2014) Muhammad Bachal Memon v. Tanveer Hussain Shah 1539 (awwad S. Khawaja, J) 2014S CMR 1539 {Supreme Court of Pakistan} Present: Jawwad S. Khawaja; Iqbal Hameedur Rahman and Mushir Alam, JJ MUHAMMAD BACHAL MEMON and others---Appellant , versus Syed TANVEER HUSSAIN SHAH and others---Respondents Civil Appeals Nos,5-K of 2014 and 311 to 314 of 2013, decided on 18th June, 2014, some ‘Scanned wih CamScanner1540 SUPREME COURT MONTHLY REVIEW _[Vol. XLVI (Against the judgments dated 28-10-2013 and 12-11-2010 passed by the Sindh Service Tribunal, Karachi and High Court of Sindh in Appeal No.95 of 2012 and Constitutional Petition No.D-890 of 2006 respectively) ‘(a) Sindh Civil Servants Act (XIV of 1973)--- Ss. 8 & 9--Sindh Civil Servants (Probation, Confirmation and Seniority) Rutes, 1975, R. Constitution of Pakistan, Arts. 139(3) & 240---Civil service---Cadres---Inter se seniority---Engineers working in different Government departments having separate seniority lists--~ Reconfiguration/merger of departments---Procedure---Creation of combined seniority list---Legality---First cadre of engineers worked in the Provincial Education Department---Second cadre of engineers worked in the Communication and Works Department (“C&W”) Department---Said two cadres continued their parallel existence alongside each other—As a result of reconfiguration of departments in the year 2002, Provincial Government created a new Works and Services department and a combined seniority list was prepared for engineers belonging from the two cadres on the basis that said two cadres purportedly stood merged---Held, under the constitutional scheme, administrative changes or allocation and reallocation of the business of the Province could be made under the Rules of Business made under Art. 139(3) of the Constitution but changes in the service conditions including seniority of civil servants could only be made under Art. 240 of the Constitution, something which was not done in the present case---Provincial Assembly did not make any amendments in the Sindh Civil Servants Act, 1973 or the rules framed thereunder Sor such purpose—Even if an attempt was made by the Provincial Government to provide for a change or merger of cadres it had to be done in accordance with the provisions of S. 8 of the Sindh Civil Servants Act, 1973, which related to seniority or through legislation--- Preparation of combined/joint seniority list for the engineers from the two cadres was not in accordance with the law---Appeal was disposed of accordingly. [pp. 1551, 1552, 1553] B, D & F (6) Fundamental Rules, 1922 wR. 9(4)—-Sindh Civil Servants Act (XIV of 1973), Preamble-—- “Cadre”---Term "cadre" was not defined in the Sindh Civil Servants Act, 1973---Term "cadre" as given in the Fundamental Rules, 1922 was not inconsistent with any of the provisions of the Sindh Civil Servants . Act, 1973, thus the same would apply to the service laws of the Province (i.e. Sindh). [p. 1550] A ‘Scanned wih CamScanner2014) Muhammad Bachal Memon v. Tanveer Hussain Shah 1541 (awwad S. Khawaja, J) (c) Sindh Civil Servants Act (XIV of 1973)—-- ---Ss, 8 & 26---Constitution of Pakistan, Art. 240-~-Inter se seniority of civil servants---Alteration in---Terms and conditions of service including seniority inter se between civil servants could only be altered/effected by means of an Act of the Provincial Assembly as had been expressly stipulated in Art, 240 of the Constitution or by rules made within the rule making power given in S. 26 of the Sindh Civil Servants Act, 1973. [p. 1552] C (d) Constitution of Pakistan--- rt. 139(3)---Civil service---Rules of Business of a Provincial Government---Rules of business could not be made in respect of service matters. [p. 1553] E (e) Civil service--- ----Government departments-- Merger of--- Cadres—- Merger of government departments did not by itself, amount to merger-of cadres. Ip. 1554] G M. Aqil Awan, Senior Advocate Supreme Court for Appellants (in C.A. 5-K of 2014). Muhammad Akram Sheikh, Senior Advocate Supreme Court for Appellants (in C.As. 311 - 312 of 2013). Mehmood A. Sheikh, Advocate-on-Record assisted by Faraz [Raza Advocate, Moazzam Habib, Advocate and Ms. Amina Sheikh, ‘Advocate for Appellants. _ Shoaib Shaheen, Advocate Supreme Court for Appellants (in C.A. 313 of 2013). Abdul Rahim Bhatti, Advocate Supreme Court for Appellants (in C.A. 314 of 2013). Hafiz S.A. Rehman, Senior Advocate Supreme Court for Respondent No.1 (in C.A.'5-K of 2014). M. Aqil Awan, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos.3, 4, 6, 7, 9 10 (in C.A. 311 of 2013). Wasim Sajjad, Senior Advocate Supreme Court assisted by Idris Ashraf, Advocate for Respondent No.3 (in C.A. 312 of 2013). ‘Nemo for other Respondents. ‘Scanned wih CamScanner1542 SUPREME COURT MONTHLY REVIEW {Vol. XLVIL Sibtain Mehmood, A.A.