INAAM AMEEN MINHAS, J:- This judgment shall decide the instant writ petition as well as the writ petitions mentioned in the Annexure-A, involving common questions of law and facts.
2. In all the petitions, the petitioners have invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), seeking a direction to the respondents to grant them incentive promotion to the rank of Chief Warrant Officer from Warrant Officer with effect from 08.07.2023, as per the promotion policy of 2018 then in force, i.e., Air Force Order 30-14 dated 16.03.2018 ("Policy of 2018"), and declaration that denying grant of incentive promotion to the petitioner based on the revised promotion policy dated 21.07.2023 ("Policy of 2023"), and its retrospective application to their cases is illegal, unlawful and discriminatory.
3. Brief facts of the instant petition are that the petitioner having joined the Pakistan Air Force ("PAF") as an Airman on 09.07.1999, served with dedication and was promoted to the rank of Warrant Officer on 09.07.2022. Upon attaining the age of superannuation, he was struck off duty ("SOD") on 09.07.2023. The petitioner was considered in Promotion Board-2022 for promotion to the rank of Chief Warrant Officer but due to lower on merit he was not promoted. He claims entitlement to the incentive rank, which is given on retirement for the purpose of monetary benefits, in terms of Policy of 2018, which granted incentive promotions to Junior Commissioned Officers and Non- Commissioned Officers ("JCOs/NCOs"). The petitioner was meeting the promotion criteria but was not promoted due to lack of vacancies. Subsequently, revised Policy of 2023 was issued which introduced a Base Line Index ("BLI"), based on overall performance, achievements and number of courses completed. The revised policy was made applicable retrospectively from 27.12.2022 and such retrospective application altered the terms and conditions of service of the petitioner. The petitioner now seeks judicial review on the grounds of malice in law, arbitrariness, and violation of constitutional rights under Articles 4, 9, 10-A, and 25 of the Constitution.
4. The facts and grounds are common in all the connected petitions listed in Annexure-A, therefore, shall not be reproduced individually for the sake of brevity.
5. The learned counsel for the petitioners contended that these petitions under Article 199 of the Constitution are maintainable as the controversy does not pertain to terms of service, disciplinary proceedings, or efficiency-related matters, but rather involves an arbitrary and unlawful application of Policy of 2023 retrospectively that adversely affects their vested rights after retirement as the denial of incentive promotion was based on a policy issued subsequent to their retirement. The learned counsel further contended that claim of the petitioners is grounded in the enforcement of existing Policy of 2018 under which they were eligible at the time of retirement and the respondents' refusal to grant the benefit amounts to malice in law and colorable exercise of authority; that where executive actions are alleged to be without jurisdiction, discriminatory, or tainted with mala fide, the bar under Article 199(3) of the Constitution is not attracted and this Court is fully competent to examine the legality of such actions and the protection of fundamental rights, including equality before law, due process and the right to property in the form of pensionary benefits.
6. Conversely, the learned counsel for respondent No.2 raised a preliminary objection regarding maintainability of the petitions, asserting that the petitioners, being retired Warrant Officers of the PAF, were subject to the Pakistan Air Force Act, 1953, ("the Act, 1953") and thus falls within the category of personnel excluded from the jurisdiction of this Court under Article 199(3) of the Constitution as the issue in hand pertains to the terms and conditions of service within the Armed Forces and involves a policy decision falling within the exclusive domain of the PAF to regulate its internal affairs; that the petitioners have failed to demonstrate that the actions of PAF are tainted with mala fide, coram non judice, or are without jurisdiction, and in the absence of such infirmities, the bar on judicial review applies in full force. He further contended that the petitions do not disclose any cause of action as no legal or enforceable right has been infringed and the petitioners have not been able to establish any violation of applicable law or policy. On merits, the learned counsel for respondent No.2 submitted that the petitioners were considered for promotion to the rank of Chief Warrant Officer in Promotion Board-2022 but were found low on merit and retired with all post-retirement benefits due under the law; that the policy for incentive promotion was revised from time to time, and by 2020 onwards, eligibility was made subject to BLI and performance benchmarks, which were duly circulated and known across PAF. It was maintained that the grant of incentive rank is not a vested or accrued right, but a discretionary privilege extended to high- performing and well-disciplined individuals based on available criteria and financial implications and that the petitioner's performance did not meet the prescribed threshold and no discrimination or mala fide is evident, as the JCOs were not granted incentive promotion after March 2023.
