' SABIHUDDIN AHMED, J.---Through this petition the petitioners have called in question a resolution of the respondent No, 1 dated 12-10-1995, and subsequent letters whereby, the services of several employees including respondents Nos,3 to 73 initially appointed on ad hoc basis, were regularised with effect from different dates i,e, apparently the dates of their appointments on ad-hoc basis.
The petitioners are Traffic Supervisor Grade-I in the respondent No,1, which is admittedly a statutory body was set up under the Karachi Port Trust Act, 1886 and the terms and conditions of its employees are governed by regulations framed by the aforesaid respondent No,1 with the prior approval of the Federal Government i,e, respondent No,2. According to the petitioners, the regularisation of the appointments of respondents Nos,3 to 73 with retrospective effect have prejudicially affected their seniority and prospects of promotion.
2. It may be mentioned that pursuant to an announcement of the then Prime Minister on 23-2-1995 to the effect that services of officers and workers working on ad-hoc basis would be regularised; a Committee was constituted by the Chairman of the respondent No,1 to examine the issue which made the following recommendations.
(1) Supernumerary posts in officers and workers cadre in regular pay scales ma' be treated in respect of persons presently working on ad hoc basis with effect from the date they were allowed regular pay scales/allowances.
(2) The persons concerned may initially be appointed against these . Supernumerary posts on ad hoc basis with effect from the date they were allowed regular pay scales/allowances.
(3) They would be regularised against the supernumerary posts recommended to be created with effect from the date of Board Resolution.
(4) The seniority within the ad hoc officers/workers will, however be determined with effect from their date of joining in KPT in respective cadre.
(5) All these ad hoc officers and workers will be absorbed against the regular posts as and when falling vacant and supernumerary posts will stand abolished automatically.
3. It appears that the sanction of the Board of Trustees for creation of the above posts was sought and it was stated that the action on rest of the recommendations of the Committee will be taken after the creation of posts by the Board. The Board in its meeting dated 11th and 12th October, 1995 sanctioned the following recommendations of the Committee:
(1) 44 posts in officers cadre in BPS-17 and 138 posts in workers cadre in the scale as shown in the Annexure' "A" may be created on regular basis in respect of persons already working on ad hoc basis w,e,f, the date they were allowed regular pay scales.
(2) 2 posts in officers cadre and 23 posts in workers cadre in the pay scales as shown in Annexure'
"B" may be created on regular basis in respect of persons already working on daily wages in their respective departments w.e.f the date of B.R.
(3) The above posts may be created in the departments the incumbent are working against their regualr titles as shown in Annexures' "A", "B" and "C" respectively.
(4) The above regularisation is recommended by condoning the laid down qualification of MBA where necessary."
4. Pursuant to the above resolution, letters were addressed to the respondents Nos,3 to 73 stating that the competent Authority had sanctioned their appointments against the posts held by them on regular basis with effect from the date they were allowed regular pay scale. A copy of the letters addressed to respondent No,44 has placed on record. The petitioners submitted representations to the Chairman of the respondent No,1 claiming that such regularisation materially impaired their seniority positions which was followed by a legal notice. However, having been unable to obtain any redress, they moved this Court under Article 199 of the Constitution praying that the resolution of the Board of Trustees and subsequent orders of regularization with retrospective effect addressed to the respondents Nos,3 to 73 were without lawful authority and liable to be quashed.
5. During the pendency of the petition the Service Tribunals Act, 1973 was amended through Act XVII of 1997 whereby a new section 2-A was inserted providing for a remedy, inter alia, to employees of statutory corporation to seek redress in respect of their terms and conditions of service from the Service Tribunal established under the Act. By virtue of section 6 of the Act as well as Article 212 of the Constitution proceedings pending in other Courts including those before this Court were required to abate. The respondents have, therefore, questioned the maintainability of this petition.
6. Since the objection raised goes to the very root of the jurisdiction of this Court, we decided to consider the same before adjudicating on the merits of the controversy.
