is still required to adhere to the principles laid down by the Humble Supreme Court in the case of Anisa Rehman (supra). I would also like to refer here that the Shariat Appellate Bench of Humble Supreme Court in the Pakistan and others v. Public-at-Large and others (PLD 1987 SC 304), inter alia, held that the retirement of a Civil servant or of an employee of a statutory corporation upon completion of 25 years' service without hearing him is violate of Islamic Injunctions.
13. The facts of the present case show that the officer who passed the order under challenge (Annexure 'H' to the plaint) was neither competent nor from the hierarchy of the departmental authority and, thus, was not competent to pass such order. For that matter, I am of the view that even the Chief Secretary to Government of Sindh is not independently competent to pass any such order in respect of employees of Grades-19 and 20 unless the requirements of Article 8(2) of K.D.A.
Order, 1957 are satisfied. Conduct of the defendants in transferring the plaintiff from one post to another; from one organization to another with short span of time and then not to assign him any post for more than eight months, for no apparent reason, in my tentative view, reflects mala fide and ill will on their part. It was further contended by Mr. Farogh Nasim that question of reduction or reversion is always a matter of punishment and it could not be carried out without holding a full- fledged departmental inquiry. Be that as it may, there are several questions of facts and law in this suit which are at trial. Thus, the plaintiff has proved presence of all the three elements for grant of stay, so far as his grade is concerned. In this view of the matter, the plaintiff is entitled in law and equity to the relief but in part. In such circumstances, the defendants are directed to maintain status quo in respect of the plaintiff's grade, i,e,, BPS-20 till disposal of the suit.
14.As a result of the above observations and directions, all the five applications stand disposed of.
In view of the fact that some important questions of facts and law are involved in this case, I direct the office to fix this suit for regular hearing within six months. Needless to say that all the observations and comments made hereinabove are tentative in nature. To be fixed according to roster. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.