Athar Minallah, C.J. The petitioner, Shafique A. Shahzad, has invoked the jurisdiction of this Court vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution") assailing notification, dated 01-06-2021, whereby his promotion from BPS-19 to BPS-20 notified vide notification, dated 20-03-2020, was declared to have lapsed for not actualization within stipulated period one year.
2. The petitioner had jointed the Occupational Group of Commerce and Trade. He was posted as Trade and Investment Counsellor (BS-19) in the High Commission of Pakistan, London (United Kingdom) for a period of three years with effect from 16-01-2020. During his foreign posting, the petitioner was considered by the Central Selection Board (hereinafter referred to as the "CSB") in its meeting held on 27th - 29th January, 2020. Pursuant to recommendations of the CSB, the petitioner was promoted to BPS-20 vide notification, dated 20-03-2020. The promotion was subject to assuming the charge of the post in BPS-20 in the Occupational Group of Commerce and Trade.
This was mandatory requirement under rule 5(5) of the Civil Servants Promotion (BPS-18 to BPS-20)
Rules, 2019 (hereinafter referred to as the "Rules of 2019"). It is noted that the Ministry of Commerce vide letter, dated 22-12-2020, had informed the petitioner that his promotion would not take effect unless it is actualized. He was also given option to continue with the foreign posting in BPS-19 while in such an eventuality, the promotion would lapse and the post in BPS-20 shall be declared as vacant. The petitioner did not opt to return to Pakistan and instead opted to contest the stance taken by the Federal Government.
3. The petitioner filed a representation but it was not entertained. He was informed vide letter, dated 25- 08-2021, that his representation was not competent in the light of the bar contained under section 22(2) of the Civil Servants Act, 1973 (hereinafter referred to as the "Act of 1973") read with rule 4(1) of the Civil Servants (Appeals), 1977 (hereinafter referred to as the "Rules of 1977").
This letter had created confusion and, therefore, the petitioner filed the petition in hand.
4. The respondents have filed their respective para-wise comments. Perusal of the comments as well as memorandum of petition explicitly show that the grievances of the petitioner was not regarding determination of the question of fitness. His grievance stems from the notification, dated 01-06-2022, whereby he was informed that the notification, dated 20-03-2020, stood lapsed for not actualizing within stipulated period of one year. The aforementioned impugned notification was issued pursuant to rules 5(5) of the Rules of 2019. As already noted, the question of determination of fitness was not involved. Rather, the grievance of the petitioner was regarding his terms and conditions of service governed under the Act of 1973 read with the Rules of 2019. The letter, dated 25-08-2021, was definitely based on misconstruing the provisions of the Act of 1973 and the Rules of 1977. Consequently, the representation of the petitioner was competent and, therefore, it could not have been declared as not maintainable in the light of the Act of 1973 read with the Rules of 1977.
The letter, dated 25- 08-2021, was based on misinterpretation of the provisions of the Act of 1973 and the Rules of 1977 because the grievance of the petitioner did not pertain to determination of his fitness.
5. It is settled law that the bar under Article 212 is of Constitutional nature and, therefore, curtails the jurisdiction of this Court in respect of matters committed to the learned Federal Service Tribunal.
Reliance is placed on the case of "Khalid Mehmood Wattoo versus Government of Punjab and others" [1998 SCMR 2280]. It is also settled law that the jurisdiction of a High Court is barred under Article 212 of the Constitution even if an order assailed before the High Court or the proceedings are malafide, coram-non-judice, without jurisdiction or on the ground of violation of fundamental rights. Reliance is placed on the cases of "Peer Muhammad versus Government of Baluchistan through Chief Secretary and others" [2007 SCMR 54], "Syed Arshad Ali and others versus Pakistan Telecommunication Company Ltd and others" [2008 SCMR 314], "Khalid Mehmood Wattoo versus Government of Punjab and others" [1998 SCMR 2280] and "Noor Badshah Khattak versus Government of N.W.F.P. and others" [2004 PLC (C.S) 1084].
6. It is further noted that question of vires in the context of determining the rights of a civil servant can also be raised before the Federal service Tribunal. Reliance is placed on "M. Yamin Qureshi versus Islamic republic of Pakistan and another" [PLD 1980 SC 22], "I.A. Sharwani and others versus Government of Pakistan through Secretary, Finance Division, Islamabad and others"
[1991 SCMR 1041] and "Muhammad Zahoor Abbasi versus Government of the Pun jab through Secretary Education, Civil Secretariat, Lahore and 03 others" [2004 SCMR 549]. It is also admitted that the Federal Service Tribunal has been validly constituted and has become functional. The grievances of the petitioner are, therefore, amenable to the jurisdiction of the learned Federal Service Tribunal.
7. The grievance of the petitioner was amenable to the jurisdiction of the learned Federal Service Tribunal because it did not involve the question of determination of fitness. It is, therefore, declared that letter, dated 25-08-2021, was ultra vires the Act of 1973 read with the Rules of 1977 and, therefore, void and illegal.
8. For the above reasons, the petition is allowed to the extent of setting aside letter, dated 25-08- 2021. The representation filed by the petitioner shall be treated as pending before the competent authority. The latter is expected to proceed in accordance with law. The petitioner would be at liberty to avail his remedies in the manner as provided under the law.