MUHAMMAD QASIM KHAN, J.---Through this single order, I propose to decide two writ petitions i,e, Writ Petition No, 4619/2015 "Syed Hassan Askari v. Province of Punjab, etc." and Writ Petition No, 12820/2015 "Muhammad Ishaq v. Home Secretary, etc." alongwith five civil miscellaneous applications i,e, C.M. No, 2/2015, C.M. No, 1699/2005, C.M. No, 04/2015, C.M. No, 3023/2015 and C.M. No, 5/2015, all filed in former Writ Petition No, 4619 of 2015, as these matters have arisen out of almost similar facts and agitate identical issue.
2. Briefly the facts of the cases are that the petitioners in both these writ petitions are working as Inspectors in Punjab Police and the grievance put before the Court through the instant writ petition precisely is that one Usman Anwar who was junior as compared to the present petitioners, was given seniority, whereas, petitioners' seniority was not properly assessed, they were placed against their actual seniority and thus, they were deprived of right of promotion. With above facts, the prayer made in Writ Petition No, 4619/2015, is to the following effect:- "It is, therefore, most respectfully prayed that this petition may kindly be allowed appropriate writ/direction to be issued to the respondents to consider the case of the petitioner to the rank of DSP when his junior namely Muhamamd Usman was considered, while recognizing and acknowledging to be an Inspector having been duly promoted as such on 16.11.1995, in the interest of justice."
' The prayer clause of Writ Petition No, 12820/2015 reads as under:--- "Under the above circumstances it is most respectfully prayed that the record of the case be called for, notice be issued to the respondents be directed to consider the petitioner as confirmed Inspector with effect from 16.11.1995 from the date when his juniors were considered.
' It is further prayed that the name of the petitioner be placed above Serial No, 27 and under Serial No, 25-A i,e, Inspector Usman Anwar and respondent be dealt for non-complying the order dated 23.2.2015."
3. In Writ Petition No, 4619/2015, five civil miscellaneous i,e, C.M. No, 2/2015, C.M. No, 1699/2015, C.M.
No, 4/2015, C.M. No, 3023/2015 and C.M. No, 5/2015 have been filed under Order I, Rule 10, CPC, wherein, the applicants who are also police Inspectors seek their impleading as party in the said writ petition.
4. On 12.6.2015, the learned Law Officer had contended that firstly the legal question about maintainability of this writ petition shall be decided and accordingly the case was fixed for today with clarification that matter will be argued on the point of maintainability as well as application of Order I, Rule 10, CPC. Consequently, these matters have been heard on the above lines.
5. Mr. Waqar Hassan Mir, Advocate for the petitioner in Writ Petition No, 4619 of 2015 on the point of maintainability of writ petition argued that Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is vast enough and it does not curtail the jurisdiction of this Court where discrimination is manifest. The learned counsel further argued that although Article 212 of the Constitution does carry a bar, but the said Article cannot be read in derogation to Article 199 of the Constitution. On this aspect, learned counsel submits that since the co-colleague namely Usman Anwar was granted a relief, in terms of his seniority, by this Court in Writ Petition No, 9780 of 2014 vide order dated 24.4.2014 and the said order was kept intact even by the Hon'ble Supreme Court of Pakistan in C.P. No, 20-L of 2014, therefore, it is a case of discrimination and this Court has the jurisdiction to entertain and decide the matter. On the question of application under Order I, Rule 10, 'CPC, the learned counsel argued that no relief was sought against the applicants and the petitioner was only claiming restoration of his seniority.
6. Mr. Tallat Farooq Sheikh, Advocate representing the petitioner in Writ Petition No, 12820/2015 while adopting the above arguments, added that since the seniority list issued by the respondent department is only provisional in nature and as no final seniority list has been issued, therefore, the petitioner cannot have recourse to the Punjab Service Tribunal and this writ petition is maintainable.
7. Mr. Imtiaz Ahmad Kaifi, Additional Advocate General and Mr. Tahir Mehmood Khokhar, Standing Counsel appearing on Court's call, have vigorously challenged the maintainability of both the writ petitions by arguing that determining of seniority is prerogative of the Service Tribunal and the bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be relaxed by pleading discrimination per force of Article 25 of the Constitution. The learned Additional Advocate General argued that even this is not a case of discrimination as Usman Umar had approached this Court through Writ Petition No, 9780 of 2014 only for the implementation of order of the Punjab Service Tribunal dated 15.4.2008 and this Court vide order dated 24.4.2014 had only directed the respondent authorities to fix his seniority as already declared by the Punjab Service Tribunal in its judgment dated 15.4.2008 and the order of this Court was upheld by the apex Court vide order dated 2.12.2014 passed in C.P. No, 820-L of 2014, therefore, the seniority determined by the respondent was pursuant to the initial order of the Punjab Service Tribunal, whereas, the present petitioners do not have any order of the Tribunal and through these writ petitions they have straightaway claimed seniority, which question can be settled by the Service Tribunal alone, therefore, these writ petitions are not maintainable. The learned Additional Advocate General referred "ASADULLAH RASHID v. Haji MUHAMMAD MUNEER and others" (1998 SCMR 2129), "DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS QUETTA and others v. SHAUKAT ALI and another" (2015 SCMR 836), "Dr. RIFFAT KAMAL and others v. FEDERATION OF PAKISTAN and others" (2015 SCMR 847) and "PEER MUHAMMAD v. GOVERNMENT OF BALOCHISTAN through Chief Secretary and others" (2007 SCMR 54).
