' FAZAL-E-MIRAN CHAUHAN, J.---This order will dispose of Writ Petition No,1610 of 2005 and Writ Petition No,2452 of 2005.
2. Brief facts of this petition are that 23 vacancies of Kanungos were existed in District Rajanpur, which were to be filed from the posts of Patwaris of the District on the basis of seniority-cum- fitness. For these posts of Kanungos, 170 Patwaris were to be considered, but due to criteria laid down by the Departmental Promotion Committee only 45 Patwaris were considered on the meeting convened on 26-8-2002.
3. The Departmental Promotion Committee comprising of D.O.R., D.D.O.R. And A.D.O.R., Rajanpur by adopting the criteria out of 170 Patwaris of the District Rajanpur, considered only 43 Patwaris, who cleared the departmental examination of Kanungos.
4. On the basis of recommendation of Departmental Promotion Committee the District Officer (Revenue), Rajanpur issued order dated 26-8-2002 declaring that 23 Patwaris including the petitioners out of 43 to be appointed as Kanungos by promotion. Feeling aggrieved respondents Nos.5 to 7 along with other Patwaris of District Rajanpur informed the D.C.O. About the illegality committed by the Departmental Promotion Committee, whereby majority of the Patwaris were deprived of their entitlement of promotion. On having knowledge of patent illegality committed by the Departmental Promotion Committee, the District Coordination Officer, Rajanpur, vide his order dated 11-9-2002 set aside the promotion order dated 26-8-2002 and withdrew the same with immediate effect and also subsequently order regarding transfer and posting. The petitioners filed a revision under section 164 of the Land Revenue Act against the order dated 11-9-2002, of the District Coordination Officer, Rajanpur before the Senior Member (Revenue) Board of Revenue, Punjab, who set aside the order of the District Coordination Officer, Rajanpur and advised the aggrieved person to file appeal before the appellate authority i,e, Executive District Officer (Revenue) Rajanpur.
5. Respondents Nos.5 to 7 along with others filed appeal before the Executive District Officer (Revenue) Rajanpur, who vide his order dated 1-2-2003, accepted the same and modified the order dated 26-8-2002 with the direction to place the matter before the Departmental Promotion Committee for decision in accordance with law. Following the rule laid down by the Secretary, in the case titled Muhammad Aslam v. Executive District Officer (Revenue), directed that the case of the appellants before E.D.O (R) now respondents be taken up in the next Departmental Promotion Committee in accordance with rules.
6. The order of the Executive District Officer (Revenue) Rajanpur, dated 1-2-2003 was challenged before the Punjab Service Tribunal by respondents Nos.5 to 7 along with others. During the course of arguments before the Chairman, Punjab Service Tribunal, a consensus was adopted by the learned counsel for the appellants (Now respondents Nos.5 to 7). Learned District Attorney and the learned counsel for the petitioners that the Departmental Promotion Committee shall examine the case of the appellants (Now respondents Nos.5 to 7, and others) for promotion to the posts of Kanungos independently, unaffected by any order or judgment passed previously. ACRs and service record was also ordered to be considered on its merits without being prejudice by its previous decision.
' Keeping in view the consensus of the learned counsel for the parties, the learned Chairman, Punajb Service Tribunal disposed of the appeal with the observation that the Departmental Promotion Committee shall score out the conditions of passing of the examination of Kanungos by Patwaris, as the rules were subsequently amended. It was further ordered that meeting of the Departmental Promotion Committee shall be convened within a period of four months from the date i,e, 2-6-2003 for consideration of the promotion of the appellants (respondents Nos.2 to 7 and others) to the post of Kanungos.
7. On 5-7-2004 a tentative list of Kanungos inclusive the names of the petitioners was notified by the D.O. (Revenue), Rajanpur, which attained finality after expiry of the prescribed period of receiving objections. The appellants before the Service Tribunal filed C.Ms. Nos.209 to 222 to 2004 for implementation of the judgment of Punjab Service Tribunal dated 2-6-2003. These C.Ms. Were disposed of on the statement of Departmental Secretary, who appeared on behalf of the respondent-Department, that the Departmental Promotion Committee has fixed 15-3-2005 a date to implement the judgment of learned Chairman, Service Tribunal. On this statement the applicants before the Punjab Service Tribunal withdrew the C.Ms.
8. The Departmental Promotion Committee could not assemble on 15-3-2005 and was scheduled to meet on 29-3-2005. The seniority list prepared and being placed before the Departmental Promoted Committee is inclusive of the names of the petitioners. Being aggrieved of that, the petitioners filed the present writ petitions praying that the respondents had fallen into patent error of law by including the names of the petitioners and all others, who were promoted as Kanungos vide order dated 26-8-2002 and had already completed their probationary period of two years are again going to place before the Departmental Promotion Committee for recommendation or review of the order dated 26-8-2003.
