1. ' BAHAUDDIN SIRHINDI, (MEMBER-I).---Appellant has tiled the instant Appeal No,230 of 1999 on 26-6- 1999 under section 4 of the Sindh Service Tribunal Act, 1973, challenging therein the appellate order dated 27-5-1999 by which his claim of seniority in the cadre of Excise and Taxation Officer (BS-17) over and above Mr. Muhammad Javaid Memon, private respondent No,4 has been rejected. The appellant also filed an urgent application bearing the same number dated 26-6-1999 requesting this Tribunal to stay the operation, direction and implementation of the said impugned order dated 27-5-1999 as well as notification dated 17-11-1994 issued by the respondents till final disposal of the appeal on consideration of the facts and grounds mentioned in the main appeal. This application' supported by an affidavit, which was filed by him on 22-7-1999 through his Advocate: He also filed an urgent Application No,93 of 1999 on 8-7-1999 under section 5 of the Sindh Service Tribunal Act to be read with section 151. C.P.C. For hearing of the Stay application on 13-7-1999 on the facts and grounds mentioned therein. This application was supported by an affidavit and was submitted by the then Registrar, Sindh Service Tribunal on 8-7-1999 to the then Member-I, Sindh Service Tribunal, who was looking after the charge the Chairman, Sindh Service Tribunal (the Chairman being on vacation) who on the same date directed that a notice be issued to the respondents for hearing of the appeal as well as stay application and the same was initially heard on 22-7-1999 by single Bench. His stay application was finally disallowed by a Division Bench on 29-2-2000 and the main appeal was fixed for regular hearing, which was heard on 24-11-2000 and finally heard on 29-11- 2000 by the same Bench.
2. ' The history of the case is summarized as follows:-
1. The appellant as per his statement joined Government service in the Excise and Taxation Department with effect from 12-7-1966 as Sub-Inspector. In the year 1977, the appellant alongwith respondent No,4, appeared before Sindh Public Service Commission for the post of Excise and Taxation Officer, but the result was not announced. He was, however, appointed on 12-11-1991 on regular basis as Excise and Taxation Officer (BPS-17) by the Chief Minister of Sindh under powers conferred by rule 5 of the Sindh Public Service Commission (Functions) Rules, 1974 read with rule 19(b) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 without reference to Sindh Public Service Commission, while according to him respondent No,4 was appointed as Excise and Taxation Officer on 27-1-1977 in BPS-16 in the Directorate of Excise and Taxation (Excise)
3. Karachi, against existing vacancy, with immediate effect, on ad hoc basis, until a candidate was selected by the Sindh Public Service Commission. His appointment was purely temporary and on ad hoc basis for six months and could be terminated even earlier at any time, without any notice and without assigning any reasons. His case was referred to Sindh Public Service Commission, subsequently, under paragraph 6 of M.L.O. 55, but the Sindh Public Service Commission, did not consider him suitable for retention as Excise and Taxation Officer or an equivalent/different post.
4. Thus, on 14-5-1978 a notification was published by Excise and Taxation Department whereby services of Mr. Muhammad Javaid Memon were terminated under para.7(1) of the said Martial Law Order No,55. However, a further reference was made to the Commission which re-assessed the suitability of Mr. Muhammad Javaid Memon in terms of said M.L.O.55 and recommended his continuation in service as Excise and Taxation Officer.. Accordingly a notification was issued on 15- 10-1978 by the same Administrative Secretary whereunder Mr. Muhammad Javaid Memon was reinstated in service and the intervening period was treated as leave. His ad hoc appointment was also regularized with immediate effect as Excise and Taxation Officer by the said notification.
