1. The petitioners who are B. Sc. (Eng.) were recruited on the recommenda--tions of the Public Service Commission dated 9-9-1972 as Assistant Executive Engineers in Class I (Junior) by the Government of the Punjab. Irrigation and Power Department, vide Notification No. Estt. 1/A, P-2-70, dated 24-11- 1972. On 24-4-1973 Notification No. S. O. R. III (S. & G. A. D.) 2-13/72 was issued to the following effect: "In continuation of the Orders contained in S. & G. A. D's Notification No. S. O. R. III-2-25/70, dated the 3rd May, 1972 the Governor of the Punjab is pleased to revise the pay scale of Sub-Divisional Officers in the Irrigation & Power Department, Communication and Works Department, Housing, Physical Planning Department and Public Health Engineering Department promoted from the rank of Overseers, from Rs. 350-35-525/40-925 to Rs. 450-50-1,000. Their pay in the revised scale of Rs.
2. 450-50--1,000 will be fixed in accordance with rule 4,4 (a) (ii) of Civil Service Rules Punjab, Vol. I, Part I, with effect from the date of the notification. They will not however, become members of Class I Services of respective Departments unless they acquire the A. M. I. E. Qualification.
(2) The Governor is further pleased to decide that promoted Sub---Divisional Officers, who possess A. M. I. E. Qualification shall be treated as regular members of the Class I Services of their respective Departments provided their promotion is approved by the Public Service Commission."
3. On 17-11-1975, Notification No. M-30 8-S. O. II (E) 70 (Vol. II) was issued to the following effect :- "Pursuant to para. 2 of the Government of the Punjab, Service, General Administration and Information Department's Notification No. S.O.R. III-(S. & G A. D.) 2-13/72, dated the 24th April, 1973, the Governor of the Punjab is pleased to order that the following officiating Sub---Divisional Officers, promoted from the rank of Overseers (Sub---Engineer), with the approval of the Public Service Commission, and possessing A. M. I. E. Qualification shall be treated as regular members of the Irrigation Engineers Service Class I (P. S. E. I.) with effect from 24-4-1973 :-
(1) Mr. Aziz-ur-Rehman,
(2) Mr. Qaisar Abbas Jafri,
(3) Malik Gulzar Ahmad (I),
(4) Mehr Muhammad Ali,
(5) Mr. Muhammad Ashraf Ali,
(6) Mr. Muhammad Anwar-ud-Din,
(7) Pir Abdul Qaddus,
(8) Ch. Fateh Muhammad."
4. These persons are respondents Nos. 3 to 10 in this Constitutional petition. According to the learned counsel for the petitioners since this Notification did not affect the petitioners in their service they having been appointed Class I in 1972 whereas these persons were treated as Class I in 1973, the petitioners did not challenge this Notification. Another Notification No. S, O. R-III 2-23/73, dated 11- 10-1976 was issued to the following effect:-- "In partial modification of his orders contained in paragraph 2 of S. G. A. & I. Department's Notification No. S. O. R-III (S. & G. A. D.) 2-13/72 dated 24-4-1973, the Governor of the Punjab is pleased to grant Class I (Junior) w. e. f. 22-7-1971 to the Sub. Divisional Officers promoted from the rank of Overseers possessing A. M. I. E. Qualification subject to the following considerations :--
(a) They held A. M. I. E. Qualification on 22-2-1971 ; and
(b) Their promotion as Sub-Divisional Officer had been approved by the Public Service Commission before 22-7-1971."
5. Then, on 24-12-1976 Notification No. S. O. E. (II) M-30/8-70 Vol. II, was issued to the following effect :- "In pursuance of Government of Punjab, Services, General Administration and Information Department's Notification No. S. O. R. III-2-23/73 Dated 11-10-1976, the Governor of the Punjab is pleased to induct the following Sub-Divisional Officers (Possessing A. M. I. E. Qualifica--tions) in Class I (Junior) with effect from 22-7-1971."