9. It is contended by learned counsel for the petitioners that the petitioners along with others were promoted after subjective evaluation made by the Departmental Promotion Committee on the basis of objective criteria of seniority. The promotion order dated 26-8-2002 was passed by the competent authority and has been acted upon. The petitioners have already their probationary period of two years, therefore, the respondents have not locus poenitentiae as well as animus revertendi to rescind, alter or recall the proceedings of the Departmental Promotion Committee dated 26-8-2002. Since the petitioners were promoted on regular basis after completion of probationary period they stood confirmed. In such a situation cannot be reserved arbitrary by the respondents by reopening the entire matter which stood closed. Thus inclusion of the names of the petitioners in the subsequent Departmental Promotion Committee is illegal and without lawful authority.
' He further argues that the Departmental Promotion Committee has no powers to reopen as well as review the selection made by the earlier Departmental Promotion Committee on 26-8-2002. The petitioners are no more Patwaris after having been lawfully promoted as Kanungos, who after completing their probationary period stood confirmed, therefore, their inclusion in the list of Patwaris going to be considered by the next Departmental Promotion Committee held on 29-3- 2005 amounts to review and recall of earlier order. It is argued that in para. 9 of the judgment of the Punjab Service Tribunal direction or ratio of the judgment was that the case of the appellants before the Service Tribunal and others to the post of Kasnungos. In para. 8 of the judgment, it is observed that a consensus was adopted by learned counsel for the appellant, District Attorney and learned counsel for the private respondents that the Departmental Promotion Committee shall examine the case of the appellant for promotion and not the case of the respondents ,before the Punjab Service Tribunal. The word 'other' mentioned in para. 9 of the judgment does not qualify the private respondents i,e, the petitioners. He further argues that the tentative seniority list of Kanungos of the Rajanpur District was issued on 5-7-2004 by the District Officer (Revenue) and names of the petitioners are mentioned in the said list meaning thereby that they were not considered by the Departmental Promotion Committee to be convened on 29-3-2005 and the inclusion of their names subsequent to issuance of letter dated 5-7-2004 in the list of Departmental Promotion Committee reflects on the mala fides of the respondents. The seniority already given to the petitioners stood final. It is a vested right and it cannot be altered for any extraneous consideration. It is further argued that C.Ms.Nos.209 to 222/04 moved in civil appeals before the Punjab Service Tribunal by the respondents were not maintainable, competent, hence the order passed on the same is ultra vires to Article 172 of the Constitution of Islamic Republic of Pakistan, which says that no Court shall exercise jurisdiction unless specifically conferred upon it.
The Punjab Service Tribunal was not vested with the powers to review its judgment, therefore, the judgment dated 7-3-2005 is void, coram non judice and repugnant to Article of the Constitution. It is also argued that since the petitioners were promoted on 26-8-2002 having completed their period of probation and stood confirmed, thus the judgment of learned Punjab Service Tribunal is coram non judice and was passed without jurisdiction barred by section 4(1)(b) of the Punjab Service Tribunals Act, 1974. The impugned order of Punjab Service Tribunal and its implementation by the respondents is illegal and does not affect the rights of the petitioners. It is further argued that pre-requisite for promotion of the posts was seniority-cum-fitness. 'Eligibility for promotion is an event to be seen by the authorities while preparing working paper for consultation of the Departmental Promotion Committee dated 26-8-2002. Fitness of a person is an activity which is an act of Departmental Promotion Committee which has to see the merits subjectively on the objective criteria. The Departmental Promotion Committee in its deliberation or unanimous decision declared the petitioners fit to be promoted as Kanungos. Thus the findings of the Punjab Service Tribunal to entertain the appeals and exercise jurisdiction, while setting aside the earlier Departmental Promotion Committee is a nullity in the eye of law. On the question of locus poenitentiae, it is argued that a valuable right was created as a consequence of passing of the order dated 26-8-2002 by the Departmental Promotion Committee as the order was acted upon when probation of two years was completed and after probation they stood confirmed by the respondents Nos.1 to 4 and thereafter a tentative seniority list was prepared and notified. Further that valuable right was created in their favour which cannot be altered, declined or modified in any manner in any case. It is also argued that the seniority-cum-fitness was the criteria of fitness was to be seen by the Departmental Promotion Committee, and if approved by the Departmental Promotion Committee, acted upon by the authority in the lawful manner then it cannot be challenged before the Service Tribunal under rule 9 of the Punjab Service Tribunals Act, 1974. The promotion order dated 28-6-2002 was on the recommendation of the Departmental