CH. MUHAMMAD TARIQ, J.---- This consolidated judgment shall dispose of I.C.As. Nos.262 of 2008 and 258/2008 as both these LC.As. Arise out of one and the same judgment dated 8-7-2008 passed by learned Single Judge in Writ Petition No,3736 of 2008.
2. Brief facts of the case are that the writ petitioners are employed as Junior Clerks in BPS-7, they were performing their duties since long A and were legitimate expectants for the next promotion but they were deprived of the same whereas, the private respondents in writ petition who were Junior Clerks in BPS-5 were given the benefit of higher grade under the garb of adjustment. They filed Writ Petition No,3736 of 2008 which were heard by the learned Single Judge who after hearing both the parties accepted the writ petitions. The relevant paras of the impugned judgment dated 8-7-2008 are reproduced as under:--- "11. After going through the entire enquiry report and after hearing the parties at length, it is held that Zarif lqbal Satti and his associates are responsible of the entire illegal arrangement. In the Enquiry conducted by Additional Secretary, Government of Punjab, it was concluded in a transparent manner, that Zarif lqbal Satti and his associates were afforded all opportunities to defend their cases in, all its fairness and it clearly reflects that Grade 5 officials were benefited granting them Grade 16 by merely using the word "adjustment". This act of the concern officers, according to my understanding of law and of the principles of natural justice, fairness, equity and provision of equal opportunities is flawed in the eyes of law. A public functionary cannot accommodate some of its officials for any reasons by merely using a word such as "accommodate" and thereby overriding the legitimate rights of other employees, who work hard to work their way up the hierarchy of Grades/Posts. Needless to mention that every Government Department/all other functionaries are duty bound to ensure that the true process of law is adopted and that too in a clear and transparent manner without any inference of decisions made upon whims and moods. The stance of Zarif lqbal Satti and his associates that this is a stop-gap arrangement, in this regard, I express my great concern over the whimsical and capricious manner in which a -stop gap arrangement has been made. No doubt that a stop gap arrangement though not barred by law but it should always be adopted by keeping in mind certain boundaries and principles of fairness equity and natural justice. The first and foremost duty of the Authority attempting to "stop the gap" should be to see whether the person to be appointed to stop such a gap can actually and reasonably carry out duties of a nature of the post to which he is to be appointed to stop the gap, but in the present case it is extremely difficult to grasp how to 5 scale official can fill a gap of an officer of Grade-16. This act of the authorities clearly shows its colourable exercise of power and lack of transparency in its procedures, which otherwise is meant for every public functionary.
12. Furthermore the authorities should also not extend discretionary favours toward its favoured employees and let the less favoured employees suffer from its decision. Every employee including other individuals lawfully expects the same treatment within the same group of persons and not to be discriminated is also a fundamental right under the Constitution of Islamic Republic of Pakistan, which must be extended by the courts as a duty towards a general public including employees of statutory, non-statutory organizations and the civil servants. Therefore, those employees, who were not appointed as Grade 16 officers even though being senior to the private respondents of Grade 5 officers were discriminated without any fault of their field.
13. All the above discussion necessarily indicates that PHA has not acted in accordance with law, rather acted in contravention to settled principles of law, equity fairness and equal opportunity.
Keeping in view all the attending circumstances, I see myself within the bounds of law to interfere with the decision of the PHA in the impugned matter and declare all these "adjustments", which otherwise were practically appointments through promotion as illegal and without force.
14. Respondents No,1 is directed to constitute Departmental Promotion Committee, place the petitioners as well as private respondents' case before it, who shall examine each and every case on its own merits, recommend the appropriate case for promotion and Then the competent authority after applying its independent mind notify the promotion of the recommendees of the Departmental Promotion Committee within two months from today.