6. The Sub-Divisional Officers mentioned are the same as above-mentioned and they are respondents Nos. 3 to 10 in this petition. Since the respondents were inducted into Class I (Junior) retrospectively w. e. f. 22-7-1971 thus becoming senior to the petitioners, who were appointed on 24-11-1972, their rights were affected and consequently the petitioners made a representation on 8-2-1977. A reminder was submitted on 27-5-1977. No action having been taken, the petitioners filed an appeal against the Notification dated 11-10-1976 above-mentioned before the Punjab Service Tribunal, Lahore, but the same was dismissed relying on the proviso (b) to section 4 of the Punjab Service Tribunals Act, 1974, which runs as under :- ---No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
7. This is vide order dated 22-2-1977. The petitioners filed Writ Petition No. 1069 of 1977 which was found to be premature as the petitioners' representation before the departmental authority had not yet been disposed of. This is a vide order dated 17-6-1977. The order was maintained in Intra--- Court Appeal No. 60 of 1977 on 23-6-1977. The petitioners' representation was not yet decided when Notification No. Estt. 1/P. R. 3/76 dated 7-7-1977 was issued to the following effect :-- "The Governor of the Punjab, on the advice of the Provincial Selection Board, is pleased to promote the following Assistant Executive Engineers (Grade 17) of the Irrigation and Power Department to officiate as Executive Engineers (Grade 18) on purely temporary basis and until further orders."
8. The officers concerned are respondents Nos. 3 to 8. The petitioners' representation was finally accepted by the Government of the Punjab, Services General Administration and Information Department when it was intimated to the Secretary to Government of Punjab, Irrigation & Power Department on 8-11-1977, that: "I am directed to refer to the correspondence resting with D. O. No. M. 30/8-S. O. II (E) 70 Vol. II, dated 27-10-1977 from Ch. Talib Hussain, Deputy Secretary (Adorn) I & P Department and to point out that Public Service Commission correspondence supplied with D. O. Under reference shows that the promotion of eight A. M. I. E. Assistant Engineers has been approved by the Commission before 22- 7-1971 only on stopgap officiating basis. That cannot be construed as promotion on regular basis, unless there is clear evidence of Commission's approval to regular promotion of the eight A. M.I. E.
9. Assistant Engineers before 22-7-1971, the A. D's order of conferment of Class I status on them with effect from 22-7-1971 is not valid.
10. You are, therefore, requested to kindly review the case in the light of the above position."
11. Nothing having been done by the Secretary, Irrigation and Power Department, the petitioners filed the present Constitutional petition.
2. In the report dated 25-6-1978 submitted by the Chief Secretary to the Government of Punjab, to this Court, it was stated as follows :-- "In compliance with the order dated 13-6-1978 passed by Mr. Justice S. Rahman on the above- mentioned writ, a report on behalf of Chief Secretary to Government of Punjab is submitted as follows :-
(i) The petitioners had submitted a representation, dated 8-2-1977, which was forwarded to Secretary Irrigation, & Power Department for comments. On receipt of Administrative Department's comments, the matter was thoroughly examined by S. G. A. & I Department and the Administrative Department (Secretary, Irrigation & Power Department) was informed that the Public Service Commission's correspondence furnished by that Department indicated that the promotion of A. M.
12. I. E. Qualified Engineers had been approved by the Commission before 22-7-1971, only on stopgap officiating basis. That could not be construed as promotion on regular basis. The Administrative Department was further informed that unless there was clear evidence of Commission's approval to regular promotion of eight A. M. I. E. Assistant Engineers before 22-7-1971, their order of conferment of Class I status on them w. e. f. 22-7-1971 was not valid. The Administrative Department was, therefore, requested to review the case in the light of position explained above. A copy of S. G.
13. A. & I. Department's letter No. S. O. R. III-2-23/73, dated 8-11-1977 issued in this behalf is enclosed.
14. (Annexure-I).