8. The learned Standing Counsel while adding to the arguments of learned Additional Advocate General contended that any challenge to the seniority list, can be subject-matter of appeal before the Service Tribunal, as preparation of seniority list of civil servants is a matter which relates to the terms and condition of civil servant and this Court would lack jurisdiction; per force of bar contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. In support of his arguments, the learned Standing Counsel placed reliance on the case "BASHIR AKHTAR SHAHI versus GOVERNMENT OF PUNJAB and others" (1978 PLC (CS) 216), "ALI IFTIKHAR JAFRI and 12 others versus I.-G. POLICE, PUNJAB and 336 others" (2005 PLC (CS) 811), "IFTIKHARU.LLAH KHAN, SUB- DIVISIONAL OFFICER and others versus THE SECRETARY, IRRIGATION AND POWER DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 3 others" (2002 PLC (CS) 720), "MUKHTAR AHMAD JUNEJO and 2 others versus PROVINCE OF SINDH and others" (PLD 1986 SC 560) and "L. H. SHAIKH versus GENERAL MANAGER, KARACHI TELECOMMUNICATION REGION and others" (1974 SCMR 82).
9.The learned counsel representing the applicants in civil miscellaneous applications for impleading them as party, mainly argued that since in the main writ petitions, the petitioners have claimed that their names be placed on specific serial and in case the writ petitions are allowed, the applicants whose names also figure in the same seniority list, are bound to suffer and furthermore, as the seniority list carrying the names of the applicants is already available on the file, therefore, they are necessary and proper party to be impleaded in these petitions. Khawaja Umar Masood, Advocate (C.M. No, 1699/2015) also attacked the maintainability of writ petitions by referring to prayer clauses of the petitions and in this respect placed reliance on the case "SYNTRON LIMITED versus HUMA IJAZ and others" (2014 SCMR 531) and "ALI AZHAR KHAN BALOCH and others versus PROVINCE OF SINDH and others" (2015 SCMR 456).
10.I have heard the arguments of learned counsel for the parties at full length and perused the entire record.
11.As shall be seen from the above-reproduced prayer clauses of both the writ petitions and has argued on behalf of the petitioners before this Court, the precise question involved in these writ petitions is determination and placement of names of the petitioners on the seniority list. Learned counsels for the petitioners in order to plead maintainability of the writ petitions, referred the earlier decision of this Court dated 24.4.2014 passed in Writ Petition No, 9780 of 2014 and contended that since in the said writ petition a direction with regard to seniority of Muhammad Usman Anwar (petitioner therein), had been passed by this Court and the said order was upheld by the Hon'ble Supreme Court of Pakistan in C.P. No, 820-L of 2014, therefore, no discrimination can be metted out to the present petitioners and these writ petitions are maintainable. A perusal of the record shows that as a matter of fact said Muhammad Usman Anwar had approached the Punjab Service Tribunal through a Service Appeal and judgment dated 15.4.2008 was passed by the Service Tribunal, as the said judgment was not being implemented, it was in these circumstances that Muhammad Usman Anwar filed Writ Petition No, 9780 of 2014 to seek meticulous implementation of judgment of the Service Tribunal; pursuant to order dated 24.4.2014 the judgment of the Service Tribunal was implemented and Civil Petition No, 820-L/2014 filed by the Province of Punjab was dismissed by the Hon'ble Supreme Court vide order dated 2.12.2014. Therefore, as a matter of fact Usman Anwar was granted seniority in implementation of judgment of Punjab Service Tribunal and this Court while dealing with Writ Petition No, 9780 of 2014 had not determined his seniority, rather a straightforward direction was issued to the respondents to place the seniority of said petitioner as declared by the Punjab Service Tribunal in its judgment dated 15.4.2008. Hence, in that case there was no embargo of jurisdiction and the Court had only implemented the order of the Punjab Service Tribunal. The stance of learned counsels for the petitioners that they have been discriminated by placing Usman Anwar as senior to them, could not be decided by this Court as the seniority is covered by the terms and conditions of service. Even if an employee while fixing seniority is discriminated or any of his fundamental right has been violated, he would have two remedies, firstly, if provided, he could file appeal/ representation before the departmental hierarchy and then appeal before the Service Tribunal. Even otherwise, the Hon'ble Supreme Court of Pakistan in the case "IA. SHARWANI and others versus GOVERNMENT OF PAKISTAN through Secretary, Finance Division, Islamabad and others" (1991 SCMR 1041) with reference to Article 212 of the Constitution of Islamic Republic of Pakistan, in clear terms held that:--- "However, we may clarify that a civil servant cannot bye pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
' The ground of "discrimination" based on Article 25 of the Constitution, definitely is one of the fundamental right Constitutionally guaranteed and the apex Court in the above judgment has in unambiguous words held that even if there may be a question of violation of any of the fundamental right, the bar of Article 212 of the Constitution would attract. Therefore, even if the argument of learned counsel for the petitioners about discrimination is considered, even then the forum for determination of the issue in-hand, would be the Punjab Service Tribunal and not this Court.
