' ANWAR ZAHEER JAMALI, J. --- These three identical civil petitions for leave to appeal are directed against the common judgment dated 22.10.2010, passed by a learned Division Bench of the High Court of Sindh in three connected C,.Ps. Nos. D-368/2007, a 184 & D-823 of 2009.
2. Three other identical petitions for leave to appeal, against the sane impugned judgment, preferred by official respondents being C.P.L.A. Nos. 799-K to 801-K of 2010. were separately heard and dismissed by this Court, vide its judgment dated 9.6.2011, which contains all the relevant facts of the case and the reasons for dismissal of those petitions. Since the controversy involved in these petitions as well as impugned judgment is same which was subject-matter of those earlier petitions, we deem it appropriate that instead of recording the relevant facts and the reasons once again or to reproduce it, to order that the said judgment dated 9.6.2011 in C.P.L.A. Nos. 799-K to 801K of 2010 may be read as part and parcel of this judgment.
3. Mr. Mujeeb Pirzada; learned Sr. ASC for the petitioners, besides raising some of the contentions, which have already been discussed and repelled in the earlier judgment, referred to hereinabove, has further raised the legal plea as regards the maintainability of the petitions under Article 199 of the Constitution before the High Court of Sindh. According to learned Sr. ASC, the notification dated 4.6.2008, issued by the Government of Sindh, impugned in the two Constitutional Petitions No, D-184 and D-823 of 2009, was basically relating to the terms and conditions of service of the petitioners before the High Court, therefore, the jurisdiction of the High Court of Sindh was barred under Article 212 of the Constitution of Islamic Republic. of Pakistan, 1973. To fortify his submissions, learned Sr.
ASC has placed reliance on the following cases:--
(i) I.A. Sharwani v. Government of Pakistan (1991SCMR 1041)
(ii) Muhammad Tahir Achakzai v. Government of Balochistan (1999 SCMR 1689)
(iii) Government of the Punjab v. Muhammad Zafar Bhatti (PLD 2004 S.C. 317) ' which, broadly speaking. lay down the principle that where any controversy relating to the terms and conditions of service of a civil servant was involved, the only remedy available to him will be before the Service Tribunals and jurisdiction of the High Courts to adjudicate such controversy will be deemed to be barred under Article 212 of the Constitution.
4. Before dilating further upon this aspect of the matter, it will be useful to reproduce hereunder the impugned notification dated 4.6.2008, which reads as under:--- "GOVERNMENT OF SINDH WORKS & SERVICES DEPARTMENT Karachi, dated the 4th June,2008 NO. SOI/VV&SD/EW/11-1-2007: In pursuance of sub-rule (2) of Rule 3 of the Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 and in partial modification of the Communication & Works Department's Notification No, El(C&W)1- 34/81(86), dated 14th January, 1987 and Education Department's Notification No, SO(E-V)9-32/89, dated the 30th August, 1992 and in consultation with the Services, General Administration & Coordination Department, the method for appointment to posts mentioned in column 2 of the table below Shall be a laid down against them in column 3 thereof-- S r . # N a m e o f P o s t M e t h o d o f A p p o i n t m e n t 1 . E x e c u t i v e E n g i n e e r ( B P S - 1 8 )
W o r k s & S e r v i c e s D e p a r t m e n t6 0 % b y p r o m o t i o n f r o m a m o n g s t t h e A s s i s t a n t E n g i n e e r s B . E . i n C i v i l , E l e c t r i c a l o r M e c h a n i c a l E n g i n e e r i n g o r e q u i v a l e n t w i t h a t l e a s t f i v e y e a r s s e r v i c e i n B P S - 1 7 .
3 0 % b y p r o m o t i o n f r o m a m o n g s t t h e A s s i s t a n t E n g i n e e r s h a v i n g B - T e c h ( H o n s . ) d e g r e e i n C i v i l , E l e c t r i c a l o r M e c h a n i c a l E n g i n e e r i n g w i t h a t l e a s t f i v e y e a r s s e r v i c e i n B P S - 1 7 .
1 0 % b y p r o m o t i o n f r o m a m o n g s t t h e A s s i s t a n t E n g i n e e r s h a v i n g D i p l o m a i n C i v i l , E l e c t r i c a l o r M e c h a n i c a l E n g i n e e r i n g f r o m a r e c o g n i z e d I n s t i t u t e w i t h a t l e a s t f i v e y e a r s s e r v i c e i n B P S - 1 7 .
2 E x e c u t i v e E n g i n e e r ( B P S - 1 8 )
E d u c a t i o n W o r k s D e p a r t m e n t8 0 % b y p r o m o t i o n , f r o m a m o n g s t t h e A s s i s t a n t E n g i n e e r s B . E . i n C i v i l o r e q u i v a l e n t w i t h a t l e a s t f i v e y e a r s s e r v i c e I n B P S - 1 7 .
3 0 % b y p r o m o t i o n f r o m a m o n g s t t h e A s s i s t a n t E n g i n e e r s h a v i n g B - T e c h ( H o n s . ) i n C i v i l d e g r e e w i t h a t least five years service in BPS-17.