7. I have heard the learned counsels for the parties and perused the record with their able assistance.
8. The learned counsel for the respondents has raised a preliminary objection regarding the maintainability of the petitions under Article 199(3) of the Constitution. The Honourable Supreme Court in case of Muslim Commercial Bank Limited vs. Muhammad Anwar Mandokhel (2024 SCMR 298) held that every Court prior to taking cognizance of any matter should first resort to the question of assumption of jurisdiction of the Court then adjudicate upon the matter. Therefore, this Court shall decide first the question of the maintainability of the petitions. In order to adjudicate the question of maintainability, it is imperative to determine the nature of the relief claimed. The petitioners' primary grievance concerns the grant of incentive promotion under two separate policies of the PAF, namely AFO 30-14, Policy of 2018 and the revised AFO 30-14, Policy of 2023, both policies provide different criteria for incentive promotion. The relevant clauses of both policies are reproduced hereunder :- "AFO 30-14 of 2018
14. Grant of Incentive Rank. On retirement, one substantive higher rank of AWO/ WO/ CWO will be granted as an incentive to only those who have cleared the promotion board and are not promoted due to want of vacancy. However, all JCOs/ Airman who have opted "No" for revised term of engagement as per corrigendum 01/2015 of JSI 10/88 and have become superseded (due to ineligibility or want of vacancies cadre to only those high performing individuals who were falling on the Base Line Index (BLI) but could not be promoted due to want of released vacancy as per service requirements.
AFO 30-14 of 2023
14. Grant of Incentive Rank. On retirement, the worthy CAS may authorize on higher unpaid rank in JCO cadre to only those high performing individuals who were falling on the Base Line Index (BLI) but could not be promoted due to want of released vacancy as per service requirements."
9. The petitioners have primarily challenged the retrospective applicability of the Policy of 2023 as the petitioners were retired before its circulation; however, the material placed on record reflects that performance-based evaluation system, including the introduction of the BLI, had already been disseminated prior to the issuance of the Policy of 2023. A letter bearing reference No. AHQ/12315/24/3/1/DCAS (P), dated 27.12.2022 confirms that the criteria based on BLI had been formally communicated to all personnel across all bases and units of the PAF as such the policies governing incentive promotion were duly formulated and applied uniformly, and the performance- based standards introduced through internal policy instruments prior to the Policy of 2023 were applicable to the petitioners.
10. Now turning to the question of maintainability of the instant petition under Article 199(3) of the Constitution, the statutory framework governing PAF personnel is regulated by the Act, 1953, the Defence Services Regulations, 1988, and various administrative instruments issued by Air Headquarters, such as AFOs and policy directives. These instruments constitute a complete code for service structure, discipline, promotions, and related matters within the PAF. Article 199(3) of the Constitution places an express bar on the jurisdiction of the High Courts in matters relating to the terms and conditions of service of members of the Armed Forces, whereas an incentive promotion, being governed by internal policy and falling squarely within administrative discretion, does not by itself create an enforceable legal right capable of judicial enforcement under Article 199(1) of the Constitution unless the act is mala fide, corum-non-judice or without jurisdiction. The jurisdiction of this Court in these petitions is barred under Article 199(3) of the Constitution for the reasons that these petitions have been filed by the retired members of the Armed Forces of Pakistan, but also in respect of the terms and conditions of their service. Reliance is placed on Sadaqatullah vs. The Federation Of Pakistan through Secretary and 3 others (2019 PLC (C.S.) 695).
11. The petitioners have failed to demonstrate that the action complained of is tainted with malice, coram non judice, and/or without jurisdiction. In the absence of these grounds, the writ jurisdiction of this Court remains ousted, and service matters falling within the Armed Forces' internal regulatory framework cannot be adjudicated.
12. In view of the above discussion, the instant writ petition as well as the writ petitions mentioned in Annexure-A are dismissed being not maintainable.
Annexure- A Sr.
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