HAFIZ TARIQ NASIM, J.--- Brief facts leading to this writ petition are that the petitioners while serving as junior clerks in BS-5 in the Civil/Sessions Court, Faisalabad became eligible for promotion to the rank of Senior Clerk in BS-7 in the year 2002 on the strength of their qualification of graduation and as per Rules prevailing at that time. Petitioners Nos. 1 to 4 were posted as Readers/senior clerks but in their on pay and scale through order dated 23.11.2002 passed by the District and Sessions Judge, Faisalabad, with a clear condition that "their case for regular promotion be put up before the Committee after the month of Ramadan".
2. Reasons not known to the petitioners, their regularization kept in vacuum, however, on 29.06.2006 Departmental Promotion Committee recommended the petitioners' names for regular promotion to the rank of senior clerks/Readers (BS-7), the recommendations were approved by the learned District and Sessions Judge, Faisalabad through order dated 30.06.2006 and accordingly they were granted their right of promotion, which otherwise could have been extended to them in the year 2002. The aggrieved persons filed departmental, appeals on administration side before the High Court, which were rejected as time-barred. Some colleagues of the petitioners namely, Ghulam Abbas Siddiqui, Shakeel Khan and Abbas Ali filed appeals before the Punjab Service Tribunal vide Nos. 2969, 2970 and 2971 of 2006, but Appeals Nos. 2970 and 2971 of 2006 were withdrawn and were disposed of accordingly on 18.06.2008, whereas Appeal No. 2969 of 2006 is still pending. During the pendency of the appeals before the Punjab Service Tribunal, respondent No. 2 Yousaf Ali, Nazir Session Court, Faisalabad submitted an application before respondent No. 1 for review of the orders dated 29/30.06.2006 and the respondent No. 1 called the petitioners for submission of their reply to the review petition, where the petitioners explained their position in writing, however, through order dated 28.06.2008 respondent No. 1 accepted the review petition by recalling the order of promotion in favour of the petitioner of the year 2006 and in pursuance of that the petitioners were reverted as junior clerks through order dated 10.07.2008.
3. Learned counsel for the petitioners submitted that the petitioners were promoted in accordance with the quota of graduates keeping in view the quota strength of the petitioners of the year 2002 when the petitioners became eligible rather their promotions were delayed for four long years without any justification and this lawful order of promotion could not be reviewed after a lapse of two years, particularly when there is no provision in the Rules applicable as -well as without adverting to the most important-aspect of the matter that the departmental appeals against the petitioners' promotions of 2006 were already dismissed, as time-barred by the High Court long-long ago, thus the impugned order passed by respondent No. 1 cannot hold field on the ground of lack of jurisdiction. Further submits that after promotion order of 2006, the petitioners started functioning, drew salaries of higher grade, meaning thereby that the promotion order was acted upon in letter and spirit accruing a lawful right in their favour which could not be recalled on the strength of well-settled principle of locus poenitentiae. Adds that the order dated 29/30.06.2006 was set aside by respondent No. 1 through order dated 28.06.2008 only to the extent of the petitioners, meaning thereby that they were discriminated without any justification whatsoever and this type of discrimination cannot be approved. Learned counsel for the petitioners while arguing his case placed reliance on Inspector-General of Police,' Punjab, Lahore v. Muhammad Ameer Abdullah Khan and 4 others (1990 SCMR 1414), Government of Sindh v.
Abdul Sattar Sheikh and others (2003 SCMR 819), Luqman Zareen and others v. Secretary Education N.-W.F.P. And others (2006 SCMR 1938) and Syed Ibne Hussain v. Federation of Pakistan through Secretary, Establishment Division and others (2008 SCMR 1159).
4. On behalf of the respondents learned Assistant Advocate General, Ch. Riasat Ali and Mr. Usman Arif, Advocates, argued the case at length and submit that,
(i) The writ petition is not competent in view of bar of Article 212 of the Constitution of Pakistan.