-G. for Province of Sindh. Dates of hearing: 7th to 10th and 17th April, 2014, JUDGMENT JAWWAD S. KHAWAJA, J.---This appeal (C.A. $-K/2014), by leave of the Court, has been filed by Muhammad Bachal Memon and 3 others. The appellants are engineers employed in the Works and Services Department of the Sindh Government. The principal contestant in this case is Syed Tanveer Hussain Shah respondent No.1. 2. The dispute between the parties arises on account of contention as to seniority inter se. This contention has arisen because of the creation of the Works and Services Department by the Sindh Government. The appellants impugn the judgment of the Sindh Service Tribunal dated 28-10-2013 whereby an appeal filed by the respondent No.1 was allowed and as a consequence the Provincial Government was directed to Prepare separate seniority lists in respect of civil servants noted in the impugned judgment. More importantly, however, in the impugned judgment it was held that “the preparation of a combined/joint seniority list of the Executive Engineers (BS-18) of the Works and Services Department as [it] stood on 1-3-2012 is not in accordance with law". The combined seniority list as a consequence was set aside and it was directed that promotions in the Works and Services Department will not be made on the basis of this combined list but on the basis of separate lists for those who were in the Education Department and the C&W Department. 3. In order to appreciate the controversy between the parties and to ascertain if the impugned judgment requires interference, it is necessary to set out very briefly the facts which have given rise to the dispute between the contesting parties. The appellants as well as respondent No.1 are Engineers. Prior to the reconfiguration of the Departments of the Sindh Government, there were two Departments in which one or the other of the parties was serving. The first Department was called the Communication and Works Department (C&W Department) and the other was the Directorate in the Education Department known as the Directorate of Education Engineering Works. The appellants were employed in the said Directorate in the Education Department. It is not disputed that separate seniority lists were maintained in respect of Engineers in the C&W Department and the Education Department and even subsequent to the creation of the Works and Services Department Separate seniority lists continued to be maintained. 4. At this stage it would be useful to set out some relevant facts relating to the employment and service record of the contesting parties ScmR ‘Scanned wih CamScanner2014) Muhammad Bachal Memon v. Tanveer Hussain Shah 1543 Qawwad S. Khawaja, 1) bet haya ye fespondent Syed Tanyeer Hussain Shah was Inducted in a 13-4-1998, the heat eee nas? and was promoted in BS-18 Memon was inducted nena a rein namely, Muhammad Bachal 13-7-1986 th BS an ee ice in the Education Department on controversy bene ad tas, Promoted to BS-18 on 2-3-1992. The Sleariati tie ¢ parties is highlighted by these simple facts. It is panos Poenonaeny Tanveer Hussain Shah was inducted into Becta erat Service in 1985 in BS-17 while the appellant Mubammad 1Oee erent Was inducted into service inthe same grade ie. BS-17 in dame qenarefore, had the two been appointed in ordinary course in the icine chai iment they would have been included in the same cadre both Urine engineers and as a consequence, the seniority would have been hee on the basis of dates on which they were initially recruited in ice. The dispute as to seniority arose subsequent to the reconfiguration of government departments and the creation of a combined seniority list. It is as a result of such list that the appellant Muhammad Bachal Memon has now been ranked senior to the respondent Syed Tanveer Hussain Shah; this being a result of promotion of Mr. Memon into BS-18 in 1992 in the cadre created and maintained by the Education Department as opposed to the promotion of Syed Tanveer Hussain Shah-in BS-18 in 1995 on the basis of the seniority list maintained by the C&W Department. 5. On 17-9-2002, a reorganization of the Departments of the Sindh Government was effected by assigning administrative responsibilities to the various departments in the Sindh Government. As a consequence the engineering works in the Education Department which were being undertaken by the Directorate of Education Engineering Works were transferred for government and administrative purposes to the Communication Department. Later in the same year on 1-11-2002, the government of Sindh created the aforesaid Works and Services Department. As a result engineers who were previously employed in the Education Department and in the C&W Department respectively, were brought under -the administrative, control of the Works and Services Department. 