Indeed the fact that employees of the respondent No,! Are amenable to the jurisdiction of the Federal Service Tribunal and in case of those employees properly falling within the jurisdiction of the Tribunal proceedings in any Court including this petition were required to abate is not in issue amongst the parties. Mr. Manzoor Ali Khan learned counsel for the petitioners also candidly acknowledged that some of the petitioners had approached the Federal Service Tribunal, but their appeals had been dismissed. Nevertheless, learned counsel argued with a great degree of emphasis that the regular appointments of the respondents Nos,3 to 73 was a matter relating to the fitness of the respondents to be appointed to certain posts and was, therefore, outside the purview of the jurisdiction of the Service Tribunal in terms of proviso (b) to section 4 of the Act which reads as under:-- "(b) no appeal shall lie to a Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade: and
7. On the other hand Mr. Abdul Hafeez Lakho learned counsel for most of the contesting respondents argued that according to the petitioners themselves they were basically aggrieved by the fact that through the impugned resolution and the subsequent letters issued, their seniority position was being adversely affected. Otherwise they had no locus standi to question the decision of the respondent No,1 to appoint or not to appoint any person on regular basis in the respondent No,
1. Hence the matter clearly related to terms and conditions of service of the petitioners and not the fitness of the respondents to hold particular posts.
8. We have anxiously considered the respective contention of the learned counsel Mr. Manzoor Ali Khan candidly acknowledged that he was not questioning the appointments of the respondents Nos,3 to 73 on regular basis, which indeed was a prerogative of the employer subject to the fulfilment of requirements of law if any but was aggrieved by the factum of giving retrospective effect to such regular appointments i,e, making them effective from the date the respondents were allowed regular pay scales. According to the learned counsel regularisation of an ad hoc appointment with retrospective effect was per se illegal inter alia in view of the majority judgment of the Honourable Supreme Court in Ahsanullah Memon v. Government of Sindh (1993 PLC (C.S.)
937) and the fact that the recommendations of the Committee mentioned in para. 2 above were mutilated to confer undeserved benefits upon the respondents Nos,3 to 73. Nevertheless, Mr. Manzoor Ali Khan himself, and rightly so, did not elaborate his contentions on merits observing that it may not be proper to do so when only the question of jurisdiction was being considered, lest it might prejudice a final adjudication by the competent forum.
9. The only question for consideration appears to be whether the controversy between the parties to the "fitness" of the respondents Nos,3 to 73 to be given regular appointments with retrospective effect so as to exclude the jurisdiction of the Service Tribunal under proviso (b) to section 4 of the Service Tribunals Act. Mr. Manzoor Ali Khan argued that the proviso to section 4 was wide enough to exclude a large number of matters from the jurisdiction of Service Tribunals, and therefore, petitions before this Court under Article 199 were maintainable in respect of those matters. With profound respects, we are, unable to share his line of reasoning. It may be recalled that prior to the enforcement of the 1973 Constitution and the scheme of Service Laws, both under the Article 98(3)
(b) of the 1962 of Constitution and Article 201(3) (B) of the Interim Constitution, the High Courts exercised extremely limited jurisdiction in service matters which was confined only to terms and conditions specified in the Constitution i,e, removal from service, reduction in rank etc. Under Article 212 of the 1973 of Constitution separate administrative Courts were established and the jurisdiction of the High Court was totally ousted in respect of service matters. However, these Tribunals were conferred wide and plenary powers to adjudicate upon a wide range of matters so far considered non justiciable and certain actions of Martial Law Authorities granted Constitutional indemnity were also held to be reviewable both on facts and law by such Tribunals of exclusive jurisdiction in M.
Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22). We are, therefore, of the opinion that in view of the well-settled principle that ouster of jurisdiction cannot be readily inferred, the proviso to section 4 ousting the jurisdiction of the exclusive forum in service matters must be strictly construed.
10. The import of the expression "fitness" appearing in proviso (b) to section 4 has been considered by the Honourable Supreme Court on a number of occasions and it may be useful to refer to the cases of Mian Abdul Malik v. Dr. Sabir Zamir Siddiqui (1991 SCMR 1129) and Muhammad Anees v.