5. ' On 11-4-1992 the then Chief Secretary, Government of Sindh in exercise of the powers conferred by rule 12(2) of the Sindh Civil Servants (Appointment), Promotion and Transfer) Rules, 1974 was pleased to accord ex post facto approval for relaxation of the upper age limit by 21 years and 6 months in favour of Mr. Sikander Ali Jatoi, who had already been appointed as Excise and Taxation Officer on 12-11-1991. He was also assigned seniority in the rank of Excise and Taxation Officer from the date of his regular appointment as Excise and Taxation Officer (BS-17) with effect from 22-11- 1991. It seems that this notification was cancelled on 8-12-1991 but again through notification dated 11-4-1992, the notification issued on 8-12-1991 was also cancelled. However another 4th notification was issued on 3-3-1993. Wherein Mr. Sikander Ali Jatoi, Excise and Taxation Officer was assigned seniority in the cadre of Excise and Taxation Officer (BS-17) with retrospective effect from 27-1-1977, above Mr. Muhammad Javaid Memon, Excise and Taxation Officer. The seniority list of Excise and Taxation Officers issued on 21-3-1993 shows the same position. Meanwhile the appellant being not satisfied with his earlier notification issued on 8-12-1991 the Constitutional Petition No,D-135 of 1991 followed by M.A. No,151 of 1993 (copies of these petitions are not available with us). These petitions were disposed on 31-3-1993 wherein it was observed that a notification had been issued on 3-3- 1993 whereby the petitioner has been assigned seniority in the cadre of Excise and Taxation Officer with effect from 27-1-1977 and the petitioner has been made senior to Mr. Muhammad Javaid Memon, Excise and Taxation Officer. However, there were certain discrepancies in Column No,6 of the seniority list issued on 21-3-1993 which according to the counsel for the petitioner was not in consonance with the notification dated 3-3-1993. In the Court, the departmental Section Officer undertook that such discrepancies will be ractified by the Department, the main petition and Miscellaneous application were dismissed as not pressed and that became infructuous respectively.
6. ' As per the follow-up of this undertaking, a corrigendum was issued on 5-4-1993 whereby the aforesaid discrepancies were rectified. According to him, the respondent No,4 did not tile any appeal against the adverse order dated 3-3-1993 but filed the objection which according to him was in fact appeal against the said order dated 3-3-1993 against the seniority of the appellant with effect from 27-1-1977 as Excise and Taxation Officer. Such appeal tiled by the respondent No,4 was rejected by the Government of Sindh, S&GAD and the notification dated 3-3-1993 was upheld by their order dated 21-3-1994. According to him respondent No,4 could as a matter of law, have sought remedy or make a representation before the Departmental Authority and subsequently approach the Tribunal. But he did not avail this opportunity and pursued the matter behind the doors and was able to get a Notification No,SOI (S&GAD) 5-17792, dated 7-11-1994 issued whereby the earlier notification dated 3-3-1993 assigning the seniority to the appellant with effect from 27- 1-1997 (above Mr. Muhammad Javaid Memon) was withdrawn. Appellant submitted departmental appeal which was decided on 27-5-1999 (impugned order) against him. Meanwhile the appellant filed Constitutional Petition No,D-77 of 1996 praying therein that the respondent No,3 was not obeying the orders of the Court passed earlier in Constitutional Petition No,D-135 of 1991. This petition was admitted for regular hearing, wherein the parties were directed to maintain status quo till disposal of the petition. That in spite of the fact that the status quo order was operating the respondent No,3 issued a notification on 20-12-1997 promoting respondent No,4 and others to the post of Director Excise and Taxation (BPS-18) with immediate effect. The appellant moved Miscellaneous Application No,910 of 1997 under section 94(e) to be read with section 151, C.P.C.
7. Praying that the name of the appellant should also be included and considered for promotion as Director, Excise and Taxation alongwith respondent No,4. That in the meantime Departmental Promotion Committee was held on 13-11-1998 in which the appellant was cleared for promotion vide notification dated 28-1-1998: Also were issued his posting order on 27-4-1998 as Director, Excise and Taxation Larkana where he is presently working.
8. ' That on 12-3-1998 Constitutional .Petition No,D-77 of 1996 alongwith Miscellaneous Application No,910 of 1997 came up for hearing .Before the Hon'ble High Court and the petitioner submitted that since the purpose of the petition had been achieved, he did not press for it, which was accordingly dismissed as not pressed. Subsequent to this the Government of Sindh, issued a notification dated 5-11-1998 published in the Sindh Gazette notifying that with the approval of the Competent Authority the order dated 17-11-1994 in respect of seniority of Sikander Ali Jatoi was withdrawn, thus restoring his seniority as such with effect from 27-1-1997.
