1998 P L C (C.S.

) 106

[Lahore High Court]

Before Mumtaz Ali Mirza, JJ

Syed ATHER ALI ZAIDI

versus

AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD and another

Writ Petition No. 1561 of 1997, decided on 23rd July, 1997.

Service Tribunals Act (LXX of 1973)---

----S. 4 [as amended by Service Tribunals (Amendment) Act (XVII of 1997)]---Constitution
of Pakistan (1973), Arts 185 & 212---Effect of amendment in S. 4, Service Tribunals Act,
1973---Provisions of law as contained in S. 4, Service Tribunals Act, 1973, where under only
final order could be assailed in appeal before Service Tribunal Act had been amended by Act
XVII of 1997 whereby word "final" had been omitted from S. 4(1), Service Tribunals Act,
1973.--After amendment in question, any order of Departmental Authority of which civil
servant felt aggrieved, no matter final or otherwise, could be challenged before Service
Tribunal---Constitutional petition whereby question relating to terms and conditions of
service had been agitated could not be entertained by the high Court in its Constitutional
jurisdiction by virtue of bar created in Art. 211 of the Constitution.

Dr. Ahmad Salman Waris v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382 ref.

Bashir Ahmad Ansari for Petitioner.

ORDER

The facts as disclosed in the petition are that the petitioner entered service through Federal
Public Service Commission and joined Pakistan Audit and Accounts Service in the year
1963. Respondent No. 2 also belongs to the same service but according to the petitioner he
entered the service also through Federal Public Service Commission in the year 1965. The
petitioner Syed Akhtar Ali Zaidi, is presently holding the post of Additional Secretary,
Ministry of Railways/Member (Finance) in BPS-21 while respondent No. 2 before his
appointment under challenge was holding the post of Accountant General, Punjab in BPS-21.
It has further been stated in the Constitutional petition that according to the seniority list of
Pakistan Audit and Accounts Service which is now called Accounts Group, the petitioner is
at serial No. 2 of the seniority list while respondent No. 2 is at serial No. 6 of the seniority
list and that it shows the petitioner as belonging to 1963 batch and respondent No. 2 as
belonging to 1965. It has further been disclosed in the Constitutional petition that the post of
Comptroller-General in the office of the Auditor-General of Pakistan was held by Mr.
Muhammad Shoaib Ansari who was in BPS-24. The said post of Comptroller-General was
upgraded from BPS-21 to BPS-22 by respondent No. 1 with the approval of the Finance
Division, Government of Pakistan. The matter of selection of Comptroller-General on regular
basis was referred to the Central Selection Board-I which in its meeting on 5-7-1997 decided
to defer the mater. By Notification No. 99-Dir (A)/2-2/97 dated 9-7-1997 Auditor-General of
Pakistan/respondent No. 1 appointed respondent No. 2 on current charge basis subject to the
approval of the competent Authority as Comptroller General in Auditor-General's Office,
Islamabad. The Notification dated 9-7-1997 in the first instance stated that the competent
Authority had been pleased to order the posting/ transfer of respondent No. 2 on current
charge basis but later stated that it shall be subject to the approval of the competent
Authority. The Notification dated 9-7-1997 was followed by another Notification No. 100-
Dir (A)/2-2/97, dated 10-7-1997 whereby Auditor General of Pakistan appointed respondent
No. 2 as Comptroller-General on acting charge basis pending approval of the competent
Authority with immediate effect and until further orders.

2. The petitioner, Syed Akhtar Ali Zaidi, has assailed the appointment of respondent No. 2 as
Comptroller-General on the following grounds:-

(a) that the office order dated 13-2-1997 whereby the post of Comptroller-General
was upgraded from BPS-21 to BPS-22 did not envisage the appointment of a person
to the upgraded post of Comptroller-General either on current charge basis or acting
charge basis and that the up-gradation was to be effective from the date the post was
filled by person in the higher grade in the manner prescribed under the existing rules;

(b) that a bare reading of the Office Order dated 13-2-1997 would itself show that
neither respondent No. 1, Auditor-General of Pakistan, could appoint a person in the
higher grade, nor could respondent No.2 hold the post in the said higher grade either
on current charge basis or acting charge basis. For the purpose of
appointment/promotion to BPS-22, the recommendations of the Central Selection
Board-I and the orders of the competent Authority i.e. Prime Minister were a must;

(c) that respondent No. 2 also could not hold the post on which he was appointed in
the absence of the orders of the competent Authority;

(d) that even for making the appointment on acting charge basis the approval of the
Prime Minister was essential.