Promotion Committee, by departmental competent authorities, thus section 4(1)(b) of the Punjab Service Tribunals Act, 1974, explanation says that the departmental authorities was competent to pass order under the law. The proceedings conducted by the Departmental Promotion Committee had attained finality and vested right had accrued. Thus golden rule of locus poenitentiae is attracted; hence a Departmental Promotion Committee cannot review the earlier decision and recommendation of the Departmental Promotion Committee. This was a closed and past transaction, unequivocal under the law. No right of the respondents was affected in the order of promotion dated 26-8-2002 passed in a legal manner, after fulfilment and observation of all rules and regulations thus cannot be disturbed without issuance of show-cause notice to the petitioner containing legal valid reason. Reliance is placed on 1994 SCMR 2232 Anisa Rehman's case. It is contended that a document dated 15-2-2003 a letter from the Section Officer speaks, if at all, some proceedings are to be taken against the petitioners, they are entitled to show-cause notice before proceeded with. The seniority list which has not been banned is the seniority list of 2002, whereas, the seniority formed in 2002 to 2004 has not taken into consideration. The respondents are duly considered for seniority list of 2002 and, thereafter they want to reopen the same afresh, whereas, they are no more in that list. The names of the petitioners have been included in the new list prepared by the Departmental Promotion Committee, whereas the petitioners are not more Patwaris and their names cannot be included in the said list of Patwaris nor they are to be reconsidered for promotion for Kanungos because they are still working as Kanungos since 2002.
The Departmental Promotion Committee of 2002 was never set aside and is still intact.
9. Conversely, learned counsel for the respondents Nos.5 to 7 argues that the writ petitioners have not challenged the orders passed by the Punjab Service Tribunal before the Hon'ble Supreme Court of Pakistan if they were aggrieved by the said judgment, which now has attained finality and the same cannot be challenged through the writ petition. It is further contended that the right which is the foundation of an application under Article 199 of the Constitution should be a personal and individual right. A person can be said to be aggrieved only when he is denied of such legal right by someone who has a legal duty to perform relating to that right. The only such justifiable right in existence give jurisdiction to the High Court in the matter. Unless and until such right is not available no order can be issued under Article 199. The petitioners by filing the instant writ petition had tried to get a relief from this Court under Article 199 for establishing the right of their confirmation as Kanungos, which was never given to them by the Punjab Service Tribunal before whom the promotions of the petitioners were challenged. The Punjab Service Tribunal was the competent authority to judicially determine the legality or illegality of the Departmental Promotion Committee's decision, hence, the writ petition under Article 199 is not maintainable and is liable to be dismissed. (He relied upon 2005 SCMR 445). It is further contended that the decision of the Departmental Promotion Committee dated 26-8-2002 and rejection of appeal of the respondents by E.D.O.R. Were challenged before the Punjab Service Tribunal under section 4 of the Punjab Service Tribunals Act, 1974, Punjab Service Tribunal was competent to judicially scrutinize the promotions, eligibility of civil servants to be considered for promotion, because it relates to the terms and conditions of service of the petitioners. The writ petitioners cannot challenge any order passed with regard to their terms and conditions of the service through filing writ petition under Article 199 of the Constitution before the High Court because the jurisdiction under Article 212 of the Constitution has been specifically ousted and barred. He further argues that according to the judgment of the Punjab Service Tribunal dated 2-6-2003, a meeting of the Departmental Promotion Committee had been convened on 12-4-2005 in which reportedly all the Patwaris were considered including the petitioners and the second meeting is still to be convened in the near future. If a decision taken by the Departmental Promotion Committee is against the petitioners and they feel some grievance then they could file an appeal as provided under the relevant rules before the competent authority and thereafter if their grievance remained un-redressed, then can approach Punjab Service Tribunal. Any order/decision taken by the Departmental Promotion Committee affecting the rights of the petitioners which can be challenged by the petitioners before the Punjab Service Tribunal. The writ petition in its present form is not maintainable at intermediate stage. (2005 PLC (CS) 129). He further argues that the writ petition is not maintainable against the issuance of show-cause notice because this is not the final order under the law. Only 23 posts which were vacant in District Rajanpur were filled through promotion which were challenged by the respondents along with other Patwaris and the final judgment by the Punjab Service Tribunal was delivered upon the appeal filed by the aggrieved persons and the Departmental Promotion Committee was directed to consider the case of the