ASAD MUNIR, J. --- By this single judgment, I propose to dispose of writ petitions Nos. 2577 of 2009, 2576 of 2009, 2664 of 2009, 2816/2009 and 2875 of 2009, all of whom involve common issues of law and fact. The petitioners, who are civil servants belonging to the Customs and Excise Group, are aggrieved by the Office Memorandum No. F.6/2/2009-CP-II, dated 12.9.2009, issued by
5. Undoubtedly, the writ petition is barred under Article 212 of, the Constitution if the grievance of the petitioners relates to or arises out of their terms and conditions of service which appears to be the case in view of the petitioners' ambiguous and repeated stand in the writ petition that the impugned Office Memorandum affects their terms and conditions of service. Faced with the respondents' objection to the maintainability of the writ petition, the petitioners have during arguments done a volte face to contend that their grievance has nothing to do with the terms and conditions of their service but it is only in respect of their prospects of promotion. I must say that the petitioners cannot be allowed to approbate and reprobate and orally plead a case altogether and entirely different from what they have so clearly stated in their pleadings.
6. This calls for a reference to paras Nos. 8 and 9 of the writ petition No. 2577 and the relevant paras of the other writ petitions where it has been stated in unequivocal terms that the impugned Office Memorandum affects the terms and conditions of service as well as the seniority and lien of the petitioners. According to grounds 11 a and 11 b in writ petition No. 2577, the impugned Office Memorandum is lllegal for being in contradiction with Articles 240 and 268 of the Constitution and of no effect to bring about a change in the terms and conditions of the Pakistan Customs and Excise Service to which the petitioners belong. Grounds 1 1 e and 11f also assall the impugned Office Memorandum for being in clear violation of Section 3(2) and Section 23 of the Civll Servants Act, 1973, by adversely changing the terms and conditions of service which include appointment, confirmation, seniority, promotion et cetera. Simllar is the position taken in grounds 1 1 g and 11h wherein the impugned Office Memorandum has been called in question as being violative of the Civll Servants (Confirmation) Rules, 1973 read with Civll Servants (Appointment, Promotion and Transfer) Rules, 1973 for falling to allow lien to the petitioners by asking them to exercise an irrevocable option.
Again in ground 11v, an exception is taken to the impugned Office Memorandum on the ground that it has been issued with the approval of the Prime Minister whereas it is only the President who has authority to determine the terms and conditions of the civll servants.
7. It is obvious from the above narration that the petitioners are aggrieved by the Impugned Office Memorandum only because it adversely affects their terms and conditions of service in violation of Articles 240 and 268 of the Constitution as well as the Civll Services Act, 1973 and the Rules framed thereunder. As such, the petitioners cannot invoke the Constitutional jurisdiction of this Court as they can challenge the legality or vires of the impugned Office Memorandum. Before, the Federal Services Tribunal upon whom exclusive jurisdiction has been conferred, under. Article 212 of the Constitution, to adjudicate upon a grievance in respect of the terms and conditions of service. It would be of benefit to refer here to two judgments of the Honourable Supreme Court. In lqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153), it was held that the remedy, of an civll servant aggrieved in respect of his terms and conditions of service is barred before the High Court but is avallable before the Service Tribunal even if it involves the vires of a Rule or notification. Following PLD 1980 SC 153, it was observed in 1.A. Sharwani v. Government of Pakistan (1991 SCMR 1041) at page 1063 that "a civll servant cannot bypass the jurisdiction of the Services Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal wlll have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights". I may also refer to. Muhammad Ahmed v. Pakistan (1990 PLC Service 185), where the Sindh High Court, in view of Article 212 of the Constitution, declined to exercise its Constitutional jurisdiction when an existing cadre of civll servants was split into two cadres with officers of only one of them entitled to be considered for promotion. Another case of relevance is Rana Muhammad Sarwar v. Government of Punjab (1990 SCMR 999) wherein it was held that question of abolition of post relates to terms and conditions of service and must be raised before the Services Tribunal.
8. Contrary to their pleadings, the petitioners have argued that their grievance is only in respect of their prospects of promotion which do not form part of the terms and conditions of service.