3. The petitioner reacted to the appointment of respondent No. 2 vide iris letter dated 10-7-
1997 addressed to the Auditor-General of Pakistan/respondent No. 1. The said letter of the
petitioner was responded to vide D.O. No. 37-Dir(A)/2-2197, dated 11-7-1997 of Deputy
Auditor General (Admin & Coord.), Islamabad and he was informed that the Central
Selection Board-I which met on 5-7-1997 did not consider a final selection of Comptroller-
General on account of certain constraints. Accordingly, the Board decided to defer the matter
to another date. The Central Selection Board-I, however, advised that the local arrangements
could be made in the meanwhile. Accordingly, the arrangements to post a Comptroller-
General were made in consultation with the Establishment Division. A summary for the
approval of the competent Authority had, however, been submitted through the
Establishment Division for the purpose. The communication dated 11-7-1997 further said
that as and when the Central Selection Board convenes again, a regular promotion to BPS-22
will be decided and notified accordingly. The petitioner still not satisfied with the response
already received and referred to herein, addressed yet another letter dated 12-7-1997 to the
Auditor-General of Pakistan/respondent No. 1 which was responded to vide his letter dated
12-7-1997 and the petitioner informed that the transfer/appointment of respondent No. 2 was
only by way of local arrangement as advised by the Central Selection Board-I. The petitioner
was further informed that even for this local arrangement summary had been submitted to the
competent Authority for its approval.

4. The petitioner feeling still not satisfied with the aforesaid communications of the Auditor-
General of Pakistan has instituted the instant writ petition and has questioned the
appointment of respondent No. 2 on the grounds hereinabove reproduced.

5. At the very outset, it was pointed out to the learned counsel for the petitioner that the
question canvassed in the instant writ petition relates to the terms and conditions of the
petitioner and as such could not be raised before this Court and could be taken to the Service
Tribunal and that the jurisdiction of this Court was barred under Article 212 of the
Constitution. The learned counsel, however, submitted with reference to section 4 of the
Service Tribunals Act, 1973, that the petitioner could go to the Tribunal only if there was a
final order in the field, whether original or appellate, made by the departmental authority in
respect of any of the terms and conditions of his service and that in the absence of such an
order the petitioner could not approach the Tribunal in appeal. In furtherance of his
submission learned counsel placed reliance on judgment reported as Dr. Ahmad Salman
Waris v. Dr. Naeem Akhtar and 5 others (PLD 1997 SC 382) and submitted that in order to
make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of
jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be
shown that the matter was agitated by a civil servant as defined under the Act, it has arisen
from a final order of a .departmental authority whether original or appellate, it concerns the
terms and conditions of the aggrieved civil servant and that it was not covered by the
exceptions mentioned in proviso (b)(i) and (ii) of section 4 of the Service Tribunals Act,
1973. Mr. Bashir Ahmad Ansari, learned counsel for the petitioner did not dispute the fact
that the petitioner was not a civil servant and that the question raised in the writ petition was
not concerned with the terms and conditions of the petitioner. The sole grievance made by
the learned counsel was to the effect that in the absence of a final order he could not
approach the Service Tribunal for the relief that he has asked for through the instant
Constitutional petition and that this being so on the basis of the case-law i.e. PLD 1997 SC
382 (supra) his writ petition in the absence of a final order passed by the departmental
authority could proceed and was maintainable and the jurisdiction of this Court under Article
212 was not barred.

6. I have examined the question raised by the learned counsel with reference to section 4 of
the Service Tribunals Act, 1973 as also the case-law referred to by the learned counsel. In my
view the argument of the learned counsel is without any legal force. The provision of law as
contained in section 4 of the Service Tribunal Act, 1973, where under only a final order
could be assailed in appeal before the Tribunal, whether original or appellate, has since been
amended by Act No. XVII of 1997, dated 10-6-1997 whereby the word "final" has been
omitted from section 4 of subsection (i) of the Service Tribunal Act, 1973. Resultantly, after
the amendment in question, any order of the departmental authority of which a civil servant
feels aggrieved, no matter final or otherwise, can be agitated before the Service Tribunal. The
argument of the learned counsel after the amendment in the law referred to herein, cannot be
entertained. The writ petition whereby the question relating to the terms and conditions of the
service has been agitated cannot be entertained by this Court in its Constitutional jurisdiction
and the same is accordingly dismissed in limine.

A.A./A-176/L Petition dismissed.