appellants and other by scoring out the conditions of passing of examination of Kanungos of all the Patwaris regarding 23 vacant posts, if the version of the petitioners taken in the writ petition is accepted as correct then the order passed by the Punjab Service Tribunal disposing of the appeal with the consent of the parties would be nullified and the purpose of filing of appeal before the Punjab Service Tribunal would become redundant. The petitioners had tried to mislead the Court by twisting the facts and taking stand which is not supported by any law. The Chairman, Punjab Service Tribunal while allowing the appeal filed by the respondents in which the writ petitioners were also party, directed the Departmental Promotion Committee to consider the case of promotion by scoring out the condition of passing of examination of Kanungos, because rules were subsequently amended. This order was never challenged by the writ petitioners before the Supreme Court of Pakistan and the same had attained finality. It is incorrect to suggest that the petitioners were confirmed through any order, because the promotions recommended by the Departmental Promotion Committee was challenged by the respondents through appeal before Punjab Service Tribunal which was allowed by the consent of the parties and the case was sent back to the Departmental Promotion Committee to reconsider the case of appellants and other for promotions without keeping in mind the condition of passing the examination of Kanungos at the time of promotions hence, the question of probationary period or its completion or confirmation does not arise. He further argues that it is incorrect that the Departmental Promotion Committee itself is conducting or doing any act regarding the promotions of petitioners or respondents, rather it is implementing the judgment of Punjab Service Tribunal dated 2-6-2003. The Departmental Promotion Committee was directed to convene meeting and consider the promotions as mentioned above as per amended rules. It is also argued that promotions claimed by the petitioners were subject to departmental remedy as well as judicial scrutiny before the Punjab Service Tribunal. Since the respondents were wrongly ignored by the Departmental Promotion Committee, the Punjab Service Tribunal setting aside the recommendation of the Departmental Promotion Committee and rightly directed the Departmental Promotion Committee to reconsider the case of the petitioners, the respondents and others as per amended rules afresh. It is further argued that the application for implementation of the judgment of the Punjab Service Tribunal and the order passed by the Departmental Promotion Committee convened on 12-4-2005 is pending adjudication before the Punjab Service Tribunal meaning thereby the matter is sub-judice before the Punjab Service Tribunal and if the petitioners have any grievance shall approach Punjab Service Tribunal.
10. Learned A.A.-G. Appearing on behalf of respondents Nos.1 to 4 submits that the Departmental Promotion Committee could not be held on 15-3-2005 because Board of Revenue nominee member does not possess authority and it has been adjourned to 29-3-2005. On 29-3-2005, one member of Board of Revenue was absent so the meeting was adjourned to 12-4-2005. It is further argued that the respondents in compliance of the decision of Punjab Service Tribunal considering the cases of the petitioners as well as of the respondents and shall decide the same on merits. The apprehension of the petitioners that they will be ignored or not considered is not correct if they qualified for promotions, they will be considered in accordance with law.
11. I have heard learned counsel for the parties and perused the record. Learned counsel for the petitioners had tried to make out a fresh case out the remand order of Punjab Service Tribunal.
Respondents Nos.5 to 7 being aggrieved of the Departmental Promotion Committee meeting dated 26-8-2002 were ignored by the Departmental Promotion Committee and on their appeal, the D.C.O. Rajanpur vide his order dated 11-9-2002 set aside the promotions order dated 26-8-2002 and withdrew the same with immediate effect and all subsequent orders regarding transfer and posting. The petitioners being aggrieved of this order filed revision under section 164 of the Land Revenue Act, 1967 before the Senior Member Board of Revenue, Punjab, who vide his order dated 26-11-2002 set aside the order dated 11-9-2002 and advised the aggrieved persons to file appeal before appellate authority EDO (R) Rajanpur. The appeal of respondents No,5 to 7 was accepted vide order dated 1-2-2003 modifying the order dated 26-8-2002 directing to place the matter before the Departmental Promotion Committee following the rule laid down in case titled Muhammad Aslam v. E.D.O.R. Passed by the Secretary Board of Revenue, Punjab. This order of E.D.O.R dated 1-2-2003 was challenged before Punjab Service Tribunal by respondents Nos.5 to 7 along with others. During the course of arguments a consensus was adopted by the learned counsel for the appellant (now respondents Nos.5 to 7), learned District Attorney and learned counsel for the petitioners that the case be remanded back to the Departmental Promotion Committee, which shall examine the case of the appellants and others for promotions to the posts of Kanungos independently, unaffected by any order or judgment passed previously meaning thereby that all the subsequent orders passed in favour of the petitioners or others.