(ii) The representations dated 9-1-1978 and 19-3-1978 addressed to Chief Secretary, Government of Punjab, by the Attorney of the petitioners were again examined in consultation with the Secretary Irrigation & Powers Department who was again advised to take necessary action in accordance with S. G. A. & I. Department's advice tendered vide letter dated 8-11-1977 referred to in para. (i) above. In this connection a copy of S. G. A. & I. D's letter No. S. O. R. III-2-23/73, dated 8-5-1978, is enclosed for kind perusal. (Annexure II).
(iii) The Secretary, Irrigation & Power Department Respondent No. 2 is the Administrative Department concerned in this case and that Department may, therefore, be directed to submit parawise comments on the writ petition to this Honourable Court."
15. On behalf of the Secretary, Irrigation & Power, Government of the Punjab, parawise comments and report were submitted controverting the position taken by the petitioners and the Chief Secretary.
16. Since there was a conflict in the reports submitted by the two Governments via. S. G. A. & I. D. And Irrigation & Power Department, the petition was admitted. On behalf of the two departments, respondents Nos. 1 and 2, an adjournment was sought for a fresh decision. The case was adjourned.
3. Now the learned Assistant Advocate-General has appeared on behalf of the aforesaid two departments of the Government, respondents Nos. 1 and 2, and has stated that he had received written instructions on behalf of ache said two respondents, contained in memo. No. S. O. R. III 2- 19/78 (A) dated 26-1-1980, photo copy of which he has placed on the record, which is to the following effect :-- "2. After mutual consultation between this Department and the Irrigation and Power Department it has been decided that the condition of Commission's approval to the promotion of A. M. I. E.
17. Engineers before 22nd July, 1971 may be considered to have been fulfilled and grant of Class I status to them vile Irrigation & Power Department's Notification No. S. O. E. (II) M-30-8-70 Vol. II dated 24th December, 1976 he held valid on the ground that the Government notification regarding the grant of Class I status to A. M. I. E. Qualified Engineers with effect from 22nd July, 1971 (copy enclosed) does not lay down the condition of Commission's approval specifically to their promotion on regular basis. Both the Departments are agreed that a restricted interpretation of the condition would cause hardship to persons who have been working in higher posts for a long time."
18. Learned counsel for the petitioners, who are B. Sc. (Eng.) and were recruited as Assistant Executive Engineers in Class I (Junior) on 24-11-1972, challenge the Notification dated 17-11-1975 whereby the respondents officiating Sub-Divisional Officers, promoted from the rank of Overseers (Sub- Engineers) with the approval of the Public Service Commission and possessing A. M. I. E.
19. Qualifications were treated as regular members of the Irrigation Engineers Service Class I from 24- 4-1973. Learned counsel submits that this Notification was not challenged at that time as this did not affect tine petitioners because they were recruited in Class I (Junior) on 24-11-1972 and the respondents were treated as in Class I from 24-4-1973. However, when Notification dated 11-10-1976 was issued granting Class I (Junior) with effect from 22-7-1971 to the Sub-Divisional Officers promoted from the rank of Overseers possessing A. M. I. E. Qualification on the two conditions of their having held the qualification and having been promoted with the approval of the Public Service Commission on or before the said date, that the petitioners were affected by the retrospective effect of the Notification earlier to their own appointments that the petitioners challenged the same by means of an appeal before the Service Tribunal which was though dismissed but their representation was accepted by the S. G. A. & I. D. And as it was not being given effect to by the Irrigation and Power Department they filed the present petition in which finally they are being opposed by both the departments. Learned counsel states that he also challenges the sub--sequent Notification dated 24-12-1976 whereby the respondents have been inducted into Class I (Junior) simply on the ground of possessing A. M. I. E. Qualification and without compliance of the second condition laid down in the Notification dated 11-10-1976 that promotion as Sub- Divisional Officers had been approved by the Public Service Commission before 22-7-1971.
