' YAHYA AFRIDI, J.--- Through this single judgment, we propose to dispose of three Writ Petitions, as common questions of law. The particulars of the said writ petitions are as under:---
(1) W.P.No,2440-P of 2012 (Engineer Musharaf Shah, Assistant Engineer (Acting Charge Basis)
Rehabilitation of Irrigation System of Khyber Pakhtunkhwa Directorate Peshawar v. Government of Khyber Pakhtunkhwa through Chief Secretary Khyber Pakhtunkhwa Peshawar and other).
(2) W.P. No,3388-P of 2012 (Asif Khan, Sub-Divisional Officer (Irrigation) Shahbaz Garhi, Mardan and others v. The Government of Khyber Pakhtunkhwa through Chief Secretary. Civil Secretariat, Peshawar and others).
(3) W.P. No,3595-P of 2012 (SaifuIlah son of Abdullah Khan, Sub-Divisional Officer (OPS), Peshawar v. Secretary, Government of KPK, irrigation Department, Peshawar and others).
2. In the first two petitions (Writ Petitions Nos 2440-P and 3388-P of 2012), hereinafter referred to as "first set of petitions, the petitioners are seeking the following common relief: 'Firstly, to direct the respondents to act in accordance with law and to allow regular promotion to the petitioner and to place his cases before the Departmental Promotion Committee for his confirmation/regular promotion against the post of Assistant Engineer BPS-17; 'Secondly, to declare the amendment introduced in the recruitment rules vide Notification No,SOE/IRR/2-3-5-2010-11 dated 25-6-2012 are inapplicable to the case of the petitioner and have no retrospective effect; 'Thirdly, the respondents are legally not competent to process the promotion cases on such rules to the detriment of the rights of the petitioner or any other remedy deemed proper may also be allowed.
' While in the third petition (Writ Petition No,3595-P of 2012), hereinafter referred to as "third petition", the petitioner is seeking, essentially the following:- "I. Direct the authority/department to issue Notification of Promotion of the petitioner, etc. To the post of Assistant Engineer, BPS-17 with all service benefits; and/or II. Any other writ/order /direction deemed proper and just in the circumstances of the ease, he also issued ordered/given".
3. Before this Court considers the petitions on merits, it would be essential to first decide the preliminary jurisdictional objection raised by the respondent department in view of the express bar provided in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution").
4. The constitutional bar imposed upon this Court under Sub-Article (2) of Article 212 of the Constitution reads as under:--- "212. Administrative Courts and Tribunals.
(1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of---
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising front tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law;
(2) Notwithstanding anything hereinabove contained, where any Administrative court or Tribunal is established under clause (1), no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends: ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such as Court or Tribunal.
(3)...............................................................................................................
(Emphasis provided)"
5. The above constitutional provision, opening with the "nonobstente" clause, expressly bars all Courts, including the High. Court to take cognizance of matters, which can be agitated and adjudicated before an administrative tribunal constituted and functioning under the law. This essential principle has been eloquently explained in the authoritative judgment of this Court in Mian Amanul Mulk's case (PLD 1981 Peshawar 1) and the decision of full bench Court of the Sindh High Court in Abdul Bari's case (PLD 1987 Karachi 290).
6. Now, in order to appreciate the scope of matters, which can be adjudged exclusively by an administrative tribunal, we will have to refer to section 4 of the Khyber Pakhtunkhwa Service Tribunal Act, 1974 ("Act of 1974"), which reads as under:---
4. Appeal to Tribunals, ' 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 of the Tribunal having jurisdiction in the matter: Provided that:--
(a) ................................................................................
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining..
(i) the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969. (Emphasis provided)
7. In view of the above provision of the Act of 1974, the condition precedents for invoking the jurisdiction of the Tribunal are as under:---
(i) Civil servant is to be aggrieved of as final order;
(ii) The said order has to passed by the departmental authority; and
(iii) finally the said order is to relate to terms and conditions of service of the aggrieved civil servant.
8. When we consider the circumstances leading to the filing of the "first set of petitions", it is noted that the same fulfils the three essential conditions of invoking the jurisdiction of the Tribunal, which are explained as under; Condition No,I ' As far as the first condition precedent is concerned, no doubt, prior to the filing of the "first set of petitions", there was no "final order" passed by the departmental authority, denying the rights of the petitioners to be "eligible" for promotion to a higher post. However, after the institution of "first set of petitions", the respondent department, inter alia, has denied and disputed the "eligibility" of the petitioner to be considered for promotion. The said denial in writing, duly supported by an affidavit of a responsible competent officer would, thus, be deemed a "final order", as envisaged under section 4 of the Act of 1974.
Condition No,II ' As the respondent department has responded in the negative to the claim of the petitioners, the second condition is also fulfilled.
Condition No,III ' Before we discuss the third condition precedent, it would be pertinent to understand the true import of the term; "terms and conditions of service" of a civil servant.