12. The contention of learned counsel for the petitioners is that as per remand order of the Punjab Service Tribunal, the respondent departments were directed to reconsider the case of the appellants/respondents and others. The petitioners are not covered by word "others" used in the remand order as the petitioners were no more Patwaris at the relevant time and their promotion order attained finality thus the case of the petitioners cannot be reopened by the respondents departments under the garb of remand order of the Punjab Service Tribunal. He further argued that a right vested with them which cannot be taken away in this manner under the garb of remand order. Learned counsel for the petitioners had tried to make out a case from the remand order which was not intended by the Punjab Service Tribunal as is evident from its order. The remand order was passed by the Punjab Service Tribunal with the consensus of the appellants and respondents before the Tribunal. The present petitioners were also one of the respondents before the Punjab Service Tribunal thus the order passed by the Punjab Service Tribunal is applicable to the case of the petitioners and any direction or order passed by the Punjab Service Tribunal to reconsider the case of the appellants and others includes the petitioners of the instant writ petition.
If at all the petitioners were aggrieved of the remand order there was an option with the petitioners to file the appeal before the Supreme Court of Pakistan challenging the remand order raising all the objections and contentions which have been raised through this writ petition by not going in appeal in the Supreme Court of Pakistan. The petitioners had submitted themselves to the spirit and direction of the Punjab Service Tribunal and cannot be allowed to raise the same through this writ petition under the garb of interpretation of the Punjab Service Tribunal. The interpretation given by the learned counsel for the petitioners is not correct. The petitioners even could have raised the objection at the time when the order was being passed by the Punjab Service Tribunal and if the order was not passed in their presence they should have moved an application to the Punjab Service Tribunal, seeking clarification of the order as to whether the case of the petitioners is also to be reconsidered by the Departmental Promotion Committee as directed by the Punjab Service Tribunal. The petitioners once having submitted to the jurisdiction of the Punjab Service Tribunal are bound by the order passed by the Tribunal and are estopped from raising this objection, through this writ petition which is not maintainable under the law. Even otherwise all the points now being raised by the petitioners subsequent to the decision of the Punjab Service Tribunal is of no help to the petitioners if any adverse order is passed against them by the Departmental Promotion Committee or otherwise are aggrieved of any decision of the Departmental Promotion Committee they had a right to challenge the same before the competent authority and thereafter can go to the Punjab Service Tribunal for the redressal of their grievance. All objections' raised through this writ petition germane to the terms and conditions of the service and the same are exclusive triable by the Punjab Service Tribunal and jurisdiction of all others Courts including High Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan. From the perusal of the judgment of the Punjab Service Tribunal it transpires that all the legal and factual objections which are being raised now were raised before the Punjab Service Tribunal and the petitioners subsequently instated of getting decision on merits of the appeal agreed to the proposition proposed by the Punjab Service Tribunal and the appeals were disposed of in the light of the agreed proposal by the Punjab Service Tribunal. The petitioners are estopped from raising such objections by indirectly challenging the order of Punjab Service Tribunal through this writ petition.
The objections raised that reconsideration of the case of the petitioners along with others amounts to re-opening of their case is incorrect. The respondents department is not reopening the matter to the detriment of the petitioners of its own but the Departmental Promotion Committee of all the concerned including the petitioners were ordered to be re-considered by the Punjab Service Tribunal and the respondents department in compliance of the order of Punjab Service Tribunal are proceeding in the matter. The Punjab Service Tribunal while allowing the appeals directed the Departmental Promotion Committee to reconsider the case of promotion by scoring out the condition of passing of examination of Kanungos because rules were subsequently amended, this order of Punjab Service Tribunal was not challenged by the petitioners before the Supreme Court and the same has attained finality. Since the respondents were wrongly ignored by the Departmental Promotion Committee, the Punjab Service Tribunal rightly with the consent of the parties set aside the recommendation of the Departmental Promotion Committee and rightly directed to reconsider the case of the respondents (Petitioners) as per amendment of rules afresh.
Even otherwise learned counsel for the respondents while arguing the case pointed out that the application for implementation of the judgment of the Punjab Service Tribunal and order passed by the Departmental Promotion Committee convened on 12-4-2005 is pending adjudication before the Punjab Service Tribunal meaning thereby the matter is sub judice before the Punjab Service Tribunal and if the petitioners have any grievance they shall approach the Punjab Service Tribunal.
This fact is not, denied by learned counsel for the respondents.
13. For the reasons discussed above, I see no merit in this writ petition, the same is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.