10% by promotion from amongst the Assistant Engineers having Diploma in Civil Engineering from a recognized Institute with at least five years service in BPS-17.
5. From the bare reading of above notification, moot point for consideration surfaced before us is as to whether it is a notification, relating to the terms and conditions of the service of some Civil Servants or simply a policy decision taken by the concerned authority, which, as already held in the earlier judgment dated 9.6.2011, is, inter alia, violative of Article 25 of the Constitution. After detailed discussion regarding facts of the case in the earlier judgment dated 9.6.2011, it Is hardly anymore debatable issue that this notification cannot be categorized to have given any cause of grievance to the petitioners before the High Court in relation to their terms and conditions of service, which could only be challenged under Section 4 of the Sindh Service Tribunals Act, 1973 before the Sindh Service Tribunal. It will be seen that in all the three Constitutional Petitions before the High Court of Sindh, wherein common impugned Judgment dated 22.10.2010, was passed one way or the other, grievance agitated by the petitioners therein was with reference to violation of Articles 3 and 25 of the Constitution, and it was in that context that the High Court rightly came to the conclusion that the bar of Article 212 of the Constitution was not at all attracted to the said petitions before It, This view of the matter is fully justified in the circumstances of the instant cases where no final order or individual grievance with reference to the terms and conditions of service, jurisdictionally covered by Section 4 (ibid), was available to the petitioners before the High Court, but only a policy decision was challenged, inter alia, on the yardstick of discrimination within the meaning of Article 25 of the Constitution, which plea of the petitioners before the High Court was sustained. This being the position, legal proposition amplified in various judgments of this Court referred to above, which, on facts are also distinguishable, has no application to these petitions. Thus, it cannot be said that view of the bar contained under Article 212 of the Constitution, the High Court of Sindh lacked jurisdiction to adjudicate the controversy raised before it. If any case-law is needed to fortify this view, with advantage, reference to a passage from the judgment in the case of Abdul Hameed Anjum v. Federation of Pakistan (PLD 2010 S.C. 857), can be made here, which reads as under:--- "In the case of Dr. Mrs. Zahida Mir v. Punjab Public Service Commission (1992 PLC 1010) the departments' objection relating to the jurisdiction of the High Court under Article 199 of the Constitution was decided as under:-- ' The dispute in this case is not in respect of a matter relating to terms and conditions of service of a civil servant, who is or has been in the service of Pakistan. The dispute in this case relates to the recommendation made by the Commission for appointment as Professor of respondent No, 3, which was a stage prior to becoming the petitioneras civil servant for the purpose of the said post, in respect of which applications were invited by the Commission. Here challenge has been made to the recommendations of the Commission prior to the period when respondent No. 3 became a civil servant. Such a grievance is justifiable in writ jurisdiction.
51. The ratio of the above judgments is that in the absence of a final order of the departmental authority in respect of terms and conditions of the service of a civil servant or matter of appointment (induction in the present case), Tribunal would have no jurisdiction under Section 4(1) of the Service Tribunals Act, 1973. Further an order or notification relating to the reorganization or re-designation of various posts having no nexus with the terms and conditions of the service of a civil servant, would also be outside the jurisdictional purview of the Tribunal.
52. The present case neither involves the question of eligibility nor fitness, suitability or otherwise. It is also not a case of disciplinary action or promotion. Here the officers after deputation were trained, examined and given various posts for last sixteen years. They were admittedly found eligible, suitable and fit to work in the Income Tax Group but were not being notified to be inducted in the Income Tax Group despite CBR's decision dated July, 2000. The terms and conditions of service of these officers would have arisen only after determination of the service that they belong to".
6. In addition to it, in the third Constitutional petition No. D-368/2007, which was also allowed by the same impugned judgment of the High Court of Sindh dated 22.10.2010, prayers made were not in .relation to the notification dated 4.6.2008, but the nature which, even otherwise, did not fall within the scope of terms and conditions of service of a civil servant, as defined under Chapter-II of the Sindh Civil Servants Act, 1973. Thus, based on these distinguishable facts of the third petition, the arguments of the learned Sr. ASC for the petitioners relating to the bar of Article 212 of the Constitution have also no applicability to the maintainability of said Constitutional petition.
7. To sum up, it is not every grievance of a civil servant relating to his service for which his remedy lies before the Service Tribunals, but only those which relate to his terms and conditions of service, provided under Chapter-II of the Sindh Civil Servants Act, 1973, and fall within the jurisdiction of Service Tribunal within the meaning of Section 4 of the Service Tribunals Act, 1973, otherwise the bar of Article 212 of the Constitution will not come in his way to agitate any other grievance before the High Court under Article 199 of the Constitution, if having no other adequate, efficacious alternate remedy available with him for redressal of such grievance.
8. This being the position, the legal objection raised by learned Sr. ASC on behalf of the petitioners is rejected and these petitions are also dismissed. Leave refused.
9. For ready reference, office is directed to retain a copy of judgment dated 9.6,2011, in C,P,LAs. Nos.
799-K to 801-K of 2010, In the file of each of these petitions.