9. ' To the surprise of the appellant the Government of Sindh issued another notification dated 13-1- 1999 by which a tentative seniority list of Excise and Taxation Officer (BS-17) as it is stood on 1-1- 1999 was notified and the name of the appellant was placed at serial No,6 below the name of Mr. Muhammad Javaid Memon in column No,6,- describing his promotion of Excise and Taxation Officer (BS-17) with effect from 12-11-1991 instead of 27-1-1977. The appellant submitted objections to the tentative seniority list dated 13-1-1999 on 2-4-1999.
10. ' That the Government of Sindh notified another tentative seniority list of Directors of Excise and Taxation (BS-18) as it stood on 1-3-1999 whereby the appellant was shown at serial No,6 below Mr. Muhammad Javaid Memon with the same discrepancy in Column No,6.
11. ' Objections on the final seniority list dated 24-5-1999 were submitted by the appellant on 5-6- 1999. In the meantime final seniority list was withdrawn on 9-6-1999.
12. ' That Government of Sindh, S&GAD on 27-5-1999 rejected the appeal of the appellant and has held good the notification dated 17-11-1994 with the approval of Governor of Sindh, thus the seniority of Mr. Muhammad Javaid Memon was again restored over the appellant and hence the present appeal to this Tribunal.
13. ' The Chief Secretary Sindh and the Administrative Secretary i,e, respondent Nos.1, 2 and 3 respectively opposed the miscellaneous application for stay order on the basis that the affidavit for the said application was tiled on 22-7-1999 instead on 22-6-1999. They have also submitted parawise comments on the main application in their written statements rebutting the points raised by the appellant. They have also contended that his matter has been also decided in the High Court petition filed by the appellant. They have also taken stand that the case has been decided by the High Court on 31-3-1993 in C.P. No,135 of 1991 on 12-3-1996. It will be, therefore, relevant to reproduce the relevant paragraphs from the judgment of the Bench (written indvidually by Justice Amanullah Abbasi and Justice Rana Baghwandas) as follows:-- Amanullah Abbasi, J.
14. "In the case it will not be possible to proceed with the contempt application against the alleged contemners because MA-889 of 1994 shows that the notification dated 17-11-1994 is desired to be declared null and void. Under threat of contempt this relief is sought. The entire proceedings in this petition become doubtful in view of D.B. Decision of this Court, a portion of which has been reproduced above. The notification dated 17-11-1994 cannot be questioned by this Court as the Services Tribunal has the exclusive jurisdiction. It will not be possible to take any action on the basis of the undertaking because the facts are ambiguous and this undertaking cannot be used as a bar for respondents to take lawful action. Since the respondents by notification dated 17-11-1994 withdrew the notification dated 3-3-1993, it cannot be treated as violation of the order of this Court because the petitioner himself is responsible for the situation thus created. He neither joined Muhammad Javaid as a party in the present petition nor placed correct facts before this Court. He did not approach the Services Tribunal which has the jurisdiction but obtained the undertaking of S.O. By creating a confusing situation. As there is no contempt of this Court either express or implied and there is no deliberate intention to obstruct the Court of justice coupled with the fact that the petitioner himself is responsible for creating confusing situation by not joining Muhammad Javaid as party. There was no specific or implied direction to respondents not to revise the seniority list. Therefore, the present MA-889 of 1994 is dismissed as misconceived.
15. ' Rana Bhagwandas, J "In view of dismissal of the earlier Petition No, C.P. No,D-427 of 1994 proper course for the petitioner was either to take his matter to the Supreme Court of Pakistan or to move the Service Tribunal for the redress of his grievance if so advised. The petitioner instead chose a wrong forum by moving the instant application with a view to create harassment for the official respondents under the device of motion for contempt. To my mind by revising, reviewing or modifying the earlier Notification respondents neither committed any contempt of Court nor did they flout the undertaking given by a Section Officer before this Court in March, 1993. Determination of seniority of a public servant involves a number of factors which fall within the domain of the departmental authorities and it is not for this Court to enforce this right in the exercise of Constitutional jurisdiction. Needless to reiterate, cognizance by this Court in the matters relating to enforcement of terms and conditions of service of a civil servant is completely barred as held by a Full Bench consisting of five Judges of this Court in Abdul Bari v. Government of Pakistan (PLD 1981 Karachi 750) and it holds the field. There is thus no merit in this application which is without any substance and is accordingly dismissed being completely misconceived and untenable at law. M.A. 965 of 1994.