15. So far the adjustment against higher posts of private respondents is concerned, it is already declared in the preceding paras that those adjustments were an outcome of arbitrariness, violation of all norms of justice and equity and are set aside, however, with a view to avoid smooth functioning of the Authority, the private respondents shall continue to hold their present posts till 7-9-2008 i,e, the target date of finalization of the fresh exercise. It is to be clarified that if the process is not completed till 7-9-2008 by PHA, posts held by private respondents shall be treated as vacant which shall be filled strictly in accordance with applicable Rules.
16. Before parting with this judgment, I feel it appropriate to direct the Chief Secretary, Government of the Punjab to take appropriate action but strictly in accordance with law against the responsible of this illegal and unlawful action like Director Zarif lqbal Satti and his associates and simultaneously extend appreciation to lkram Naveed the then Director Finance, PHA, Mr. Mubashir Khalid Mirza, Assistant Director (Audit), who showed resistance despite extraneous pressure.
17. While initiating action against Zarif lqbal Satti and his associates, the enquiry report, which otherwise is an outcome of transparency and wherein Zarif lqbal Satti and his associates conceded before the Enquiry Officer in so many words be particularly taken into consideration.
Paras 6 to 8 of the writ are also of great importance, these are also to be adhered to. Office is directed to send a copy of this judgment to the Chief Secretary directly and the learned Assistant Advocate-General who is present in the court shall ensure the compliance of the judgment. Result of the action against Zarif lqbal Satti and his associates be conveyed to the Deputy Registrar (J) of this Court within two months.
All the writ petitions are disposed of in the above terms." Hence these ICAs.
3. Learned counsel for the appellants inter alia contends that the writ petition in which the impugned judgment has been passed was barred by Article 212(2). The relief sought in the writ petition relates to terms and conditions of service of employees presuming them civil servants.
Even on this presumption, the writ petition in question could neither have been entertained nor adjudicated upon. Thus, the impugned judgment is without jurisdiction. It has disregarded a long chain of precedents by the Hon'ble Supreme Court to the effect that no such writ petition should be entertained by the High Court. Learned counsel further argues that each writ petitioner had filed departmental representation to seek redress of his grievance to the effect that he was entitled to promotion. Having done so, all these writ petitioners had a statutory remedy before the Punjab Service Tribunal after the efflux of presented period in the event of failure of decision thereon. This has not been done. The existence of alternative remedy creates a bar to filing of the writ petition in terms of Article 199 itself. Thus, there is a double bar to entertainment and adjudication of the writ petition i,e, under Article 212(2) as well as Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
3. Learned counsel for the appellants further argues that the nature of the grievance projected by the private respondents in the writ petition was that undeserved promotion had been granted to the appellants under the pretext of "adjustment". This was challenged as the concept unknown to the civil service law. However, this point is without any legal substance. Adjustment against an upgraded post is a well-known concept in the field of law and practice of service laws. Learned counsel for the appellants has lastly contended that the department in which the appellants were employed had been newly set up and is a statutory body having autonomous character. Even proper rules have not been framed for it. Its main function is to create and maintain parks etc. Which is a field service. In this situation, there could possibly be no other method of stop-gap arrangements except by adjustment of suitable persons against required posts as the department needs persons such as Malies and Budders and not pen-pushing clerks. In support of his contentions, learned counsel for the appellants has relied on the dictums laid down by the Hon'ble Supreme Court of Pakistan in cases reported as 2010 SCMR 676 and 2010 SCM R 1484 and has prayed that the ICAs be accepted and the impugned judgment be set aside.
4. Learned counsel for the respondents has vehemently opposed hese ICAs on the grounds that the department has treated the writ petitioners with discrimination. There is no provision of adjustment in the statutes and the respondent-department in the shadow of adjustment has promoted the employees of their choice without considering their qualification and experience.
Learned counsel for the respondents has fully supported the impugned judgment and have prayed that the ICAs be dismissed.
6. Learned counsel for the PHA has submitted that the department has planned to constitute a Departmental Promotion Committee (DPC) for re-consideration of the cases of the employees but due to the restraint order dated 5-8-2008 passed in the ICA, the department could not proceed further in the matter. However, if the restraint order is recalled, the department shall do the needful strictly in accordance with law.
