' IFTIKHAR MUHAMMAD CHAUDHARY, J.---This judgment shall dispose of two Constitution Petitions bearing No,30 and 31 of 1991. As in both the petitions common question of law and identical facts are involved therefore, we propose to dispose of both these petitions through this single judgment.
2. - In short, the relevant facts of Constitution Petition No,30 of 1091, are that petitioner Dr. Fazlullah Pechuho, being candidate from Sindh (Urban) appeared in Central Superior Services Competitive Examination held by the Federal Public Service Commission in the Year, 1984. On qualifying the examination, he was offered Occupational/Accounts Group vide letter No,F.2/51/85-Exp., dated.
29th September, 1985 in B-17 of the Federal Government. The petitioner was asked to join Civil Services Academy for common training programme, Walton, Lahore on 22nd of October, 1985.
During the period of training the petitioner re-appeared in Central Superior Services Competitive Examination held in October, 1986, to improve his position and at the same time, he preferred representation to the concerned authorities for changing of his Occupational Group i,e, Accounts Group to District Management Group. It appears that for the third time again petitioner appeared in the Central Superior Services Competitive Examination held in the year, 1988. However, letter dated 4th of September, 1989 of the Government of Pakistan, Cabinet Secretariat, Establishment Division, reveals that petitioner was re-allocated to District Management Group in B-17 of the Federal Government. The petitioner was directed to receive his specialized training of District Management Group alongwith the present batch of Probationers as per letter dated 6th of November, 1989.
3. The petitioner completed his above training, whereafter his services were placed at the disposal of Province of Balochistan vide letter dated 27th of March, 1990 of the Government of Pakistan, as such in pursuance of this letter, petitioner joined as Assistant Commissioner (under training) in the office of Deputy Commissioner, Tamboo at Dera Murad Jamali vide Notification issued by the Government of Balochistan dated 14th of June, 1990.
4. At the time, when the petitioner was undergoing field training in the Province of Balochistan, he was reverted from District Management Group to that of his original group of allocation i,e, Accounts Group with immediate effect in pursuance of Notification No,12/1/87-E.5, dated 3rd of February, 1991 issued by the Government of Pakistan, Cabinet Secretariat, Establishment Division.
This order was conveyed to petitioner through another Notification dated 7th of February 1991, issued by the Government of Balochistan basing on the above Notification. Copy of the Notification issued by the Government of Pakistan in case of petitioner Dr.Fazlullah Pechuho has not been made available therefore, for the purpose of reference, Notification issued by the Government of Balochistan is reproduced hereunder:- GOVERNMENT OF BALOCHISTAN Services and General Admn. Department (Section-I) Dated Quetta, the 7th Feb., 1991.
NOTIFICATION ' No,22-180/91 SOI(S&GAD).--In pursuance of Government of Pakistan, Establishment Division's Notification No,12/1/87-E.5, dated the 3rd Feb; 1991 whereby the following candidates of Competitive Examination, 1987, have been reverted to their original group of allocation i,e, (Accounts Group), who were allowed change of Occupational Group from Accounts Group to the District Management Group:-
1. Mr.Mushtaq Ahmed Sheikh Assistant Commissioner (B-17/DMG). (under training) Lasbella.
2. Dr.Fazlullah Pechuho. Assistant Commissioner' (under training) Tamboo.
' The above named Officers are hereby relieved of their duties from this Province, with immediate effect.
(Sd.) JAVED TALAT Chief Secretary."