9. In view of the order passed on M.A. No,889 of 1994 this application is rendered infructuous and is accordingly dismissed. M.A. 199 of 1995.
10. By this application intervenor Javaid Memon seeks to be impleaded as a party to the proceedings but in view of the aforesaid orders this application is also rendered infructuous, which stands disposed of accordingly".
16. ' The Counsel for the appellant Mr. Naimatullah Qureshi further argued that it was a unique case wherein at each stage irrelevant Officers had given advantage to respondent No,4. In 1997 the result of Sindh Public Service Commission for the post of Excise and Taxation Officer was not announced in which both the appellant and respondent No,4 had appeared.
17. ' The appellant was already in employment of Excise and Taxation Department while Mr. Muhammad Javaid Memon was a new hand. While the result of Sindh Public Service Commission was awaited, Mr. Muhammad Javaid Memon was appointed as Excise and Taxation Officer on 27- 1-1977 on ad hoc and purely temporary basis. Section 2(1)(a) of Sindh Civil Servants defines the ad hoc appointment as an appointment of a duly qualified person made otherwise than in accordance of prescribed method of recruitment, pending recruitment in accordance with such method.
18. ' The services of Mr. Muhammad Javaid Memon were terminated under Martial Law Order No,55 on 14-5-1978 and on reference from the Administrative Secretary, Sindh Public Service Commission revised the suitability of Mr. Muhammad Javaid Memon in terms of the said Martial Law Order and its previous decisions. The Administrative Department reinstated him in service treating the intervening period as spent on leave. According to him the net result will be that he continued to be on ad hoc appointment, while in case of appointment of Sikandar Ali Jatoi, the then Chief Minister of Sindh approved his appointment as Excise and Taxation Officer on probation for two years. He referred to Sindh Civil Services Manual Rule No,30(24) and Mr. Sikander Ali Jatoi having assumed charge on 12-11-1991.
19. ' He also referred to the notification dated 11-4-1992 by the Chief Secretary Sindh, according to which ex-post facto approval to the relaxation of upper age limit by 21 years and six months, in favour of Mr. Sikander Ali Jatoi, treating his appointment as having been made on 12-11-1991 on regular basis. It was modified subsequently by the Chief Secretary Sindh by notification dated 3-3- 1993 assigning seniority to Mr. Sikander Ali Jatoi from 21-7-1977 above Mr. Muhammad Javaid Memon as Excise and Taxation Officer. This being complied Mr. Sikdnder Ali Jatoi was placed at Serial No,10 of the Tentaive Seniority List and his initial recruitment was shown as to be from 27-1- 1977 as Excise and Taxation Officer in BPS-17 as it stood on 10-3-1993. Consequently C.P. No, D-135 of 1991 was withdrawn as the appellant was satisfied. He further argued that after this decision, the Chief Secretary, Government of Sindh vide his letter dated 21-3-1994 rejected the petition of the affected Excise and Taxation Officers being the Appellate Authority. Mr. Muhammad Javaid Memon had no further remedy except to go to the Tribunal which he did not. He, therefore, argued that subsequent withdrawing of this order by the Chief Secretary Sindh on 17-4-1994 was illegal, manipulated and underhand dealing as his previous order had attained finality. He then referred to C.P. No,D-772 of 1996, filed by the appellant which was admitted on 5-3-1996 and the parties were directed to maintain status quo. A Miscellaneous Application No,910 of 1997 was filed praying therein to include the name of the appellant for promotion as Director, Excise and Taxation.
20. However, Mr. Javaid Memon was promoted on 20-12-1997. On 28-1-1998, the appellant was promoted and on 5-11-1998 his seniority was restored with effect from 27-1-1977 by the Chief Secretary Sindh, thus the seniority list circulated on 16-12-1997 has no legal value. A representation was made on 4-2-1999.
