' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Petitioners seek annulment of order dated 4-8-2012 passed by respondent No,1 whereby respondent No,5 was promoted and appointed as Executive Engineer (BS-18) on current charge basis.
2. Precisely, the prayer in captioned writ petition is that "in view of the above circumstances, it is most respectfully prayed that the instant writ petition may. kindly be accepted and the impugned order dated 4-8-2012 for the promotion/appointment of the respondent No,5 as Executive Engineer (BS-18) on current charge basis may kindly be set aside in the interest of justice."
3. It is alleged by the learned counsel that both petitioners were promoted as AEE/SDOs BS-17 on 10-6-1992 and 5-9-1992 respectively. And on successful completion of their service in the said cadre for about 20 years, they were entitled to be promoted as Executive Engineer BS-18 vice respondent No,5 in consonance with Rule 11 of the West Pakistan Irrigation Engineers Service Rules and also by virtue of their inter se seniority. It is further claimed that petitioners had also acquired mandatory training for promotion as Executive Engineer BS-18.
4. Learned counsel for the petitioners contends that impugned order has been passed without application of mind in utter disregard of consequences adversely affecting the rights of the petitioners, hence, action of respondent No,1 falls within the realm of colorable exercise of jurisdiction.
5. It was also contended that respondent No,5 was not promoted against a vacant post, hence, the impugned order is in contradiction of time tested principles of 'fairness and reasonableness' causing frustration and despondency amongst the legitimate expectants for promotion in similar cadre.
6. Learned counsel claimed that petitioners were entitled to be promoted in BS-18 on account of their seniority and eligibility and as such were also required to be given precedence over respondent No,5 owing to improving their professional qualifications equivalent to B.Sc. Engineering as well as length of their service.
7. In compliance with this Court's order report and parawise comments were submitted by respondents wherein the stance of the petitioners was controverted on factual as well as legal grounds, inter alia, by vehemently contending that petitioners stand debarred from having resort to this Court on account of bar of jurisdiction as contemplated by Article 212 of the Constitution since the issue being attempted to be raised through this petition essentially relates to the terms and conditions of their service. It was also asserted that petitioners had an efficacious remedy of invoking the appellate jurisdiction of the Punjab Service Tribunal. It was also maintained on behalf of respondents that promotion was and is not a vested right of the petitioners in view of subsection
(5) of section 8 of the Punjab Civil Servants Act 1974.
8. Heard. At the very outset, It is reiterated that jurisdiction of this Court under Article 199 of Constitution of Islamic Republic of Pakistan is specifically barred as contemplated by Article 212 of the Constitution. And preponderance of the judgments of this Court as well as the honorable Supreme Court of Pakistan is that a civil servant aggrieved of any of his terms and conditions can only approach the Service Tribunal on whatever grounds available to him including, mala fides.
9. In the case reported as PLD 1994 SC 539 Muhammad Anis and others v. Abdul Haseeb and others it was laid down by the honourable Supreme Court of Pakistan that question of eligibility relates primarily to the terms and conditions of the service, therefore, the Tribunal has the exclusive jurisdiction to adjudicate upon such matters.
10. In the case reported as PLD 1997 SC 351 Province of Punjab through Secretary Health Department v. Dr. S.M. Zafar Bukhari, it was laid down that matter of eligibility of civil servants to promotion to higher post pre-eminently falls within the exclusive jurisdiction of the Service Tribunal.
11. In the case reported as 2004 PLC (C.S.) 298 Hasan Khan Marwat Inspector Police Department N.- W.F.P. Peshawar v. Inspector-General of Police N.-W.F.P. Peshawar and 3 others it was laid down that excess of an authority could not go unnoticed without a proper relief to the victim of it provided necessary .jurisdiction was possessed by the court and for the matters relating to terms and conditions of service, no such jurisdiction existed with the High Court.
12. As to the claim of promotion by a civil servant, the honourable apex Court in the case reported as PLD 2003 SC 110 Government of Pakistan through Establishment Division Islamabad and 7 others, laid down that a civil servant cannot ask for promotion as a right, and granting or refusal of promotion is a matter which falls within the exclusive domain of the Government/Executive Authority and if promotion is denied to a civil servant it could not be termed as denial of any fundamental right.
13. In 2007 SCMR 54 Peer Muhammad v. Government of Balochistan through Chief Secretary and others, it was held that for resolution of issues relating to terms and conditions of service, Service Tribunal has the exclusive jurisdiction and the Constitutional jurisdiction of the High Court cannot be invoked. It was also laid down that orders of A departmental authorities, even though without jurisdiction or mala fide did not confer upon High Court jurisdiction to act in the matter in view of constitutional ouster as contained in Article 212 of the Constitution and the Service Tribunal had full jurisdiction to interfere in such matters.
14. For the above mentioned facts and reasons, this petition is held to be not maintainable and is accordingly dismissed on account of bar of jurisdiction as contemplated by Article 212 of the Constitution. However, petitioners may approach the appropriate forum to agitate their grievances on whatever grounds available to, them including mala fides.