12. Apart from the above there is settled law on the point that seniority of a civil servant, necessarily entails terms and conditions of service of civil employees and the question about seniority of civil servants can be settled by the Service Tribunal alone. In this respect some references are quoted as under:--- "JAMAL KHAN JAFFAR and another versus RAHIM SHAH and 3 others" (1994 SCMR 759).
' In this judgment, the Hon'ble Supreme Court has held that seniority in service is also one of the' terms and conditions of the service of a civil servant and dispute regarding seniority raised by a civil servant is amenable to the jurisdiction of the Service Tribunal established under the Constitution. If the competent authority on a wrong basis and contrary to the provision of the law fixed the seniority of a civil servant such order is not immune from attack by the aggrieved civil servant.
"MUKHTAR AHMAD JUNEJO and 2 others versus PROVINCE OF SINDH and others" (PLD 1986 SC 560), wherein, the apex Court held that questions of seniority of civil servant can be agitated before Service Tribunal and Tribunal has the jurisdiction to decide these questions in Course of an appeal before it.
"L. H. SHAIKH versus GENERAL MANAGER, KARACHI TELECOMMUNICATION REGION and others" (1974 SCMR 82), wherein the apex Court conclusively held that "Seniority was not one of the conditions of service which had been guaranteed by that Constitution nor could a writ petition lie to enforce the correction of a seniority list "IFTIKHARULLAH KHAN, SUB-DIVISIONAL OFFICER and others versus THE SECRETARY, IRRIGATION AND POWER DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 3 others" (2002 PLC (CS) 720), wherein it has been held that "Even otherwise, this Court has consistently held that the preparation of a seniority list is a mater which relates to the terms and conditions of civil servant."
13. After the above synopsis of case-law, there hardly remains any doubt in holding that the matter of seniority of civil servants involves the terms and conditions of civil servants and this question can be settled by the Service Tribunal and bar contained in Article 212 of the Constitution would attract by all force. In this regard, a latest, pronouncement of the Hon'ble Supreme Court of Pakistan is reflected in the case "ALI AZHAR KHAN BALOCH and others versus PROVINCE OF SINDH and others"
(2015 SCMR 456). In para-139 at page 516 of the judgment, the Hon'ble Supreme Court of Pakistan formulated a question "WHETHER CIVIL SERVANT CAN APPROACH THE HIGH COURT OF SINDH IN A SUIT OR IN CONSTITUTION PETITION IN RELATION TO TERMS AND CONDITIONS OF HIS SERVICE" and answer to the said query has been given in paras-149, 150 and 151 of the said judgment, as under:--- 149.Article 212 of the Constitution ousts the jurisdiction of High Courts and Civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to Civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command, and, therefore, of necessity restricts the jurisdiction of Civil Courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals.
150. The High Court of Sindh has completely overlooked the intent and spirit of the Constitutional provisions relating to the terms and conditions of service, while entertaining Civil Suits and Constitution petitions filed by the civil servants, which are explicitly barred by Article 212. The expression 'Terms and Conditions' includes transfer, posting, absorption, seniority and eligibility to promotion but excludes 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 as provided under section 4(b) of the Sindh Service Tribunals Act, 1973. Surprisingly, it has been ignored that it is, by now, a settled principle of law that the civil and writ jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of Civil Servants, and yet some of the learned Judges of High- Court of Sindh have erroneously exercised both civil and writ jurisdictions with regard to the terms and conditions of civil servants. "[Emphasis supplied].
151. We, for the aforesaid reasons, conclude that the exercise of jurisdiction by way of suit and Constitution petition filed by a civil servant with regard to his terms and conditions of service is violative of Articles 175, 212 and 240 and the law."
13. For what has been discussed above, in the light of repeated pronouncements of the apex. Court regarding want of jurisdiction by the High Court in the matters involving terms and conditions of service, and more particularly the above-referred recent judgment on this point, this Court has no doubt to hold that the questions of seniority of a civil servant involves the terms and conditions of civil servant and thus in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, this Court lacks jurisdiction to entertain these writ petitions, as determination or settling the questions about seniority of civil servant is solely the prerogative of the Service Tribunal. Consequently, both these writ petitions are dismissed on the point of maintainability.
14. Since the main writ petitions have been held to be not maintainable, therefore, the civil miscellaneous applications seeking impleading of the applicants in the proceedings of the writ petitions, have lost their efficacy, consequently are disposed of accordingly.