21. ' He further stated that the appellant had filed a C.P. No, D-77 of 1996 praying therein that his name be included in the Departmental Promotion Committee for the purpose of promotion. Meanwhile Mr. Muhammad Javid Memon was promoted on 20-12-1997 while the appellant was promoted on 28-1-1998 and his seniority was restored with effect from 27-1-1977 vide notification dated 5-11-1998 which was gazetted on 12-11-1998. Thus the appellant stated before the Hon'ble High Court of Sindh in the C.P. No,D-77 of 1996 that the purpose of the petitioner had been achieved and hence the same was dismissed as not pressed alongwith Miscellaneous Application No,910 of 1997. Thereafter a seniority list of Excise and Taxation Officers (BS-17) was notified on 16-12-1977 showing seniority as on 1-1-1997. This according to him had no legal value. A seniority list of Directors, Excise and Taxation (BS-18 and BS-19) was notified on 13-1-1999 showing their seniority as it is stood on 1-1- 1999 in which Mr. Muhammad Javaid Memon was shown to be senior to him against which he filed an objection. Again on 24-5-1999 another seniority list was filed showing seniority of Directors, Excise & Taxation (BS-18) as it stood on 1-3-1999, again showing Mr. Muhammad Javaid memon senior to him; against which he made a representation on 5-6-1999. This seniority list was also withdrawn on 9-6-1999. Meanwhile the impugned order dated 27-5-1999 was passed by the then Governor of Sindh who according to him had no locus standi, as according to Sindh Civil Servants (Appeal) Rules, 1975. Rule 3, the appellate authority in the case of an order passed by the Chief Secretary, Government of Sindh was the Chief Minister of Sindh. Thus the summary should have gone to the Chief Minister, Sindh instead of Governor of Sindh.
22. ' Mr. Abdul Lateef Ansari, counsel for respondent No,4 stated that the upper age limit of Sikander Jatoi was relaxed by more than 21 years to make the appellant eligible for appointment to the post of Excise and Taxation Officer in 1991. There is no such regular notification before such appointment S&GAD accordingly had to issue a post facto approval of the action of relaxation of the upper age limit more than 21 years in respect of Mr. Sikander Jatoi. Thus a magic wand was used to regularize an irregular action which had no parallel in the history of the Department. This action which is the really unique one and as well as underhanded was taken, even when after taking the post out of the purview of Sindh Public Service Commission, the appellant was not eligible for appointment as Excise and Taxation Officer (BS-17). He further argued that under section 4 of the Sindh Service Tribunals Act, 1973, the Tribunal cannot judge the fitness or otherwise of an officer for promotion and thus the question of fitness of Mr. Muhammad Javaid Memon, appointed as Excise and Taxation Officer vide notification dated 15-10-1978 does not come within purview of the Tribunal and since the respondent was not made a party in any appeal/Miscellaneous application filed by the appellant in High Court of Sindh, hence no decision by the High Court of Sindh in all the mentioned cases is applicable to him. He further argued that the notification dated 17-11-1994 cannot be appealed against at this stage as it is hopelessly time-barred. He further argued that as per sub-rule (1) and rule 10 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, the seniority of the Civil Servants shall be reckoned from the date of his regular appointment which in the case of Sikander Ali Jatoi is 12-11-1991. According to him he never challenged this notification while in case of Mr. Muhammad Javaid Memon his regular appointment is with effect from 15-11-1978.
23. ' The Assistant Advocate-General supported argument of Mr. Abdul Lateef Ansari to the extent of the inter se seniority of the appellant and respondent No,4 and mentioned that the first order of regular appointment of Mr. Sikander Jatoi in the cadre of Excise and Taxation Officers was notified on 12-11-1991 and his retrospective promotion with effect from 27-1-1977 was illegal.
24. ' Mr. Naimatullah Qureshi, counsel for the appellant in his counter-arguments further elaborated, that as per rule 31 of Sindh Civil Service Rules. Volume-I, the promotion of a Government servant from a lower to higher grade, his duties remaining the same, takes effect from the date on which the vacancy occurs, unless it is otherwise ordered. According to him since the vacancy occurred on 27-11-1977 hence the promotion of Mr. Sikander Ali Jatoi was counted from 27-1-1977. He further stated that according to rule 9, clause (47) of Sindh Civil Service Rules Maual-I, a probationer.
25. Means a Government servant employed on probation in or against a substantive vacancy in the cadre of a department. Thus according to him Mr. Sikander Ali Jatoi was on probation for two years against a substantive post.