(ii) .The petitioners are amenable to the Rules namely the Punjab Civil and Sessions Court Establishment (Miscellaneous Posts) Service Rules,-2005, wherein the quota of graduates was eliminated, so their promotion of 2006 cannot hold field.
(i.e) Respondent No. 1 rightly exercised his jurisdiction by rectifying the wrong and there is no question of violation of principle of locus poenitentiae as the competent authority' can recall the order, which was illegally passed.
(iv) The point of discrimination raised by the petitioners has no force as one illegal order cannot be made a precedent for other illegal orders and practically respondent No. I did justice with the private respondents.
5, Learned counsel for the respondents relied on The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin (PLD .1992 SC 207), Government of the Punjab and others v. Muhammad Zafar Bhatti and others (PLJ 2004 SC 210) and Muhammad Shafique v. Chairman Board of Governors. Lahore Museum/Chief Secretary Punjab, Lahore and another (2007 PLC (CS) 49), in support of their contentions.
6. Arguments heard. Record perused.
7. First of all I will deal with the objection of maintainability of writ petition and in that respect the judgment referred by the respondents are to be examined. So far the judgment cited as Government of the Punjab and others v. Muhammad Zafar Bhatti and others (PLJ 2004 SC 210) is concerned, it has no relevance to the present case as in that case matter related to amendment in relevant Rules its vires and getting it declared as ultra vires by the High Court, which was rightly held by the Hon'ble Supreme Court of Pakistan that such like controversy was not amenable to the writ jurisdiction and the aggrieved persons should have approached to the Service Tribunal on the strength of law laid down in the case of lqrah Ahmad Khurram v. Government of Pakistan (PLD 1980 SC 153). So for the Judgment of Muhammad Shafique v. Chairman Board of Governors, Lahore Museum/Chief Secretary Punjab, Lahore and another (2007 PLC (CS) 49) is concerned, this case was related to a writ of co- warranto where the petitioner contended before the High Court that the respondent was not eligible to hold the post, meaning thereby that the question of eligibility was under challenge which otherwise was amenable to the jurisdiction of Service Tribunal and in that respect Hon'ble Supreme Court of Pakistan already held in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) that, "Whenever the dispute of eligibility arises the Service Tribunal is the forum which can resolve the issue, however, in case of determination of suitability Tribunal has no jurisdiction".
8. Practically, the present case revolves around determination of fitness to hold post and this very question is resolved by the legislature in the form of Section 4(1)(b) of the Punjab Service Tribunal Act, which is reproduced as under:--- "4(1)(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
9. There is ample law, which needs not to be referred in presence of the specific provisions of Section 4(1)(b) of the Punjab Service Tribunal Act. However, it shall be advantageous to refer the judgment reported as Secretary to Government of N.-W.F.P. v. Muhammad Nawaz (PLD 1996 SC 837) and a recent judgment reported as Secretary Revenue v. Muhammad Saleem (2008 SCMR 948).
10. If the judgments referred by the learned counsel for the respondents are put in juxtaposition to these two judgments of the apex Court, there shall be no difficulty to arrive at the conclusion that the respondents' contentions in respect of non-maintainability of the writ petition are without force and are thus repelled.
11. On merits there are certain admitted facts, which are not denied even today and those are:---
(i) The petitioners are graduates and they became eligible for promotion in the year 2002.
(ii) Quota for graduate junior clerks for the post of senior clerk/Reader was available in the Rules in the year 2002.
(i.e) Petitioners' eligibility for promotion to the rank of senior clerks is not disputed even today.
(iv) Petitioners' case for promotion was considered by the Departmental Promotion Committee and their names were recommended; recommendations of the DPC were approved by the competent authority.
(v) After formal orders of promotion, the petitioners started functioning against the promoted posts and continued till the date of their reversion of July, 2008.
(vi) Aggrieved by the petitioners' promotion order of the year 2006, aggrieved persons, as per their right, filed departmental appeal/representation before the High Court on administration side, which were rejected, meaning thereby that the matter became past and closed chapter.
