We intend to decide the following intra court appeals by one consolidated order having similar facts and law:- 1 ICA No.147/2004 2 ICA No.148/2004
2. The brief facts out the which the aforesaid intra -Court appeals arise are that the appellants filed W.P.No.5046 of 2004 and W.P.No.5047 of 2004 with the following prayer:- " It is, therefore, most respectfully prayed that by accepting the titled writ petition, the order dated 26.3.2004, passed by respondent No.2 and subsequent conveyance of the aforesaid order by the concerned District Police Officer. Dated 27.3.2004 may very kindly be declared as illegal, ultra vires, without jurisdiction, not binding on the rights of the petitioners and the petitioners may very kindly be declared confirmed from the date of their appointment as Assistant Sub Inspectors of Police."
Learned single Judge dismissed both the Constitutional petitions by two independent orders dated 8,4.2004 wherein the Constitutional petitions were dismissed as not maintainable in view of bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunals Act, 1975. The appellants being aggrieved filed the aforesaid appeals.
3. Learned counsel of the appellants submits that competent authority passed order dated 26.3.2004 under the heading "Removal from probation reversion to substantive rank of Head Constable i.e.f.26.3.2004". Learned single Judge erred in law to dismiss the Constitutional petitions of the appellants without adverting to Section 4(1)(b) of Service Tribunals Act, 1975. Therefore, impugned order is not in consonance with the law laid down by the superior Courts. In support of his contention he relied upon the following judgments:- Ageela Asghar Ali's case (PLD 1991 S.C.1118) Mian Abdul Malik's case .(1 991 SCMR 1129) ZA.Javed Raja's case (1996 SCMR 329) Muhammad Anis's case (PLD 1994 S.C.539)
He further submits that impugned orders were passed by the D.I.G. Wherein promotion of the appellants was not confirmed by this fact was not considered in its true perspective by the learned single Judge in the impugned orders. He further submits that appellants have no alternative remedy to file appeal before the Service Tribunal qua the fitness for confirmation of the appellants as A.S.I. He further submits that question of eligibility is to be determined by the competent authority against which no appeal is prescribed under the law before the Service Tribunal in view of Section 4(1)(b) of Service Tribunals Act, 1975.
4. We have given our anxious consideration to the contentions of the learned counsel of the appellant and perused the record.
5. It is better and appropriate to reproduce para-4 of the impugned order to resolve the controversy between the parties:- "The submission of the learned counsel has been oonsidered. Petitioner's fitness for confirmation cannot be equated with fitness for promotion. Un-disputedly the petitioners had been promoted and subjected to probation for a period of two years. It may also be added that a provision which excludes jurisdiction of a Court or Tribunal has to be strictly construed. I am, therefore, of the view that the question' whether the petitioners were entitled to confirmation and. Whether they were' fit for confirmation is within the jurisdiction of the learned Punjab Service Tribunal. This petition is, therefore, dismissed as not maintainable as far as petitioners No.1 to 7 are concerned. The petitioners may have recourse to the remedies available to him under the law."
Mere reading of operative part with the impugned order of D.I.G. Dated 26.3.2004 clearly reveal that appellants were reverted to their substantive rank of Head Constable. It is settled principle of law that appellants have to file appeal before the Service Tribunal against the reversion order in view of the law laid down by the Honourable Supreme Court in the following judgments as the matter pertaing to the terms and conditions of service of the appellants who are admittedly civil servants:- M. Yamin Qureshi's case (PLD 1980 S.C.22) .
Abdul Wahab Khan's case (PLD 1989 S.C.508)
It is pertinent to mention here that question of fitness does not arise in these cases. In fact the appellants , as mentioned above, were reverted to their substantive rank, therefore, learned single Judge was justified to non-suit the appellants on account of bar contained in Article 212 of the Constitution read with Section 4 of the Service Tribunal Act. It is pertinent to mention here that reversion of the appellants from the post of A.S.I. To the post of Head Constable do not involve any determination of the fitness of the appellants to hold or not to hold the above posts. In arriving to this conclusion we are fortified by the following judgments:- Mohibullah's case (PLD 1978 Lahore 813)
Mutaqqi Hussain Rizvi's case (PLD 1978 Karachi 703)
Sher Muhammad's case (PLD 1979 Karachi 1)
It is settled principle of law that reduction of rank is termed as major punishment/penalty in view of Rule 4 of Punjab Civil Servants (Efficiency and Discipline Rules) 1975. Even otherwise reduction in rank is termed as punishment. In arriving to this conclusion we are fortified by the following judgments:- Muhammad Aslam's case (NLR 1994 Service 101) Muhammad Ahsan's case (NLR 1980 TD 156)
Muazzam Hussain Khan's case (PLD 1958 Karachi 1) Muhammad Sajjad Ali's case (PLD 1962 S.C. 71)
Ch. Muhammad Bashir's case (PLD 1958 Lahore 206)
It is also settled principle of law that .Each and every case has to be decided on its own peculiar circumstances and facts. The judgments cited by the learned counsel of the appellants are distinguished on facts and law as in the present case the appellants were reverted by the competent authority to their substantive rank whereas in the cited cases the civil servants were not reverted to their substantive ranks.
In view of what has been discussed above, we do not. Find any infirmity or illegality in the impugned order of the learned single Judge. These intra Court appeal have no merit and the same are dismissed.