' The said term has been defined in section 3 of the Khyber Pakhtunkhwa Civil Servants Acts, 1973 ("Act of 1973"), which reads as under:--- "3. Terms and conditions.--- The terms and conditions of service of a civil servant shall be as provided in this Act and the rules."
' It is by now a settled principle of administrative and service laws that a civil servant has no "right to promotion" to a higher post. However, a "right to be considered for promotion" would accrue in favour of the civil servant on his fulfilling the requisite prescribed qualification. The basic decision on this issue was rendered in Fida Muhammad Khan's case (PLD 1960 SC 45) and later in Muhammad Akbar Qureshi's case (PLD 1962 SC 428) and thereafter, consistently followed in various decisions including that of M.A. Rafique's case (1990 SCMR 927) and Fazali Rahmani's case (PLD 2008 SC 769).
9. In addition to the above-stated general principles concerning the civil servant's right to promotion and to be considered for promotion, the statutory service provisions also supplements the said principles.
'Firstly it is noted that there is no express statutory "right to promotion" vested in a civil servant.
However, every civil servant, when he joins the civil service has a "legitimate expectation" to rise up the rungs of the service structural ladder. This "legitimate expectation" is not legally enforceable.
'Secondly, it is only when the civil servant fulfills the essential prescribed qualifications for promotion that his "legitimate expectation" matures into a "vested right".
'Thirdly, the civil servant's "vested right" to be considered for promotion to a higher post, has been expressly provided under section 9 of the Khyber Pakhtunkhwa Civil Servants Act, 1973 ("Act of 1973") read with sub-rule (3) of Rule-7 of Khyber Pakhtunkhwa Civil Servants (Appointments, Promotion and Transfer) Rules, 1989 ("Rules of 1989"). The said provisions read as follows:-- 'Act of 1973 "9. Promotion. --- (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rule for departmental promotion in the service or cadre to which he belongs.
'Rules of 1989.
7. Appointment by Promotion or Transfer.
(1).............................................
(2).............................................
(3) Persons possessing such qualifications and fulfilling such conditions as laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Provincial Selection Board for promotion or transfer, as the case may be."
10. In order to appreciate the true scope of the right of a civil servant to be considered for promotion, it would be appropriate to review the various stages his promotion case proceeds. The promotion process generally takes the following course:--- ' PROMOTION PROCESS.
' Eligibility Test (First Stage), ' On creation of a new post or availability of a vacancy in a higher post, civil servants, who are "eligible" under the prescribed rules to be promoted to the said higher post, are shortlisted by the department, keeping in view the number of post; thereafter, the department prepares the list of eligible officers for its placement before the competent promotion authority/Board for its decision.
'Fitness Test (Second Stage), ' On receipt of the shortlisted eligible civil servants for promotion, the competent promotion authority/Board, in cases of selection posts, considers the "fitness" of all short listed eligible civil servants placed before it for promotion to the higher grade, keeping in view the criteria prescribed under the relevant rules of promotion.
' What is crucial to understand is that in the First Stage, the essential and determining factor is the "eligibility" of the civil servant. While in the second stage, in cases of selection posts, it is "fitness" of the civil servant, which is the determining factor for promotion of the civil servant to the higher post.
11. Now, let us move on to the legal forums available to a civil servant for redressal of his grievance during the various stages his promotion case proceeds. The competent forum for redressal during each stage of the promotion process can be explained as under: 'LEGAL FORUMS.
' Pre-eligibility stage.
' In case the departmental authority, despite clear availability of vacancies in the higher post is not processing the promotion case of the eligible civil servants, they cannot seek "mandamus" from the Tribunal, as aptly explained by the apex Court in Qamar Dost Khan's case (2006 SCMR 1630). In such circumstances, the aggrieved civil servant may seek the indulgence of the constitutional Court under Article 199 of the Constitution. The writ so issued by the Constitutional Court would only be to the extent of directing the departmental authority to act in accordance with law and to initiate the process of promotion.
'Eligibility Stage. Once the departmental authority proceeds with the promotion process and decides on the "eligibility" of the civil servants and shortlists the candidates to be placed before the competent departmental promotion authority/Board, the issue would transform from inaction of the department to that of "terms and conditions" of the aggrieved civil servant. In such circumstances, the legal forum for redressal of a grievance of the said aggrieved civil servant would then only be entertained and determined by a validly constituted and functioning Tribunal.
The order of referring the promotion case of others to the departmental promotion authority/Board would be the "final order", as envisaged under section 4 of the Act of 1974.