(vii) In the Rules applicable to the employees of petitioners/private respondents' category, there is no provision of review, which could extend jurisdiction to the learned District and Sessions Judge, for reviewing the order passed by his predecessor two years before.
(viii) Even otherwise, the agitation made by the private respondents against the promotion orders of the year 2006 was belated one, accruing a lawful right m favour of the petitioners.
12. When all these factual/legal aspects are available even today then no justification seems to be rested with the continuation of impugned order passed by respondent No. 1.
13. In my view, respondent No.1 acted in haste and the impugned order cannot sustain in the eye of law for the following reasons:---
(i) The impugned order passed by the learned District and Sessions Judge is virtually a departure from the Rules namely the Punjab Civil and Sessions Court Establishment (Miscellaneous Posts)
Service Rules, 2005 wherein no provision of review is available, whereas the opinion of the Registrar of the High Court, which is made- the basis of impugned order cannot be considered a valid one particularly when the impugned matter does not relate to any civil litigation, thus applicability of the provisions of CPC in presence of special law applicable, to the employees could not be held applicable to the present controversy.
(ii) The respondent No. 1 virtually violated the law laid down in Inspector-General of Police Punjab, Lahore v. Muhammad Ameer Abdullah Khan and 4 others (1990 SCMR 1414), wherein it is held "where rights had come to vest, ground taken by succeeding Inspector General of Police could not be held to be sufficient to justify rescission of order competently passed".
(i.e) In the case of Rahim Jan v. Mrs. Z. Ikram Gardezi and others (PLD 2004 SC 752), it is held that no express provision for filing of review petition having been provided in the Arbitration Act, review petition was not maintainable. In the present case no express provision for' filing of review petition is provided in the Punjab Civil and Sessions Court Establishment (Miscellaneous Posts) Service Rules, 2005, hence the review petition, which was not maintainable, could not be adjudicated upon.
(iv) The private respondents agitated the matter admittedly at a belated stage and there is ample law on this point that even one day's delay creates valuable right in favour of the other party and which cannot be condoned 'without any sufficient cause.
(v) Virtually, in the present case respondent No 1 has violated the settled law and for that only one reference can be sufficient, lmtiaz Ali v. Atta Muhammad (PLD 2008 SC 462), wherein the Hon'ble Supreme Court held, "the appeal having been filed after one day of period of limitation has created valuable right in favour of the respondent. No sufficient cause for filing of delayed appeal, having been found, condonation of delay declined".
(vi) After passing the order of petitioners' promotion in the year 2006 a valuable right had accrued in favour of the petitioners, which could not be rescinded or recalled on the strength of well-settled principle of locus poenitentiae. There are series of judgments and without referring all, I shall contend to a judgment reported as Government of Sindh v. Abdul Sattar Sheikh and others (2003 SCMR 819).
(vii) Undisputedly, the petitioners were eligible for promotion in the year 2002, even petitioners Nos.
1 to 4 were given additional charge of the promoted posts but in their on pay and scale, however, regularization of their promotion was delayed without any justification hence the respondents' contention that the Rules of 2005 wherein quota of graduates is eliminated shall be applicable have no force because such like situation was attended to by the Hon'ble Supreme Court of Pakistan in the case reported as Luqman Zareen and others v. Secretary Education. N.-W.F.P. And others (2006 SCMR 1938) and while deciding the said case, the Hon'ble Supreme Court relied on a judgment of Sarwar All Khan v. Chief Secretary to Government of Sindh and another (PLD 1994 SC 233). These two judgments of the Hon'ble Supreme Court are fully applicable to the case in hand.
14. Viewing the present case from all angles, it is held that the orders dated 28.06.2008 and 10.07.2008 passed by the learned District and Sessions Judge, Faisalabad, are nullity in the eye of law, cannot hold field and thus set aside. Resultantly, the petitioners' promotion orders of 2006 shall hold the field. Writ petition is allowed in the above terms. .