' SABIHUDDIN AHMED, CJ.---The petitioner was a Chief Engineer working in the respondent No,2 Corporation and was eligible for promotion as Director. He was appointed Actg. Director (Engineering and Maintenance) w,e,f, 19th September, 2000, but apparently for his substantive appointment as such, approval of the Civil Aviation Authority was required. Accordingly, a letter dated 11th October, 2000 was addressed by the Respondent No,3, Director-General, Civil Aviation, soliciting approval of the authority for the petitioner's appointment as Director and such appeal was accorded by a letter dated 3rd November, 2000. Nevertheless, for some reasons his confirmation, as Director never took place and he continued to serve as Actg. Director till he proceeded on LPR in May, 2001 and thereafter retired in 2002. Thereafter, he approached the Respondent No,2 seeking his post-facto confirmation as Director Engineering for the purpose of pension and other retirement benefits in a higher grade but his request was declined by letter dated 19th November, 2002, operative part whereof reads as follows:- "Your request was put up for consideration of the Management. However, we regret to inform you that it has not been acceded to by the competent authority."
2. The "petitioner thereafter approached this Court under Article 199 of the Constitution basically contending that he was subjected to hostile discrimination inasmuch as several officers in identical position were allowed retirement benefits available to Directors. He further contended that having retired from the service of the respondent No,2, he was no longer a civil servant in terms of section 2-A of the Service Tribunal Act and the only remedy available to him was to approach this Court in constitutional jurisdiction. On the other hand, the respondents basically urged that the petitioner was never confirmed as a Director and each case had to be decided on its own merits. Moreover, it was emphatically argued that the jurisdiction of this Court stood barred under Article 212 of the Constitution.
3. Since we entertained certain doubts as to the jurisdictional aspects of the matter, we had requested M/s Manzoor Ali Khan and M.M. Aqil Awan, Advocate to assist us on the question whether a retired civil servant could invoke the jurisdiction of a Service Tribunal. Both learned counsel pointed out that there was a slight difference in the definition of the expression "civil servant" in the Civil Servants Act and the Service Tribunal Act inasmuch as the former was applicable to holder of civil post in connection with the affairs of the Federation (in presentee) the letter also applied to persons who had been civil servants under the Civil Servants Act, Mr. Manzoor Ali Khan also pointed out that while initially the definition of the expression was identical in both Statutes through a conscious amendment, section 2(a) of the Service Tribunals Act was amended so as to include a person having been a civil servant and an identical amendment was also made in Article 212 of the Constitution. Indeed, through an Act in 1997, section 2-A was inserted in the Service Tribunals Act stipulating, inter alia, that an employee of a statutory corporation would also be civil servant for the purpose of the said Act and the expression "civil servant" will have to be construed according to the definition clause. It is, therefore, obvious that the petitioner notwithstanding his retirement had to be treated as civil servant competent to invoke the jurisdiction of a Service Tribunal.
4. Mr. M.M. Aqil Awan also supported Mr. Manzoor Ali Khan's view to the above extent adding that pension was also a condition of service. Nevertheless, he contended that the jurisdiction of this Court would stand excluded only if an appealable order in terms of section 4 of the Service Tribunals Act existed.
5: Mr. Shabbir Ahmad Awan, learned Counsel for the Petitioner, realizing the above position did not seriously pursue the plea that on account of his retirement from service petitioner stood precluded from invoking the jurisdiction of a Service Tribunal. Nevertheless he argued that the petitioner was subjecied to hostile discrimination inasmuch as many of his colleagues who had been appointed as Acting Directors and not confirmed in that capacity on the date of their retirement from service were granted post-facto confirmation and given all financial benefits (including post-retirement benefits) available to a director. In this context, he referred to several such cases, in the Respondent No,2 and it may be pertinent to mention that of petitioner's colleague Mr. Nazir Kehar, who officiated as Director Engineering from 12-11-1999 till 18-9-2000 and finally retired on 5-2-2001.
Approval for his ,confirmation as Director was sought after his actual retirement i,e, in November, 2001 and yet he was given all financial benefits of a onfirmed director from 12-11-1999. On the other hand, the petitioner after having been appointed Acting Director in September, 2000 was never reverted till his actual retirement and his confirmation was also approved by the Civil Aviation Authority in October, 2000, while he was still in service. Yet for no ostensible reason the respondent No,2 failed to formalize his confirmation and also chose to deny him the retirement benefits of a director. Learned counsel argued that the petitioner had been denied the protection of fundamental rights guaranteed by Article 25 of the Constitution, which this Court could always enforce under Article 199 of the Constitution. In support of his contention, learned counsel placed reliance upon a recent pronouncement of the Honourable Supreme Court in Pakistan International Airlines v. Samina Masood, 2005 PLC (C.S.) 1335, where a petition questioning the vires of a provision in the Employees Service and Discipline Regulations of the respondent No,2 on grounds of being discriminatory in terms of Article 25 of the Constitution was held to be maintainable under Article 199 of the Constitution.