7. Arguments advanced from all corners have been heard and the record as well as the impugned judgment has been perused.
8. The prayer of the writ petition is reproduced as under:--- "In view of the above, it is respectfully prayed that the present writ petition may graciously be accepted, orders of promotions under the term of "adjustment" of respondents Nos.4 to 8 and others made by respondents Nos.1 and 2 during the period April, 2007 to April, 2008, may please be declared without lawful authority and jurisdiction and of no legal effect after summoning and examining the same from them in order to meet the ends of justice, fair play and equity.
' It is also prayed that the respondents Nos.1 and 2 may please be directed to consider the petitioners for promotions with effect from the same date, when their juniors have been promoted against the higher posts with all back benefits and arrears.
' Any other relief, to which the petitioners are otherwise entitled under the law and constitution, the same may also be granted to them in the interest of justice."
9. It is evident from the prayer of the writ petition that the writ petitioners have not taken the stance of discrimination in the writ petition, rather they have challenged the promotion of private respondents including the appellants, so the arguments of the learned counsel for the private respondents that the instant writ petition has been filed on the ground of discrimination is not maintainable because the learned counsel for the respondents cannot travel beyond the pleadings. There is also no denial that the rules of respondent-department (PHA) are non- statutory. In the light of law laid down by the Hon'ble Supreme Court in the judgments referred to by the learned counsel for th appellants, the writ petition was not maintainable.
10. We also do not agree with the argument of learned counsel for the appellants that undue promotion falls within the definition of adjustment because there is no such category provided under the service laws. Undoubtedly, the administration of the respondent-department has played havoc with its employees and has promoted the persons of their choice ignoring their experience as well as education qualification.
11. The contention of learned 'counsel for the appellants that PHA has adopted Lahore Development (Appointment and Conditions of Service) Regulations, 1978 is not warranted under the law as held by the Hon'ble Supreme Court of Pakistan in case tilted, "M.H. Mirza v. Federation of Pakistan" reported as 1994 SCM R 1024 that adoption of rules or their application by reference will not lend a statutory cover or content to these rules. Therefore, the respondent can neither file constitutional petition nor even approach the Service Tribunal because they are governed by the principle of master and servant.
12. Persons in "corporation service" or persons in "government service", as defined in S.2(c) and (d) of Removal from Service (Special Powers) Ordinance, 2000, could be subjected to the provisions of the Ordinance. Only those employees could approach Service Tribunal, who fell within the definition of 'civil servant', holding posts in connection with the affairs of Federation. Remaining categories of employees, including contractual ones, if they were aggrieved of any adverse action, Service Tribunal was not the appropriate forum for redressal of their grievance. Service Tribunal was the forum constituted under Article 212 of the Constitution for redressal of grievance of those employees, whose terms and conditions were settled under Article 212(1)(a) of the Constitution. Any action taken against persons not falling within the definition of civil servant, would not be questionable before Service Tribunal as it was not meant to provide a forum to employees, whose services were governed by non-statutory rules or who do not fall within the definition of person in 'government service' as defined in S.2(d) of Removal from Service (Special Powers) Ordinance, 2000. Employees of non-statutory corporations can neither invoke the constitutional jurisdiction of this court nor even agitate their grievances in the Service Tribunal. Respectful reliance is placed on 2010 SCMR 676 and 2010 SCM R 1484.
13. As a result of above discussion, the ICAs in hand are allowed, the impugned judgment dated 8- 7-2008 passed by the learned Single Judge in Writ Petition No,3736 of 2008 is set aside. However, the respondent-department is directed to comply with the undertaking which has been made before us by the legal adviser of the respondent department that after the decision of the ICA, the department shall constitute DPC who will consider the promotion matters and other grievances of the employees with regard to the promotions made on the basis of "adjustment". As a consequence, C.M. No,73 of 2009 filed by Jamtaz Ali Khan son of Muhammad Ali Khan under Order I, Rule 10, C.P.C. Is also dismissed.