' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- Through this petition the following prayer has been sought: " ... In the light of above mentioned submission the petition in hand may kindly be allowed and the promotion orders dated 07.09.2013 bearing No,757-E/64-PT-I/P-1 and 11.09.2013 bearing Notice No,757-E/64-PT-I/P-I, issued by the respondent No,1 in favour of respondents Nos. 3 and 4 may kindly be declared null and void as well as against the constitution and the respondents Nos. 1 and 2 be directed to promote the petitioners after reversion of respondents Nos.3 and 4 being deserving employee, keeping the view of fundamental right of the petitioners, in the interest of justice, fair play and equity please."
2. Chaudary Anwar-ul-Haq, the learned counsel for the petitioners contended that the petitioners were initially appointed as Ticket Controller ("TCR") Grade-I in Pakistan Railways on 7th May, 2004, thereafter both of them were promoted as TCR in Grade-II, respectively vide order dated 31st May, 2008 and 16th March, 2009. He asserted that on 30th April, 2012, the respondent No,1 issued a seniority list of ICRs of grade-I & II in Quetta Division, wherein the petitioners were at serial Nos.3 and
4. He maintained that the officials at serial Nos.1 and 2 were promoted as Special Ticket Examiner ("STE") and on 7th September 2013 the respondent No,4 was promoted as STE and thereafter on 11th September 2013 the respondent No,3 was also promoted on the same position of STE. He referred to a policy of respondents' department and stated that the promotion of respondents Nos.3 and 4 was in utter violation of Pakistan Railways Policy for promotion to the position of STE, which was prescribed according to the following criteria/ percentage: * TCR Grade-II 80% * SCA (booking) 10% * SCA (Parcel) 5% * SCA (Goods) 5% ' The learned counsel for the petitioners finally urged that promotion of the respondents Nos.3 and 4 may be declared as having been made in violation of reserved quota and further sought direction to the official respondents for promotion of petitioners to the position of STE. He also relied upon a judgment in case of Zubaida Khatoon v. Tehmina Sajid Sheikh, 2011 SCM R 265.
3. On receipt of notice, the respondents entered appearance and filed their para-wise comments.
The respondents Nos.3 and 4 were appearing in person, while the respondents Nos.1 and 2 i,e, Pakistan Railways was represented by Mr. Sadiq Ghuman, Advocate, who at the very outset raised an objection on maintainability of the petition and contended that in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), the petitioners are civil servants. He further referred to the reply filed by the Pakistan Railways and contended that the departmental appeals of the petitioners have been dismissed by the competent authority, but they instead of availing of alternate remedy, invoked the jurisdiction of this court, therefore, the petition is not maintainable and prayed for its dismissal.
4. The respondents Nos.3 and 4 also appeared and were heard at length. The arguments advanced by the parties relate to the reserved quota for promotion to the position of STE from the various categories, but, albeit, we intentionally refrain ourselves to give any observation on merits of the case and decided to proceed with the matter, keeping in view the objection in respect of maintainability of the petition.
5. No cavil is left to hold that the Railways is, admittedly, a department of Federal Government, therefore, the employees of Pakistan Railways are covered by persons in the service of Pakistan. We are fortified in our view by the judgment of Hon'ble Apex Court in case of Chairman of Pakistan Railways Board Lahore v. Muhammad Ali, 1987 SCM R 638. The relevant portion of the said judgment is reproduced hereunder: "The respondent was definitely in the service of Pakistan being an employee of the Pakistan Railways that being the function connected with the affairs of the Federation. Hence, the bar of Article 13 of the Provisional Constitution Order. This appeal is accordingly allowed, the judgment of the High Court is set aside and the proceedings in the High Court are declared to have abated."
' This proposition came up before the Hon'ble Supreme Court in case of Government of Pakistan v.
Syed Akhlaque Hussain, PLD 1965 Supreme Court 527, wherein it is held in clear terms that a condition of holding an office means obviously a condition on which office is held. Any benefit or disadvantage that attaches to the holding of an office as such is a condition of service or condition of holding of office.
' The interpretation clauses contained in Article 260 of the Constitution, is applicable in this case, which defines the service of Pakistan as follows: "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majilis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliament Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly."
6. In this case the petitioners are seeking promotion to the next higher grade as STE on the strength that reserved quota allocated for promotion in various cadres have been violated. The question of paramount importance involved in this case would be that the available remedies by way of appeal, review, or representation before departmental authorities are not exhausted, and the petitioners directly approached this court under the constitutional jurisdiction, which relief cannot be granted to them in view of bar contained in Article 212 of the Constitution. For holding this view we have been supported by the reported judgment of Mufti Mushtaq Ahmed v. Federation of Pakistan, PLD 1981 Supreme Court 172. The law on this subject is clear, which provides a remedy without any ambiguity. The referred to judgment relates to clause-b, whilst in the instant case the requirement of clause-a was to be fulfilled, because the question involved in this petition does not relate to fitness of the petitioners, but their promotion to the next higher I grade according to reserved quota was sought to be granted.
' In referred to judgment of the Hon'ble Supreme Court it is observed that in view of specific bar contained in Section 4(1) of Service Tribunal Act, 1973, the question of fitness for promotion is beyond the jurisdiction of service tribunal, therefore, in that case the constitutional jurisdiction exercised by the High Court was affirmed. The sub-clauses (a) and (b) of subsection (1) of Section 4 of Service Tribunal Act, 1973 are relevant in this case, which provide as under: "(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise for a person to be appointed to or hold particular post or to be promoted to a higher post or grade; "
7. Therefore, we arc of the considered view that the prayer made by the petitioners relates to the terms and conditions of their service, which cannot be granted under the constitutional jurisdiction of this D court. The judgment referred to by the learned counsel for the petitioners does not provide any assistance to the petitioners' case being irrelevant.
' These are the reasons that we intentionally refrain ourselves to give any observation in respect of legality of promotion granted to the respondents Nos.3 and 4 as well as to the entitlement of the petitioners for their promotion to the next higher grade. Thus, petition being devoid of merits is dismissed accordingly; however, the petitioners are at liberty to avail the remedy provided to them under the relevant law.