6. The contention between the parties has arisen, not on account of any reconfiguration/merger of administrative departments but has come about on account of the combined seniority list which has been prepared in respect of Executive Enginecrs (BS-18) of the Works and Services Department as on 1-3-2012, This list which is on file, purpor's to have been “prepared in pursuance of orders of Supreme Court of Pakistan in C.R.P. No.I-K of 2011 in C.A. No. 70-K/2010 According to the Iearned counsel for the appellants the combined seniority list as prepared by the Sindh Government is proper and rightly shows the appellants to be Sour ‘Scanned wih CamScanner1544 SUPREME COURT MONTHLY REVIEW [Vol. XLVIT senior to the respondent Syed Tanveer Hussain Shah‘ Learned counsel for the respondent, however, has argued that any reconfiguration of administrative departments by the Provincial Government is meant for administrative convenience and governance only. According to him, such reorganization cannot have any effect on the service structure and the rights including seniority of civil servants in the Province. 7. We have heard learned counsel for the parties at length and have also gone through the impugned judgment and record with their able assistance. At this juncture, it is important to note that the appellants in this appeal are respondents in connected Civil Appeals Nos. 311 to 314 of 2013. The respondent Syed Tanveer Hussain Shah is, along with others, appellant in Civil Appeal No.311 of 2013. In the connected appeals, a judgment of a Division Bench of the Sindh High Court dated 12-11-2010, has been impugned. According to the Sindh High Court, the merger or reconfiguration of administrative departments, by itself led to a merger of the two cadres with effect from 1-11-2002. It has, therefore, been held by the Sindh High Court that "preparation of two separate seniority lists is without Jawful authority and of no legal effect”. It is in this backdrop that the ‘dispute between the parties has to be resolved. 8. We: thus have two conflicting judgments before us; the first by the Service Tribunal and the second by a learned Divison Bench of the Sindh High Court. Both judgments have been assailed before us. Therefore, the question as to which forum i.e. the High Court or the Service Tribunal had jurisdiction to decide the issue in contention is of academic interest only. In cither event an appeal would lie to the Supreme Court whether under Article 212 or Article 185 of the Constitution. The point of law being the same in both cases, is to be adjudicated. | 9. Our understanding of the issue in contention between the parties has to originate from first principles. There are two provisions of the Constitution which have relevance in this context. Article 139(3) of the. Constitution stipulates that “the Provincial Government shall ... make rules for the allocation and transaction of its business". Article 240 of the Constitotion provides that "subject to the Constitution, the appointments to and the conditions of service of persons in the service ... of @ Province and posts in connection with the affairs of a’ Province" shall be determined by or under Act of the Provincial Assembly. Article 241 stipulates that until the appropriate legislature makes a law under Atticle 240, “all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force". The controversy which has arisen can be resolved by examining the various laws, rules and statutory L seme ‘Scanned wih CamScanner2014) Muhammad Bachal Memon y. Tanveer Hussain Shah 1545 (awwad S. Khawaja, J) instr i , ‘uments cited before us and tracing the same back to cither one of the (wo provisions of th tution vi i i ‘a De the Constitution viz. Article 139 or Article 240 a os _The core issue before us is as to whether the merger, creati rganization of the administrative: departments of the Government has a bearing on the service structure, seniority, promotions and other terms of service of civil servants employed in the service of the Province. According to the learned counsel representing the appeltants Muhammad Bachal Memon etc., the judgment of the High Court’ represents the correct interpretation of law. On the other hand, learned counsel representing Syed Tanveer Hussain Shah etc. have argued that this judgment has been rendered without examining the above referred constitutional provisions and without taking into account the Separate and distinct sources from which the administrative affairs of the Province and the Provincial laws respectively, relating to service matters derive their authority. Rules of Business