S.H.M. RIZVI And 5 Other vs MAQSOOD AHMAD AND 6 Other

SHAFI-UR-REHMAN, ].-Leave to appeal was granted to the six appellants who belong to the Central Excise and Land Customs Department, to examine whether in view of section 8 of the Civil Servants Act, 1973 (hereinafter referred to as the Act) the respondent No. I could be said to have a vested right to the seniority in service as appearing in the seniority list issued in 1972.

2. All the appellants were originally appointed to what was then known as Class II Service in the Excise and Land Customs Department on posts of Principal Appraisers and Superintendents. They were promoted sub--stantively to the permanent posts of Assistant Collectors (Class I Junior Posts) on various dates in 1970 and 1971 and in 1972 they were promoted to Senior Class I Scale corresponding to N. P. S. 18 Grade posts. Maqsood Ahmad, the contesting respondent, joined as a direct recruit on the result of Central Superior Services Examination held in the year 1968 as Assistant Collector on 1-11-1969 and was promoted to Grade 18 post in 1974. A tentative seniority list of the officers of the Pakistan Excise and Land Customs Service as on 15-7-1972 was published by the Government on 21-10-1972 in which Maqsood Ahmad was placed senior to the appellants, he having entered the service earlier than the promotion of the appellants. Before the seniority list of 1972 could be finalized, the Act was enforced. The promotion of the appellants to Senior Scale Class I Post correspond--ing to N. P. S. 18 Grade had taken place before the enforcement of the Act while that of respondent No. I took place after its enforcement in 1973.

3. Section 8 of the Act deals with all aspects of the seniority of the direct recruits and the promotees. This provision of law was further clarified by various circular letters of the Establishment Division particularly the one No. 1-9-74D. R. C. Dated 12-9-1974 as modified by circular letter No. 1- 34-1975.D.2 dated 1-9-1975. The principle relevant to the present controversy was that the seniority lists were to be redrawn grade-wise. Seniority of persons promoted to higher grades after 15-8- 1973 was to be determined strictly in accordance with the provisions of subsection (4) of section 8 of the Act while of those promoted earlier was to be determined according to the rules then in the field. The instructions also required that "the first issue of the gradation list should be marked provisional. It should be circulated to the officers concerned and objections or representa--petition invited. Mistakes which may be brought to notice may be rectified by the Ministries and Divisions and any general point raised in the representa--tions may be examined and disposed of in consultation with the Establish--ment Division. Thereafter the gradation list will be issued as final".

4. In view of the provisions of the Act and these instructions a seniority list of grade 18 officers (former Senior Scale Class I posts) which was not marked as provisional was circulated by a covering letter dated 21-4-1976. The concluding part of the covering letter stated as follows :- "The seniority list is circulated amongst the Officers concerned, who are requested to acknowledge its receipt. Objection, any, may please be filed by the 8th May, 1976 at the latest. No objection shall be entertained if received after prescribed date."

5. The respondent Maqsood Abmad filed an objection to the seniority list on 4-5-1976 and after waiting for 90 days he filed an appeal under section 4 of the Service Tribunal Act, 1973, treating the seniority list dated 21-4-1976 to be the final order within the meaning of section 4 of the Services Tribunal Act. His objections in substance were that the appointment of the appellants to a higher grade (Senior Scale Class I corresponding to N. P. S. 18) in 11962 was against the law and the practice of the Department and was not regular and could not be of avail to them in matching their seniority with him. The dates of their promotion and his own to Senior Class I Scale or Grade 18 were nevertheless admitted and were never in dispute.

6. A serious objection was taken by the appellants and has been repeated before us about the competence and the maintainability of his service appeal before the Service Tribunal. It was contended that the list impugned by the respondent was tentative under the rules governing it.

Objections had been invited with a view to finalize that list. Respondent No. 1 had filed the objections. Without waiting for its disposal and without getting the list finalized he had prematurely rushed to the Services Tribunal at a stage when in fact there was no cause for grievance.

7. As we have confined the hearing of the present appeal to this preliminary objection regarding the competence of the appeal before the Tribunal, we need not advert to the merits of the claim.

To determine the question in issue the relevant provisions of law to be examined are section 22 of the Act, section 4 of the Services Tribunal Act and the Civil Servants (Appeal) Rules, 1977 enforced during the pendency of the appeal before the Tribunal on P 8-1-1977.