6. Mr. Yawar Farooqui, learned counsel for respondents Nos .2 and 3,on the other hand, relied upon the following observations from the leading judgment of Ajmal Mian, J., (as his Lordship then was) in the well-known case of I.A. Sherwani v. Federation of Pakistan, 1991 SCMR 1041.
"The Service Tribunal will have jurisdiction in a case which is founded upon terms and conditions of service even if it involves question of violation of the fundamental rights."
7. On the other hand, we have carefully gone through the pronouncement of the Supreme Court in Samina Masood's case. In the aforesaid case, their Lordships held the petition to be maintainable in view of the following:- "11. Conversely, the situation in hand is quite the reverse because the vires of the very term and conditions arising out of Regulation 25 is challenged for being violative of Article 25 of the Constitution and for being a discrimination purely based on sex. This challenge as such and singularly could not have been brought before the Tribunal, which in turn, had no authority to create a term and condition. It could only go into the question of violation or otherwise of an existent terms and conditions which may be challenged by a civil servant on numerous available grounds including one of being discriminatory. But that discrimination is referable only to the final order passed by a departmental authority within the purview of section 4 of the Service Tribunal Act. In the instant case, there was no order passed by the departmental authority original or appellate in violation of the already existing terms and conditions of service and thus, for getting a term and condition struck down on the basis of being violative of the fundamental rights guaranteed by the Constitution, the respondents could only resort to the High Court under Article 199 of the Constitution."
8. In our humble view, indeed, in I.A. Sherwani's case their Lordships justifiably proceeded to exercise jurisdiction under Article 184(3) of the Constitution because no Particular order of a departmental authority was involved (against which an appeal could be brought under section 4 of the Service Tribunals Act) but only a question of public importance relating to enforcement of a fundamental right was brought before the Court. The fact of the instant case, however, appeared to be somewhat different inasmuch as the petitioner had in fact applied for redress to the respondent No,2 and his request was rejected by a letter dated 19th November, 2002. Mr. Farooqui urged that this letter could always be treated as an order of a departmental authority. We tend to agree with the learned counsel to the extent that the mere fact that the petitioner could have challenged an order of a departmental authority on the ground of being violative of a fundamental right would not per se excluded the jurisdiction of a Service Tribunal to entertain an appeal.
9. The matter, however, does not seem to rest here. As repeatedly contended on behalf of the respondents the petitioner was never in fact promoted as director. As a necessary corollary, it would make the matter as one relating to the petitioner's fitness for promotion. Such question as is evident from the plain language of section 4 of the Service Tribunals Act beyond the appellate jurisdiction of a Service Tribunal. That being so the jurisdiction of this Court does not appear to be barred by virtue of Article 212 of the Constitution. Indeed, this Court rarely interferes with the exercise of discretion undertaken by the departmental authorities on the faith that they are better judges to determine a person's fitness for performing certain functions. As aptly observed by Shafiur Rehman, J., in Mian Abdul Malik v. Sabir Zamir Siddiqui (1991 SCMR 1129) that "criteria introduces an element of subjective evaluation on the basis of objective criteria". Indeed it needs to be shown that some objective criteria was followed while making a subjective evaluation and that oublic power was exercised for the purposes it was conferred honestly and fairly.
10. As far as the subjective evaluation of the petitioner's capability of holding the position of a director is concerned, it is evident from the record that the respondents themselves required him to perform the functions of a director (without formally promoting him) w,e,f, 19th September, 2000 till the date of his proceeding on LPR. It was explicitly stated in the letter dated October 11,2000 seeking approval of the Civil Aviation Authority that he was appointed Director Engineering and Maintenance and was judged to be most suitable for this position. Again the approval of such authority, which is stated to be required for effective promotion, was also granted on 3rd November, 2000 indicating that the authority also found him fit to perform the functions of a director. Nevertheless it is difficult to understand why the respondent delayed his promotion particularly when a post existed, and the petitioner fulti:led all conditions for promotion.
11. For the purpose of considering whether any objective criterion was followed or whether the petitioner was subjected to hostile discrimination violative of Article 25 of the Constitution, it may be appropriate to compare his case with that of his colleague, Mr. Kehar, who officiated as Director Engineering, retired from service on 5-2-2001 and yet after seeking post-facto approval, he was confirmed with effect from the date of his appointment as Director. The Minutes filed by the petitioner and not disputed by the respondents themselves indicate that there was no substantial difference between the two cases.
12. In the foregoing circumstances, we are constrained to observe that no objective criterion whatsoever was followed and the petitioner was subject to hostile discrimination forbidden by Article 25 of the Constitution. It is important to bear in mind that all public powers must be exercised honestly and fairly and management of large public sector organization cannot be allowed to run such an organization as their personal freedom. Such attitudes destroy public confidence in their working.
13. We would, accordingly, allow this petition to the extent that the Respondents Nos.2 and 3 are directed to reconsider the petitioner's case strictly in accordance with law.