5. In short, the relevant facts of Constitution Petition No,31 of 1991 are that petitioner Mushtaq Ahmed Sheikh, being candidate from Sindh (Rural) appeared in the Central Superior Services Competitive Examination held by the Federal Public Service Commission in the year, 1987. On qualifying the examination, he was allocated to Occupational Accounts group in the year, 1988 vide letter No, 1453-IEC/4/11/88, dated 12th November, 1988, in B-17 of the Federal Government. He was deputed to receive initial common training in Civil Services Academy Walton, Lahore and on completion of this training, petitioner started specialized training in Audit and Accounts and' when he was undergoing this training, on 7th of November, 1989 vide letter No,12/1/87.E.5 issued by Government of Pakistan, Cabinet Secretariat, Establishment Division, he received an offer for re-allocation to the District Management Group from Accounts Group in B-17. Petitioner accepted this offer, as such he was asked to undergo specialized training of District Management group alongwith batch of that year vide letter dated 6th of November, 1989 and on completion of specialized training his services were also placed at the disposal of Province of Balochistan, where he reported in the office of Deputy Commissioner, Lasbella as Assistant Commissioner (under training). On 3rd of February, 1991 vide Notification of this date, issued by Government of Pakistan, Cabinet Secretariat, Establishment Division petitioner was reverted to his original group of allocation i,e, Accounts Group from that of District Management Group. Contents of the above Notification read as under:- "GOVERNMENT OF PAKISTAN (CABINET SECRETARIAT) ESTABLISHMENT DIVISION Islamabad the 3rd February, 1991. NOTIFICATION ' No,12/1/87.E.5(.)--Mr. Mushtaq Ahmed Sheikh, a candidate of Competitive Examination, 1987 who was 'allowed change of Occupational group from Accounts Group (A.-G.) to the District Management Group is reverted to his original group of allocation i,e, Accounts Group with immediate effect.
2. Establishment Division's letter/Order No,12/1/87-E.5, dated 7th November, 1989 is hereby cancelled.
(Sd.) KAMRAN ASLAM KHAN Joint Secretary (E)."
' Similarly as in case of Dr. Fazlullah Pechuho (C.P. No,30/91) Government of Balochistan issued a Notification for relieving the petitioner from the charge with immediate effect.
6. The petitioners have called in question Notification of the Federal Government dated 3rd of February, 1991 as well as that of Government of Balochistan dated 7th of February, 1991.
7. Mr. Sheikh Shaukat Hussain, learned counsel appearing on behalf of petitioners has contended as follows:-
(i) In view of the principle of locus poenitentiae the Notification of Government of Pakistan dated 3rd of February, 1991 has been issued without lawful authority and jurisdiction as such, is not sustainable in the eye of law.
' The Notification impugned in petition had adversely effected the rights of petitioners as the same has been issued on whimsical consideration therefore, petitioners were entitled for show cause notice.
' The Federal Public Service Commission is an Advisory body in its nature and Government had prerogative to accept the advice or not, while allocating occupation group to the candidates therefore, re-allocation of petitioners from Accounts Group to District Management Group was made validly and in accordance to law.
(iv) The Notification is the result of mala fides on the part of Government Functionaries, because the former Government had re-allocated the petitioner to District Management Group from Accounts Group and in order to wipe out this valid action of the then Government - present Notification has been issued.
8. Whereas on the other hand, Mr. Riaz Ahmed, learned Standing Counsel and Raja M. Afsar, learned Advocate-General, Balochistan, have contended as follows:-
(i) The principle of locus poenitentiae is not applicable on the facts and circumstances of present case because petitioners have not completed their training therefore, Government with lawful authority and jurisdiction have reverted them to their original Occupational Group.
(ii) The Notification under challenge has not been issued on whimsical consideration, as no injustice has been caused to petitioners, therefore, there was no necessity to issue show-cause notice to them.
' The order of re-allocation of petitioners to District Management Group from Accounts Group was passed in violation of the policy incorporated in the Government of Pakistan Cabinet Secretariat, Establishment Division letter No,1/32/78-III(FAG-75).
' Islamabad dated 11th of June, 1979. Contents whereof reads as under:- "Government of Pakistan Cabinet Secretariat, Establishment Division, (400 Ruby House, F/6-3)
No,1/32/78-III(FAG-75). Islamabad the 11th June, 1979.