of the Sindh Government made under Article 139 ibid show that the work of the Sindh Government was distributed and redistributed from time to time amongst the various administrative departments of the Province. Thus, the allocation of engineering works of the Sindh Government were assigned (0 departments in. which engineers having similar educational qualifications, work experience etc. were employed. As a consequence, we have noted that originally the building works of the Sindh Government were assigned to the works Department. Thereafter by means of notification dated 27-8-1991, a part of the aforesaid works was carved out of the responsibility of the Works Department and was assigned to the Education Department. ‘This was done by amending the Rules of Business prepared under Article 139 ibid, whereby in the scope of work allocated to the Works Department the words “except those entrusted to the Education Department” were inserted. 11, The amended Rules of Business will help in making matters clear and will facilitate understanding of the controversy between the parties, The period prior to and after 27-8-1991 may be juxtaposed as under to highlight the administrative changes in the various departments of the Sindh Government. Communtestions Department prior to Communications Department after 27-8-1991 27-8-1991 Construction, maintenance and repairs 1. Construction, maintenance and repairs of roads, bridges, ferries, tunnels, ‘of roads, bridges, ferries, tunnels, fopeway. causeways and’ wamway |’ ropeway, causeways and amway lines. lines, sear ‘Scanned wih CamScannerScuR 1546 SUPREME COURT MONTHLY REVIEW = (Vol, XLVI, 2. Engineering training other than-« neering training other than-~ Engineering Colleges; and (WH) Engineering Colleges; and () Engineering Schools, (iN) Engineering Schools. x er lon MAYS and Inland | 3, Inland waterways and intent ‘gation, navigation. a 4. Leases of Perries and Bridges, 4, Leases of Ferries and Bridges, 5. Road Fund, 5. Road Fund, 6. Service matters, except those entrusted | 6, Service matters, except those entsuster to the Services and General to the Services and Generat Administration Department, Administration Department. 7. Tolls (including those levied by Local | 7. Tolls (including those levied by Loe: " ny B Bodies and Local Council). Bodies and Local Council). (no change) p Works Department prior (o 27-8-1991 Works Department after 27-8-1991 | 1. Accommodation for Federal and | 1. Accommodation (or Federal and Provincial government servants in the Provincial Government servants in the Province, except that entrusted to the Province, except that entrusted to the Services and General Administration Services and General Administration Department. Department. $ 2, Building-~ 2. Building-- (a) Construction, equipment, (@) Construction, equipment, maintenance, repairs and fixation maintenance, repairs and fixation of rent of all Government buildings of rent of all Government buildings residential and non-residential, residential and non-resi¢eatial, including tents, dak bungalows and including tents, dak bungalows and circuit houses. circuit “houses [except those trusted the Education Department); (b) Public Health works pertaining to (b) Public Health works pertaining to Government buildings and Government buildings and Government residential estates. Government residential estates. 3. Service matters except those entrusted | 3. Service matters except those entrusted to the Services and General to the Services and General. “Administration Department. Administration Department. (change highlighted | [eaucation Department prior to 27-8-1991 | Education Department after 27-8-1991 4 1. Co-ordination of schemes for higher | 1. Co-ordination of schemes for higher studies aroad, studies abroad, Copy-right, ‘Scanned wih CamScanner2014) 9. 10. u Muhammad Bachal Memon v, Tanveer Hussain Shah 1547 (awwad S, Khawaja, J) «handicapped children, dumb and blind, General Education: (@) Primary education; (0) Secondary education; and (©) University education, Grant of Scholarships. Matter relating to Universities including those dealt with by the Governor as Chancellor. Promotion of scientific research. Production and distribution of education and scientific films, Deleted. Service matters, except those entrusted fo the Services and General Administration Department. Technical education and research, including Agriculure and Engincering Colleges, Polytechnic and Vocational Schools, but excluding Medical Colleges and Law Colleges. 