Reliance has been placed on Government of West Pakistan v. Fida Muhammad Khan (PLD 1960 SC 45), Government of West Pakistan v. Fateh Ullah Khan (PLD 1960 SC 105) and Muhammad Arshad Saeed v. Pakistan and others (1986 SCMR 1953) in support of the proposition that terms and conditions of service do not include the prospects of promotion. It may be noted that the first two cases were decided at a time when there were no Service Tribunals nor was any Constitutional bar akin to Article 212 of the Constitution in place. These cases arose in 1956 after one unit was created and the interpretation of proviso to Section 8(3) of Establishment of West Pakistan Act, 1955, was called for to examine if a civll servant upon joining the service of the Government of West Pakistan was given less favourable terms and conditions of service than those admissible to him when he was serving in the Province. The grievance of the petitioners in both the cases was that they got less favourable terms and conditions because their prospects of promotion were much brighter if they had remained in the provinces where their seniority was much higher. However, the Honourable Supreme Court rejected their plea on the ground that prospects of promotion, being far-fetched, could not be included in the terms and conditions of service admissible to them at the time they were serving in the provinces. The third case, 1986 SCMR 1953, decided in appeal under Article 212(3) of the Constitution, follows the two earlier decisions of the Honourable Supreme Court.
I think the first two cases are also authority for the proposition that consequent upon re- organisation or restructuring of services the prospects of promotion, being far-fetched, cannot he raised as a grievance in Constitutional jurisdiction whereas the third case is of no help to the petitioners as it does not hold that a civll servant can be an aggrieved person in respect of his prospects of promotion.
9. In my view, the petitioners are against joining the new service as they apprehend that their seniority in the new service wlll affect their prospects of promotion. Thus, the primary grievance of the petitioners arises out of the question of their seniority which is no doubt included in the terms and condition of their service. It is thus an oversimplification to say that the prospects of promotion of the petitioners wlll be affected when obviously the promotion is dependant upon or is the direct result of their seniority as may be fixed if and when they join the Inland Revenue Service. It would also be relevant to refer to Muhammad Aslam Khokhar and 24 others v. Federation of Pakistan and others (2006 SCMR 1240) where the Auditor General through a circular varied the conditions with regard to the promotion of the members of the Accounts Group. The said circular was declared to be without lawful authority by the Federal Service Tribunal. Whose judgment was affirmed by the Honourable Supreme Court in appeal. The said case is an illustration of the Federal Services Tribunal exercising its exclusive jurisdiction by declaring a circular unlawful even though the matter in issue pertained to the conditions of promotion of the aggrieved civil servants.
10. Another grievance raised by the petitioners is that sales tax has been transferred from their sphere of responsibility and placed in the care and control of the newly-constituted Inland Revenue Service. According to the petitioners, this would reduce their scope of work which would mean fewer posts available for the Customs & Excise Group thereby affecting their promotion prospects. However, the petitioners did not put forward any convincing argument to support their right to retain the sales tax business.
According to the respondents, the Federal Government has the absolute right to review the arrangement from time to time as may be in the interest of sales tax which was originally and untll 1981 administered and collected by the Income Tax Group. I think the grievance here about the promotion prospects is far-fetched as it is unknown at this stage if all the officers in the Customs & Excise Group wlll not join the Inland Revenue Service.
11. In support of their stand that their grievance does not relate to their terms and conditions of service, the petitioners have also relied upon Syed Junaid Arshad v. Government of Pakistan (2006 PLC (CS) 131) and Fakharuz-Zaman Ali Cheema v. Government pf Pakistan (2001 CLC 1277) where the High Court did not let the bar of Article 212 come in its way but exercised its Constitutional jurisdiction to order re-allocation of the petitioners from one occupational group to another. I am afraid both the cases are distinguishable-on their facts. In 2006 PLC (CS) 131, the High Court implemented the orders of the Prime Minister who had directed the re-allocation of a civll servant from one occupational group to another on the ground that the civll servant was being denied equality of treatment when simllar orders for others were being implemented. In 2001 CLC 1277, a person selected in the Accounts Group, who was undergoing training at the Civll Services Academy, was found entitled to be re-allocated to the Income Tax Group by the High Court when a person selected for the Income Tax Group falled to join the Civll Services Academy. In the present case, no question of re-allocation is involved as neither the petitioners are seeking reallocation to another service nor are the respondents forcing the petitioners to join another service but are only giving them the option to do so which they are free to accept or reject.
12. The petitioners have also tried to justify the maintainabllity of the writ petition by pleading that the bar of Article 212 of the Constitution is not applicable as they are only seeking a writ of quo warranto by questioning the induction of other persons in the newly constituted Inland Revenue Service. Again, such a plea has not been taken by them in their detailed writ petition. In any case, such a plea runs counter to their writ petition. In any case, such a plea ruhs counter to their writ petition wherein they only alleged the adverse effects of the new service over their terms and conditions without challenging the inclusion of others in the Inland Revenue Service.
13. In view of the foregoing discussion, I have no option but to conclude that the grievance of the petitioners, by their on admission and even otherwise, relates to the terms and conditions of their service. In view thereof, the writ petition, being barred under Article 212 of the Constitution, is not maintainable. Accordingly, it is dismissed with no order as to costs. .