OFFICE MEMORANDUM ' Subject: COMPETITIVE EXAMINATION 1875-ALLOCATION OF PROBATIONERS TO VARIOUS OCCUPATIONAL GROUPS: ' The undersigned is directed to refer to this Divisions O.M. No,1/52/77/T.III (FAG-75), dated 24th December, 1978 on the above mentioned subject and to say that probationers are allocated to different Occupational Groups after their training at AAT, Lahore, on the following basis:-
(i) Merit position in the FPSC examination and Final Passing out Examination at Academy for Administrative Training;
(ii) Final order of preference of probationers;
(iii) Number of vacancies required to be filled by Government in different Occupational Groups.
' For some time a number of representations have been received in the Establishment Division requesting for change from F.A. Group after the allocation has been made in accordance with the normal procedure. The matter has been carefully considered in the Establishment Division and it has been decided that no change from one Occupational group to another will be allowed except from FA.G. To another group in cases of exceptional hardships subject to:-
(i) Existence of a vacancy in the desired group;
(ii) Provincial quotas are not disturbed;
(iii) Other service conditions are not disturbed;
(iv) The person is considered suitable by the Federal Public Service Commission for other group.
(Sd.)
(HAMAYUN FAIZ RASOOL)
Joint Secretary."
' Learned counsel contended that in view of the above policy of Government, in fact impugned Notification has rectified a wrong, which was committed while re-allocating the petitioners to District Management Group. ,
(iv) There is no question of mala fides on the part of Government because no material has been brought on record to substantiate this plea, as such, in the absence of any proof, plea of mala fides is not entertainable.
(v) The petitions are not competent in view of the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
9. We have heard learned counsel for both the parties and with their help Notifications/documents and other material produced before us, have also been perused carefully.
10. Before entering into other related questions involved in this petition, we feel just and proper, to first of all, examine question of jurisdiction i,e, "Whether in view of bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, High Court had the jurisdiction to exercise powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973?".
' In order to resolve the above question, it would be beneficial to reproduce the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is extenso:- "212.(1) Notwithstanding anything hereinbefore contained, the appropriate legislature may by Act (provided for the establishment of), one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal. Of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything herein before contained, where any Administrative Court or Tribunal is established under clause (1) no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends (and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal (other than as appeal pending before the Supreme Court), shall abate on such establishment):-- ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution (Majlis-e-Shoora) Parliament by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court, or Tribunal shall lie only if the Supreme Court, being satisfied that the case involved a substantial question of law of public importance, grants leave to appeal."
11. Under the above provisions of the Constitution, separate forums have been created namely Administrative Courts and Tribunals for regulating the matter of those personnel who are in the service of Pakistan and such special forums have been vested with the exclusive jurisdiction, relating to the matters connected with terms and conditions of service and after establishment of such forums, Article 212 sub-Article (2) has created an absolute bar on exercise of jurisdiction of other. Courts as such no Court shall grant any injunction, make an order, or entertain any proceedings in respect of any matter relating to the terms and conditions of civil servants, for which, the Tribunal had jurisdiction.
' The Civil Servants Act of 1973, has been enacted as per command of Article 212 of the Constitution.
In this Act, the terms and conditions of the service have been mentioned in Chapter II, whereas according to section 3 terms and conditions mean, as provided under the Act, and the Rules.
' Even otherwise the conditions of service has vast connotation. In the case Government of Pakistan v. Ikhlaq Khan reported in PLD 1975 SC page 527, it was held that any benefit or disadvantage that attaches to the holding of an office as such is a condition of the service or condition of holding of the office.
12. Now keeping in view the facts of the instant case it will be examined as to whether any terms and conditions of the services of petitioners have been violated or not?'
