SAGHIR AHMAD Versus FEDERATION OF PAKISTAN

This order will dispose of Civil Revisions Nos. 477 and 478 of 1975 as ,the same have arisen out of the same suit filet by the petitioner against the respondent.

2. The only question in these two cases is whether the suit filed by the petitioner in July 1973 had abated on account of the subsequent enforcement of the Service Tribunals Act, 1973.

3. The relevant facts are that the plaintiff-petitioner in the two cases is in Railway service. According to the terms and conditions of the service, he can be considered for appointment to the post of a Junior Statistical Officer which is a selection post. The selection for the post vacated by the retirement of Mr. Abdul Ghani was ordered to be held. The first selection was held in March 1961 in which the petitioner was not allowed to partici pate. However, Mr. Munawwar Hussain Kirmani respondent No. 3 in Civil Revision No. 477 and respondent No. 1 in Civil Revision No. 478/1975 appeared in the selection test but failed. Despite this he was appointed to the post in an officiating capacity on the 20th of May 1971. It was, however,. made clear that this appointment having been made pending selection would not confer upon him any claim to the post. The selection was thereafter declared null and void for some technical reasons. A second selection test was then held on the 2nd of August 1971 in which three persons including the petitioner and Munawwar Hussain participated. The third gentleman did. not put in appearance. Mr. Munawwar Hussain Kirmani failed and only the petitioner passed in that selection. His selection was approved by the Vice-Chairman of the Railways. Despite the fact that under para. 6(c) of Appendix XI to Advance Chapter No. 1 of Personnel Manual General, the selection made by the Vice-Chairman is final, the Chairman who was the competent authority to notify the appointment to the post of Junior Statistical Officer ordered a fresh selection for which 17-7-1973 was notified as the date. The petitioner filed a suit for declaration to the effect that he had been selected according to the rules and law by the Selection Board and as a consequence had become eligible under the law for appointment to the vacancy. He also claimed a consequential relief in the form of permanent injunction restraining the Railways Authorities from making appointment permanent or officiating to fill the above vacancy.

4. Since no written statement was filed, the learned Senior Civil Judge, Lahore granted a decree in favour of the plaintiff-petitioner on the 23rd of December 1974.

5. This decree was challenged by two separate appeals filed by the Federation of Pakistan and Munawwar Hussain Kirmani. These appeals were allowed by Ch. Muhammad Nasim, Additional District Judge, Lahore,, on the ground that the suit stood abated on the 26th of September 1973 on the promulgation of Service Tribunals Act, 1973.

6. The learned counsel for the petitioner contended that only those suits abated, the subject-matter of which was within the jurisdiction of a Tribunal appointed under the above Act. On the basis of section 4(1) Proviso (b) he argued that the petitioner's suit related to challenging the decision of a Departmental Authority determining the fitness or otherwise of the petitioner to be promoted to a higher grade and as such no appeal could be filed by the petitioner before the Service Tribunal.

7. The learned counsel for the respondents on the other hand argued that there was no such order or decision on the record. The decision is only to hold a fresh selection for the post and not a decision to determine the fitness of the petitioner to be promoted to the post.

8. In order to appreciate the contentions of the parties, it is necessary to refer to certain provisions of the Constitution and the Act. Article 212 of the Constitution authorises the appropriate Legislature to establish by Act one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in the service of Pakistan, including disciplinary matters. Clause (ii) of this Article bars the jurisdiction of the Courts to entertain any proceedings in respect of any matter to which the jurisdiction of the Tribunal extends on the establishment of the Tribunal and further provides that "all proceedings in respect of any such matter which may be pending before such other Court, immediately before the establishment of the Administrative Court or Tribunal. shall abate on such establishment."

9. By virtue of the powers conferred by Article 212 of the Constitution the Services Tribunals Act LXX of 1973 was promulgated with effect from the 29th of September 1973 when the suit filed by the petitioner was already pending in Court. Section 3 of this Act provides that-

"A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, includ ing disciplinary matters." Section 6 deals with abatement of cases which were already pending before the Courts and were now within the jurisdiction of the Tribunal. It provides : ,

"All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the: commencement of this Act shall abate forthwith Provided that any party to such a suit, appeal or application may, with in ninety days of the commencement of this Act, prefer an appeal to the appropriate Tribunal in respect of any such matter which is in issue in such suit, appeal or application."

10. It is obvious that the abatement under Article 212 as well as under this Act is of only those proceedings (suits, appeals or applications) which were within the jurisdiction of a Tribunal. Section 4 of the Act provides for appeals to Tribunals by 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. There are some provisos added to this provision. The relevant provisio is proviso (b) which is as, follows :- "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 grade."

11. The finding of the learned District Judge is that there is no such order or decision. Similar is the argument as noted above, of the learned counsel for the respondents

12. I do not agree with the contentions of the learned counsel for the respondents. I have already made a reference to para. 6 of the rules governing the promotion of Class III staff and added as Appendix XI to Advance Chapter No. 1 of Personnel Manual General. Admittedly the selection to the above-mentioned post was to be held in accordance with the provisions of these rules. This para in its clause (c) provides that promotion to selection post shall be made by the competent authority in accordance- with the recommendations of a Selection Board which has complied with the .procedure detailed in the rules following rule 6.

It further provides that if in any case such authorities are unable to accept the recommendations, a reference shall be made to the Vice-Chairman whose decision shall be final.

13. On the facts proved by the petitioner, it is clear that the Vice- Chairman had approved his eligibility to this post. No doubt the Chairman has been admitted to be a competent authority to make the formal appoint ment, but he cannot take away the validity given to the decision about eligibility of the petitioner to this post by a specific or even a tacit order. His conduct notwithstanding the selection amounts to deciding that the petitioner should not be considered to be fit person- for promotion to a higher grade. The matter is, therefore, covered by proviso (b) to sub section (1) of section 4 of the Service Tribunals Act, 1973. The upshot this discussion is that the jurisdiction of the Tribunal does not extend to dealing with cases of the present nature. It cannot therefore be held that the civil Court's jurisdiction was in any way barred or the suit pending before the Senior Civil Judge in any manner abated.

14. I, therefore, allow these petitions with costs and set aside the order of the learned Additional District Judge.

15 The learned counsel for the respondents state that apart from this plea of abatement there were certain other points also which were raised in the grounds of appeal and which have not been considered by the learned Additional District Judge. In view of this statement, I remand the appeals of respondents to the learned Additional District Judge for a decision on the other points raised in the grounds of appeal of the respondents.

S. Q.