5. From the statement of the facts and the contentions, it would be quite clear that the gravaman of the dispute is that the petitioners who belong to Class I (Junior) under the West Pakistan Irrigation Engineers Service (Class I) Rules, 1967 since 24-11-1972 are being adversely affected by the aforesaid Notifications dated 11-10-1976 and 24-12-1976 whereby certain class of people have been inducted into the service i.e. Class I (Junior) with retrospective effect from 22-7-1971. The controversy is clearly in relation to the terms and conditions of service amenable to the jurisdiction of the Punjab Civil Service Tribunals created by the Punjab Service Tribunal Act, 1974. When the attention of the learned counsel for the petitioner was invited to this legal position, he submitted that the Petitioners Nos. 1 and 4 filed an appeal against the first mentioned notification before the Tribunal but the same was dismissed on the ground of bar contained in proviso (b) to section 4 of the aforesaid Act on 22-2-1977. The petitioners did not challenge the order by means of a further appeal before the learned Supreme Court of Pakistan as provided for in Sub-Article (3) of Article 212 of the Constitution. However, their representation before the departmental authorities was accepted by the S&GAD on 8-11-1977 and this was the position of the Chief Secretary to the Government of the Punjab when he submitted the above-quoted report in this Court. It is subsequently on the final hearing that the S&GAD has come round to support the case of the respondents. Whatever the merit of this somersault, it is the final stand of the Government and it is this matter which requires determination. As stated above, the dispute is as to whether the petitioners who belonged to Class I (Junior) under the relevant Rules since 1972 can be adversely affected by subsequent notifications of 1976 which have been given retrospective effect from 1971 on the plea of hardship pleaded by the Government.
20. 5-A. Article 212 of the Constitution lays down that "Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Court or Tribunals to exercise exclusive jurisdiction in respect of (a) matter relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters . . . ." Sub-Article (2) of Article 212 lays down that "Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant any injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends . . . . ".
6. Admittedly, the Provincial Legislature has enacted the Punjab Civil Servants Act, 1974, to regulate the appointment to, and terms and conditions of service in respect of the services of the Province of the Punjab and the Punjab Service Tribunals Act, 1974, "to provide for the establishment of Service Tribunals to exercise jurisdiction regarding matter relating to the terms and conditions of service in respect of services o the Province of the Punjab and for matters connected therewith or ancillary thereto." The dispute in this petition quite clearly relates to the terms and conditions of the service of the petitioners because according to the petitioners, they have been recruited in Class I (Junior) in 1972 and the private-respondents, who belonged to Class II or Class III could not have been inducted in Class I in 1976 w.e.f. 1971. It is obvious that the terms and conditions of the service of the petitioners when they joined have been affected by the subsequent acts which have been given retrospective effect by the impugned Notifications. Now as to whether the petitioners could be so affected in their terms and conditions of service as laid down under the relevant Rules by the impugned Notifications issued years later but given retrospective effect is a question which has to be determined and this is a question which quite clearly falls within the jurisdiction of the Tribunal created under section 3 of the Punjab Service Tribunals Act, 1974. Subsection (2) of section 3 (ibid) provides that "A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters."