The Notification dated 3rd of February, 1991 clarifies that petitioners have been reverted from District Management Group to their original group of allocation i,e, Accounts Group and the grievance of petitioners appears to be that they were appointed in District Management Group and have also received specialized training in that field therefore, they should have not been reverted to their Accounts Group because it would be too harsh and disadvantageous as they have to again undergo thorough specialized training etc. If this stand of petitioners is accepted, it could be concluded without any hesitation that the impugned Notification has interfered in the terms and conditions of their appointment.
' The appointment of a civil servant has been dealt with under section 5, Chapter II heading 'Terms and Conditions' of the Act of 1973. Therefore, in the cases where there is violation of terms and conditions of the appointment, the remedy is available by filing appeal before the Service Tribunal.
For reference reliance can be placed on the case of Mohibullah v. Federation of Pakistan reported in PLD 1975 Lahore page 813, in which his Lordship as he then was (Mr. Justice Nasim Hasan Shah) held as follows:- "The questions relating to appointment, promotion and reversion are dealt with under Chapter II of the Civil Servants Act which is headed "Terms and Conditions of Service of Civil Servants."
' The Honourable Supreme Court of Pakistan has held in so many cases that whenever there is a question of violation of the terms and conditions of service, no writ petition would be competent. In this behalf reference can be made to the case of Accountant-General, Balochistan, Quetta v. Abdul Majid Babar reported in 1990 SCMR 790. In this case, Abdul Majid Babar, who was the Chairman of Balochistan Public Service Commission, filed a Constitution petition in the High Court of Balochistan praying for issuance of writ against the Accountant-General, Balochistan for issuing of pay slip in accordance with Notification issued by the Provincial Government. This Court accordingly issued writ in favour of the petitioner. However judgment was challenged before Hon'ble Supreme Court of Pakistan and amongst other points, question of jurisdiction also came up for consideration and their Lordships on this point observed as under:- "However, the dispute substantially is with regard to the period of service before superannuation when Federal Government was fully incharge of the terms and conditions of the respondent. Article 212 of the Constitution is pre-emptory in language and provides that "no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends." The remedy to the Tribunal is available not only to those who are in service but also those who had been in service provided that dispute relates to their period of service."
' Similarly in another case of Rana Mohammad Sarwar v. Government of Punjab reported in 1990 SCMR 999 in the context of question of jurisdiction it was held as follows:- "As under Article 212(3) of the Constitution the Service Tribunal has exclusive jurisdiction to deal with the terms and conditions and the relief claimed by the petitioner also forms the terms and conditions of service, the High Court has appropriately held that the matter was a fit one for examination by the Service Tribunal."
13. When learned counsel Mi. Shaukat Hussain was confronted with the above legal position, he attempted to argue that the case of petitioners is covered by the exceptional clause of section 4 subsection (1) clause (b) of the Service Tribunals Act of 1973 as such no appeal lies to the Tribunal therefore, according to him Constitution petition was competent. No doubt abovementioned provision of Service Tribunal Act, 1973, has created an exception according to which no appeal shall be competent before a Tribunal against the order, decision of department determining the fitness or otherwise of a person to be appointed or holding a particular post or to be promoted in higher grade. Evidently Notification impugned in the petition had not determined the fitness or otherwise of petitioner for appointment/allocation to the District Management Group, rather the perusal of Notification makes it absolutely clear that petitioners have been reverted to their original Occupational Group of Accounts in the same pay scale therefore, the petitioner's case is also not covered by above exceptional clause of section 4 subsection (1) clause (b) and the argument of learned counsel does not appear to be convincing.
' In view of the circumstances of present case, we have no hesitation in holding that this Court has no jurisdiction to adjudicate upon the matter in its extraordinary Constitutional jurisdiction.
' As we have decided that due to lack of jurisdiction writ is not competent therefore, there is no necessity to dilate upon the other contentions of both the parties.
' The overall result of the discussion is that the petitions being incompetent are ordered to be dismissed.
' However, there shall be no order as to costs.