W. C. AUSTIN vs PUNJAB CIVIL SERVICE TRIBUNAL AND Other

ORDER

1. MUHAMMAD HALEEM, J.--The petitioner seeks special leave to appeal against the judgment of the Lahore High Court, Lahore, dated 11th of January, 1979, by which L. P. A. No. 94 of 1974 was dismissed.

2. The petitioner joined the service as a Junior Clerk in the office of the Director, Public Instructions, on 1st of October, 1945. He was promoted as Senior Clerk on 1st of April, 1.950, and confirmed as such on 1st of April, 1952. He was promoted as an officiating Ass1stant with effect from 1st of May, 1956, but was reverted on 19th of November, 1960, as Senior Clerk as he failed to fulfil the condition for his promotion. He was next promoted on 1st of October, 1965, but again reverted on 1st of August, 1967, as he failed to earn satisfactory reports during the tenure of his offciation. The petitioner represented against his reversion which was rejected but succeeded in his second attempt in 1,969. His case was reconsidered and by order dated 2nd of July. 1971, his reversion was held to be unjustified. By another consequential order he was given seniority with effect from 1st of August, 1967. His seniority was further revised and by another order dated 15th of September, 1971, it was re- fixed as from 1st of August, 1960. A second consequential order was, thereafter, issued on 23rd of September, 1971, canceling the earlier one.

3. Those affected by the determination of his seniority filed an appeal under section 8(1) of the Punjab Civil Services (Appellate) Tribunals, Ordinance, 1970, before the Civil Service (Appellate) Tribunal, Punjab, Lahore. Their grievance was that in determining his seniority, the rules on the subject could not be disregarded which forbade the giving of seniority without the creation of a supernumerary post of ass1stant and appointing him proforma on that basis during the period that he stood reverted and the higher posts were filled by others in the Department. The Civil Service (Appellate)

4. Tribunal, accepted this contention and set aside the order of the Government dated 15th of September, 1971, and the consequential order of the Director of Education, Rawalpindi, dated 23rd of September, 1971.

5. The petitioner, thereupon, moved the Government that the break of service be condoned and that he should be confirmed as Ass1stant from 1st of May, 1960, against a supernumerary post which should be created for giving effect to the retrospective restoration of seniority. He also filed a review petition before the Service Tribunal which was dismissed on 30th of May, 1972.

6. The petitioner, next, filed a Constitutional petition under Article 201 of the Interim Constitution of 1972 in the Lahore High Court, which was dismissed in limine on 14th of January, 1974 as it was held that the question of seniority could not be assailed under Article 201(3) (b) as no order could be made under clause (2) of Article 201 in regard to it as it was not included within the concept of the expression "a term or condition of service specified in the Constitution." Against this order the petitioner filed the L. P. A. A preliminary objection was taken that the Constitutional petition as well a tire appeal had abated under section 8 of the Punjab Admin1strative Tribunal; Act, 1974, as the only forum available before which such proceedings could lie was the Tribunal set up under the said Act. This objection was not disposed of and instead the Letters Patent Bench examined the merits of the case and held that the controversy before the Punjab Civil Service (Appellate) Tribunal, related to the question of seniority alone and hence the learned Single Judge in the High Court had rightly held that the Constitutional petition was incompetent under Article 201. It was further held that in the context of the Civil Servants Act, 1974, and the Punjab Admin1strative Tribunals Act, 1974, the Service Tribunal set up under the Punjab Civil Services (Appellate Tribunals) Ordinance, 1970, qualified as a departmental authority and the determination of the controversy by it was a matter relating to the terms and conditions of service. Lastly, it was held that the appeal was incompetent in the face of section 8 of the Punjab Admin1strative Tribunals. Act, 1974.

7. In seeking leave to appeal the petitioner has assailed the findings of the Letters Patent Bench that the appeal as well as the Constitutional petition were incompetent. He, however, failed to satisfy us that the controversy before the Civil Services (Appellate) Tribunal, Punjab, was other than the one relating to the seniority and, therefore, the conclusion of the learned Single Judge while dismissing the Constitutional petition was unexceptionable as seniority was not included within the meaning of the words "terms and conditions of service" in respect of which the order could be made. The appeal arising out of the order was also incompetent for that reason. The Letters Patent Bench, however, additionally held that it was incompetent in view of section 8 of the Punjab Admin1strative Tribunals Act, 1974. This finding would have been apt if otherwise the appeal was maintainable. But if on the first ground the proceedings out of which it had arisen were barred then this additional reason was superfluous. We also do not agree with the view of the Letters Patent Bench that the Punjab Civil Service (Appellate) Tribunal could be rated as a departmental authority for the purpose of an appeal under the Punjab Admin1strative Tribunals Act, 1974, as the explanation to section 4 takes the Tribunal out of the ambit of a departmental authority. Further, section 10 of that Act repealed the Punjab Civil Services (Appellate) Tribunals Ordinance, 1970, and provided for the transfer of all cases pending there under to the Tribunals constituted under the Punjab Admin1strative Tribunals Act, 1974. The matters decided by the Civil Services (Appellate) Tribunal before the promulgation of the. Punjabi Admin1strative Tribunals Act, 1974, assumed finality under section 10(4) and to all 'intents and purposes the determination became a past and closed transaction which could not be reagitated either before the Tribunal under the Punjab Admin1strative Tribunals Act, 1974, or under the writ jurisdiction of the High Court.

8. For the foregoing reasons, the petition fails and is hereby dismissed.