7. The contention of the learned counsel for the petitioners so as to maintain this petition that the petitioners cannot file an appeal under section 4 of the said Act because of proviso (b) to subsection (1) of section 4, may be attended to. Section 4 lays down--- "Any civil servant aggrieved by any final order whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that--- (a)
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and"
21. Learned counsel for the petitioners is of the view and he submits that so was the view of the Tribunal when it previously dismissed the petitioner's appeal, that the dispute is about determining fitness or otherwise of the respondents to be appointed to or hold a particular post or to be promoted to a higher grade. In point of fact, the dispute is not as to whether the respondents were fit to be appointed or to hold a particular post or to be promoted to a higher grade, but the dispute is whether they can be appointed or promoted in a manner that they adversely affect the rights of the petitioners enacted ensured to them by the relevant Rules. Moreover, the bar against appeal in the said proviso (b) is when an appellant challenges the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. It is not applicable when a rule or a Notification is made or issued for a class of people changing the pre-existing norms or Rules, as has happen in the present case. It is not the respondents who have individually been appointed or promoted but they have been dealt with as a class under the impugned Notifications. In Iqan Ahmad Khurrum etc. v. Government of Pakistan etc. (PLD 1979 Kar. 610) existing rules for promotion were amended and the respondents in the petit-on were promoted.
22. The affected persons filed a Constitutional petition and contended that as the case involved determination of the fitness or otherwise of a person to be appointed to hold a particular post or to be promoted to a higher post or grade, no appeal lies before the Service Tribunal in view of the express exclusion of the above question by virtue of section 4 (a)(b) of the Act. Repelling the contention a learned Division Bench of the Karachi High Court held in paragraph 4, at page 146 of the report as follows :- "(4) Referring to the second contention that the instant cases involve determination of the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post or grade, it may be observed that in our view the impugned notifications or the rules providing matriculation as the basic qualification do not involve the determination of the petitioner's fitness to hold a post or to be promoted on a higher post or grade. The two notifications dated 30-9-1976 and 14-10-1976 pres--cribed the manner of appointment to the post of Assistant Engineer and Assistant Divisional Engineer respectively by direct recruitment and by promotion. The above notifications do not provide that the petitioners in the Petitions Nos. 963/77, 146/78 and 190/78 or any other person of the petitioners category are not fit to hold the post of Assistant Engineer or Assistant Divisional Engineer. Similarly the addition of the basic qualification of matriculation through the notification dated 30-9-1976 to our view does not involve the determination of the fitness of, the petitioner of Writ Peti--tion No. B-340/78 to hold a particular post or to be promoted to a particular post. As a matter of fact the aforesaid petitioner is aggrieved by the alleged omission of his name from the list of the promotees. There can be no cavil to the proposition that the above grievance squarely falls within the jurisdiction of the Service Tribunal. In our view the provisions of clause (b) to section 4(1) of the Act are not attracted so as to exclude the jurisdiction of the Service Tribunal in the instant case."
23. The judgment was upheld by their Lordships of the Supreme Court, which is Iqan Ahmed Khurrum v.
24. Government of Pakistan etc. (PLD 1980 SC 153). At page 159 of the report, it was observed that " . . . . . We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunal Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of fiction for the grievance qua the alteration of terms and conditions of service and hence an appeal will be to the Service Tribunal." Learned counsel for the petitioner contended that the case of the petitioners falls under the first category pointed out by their Lordships of the Supreme Court in so far as that the petitioners are challenging the promotions of the respondents to Class I (Jr.) under the rules. The contention has no force for the reason that the respondents are being promoted not in pursuance of the Rules but Rules themselves are being changed by the impugned notifications whereunder persons not otherwise eligible to be inducted in Class I (Jr.) are being ordered to it inducted. Consequently, it is the second category of cases mentioned by their Lordships of the Supreme Court where Rules themselves are altered that the case in hand falls. It is the existing Rules which are being changed by the new norms laid down in the impugned notifications. As, to whether it can be done so or not, especially with retrospective effect, is a matter which has to be determined by the competent Court or the Tribunal. This Court has no jurisdiction in the matter in view of Article 212 of the Constitution read with the Punjab Service Tribunals Act, 1974, as the dispute clearly relates to the terms and conditions of service. I am fortified in this view by the afore-quoted judgments on which I most respectfully rely.
8. In view of what has "been stated above, this petition is not maintain--able but on account of the inconsistent stand previously taken by the two Departments of the Government-respondents Nos. 1 and 2, the parties are left to bear their own costs.