Abdul Haseeb (PLD 1994 SC 539). In both these cases their Lordships drew a subtle distinction between the expression "eligibility and fitness". It was held that when a person considered himself qualified to be considered for promotion was wrongly ignored it was a case of eligibility pertaining to terms and conditions of service and justiciable before Tribunal. It was only when he alleged that he was fit to be promoted but was wrongly denied promotion, the matter fell outside the purview of the Tribunal under proviso (b). It may be pertinent to quote the following observations of Shafiur Rehman, J. (as his Lordship then was) in the former case:- "The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces and element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent Authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to he exclusively within the jurisdiction of the competent Authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification no such bar exists either on express words of section 4 of the Service Tribunals Act or even by implication.
(Underlining ours).
11. Indeed it goes without saying that no civil servant has a legal right to be promoted to be appointed against a particular post though he has a legal right to be so considered for promotion if found qualified and eligible under the applicable rules. Indeed in posts required, to be filled on seniority-cum-fitness basis, a junior would be promoted only if the senior is considered and found unfit. The principle of law, therefore, as we have been able to infer from the above judgments appears to be that when a person claims violation of his legal rights in relation to terms and conditions of his service, the Tribunal has plenary powers to grant redress and only when the subjective element of fitness is involved, its jurisdiction is ousted. Learned counsel is theoretically correct to the extent that when a matter does not fall within the domain of jurisdiction of a Service Tribunal, the jurisdiction of this Court is not ousted. The question, however, that we need to ask ourselves is, that when, because of the subjectivity factor, even a Tribunal competent to go into all questions of fact and law and ,having plenary powers to confirm, vary, modify or set aside any order of a departmental authority has been divested' of the power to sit in more limited power of judicial review under Article 199 of the Constitution, except perhaps in the rare cases of mala fides or absence of jurisdiction? Even in Syed Muhammad Afzal Farooq v. Secretary, Establishment Division (1998 PLC (C.S) 1175) where this Court exercised jurisdiction on the ground of mala fides being apparent, it was held that the formation of an opinion as to "fitness" was the exclusive function of the competent authority which could not be substituted by a Court or Tribunal and the matter was remanded to the authority to make a fresh determination of fitness of a person to be promoted.
12.The petitioners' case, however, does not fall within this exceptional sphere. As candidly conceded by Mr. Manzoor Ali Khan, the petitioners were not aggrieved by the appointment of respondents Nos,3 to 73 but only the fact of giving retrospective effect to such appointments. It was founded upon a pure question of law based on interpretation of applicable rules, binding precedents and general principles of law. No element of subjective assessment of personal capabilities of individuals was involved. If this Court (or the Service Tribunal) were to hold that as a matter of law that retrospective effect, could not be given to regular appointments of the respondents, there was nothing to be done by the respondent No,
1. Therefore, in our humble view, to hold that the matter was excluded from, the purview of jurisdiction of the Service Tribunal would be patently contrary to the law declared by the Honourbale Supreme Court.
13. At the same time we are aware that the Federal Service Tribunal is non-functional for the time being on account of the Chairman having not been appointed. Moreover, considerable time has expired since the filing of this petition where interim orders were also passed directing the respondent No,1 to maintain status qua. Though Mr. Lakho argued that the petitioners should have approached the Service Tribunal immediately after the enforcement of Act XVII of 1997 and are not entitled to any indulgence by way of condonation of delay, we are of the view that the question of jurisdiction has been subject of substantial judicial controversy. At one time Federal Service Tribunal was of the view that Act XVII of 1997 did not affect proceedings pending in different Courts.
The learned Advocate-General has suggested that observations similar to those made by the Honourable Supreme Court in Syed Aftab Ahmed v. K.E.S.C. (C.P. K-1305 of 1997) may be made in fairness of all parties. Taking into consideration all these factors we would dismiss this petition, but subject to the directions that the respondent No,1 will maintain status quo in respect of the seniority position of the petitioners vis-a-vis the respondents Nos,3 to 73 till two weeks after the Chairman of the Federal Service Tribunal is appointed. The petitioners may, if so advised approach the Tribunal for redress and we are sure that the grant of benefit of section 14 of the Limitation Act and the question of condonation of delay would be sympathetically considered by the learned Service Tribunal. With these observations the petition is dismissed with no order as to costs.