10, ML. 12, Education of handicapped children, specially deat, dumb and blind, General Education:-- (a) Primary education; (b) Secondary education; and (©) University education, Grant of Scholarships. Matter relating to universities including those dealt with by the Governor as Chancellor. Promotion of scientific research. Production and distribution of education and sclemtisic films Deleted. Service matters, except those entfusted to the Services and General ‘Administsation Department. Technical education and_ research, including Agricultire and Engineering Colleges, Polytechnic and Vocational Schools, but excluding Medical Colleges and Law Colleges. Engineering Works pertaining tc Education Depariment_celating construction and _ maintenance —of network of Educational centers including sub-sectors like College Education, Technical Education, Physical Education and Miscellaneous Education. Servants Act, 1973 or the rules framed thereunder. (change highlighted) 12. It is thus, apparent that the items of work specified in Sr. No.12 above after 27-8-1991 constituted a change in the Rules of Business of the Sindh Government. The said item at Sr. No.2 prior to 27-8-1991 was covered in the item at Sr. No.2 assigned to the Works Department. It may be emphasized that no change was made in the Sindh Civil In the context of the present matter it appears that the change brought about in the Rules of Business was construed as a change in the service laws of employees in the Works Department and the Education Department. For reasons . considered in this judgment, this understanding of changes in the Rules of Business was erroneous. ScMR ‘Scanned wih CamScanner1548 SUPREME COURT MONTHLY REVIEW (Vol. XLvIr 13. With the promulgation of the Sindh Local Government Ordinance, 2001, the government of Sindh redistributed the responsibilities respectively of the Education Department and the C&W Department. On 1-11-2002, the Directorate of Engineering Services in the Education Department was merged with the C&W Department. What is Important to bear in mind at this stage is that the notifications which have been mentioned above were issued in exercise of the powers vested in the Government of Sindh by Article 139 of the Consiitution, There Was no decision or legislation or notification made under the service laws of the Province which laws trace their origins to Article 240 of the Constitution. 14. According to the learned counsel representing Tanveer Hussain Shah etc., the notifications and changes made: in the, administrative departments of the Sindh Government did not have any bearing on the Service structure and inter se seniority of the engineering cadre in the erstwhile Directorate of Education Engineering Works and the Cadre of Engineers in the C&W Department re-designated as Works and Services Department w.e.f, 1-11-2002. 15. It is instructive at this stage to examine the chronology of events starting from August 1991, relating to engineering works assigned to the Education Department. This can best be seen from the following:-- August | Establishment of Project Implementation Unit (PIU) headed by Project 1977 Director for 3rd Education Project Foreign Funded {I.D.A Credit No, 678- Pak), with one BS-20, one BS-I8, one BS-I7 and other Ministerial Establishment. 1983” | Maintenance and repairs works of Education Institutions was also assigned to PIU. 1984 The PIU was wound-up and was renamed as Directorate of Engineering Works in Education Department to carry out Annual Development Program (ADP) relating 10 Primary and Secondary Education [without making necessary amendment in Rules of Business of Communication and Works (C&W) and Education Department (ED)}. IDA credited Second Primary Education Project, ADB funded Science Education Project. Owing to opening up of regular Directorate and enhancement of their functions, they started recruiting Assistant Engineers (BS-17) on ad hoc basis, along with transferred. Staff of PIU 3rd Education Project. 191 Amendment was made in Rules of Business of Communication and Works (C&W) and Education Department (ED). The words “except those entrusted in the Education Department” were added at bottom of Serial No.9 of Buildings Department C&W. These functions were added at SI.No.12 in Education Depariment as under: “Engineering works pertaining to the Education Department relating 10 construction and maintenance of network of Education: Centres including scuin 2 ‘Scanned wih CamScanner2014) 1 Muhammad Bachal Memon v. Tanveer Hussain Shah 1549 (awwad §, Khawaja, 1) Ce a mak, elke acta, Technical educallon, physical education 2002 Administranh Administrative control of Education Works Directorate wai fered C&W Departent in the wake af Devolution Mn of 2001. Amendments were thea It Rules of Dusiness, deleting $.No,12 frum functlons af ED and ading these det 8.7 of Commietion Dip CAW Department While retaining the amendment. male Tn OT ia ft Department of C&W Department with addition of words “ee 9 (emphasis entrusted in the Education Department ai the bottom of is S.No, supplied) 16. The term "department" is defined in Rule 2(xi) of the Sindh Government Rules of Business, 1986 to mean an administrative unit in the Secretariat responsible for the conduct of business in a specified sphere and the term “business” as per Rule 2(iv) means all work done by the Government, Rule 3(ii) of the Sindh Government Rules of Business, _ 1986 further clarified thar the business shall be distributed amongst several Departments in the manner indicated in Schedule-II. The relevant part of business allocated to the Works and Services Department given in the Schedule-II is as under: "WORKS AND SERVICES DEPARTMENT (1) Construction, maintenance and repairs of Road bridges, ferries, Tunnels, ropeways, Causeways and tramways lines. (7) Engineering Works pertaining to the Education Department relating to construction and maintenance of network of Education Centers including sub-sections like college education, technical education, physical education and miscellaneous education. 9. Building- (a) Construction, equipment, maintenance, repairs and fixation of rent of all Government residential and non-residential, including tents, dak bungalows and circuit houses, Except those entrusted to the Education Department. (b) Public Health works pertaining to Government buildings and Government residential.” i erm " ", we find that this term has 17. Coming next to the term "Cadre", we find tha been defined in rule 9(4) of Fundamental Rules, 1922, The said Rule defines "cadre" to mean “the strength of the service or a part of the service sanctloned as a separate unit, Section 26(2) of the Sindh Civil ScMR Sma ‘Scanned wih CamScanner1550 SUPREME COURT MONTHLY REVIEW (Vol. XLVI Servants Act, 1973 provides that any rules, orders or instructions regarding any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and enforce immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act. The terms department” and “cadre are not defined in the Sindh Civil Servants Act, (1973 and the term “cadre” given in the Fundamental Rules is not inconsistent’ with any of the provisions of the Sindh Civil Servants Act, 1973. The same, therefore, will apply to the service laws of the Province, 18. The Sindh Civil Servants Act, 1973, as noted above, has been enacted pursuant to the provisions of Article 240 of the Constitution of Pakistan, 1973 and deals with the appointments and conditions of service Of persons, to and the terms and conditions of service of persons in connection with the affairs of the Province of Sindh and to provide for matters connected therewith and ancillary thereto. Section 8 of the Sindh Civil Servants Act, 1973 provides that for proper administration of a service, cadre or post the appointing authority shall cause a seniority list of the members for the time being of such service, cadre or post to be prepared. Section 9 of this Act provides that a civil servant possessing such minimum qualifications as may be prescribed shall"be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs. Rule 9 of the Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 provides that in each cadre in a department, there shall be a separate seniority list of a group of civil servants doing similar duties and performing similar functions and for whose appointment the same qualifications and experience have been laid down. Thus a cadre may be for the entire strength of the service or a pait of a service sanctioned as a separate unit, 19, What is of significance is that the cadre to which a civil servant belongs and the terms and conditions of his service or even the matter of promotion within his cadre can only be made by or under laws which are traced to and sourced in Article 240 of the Constitution, We are unable to see as to how allocation of administrative work or the configuration or re-designation of Government Departments or the framing of “rules for the allocation and transaction of business” of the Provincial Government can have an effect on the terms and conditions of service of a civil servant. We have made an effort to understand the argument of learned ASCs for Bachal Memon etc., that the reallocation of work within administrative Departments has the effect, ipso facto of merging ovo existing cadres and thereby altering, afer alia, the service, seniority and seu ‘Scanned wih CamScanner2014) Muhammad Bachal Memon v. Tanveer Hussain Shah 1551 Gawwad S. Khawaja, J) Promotion Prospects of a civil servant, Such a serious consequence can y follow declaring men ele rules expressly (or by necessary intendment) action. Furthersayee (Ne, consequence of a Governmental or legislative appropriate Adiiele ; re such law or rule