8. A reference to the seniority list which was challenged before the Tribunal and the covering letter by which it was circulated shows that it was issued under the instructions of the Establishment Division referred to dated 1-9-1975 which in turn referred to the instructions dated 12-9-1974. The instructions themselves required, as reproduced above, that the first issue of the gradation list was to be provisional and was to be marked as such. Objections were to be invited and the lists were to be finalized. The covering letter makes this aspect of the seniority list abundantly clear notwithstanding the omissions to mark the list as provisional. Objection were invited and a date was fixed by which they were to be filed. The respondent filed such an objection but before it was disposed of or the list was finalized he brought his claim before the Services Tribunal. In doing so, he relied on section 4 proviso (a) of Service Tribunal Act and section 22 of the Act. The Service Tribunal disposed of this objection of the appellants by holding as follows :- "Seniority list issued with a stipulation that unless objections to the emplacements contained therein are received upto a particular date, no further objections would be entertained. After the expiry of the crucial date, the emplacements have to be treated as final. The order governing this seniority is, therefore, final within the meaning of section 4(l) of the Service Tribunal Act, 1973."

9. In order to facilitate its understanding and interpretation section 4 of the Services Tribunal Act is reproduced hereunder in extenso.

"4. Appeals to tribunals.-(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or with six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.

Provided that

(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of nintety days has elapsed from the date on which such appeal, application or representation was not preferred;

(b) no appeal shall lie to a Tribunal against an order or decision of a 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

(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.

(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred-

(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-- scale, or to a lower stage in a time-scale of a Tribunal referred to in subsection (3) of section 3; and

(b) in any other case, to a Tribunal referred to subsection (7) of that section.

Explanation.-In this section, "departmental authority means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."

Right of appeal has been conferred by subsection (1) of section 4 only against a "final order whether original or appellate". A final order has the distinction of determining the rights of the parties. Where any further, step is necessary to perfect an order, in this case the disposal of the objections received or finalization of the provisional seniority list, the order cannot be taken to be final. An order may be final, if it determines the rights of the parties, concludes the controversy so far as a particular authority or forum is concerned notwithstanding that such an order may be open to challenge in appeal etc. This aspect of the concept of the finality of an order has been taken care of by adding the words "whether original or appellate" in the enacted law itself.

9-A. The rule of construction of a proviso, as pointed out by Craies on Statute Law (7th Edn., page 218, is as follows "The effect of an excepting or qualifying proviso, according to the ordinary rules of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect."

The same principle has been enunciated by Crawford in the following words :-.

"As a general rule, however, the operation of a proviso should be confined to that clause or portion of the statute which directly precedes it in the statute."

This rule of construction has found judicial recognition in cases of West Derby Union v. Metropolitan Life Assurance Society (1897 A C 647), Madras do Southern Mahratta Ry. Co. Ltd. v. Bezwada Municipality (AIR 1944 P C 71and Messrs East & West Steamship Company v. Pakistan (PLD 1958 SC (Pak.) 41

10. The proviso (a) to subsection (1) of section 4 of the Service Tribunal, Act relied upon by the learned counsel for the respondent has not the slightest effect of detracting from the finality of the order to be appealed against. What it accomplishes is that even a final order should not be,' brought before the Services Tribunal if a right of appeal, review of representation to a departmental authority is provided under the law, unless that right has been availed of and the specified number of 90 days has elapsed without a substitutive order. The object of it all appears to be to encourage, ensure and emphasize the redress of service grievances within the departmental heirarchy before ventilating them in the Service Tribunal. As there was no final order ever passed on the objection of the respondent nor was the seniority list finalized his appeal was not competent under section 4 of the Service Tribunal Act.

11. What section 22 of the Act provides is a period for filing of appeal or review application where such a right is conferred by law and' confers a right to file a representation in case no such right of appeal or review is provided under the law. The representation in order to qualify as such under section 22 of the Act had to be made to the "authority next above the authority which made the order". The respondent admittedly did not file any such representation. His objection to the provisional seniority list was addressed to the same authority which prepared the provisional list and it was a part of the process by which the list was to be finalized.

12. The Service Tribunal has taken a view of the competence of the Service appeal before it which is unsupportable on any ground. According to it the provisional seniority list became the final list on the crucial date which is taken to be the last date by which the objections to the seniority list were required to be filed, allowing thereby no time to deal with the objections or to finalize the list. This makes the whole exercise of issuing a provisional list, inviting of the objections, etc. An exercise in utter futility. Not only the provisions of the law applicable so require it is in the interest of efficient and effective functioning of the Service Tribunal itself that it should adjudicate on concrete controversies concluded by a determinative order of the departmental authority.

13. The Civil Servants (Appeal) Rules, 1977 enforced on 1st January, 1977, read along with section 22 of the Act exhaust the remedies available to a civil servant for redress of the grievances within the Department. It :s either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent (for the objection filed in 1976 remains to date undisposed of and the provisional list that issued in 1976 is yet to be finalized) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted juris--diction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants.

14. We accept this appeal, set aside the judgment of the Service Tribunal and dismiss the service appeal of the respondent as incompetent. The parties are left to their own costs.