26. ' On 24-11-2000, after hearing the counsel for the appellant, it was directed by the Tribunal:--
(1) To call for the summary on the basis of which the then Governor passed the order notified on 27-5-1999, alongwith the appeal of Mr. Sikander Ali Jatoi, so also that of Mr. Muhammad Javaid Memon.
(2) Notification to verify as to who was the competent Authority on the said date i,e, 27-5-1999 when the Governor had approved the summary:
(3) Proclamation issued by the then Government imposing Governor's Rule in the Province of Sindh; and
(4) Proclamation appointing Syed Ghous Ali Shah as Chief Executive of the Province.
27. ' A.A.-G. Submitted these documents on 29-11-1994. Notification dated 17-6-1999 proclaims appointment of Syed Ghous Ali Shah as an Adviser to the Prime Minister on Sindh affairs with immediate effect. Hence before this date, the Governor of Sindh was competent to exercise the powers of an appellate authority in absence of Chief Minister as per the Sindh Civil Servants (Appeal) Rules, 1975, in the cases where orders were made by the Chief Secretary Sindh. If an adviser to Governor can exercise the powers of a Chief Minister, when there is no Chief Minister.
28. ' Mr. Sikander Ali Jatoi had made a representation against the Notification dated 17-11-1994, withdrawing/recalling the earlier notification dated 3-3-1993 (bestowing upon him the back dated promotion w,e,f, 27-1-1977), Meanwhile he had been promoted in 1998 but in 1999 his aforesaid representation has been rejected by the department initiating the said summary to the Governor.
29. The Department apparently under pressure promoted Mr. Sikander Ali Jatoi, but did not decide his representation regarding seniority. This is rather-in-explicable. We would have taken a serious view of it, but the fact remains that the back dated promotion of Mr. Sikander Ali Jatoi w,e,f, 27-1-1977 had no legal or moral justification. The contention of his counsel that on that date a vacancy of Excise and Taxation Officer fell vacant has no merit, as his case is not of promotion but that of direct recruitment to the post of Excise and Taxation Officer (BS-17) on 12-11-1991 by the then Chief Minister Sindh, by taking one post of Excise and Taxation Officer (BS-17), out of the purview of the Sindh Public Service Commission under rule 5 of the S.P.S.C. (Functions) Rules, 1974 and rule 10(b) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules. Though the Chief Minister Sindh had the power to do so legally, but morally it was not a desirable act as by taking this action, the upper limit Of his age had to be relaxed by 22 years, which was also not done at that time but was done post-facto on 11-4-1992. This was an action which may have no parallel in the history of services. If we presume that it was a case of promotion, even then it is a very wrongful promotion, where number of officers have been superseded without even considering their seniority.
30. ' We also, note with deep regard, the manner in which both then Administrative Secretaries and the Chief Secretaries have been changing their tunes with the rise and fall of the fortunes of the Government and respondent No,4.
31. ' It looks like a game of musical chairs, in which referees in most cases have also been party to the game, from Section Officer to the Administrative Secretary, and finally the Chief Secretary, to top it all. The case of Mr. Muhammad Javaid Memon has been got regularized from Sindh Public Service Commission from 1978, as case of direct recruitment, and hence his case stands finalized. We, however, feel sorry for the other affected officers of the Department who have been witnessing all these episodes with helplessness, while Mr. Sikander Ali Jatoi seems to have been using his enoromous influence in every conceivable manner. The way he has used the forum of High Court, to his advantage, in spite of adverse judgments, is simply astonishing.
32. We fully agree with the observations of Mr. Justice Rana Bhagwandas in his judgment dated 12-3- 1996 in the Constitutional Petition .No,D-135 of 1991 that the "Determination of seniority of a public servant Involves a number of facts, which falls within the domain of the departmental authority'.
33. Thus the Department had the right to rectify the mistakes committed by it under wrongful political pressure, but instead of being straight and upright, they have acted in a very opportunistic way.
34. ' With the above observations we 'disallow the appeal and direct the Department to review the seniority of the officers of the Department in BS-17 and above as a whole under the relevant rules and decisions of this Tribunal and the Supreme Court passed in these matters to settle issue once for all.