must trace its origin to the legal instrument wi dl he Constitution i.e. Article 240 {bid because a allocation ane oe are the Rules of Business can only relate to the above, the term aoe cr the Government's business. And, as noted Gee ess" has been defined as “all work done by Governmeny tom a plain reading of Article 139(3) and the Sindh sheet ic ules of Business it is obvious that Article 139(3) does not ae us specified in Article 240 relating to “appointments to a ei litions of service of persons in the service of a Province” a suct matters can only be dealt with and regulated “by or under of a Provincial Assembly” as per requirements of Article 240 of the Constitution. After having heard learned counsel for the parties at great length and upon consideration in detail inter alia, of Articles 139 and 240 of the Constitution, the Sindh Government Rules of Business 1972, the Sindh Civil Servants Act, 1973 and the rules framed thereunder, we have arrived at the conclusions below. 20. From the date on which business relating to the Education Engineering Works was transferred and assigned to the Education Department, the Education Department became empowered to make initial recruitment of engineers for the engineering works assigned to it and a cadre was established for such engineers employed in the| Education Department. This cadre was distinct from the cadre for engineers in the C&\Y Department. These two separate cadres continued their parallel existence firstly upto 1-11-2002 when the Works and Services Department once again was assigned all engineering works including the work which was being undertaken by the Directorate of| Education Engineering Works within the Education Department. What is even more relevant is that even after 2002, the two cadres continued in parallel alongside each other. The learned Division Bench of the High Court in its judgment dated 12-11-2010 has observed that the wo streams merged into one which was a mujmua-al-bahrain. 21, It is at this point that the controversy before us is brought into bold relief, The High Court has proceeded on the basis of a judgment rendered in the case titled Nazir Ahmed Sheikh and others v. Govt. of Sindh and others dated 6-1-2004, The learned Bench in the precedent cas ce to a summary approved by the Governor of the istrative structure in the Districts of Sindh. nized into departments. It was observed ication dated 17-9-2002 the engineering ent were brought within the scope of case made refei Province relating to the admin: This structure was to be reorg: by the High Court that vide notifi works of the Education Departm ‘Scanned wih CamScanner1552 SUPREME COURT MONTHLY REVIEW [Vol. XLyin Fesponsibilities of the Communication Department through an amendment which was made in the Rules of Business. It has also been noted that thereafter, vide notification dated 1-11-2002, as a result of reconfiguration of departments, the works and services department was Cteated and it was clarified through a circular of 17-12-2002 that the Communication and Works Department had been renamed as the Works and Services Department. On this basis it was held in the cited Precedent that 1-11-2002 would be treated as the date on which the cadres “of all employees forming parts of Works and Services Department” would stand merged. This conclusion, we may say with utmost respect to the learned Judges in the High Court, appears to be a Tesult of inadequate assistance from the Bar because important Constitutional provisions mentioned above i.e. Article 139(3), Article 240 (ibid) and the implications thereof, were not brought to the attention of the learned Bench. , 22. As has been noted above, the terms and conditions of service including seniority inter se between civil servants can only be altered/effected by means of an Act of the Provincial Assembly as has been expressly stipulated in Article 240 of the Constitution or by rules made within the rule making power given in section 26 of the Sindh Civil Servants Act, 1973. The reasoning of the High Court in the case of| Nazir Ahmed Sheikh (supra) has been followed by the learned Division Bench of the Sindh High Court in its judgment dated 12-11-2010, impugned before us. Under the Constitutional scheme considered above, it is clear that administrative changes or allocation - and reallocation of the business of the Province can be made under the Rules of Business made under Article 139(3) (ibid) but changes in the service conditions including seniority of Civil Servants can only be made under Article 240 (ibid). The Provincial Assembly did not make any “amendments in the Sindh Civil Servants Act, 1973 or the rules framed thereunder. We, therefore, are unable to accept the reasoning of the