'Fitness stage. The legal forum for redressal of a civil servant aggrieved of the decision of the promotion authority/Board on his lack of 'fitness" to be promoted to a higher post would not be the Tribunal. No doubt, the subject-matter of promotion falls within the scope of "terms and conditions" of his service, as the process and criteria of promotion has been provided under the Act of 1973 and the relevant Rules. However, the "proviso" to subsection (2) of section 4 of the Act, 1974, has expressly barred the Tribunal to entertain any such grievance of a civil servant. In addition thereto, section 23B of the Act of 1973 also bars the ordinary Courts of civil jurisdiction from entertaining any matters relating to the "terms and conditions of service" of a civil servant. Thus, a civil servant's grievance regarding the decision of the competent departmental promotion authority/Board on his lack of "fitness" to be promoted to a higher post cannot be agitated before a civil Court or the Tribunal. Faced with having no alternative remedy, the aggrieved civil servant may approach the constitutional Court for redressal of his grievance by invoking Article 199 of the Constitution.
12. The jurisprudential distinctions in regard to maintainability of petitions before the constitutional Courts and the Tribunals have by now been settled. While dealing with maintainability of petitions filed by a civil servant relating to "terms and conditions" of his service, it is settled that the exclusive jurisdiction to decide the same vests in the Service Tribunal and not the constitutional Courts. The leading pronouncements on the matter have been explained in Muhammad Anis and others v.
Abdul Haseeb and others (PLD 1994 SC 539), Muhammad lqbal v. Executive District Officer (Revenue) (2007 SCMR 682), Syed Abdul Qadir Shah v. Government of Punjab (1972 SCMR 323), Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others (1991 SCMR 1129), Muhammad Akram and others v. The State and others (1996 SCMR 324), Muhammad Rehman Khan v, Chief Secretary, N.- W.F.P. And others (2004 PLD (C.S.) 62), Abdul Ghafoor Supervisor/Inspector, NHA v. National Highway Authority and others (2002 SCMR 574) and Zafarullah Baloch v. Government of Balochistan and others (2002 SCMR 1056).
13. It would be interesting to note that the apex Court has in some cases clearly vested the 'Tribunal with exclusive jurisdiction on matters relating to terms and conditions of a civil servant, wherein the impugned action or inaction of the departmental authority did not have a formal "final order".
Some of the leading cases are as follows:--- 'Vires of Rules ' Service Tribunal was competent to adjudicate on the question of "vires" of rules framed by the department, even if the same were challenged on the basis of violating fundamental rights of the civil servant. The very rules were deemed to be the "final order". Cases in point are Iqan Ahmed Khurram's case (PLD 1980 SC 153) and I.A. Sharwani's case (1991 SCMR 1041).
'Departmental Inquiry Proceedings ' A challenge was made to the enquiry proceedings before the constitutional Court, where it was argued that as there is no "final order", the enquiry proceedings could be challenged before a constitutional Court. The apex Court in Abdul Wahab Khan's case (PLD 1989 SC 508), while dealing with matter held otherwise with the following, observations: "Even without such observation, the petitioner is entitled to seek remedy in accordance with the law applicable to the tribunal concerned with regard to the filing of appeals. The petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the Tribunal should be such which is appealable in accordance with the relevant Service Tribunals Act. But the order impugned before the high Court vis-a-vis the stage at which it has been passed, is not appealable, the petitioner would have to wait till such an order is passed against him which is appealable before the tribunal."
14. In view of the above legal discourse, it can safely be stated that the right to be considered for promotion to a higher post by a civil servant is a matter, which relates to the "terms and conditions of service" and the Services Tribunal has to decide the same. It is an admitted position that the Administrative Service Tribunal has been duly constituted and is presently functioning in Khyber Pakhtunkhwa under the enabling provision of the Act of 1974.
15. Having reached the conclusion that this constitutional Court lacks the jurisdiction to entertain the petitions, it would not be appropriate to pass any finding on merits and the challenge made to vires of the impugned rules in both sets of petitions.
16. Accordingly, for the reasons stated above, this Court: ' Declare grievance of the petitioners relating to their rights to be eligible for promotion to a higher post are "vested right" provided and protected under section 9 of the Khyber Pakhtunkhwa Civil Servants Acts, 1973 and hence, are terms and conditions of service of the petitioners.
(ii) Declare that as the respondents have refused the right of petitioners to be considered for promotion in their comments, the same are deemed as final order provided under section 4 of the Khyber Pakhtunkhwa Service Tribunal Act, 1974.
(iii) Declare that the exclusive jurisdiction to entertain and adjudicate upon the matters relating to the right to be considered for promotion to a higher grade vested in the Khyber Pakhtunkhwa Service Tribunal Act, 1974 and that this Court is constitutionally barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 to take cognizance thereof.
(iv) Direct the office to retain copies of memo. Of Writ Petitions bearing Nos.2440-P and 3388-P of 2012 and transmit the same to the Khyber Pakhtunkhwa Services Tribunal for decision in accordance with law. Parties are directed to appear before the Services Tribunal on 10th October, 2014.
(v) In view of the above directions, Writ Petition No,3595-P of 2012 having become infructuous is disposed of, accordingly.