learned, Division Benches of the Sindh High Court in the case of Nazir Ahmed Sheikh (supra) and in the judgment of 12-11-2010 impugned before us. 23. At this point we also need to take into account two orders of this Court which were referred to by ‘learned counsel representing Muhammad Bachal Memon, etc. The first order was dated 3-2-2003 and it was pursuant to this order that the matter was remanded to the Sindh High Court resulting in the judgment in the case of Nazir Ahmed Sheikh (supra). In this order dated 3-2-2003 the Supreme Court did not adjudicate the question as to whether one seniority list was to be made. The order of the Sindh High Court was set aside and the matter was remanded. The judgment dated 6-1-2004 in the case titled seux ‘Scanned wih CamScanner2014) M tuba mmad Bachal Memon v, Tanveer Hussain Shah 1553 Nazir Amy Qawwad S. Khawaja, J) i" ed Shei Proceedings, heikh (supra) was rendered in the post remand 4, The se Clerred (oy simply made int aa order of this Court dated 28-12-2010 which was ned counsel for Muhammad Bachal he following terms: fetal Memon was ine amearine the learned counsel for the parties, we dispose of wae ee ‘ssuance of joint seniority list of Engineering fase h orate and Communication Works Department. The Of the appellant shall be considered on its own merits by the Provinci i i ania ‘ial Selection Board No.1 within a period of three mia Sea ua sought to be reviewed but the review petition was Court ‘whe a ~10-2011. We have not been shown any judgment of this cout eee adjudication has been made as to the legality and ae 'y of the joint seniority list prepared by the respondent-department. In fact it was decided by this Court that the case of the appellant thereunder would be considered on its own merits by the Provincial Selection Board. It is, thus, clear to us that the adjudication of the question as to joint seniority list has come up before this Court for the first time in these appeals. 25. With great respect to the learned Judges of the High Court it is apparent that the implications of Articles 139 and 240 of the Constitution were not taken into account. Perhaps these constitutional provisions were not argued or brought to the attention- of the Court thus leading to a judgment rendered per incuriam. As has been considered above by us the rules of business cannot be made in respect of service matters. Even if an attempt is made by the Provincial Government to provide for aj change or merger of cadres this would have to be done in accordance with the provisions of section 8 of the Sindh Civil Servants Act, 1973, Which relates to seniority or through legislation. The issue before us is clearly an issue of seniority because Muhammad Bachal Memon etc. Claim to be senior to Tanveer Hussain Shah while the latter claims Seniority over Muhammad Bachal Memon etc. The issue of seniority is Gquintessentially a matter of service laws. It is for this reason that the provincial legislature has enacted the Sindh Civil Servants Act and has faid down the Law as to seniority in terms of section of the said statu, Seetion 8 ibid has been supplemented by the prescribed rules vit. the Sindh Civil Servants (Probation, Promotion and Seniority) Rules, 1975: It is stated in Rule 9 thereof that separate seniority list shall be maintained for each cadre in a Department, Prior (0 1-11-2002, the parties before us were employed in separat Department and Education Department. ‘Their cad te departments viz. C&W res were thus separate. ScuR ‘Scanned wih CamScanner1554 SUPREME COURT MONTHLY REVJEW (Vol. XLVI The separate Cadres continued, as noted above, even after 2002 and Separate Seniority lists were maintained even after 1-11-2002. It is only on 1-3-2012 that a combined seniority list has been prepared. We say with great Fespect that there is no legal basis for a combined seniority list even though there are two judgments of the Sindh High Court viz. i) judgment dated 12-11-2010 passed by Division Bench of the Sindh High Court in C.P No. D-809 of 2006 ete: and (ii) post-remand Judgment dated 6-1-2004 of the Division Bench of the Sindh High Court in C.P No. D-1983, 26. Following from the above, we hold that the merger of|g government departments does not by itself, amount to merger of cadres. Consequently, Civil Appeal No. 5-K of 2014, filed by Muhammad _ Bachal Memon and others, is dismissed and the Civil Appeals Nos. 311 to 314 of 2013, filed by Syed Tanveer Hussain and others, are allowed. The judgment dated 12-11-2010 passed by the learned Division Bench of the Sindh High Court is set aside while the judgment of the Service Tribunal dated 28-10-2013 is affirmed. The parties are left to bear their own costs. . MWA/M-38/SC Order accordingly. ‘Scanned wih CamScanner