MALIK MUHAMMAD QAYYUM, J.-This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question an order passed by respondent No.1 on 31.10.1991 whereby the petitioner was reverted from the post of Executive Engineer to that of Assistant Executive Engineer/SDO.
2. On 28.5.1991, the petitioner, while working as Sub-Divisional Engineer, was promoted as Executive Engineer on officiating basis pursuant to recommendation of the Departmental Promotion Committee dated 23.5.1991. He continued to work as Executive Engineer till 3.10.1991 when he was reverted to the post of the Assistant Executive Engineer by virtue of the impugned order.
3. The learned counsel for the petitioner has contended that although in order of promotion, the promotion was described as officiation but for all intends and purposes, the promotion which made against a permanent vacancy after following the procedure prescribed in law must be considered to be on permanent basis. Reliance has been placed by the learned counsel-on a Division Bench judgment of West Pakistan High Court reported as Jafar Ali Akhtar Yousafzai v.
Islamic Republic of Pakistan and another (PLD 1970 Quetta 115), wherein it was observed that the Government cannot retain extra legal/extra constitutional power by terming the appointment of an incumbent as officiating. Reference has also been made by the learned counsel for the petitioner to Abdul Qayum Qureshi v. The Government of Punjab etc. (1975 SCMR 457), Federation of Pakistan v. Azizullah Chaudhry and another (1988 SCMR 207) Abdul Majid Sheikh v. Mushaffe Ahmad. Section Officer Govt, of Pakistan. Ministry of Defence. Karachi and another (PLD 1965 S.C. 208) and Islamic Republic of Pakistan v. Dr. Mahmood (PLD 1983 S.C. 100).
4. The learned Addl. Advocate General as also Mian Saqib Nisar, Advocate, for respondent No.2 have raised a preliminary objection that this petition is barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, as the dispute pertains to the terms and conditions of the Civil Servant. The learned Advocate-General has also relied upon Section 11 of the Punjab Civil Servants Act, 1974, to contend that the appointment of the petitioner being an officiating basis, he could be reverted at any time.
5. There appears to be some merit in the contention of leamed counsel for the petitioner that the Government, while promoting a person against a permanent vacancy, cannot retain extra legal/extra constitutional power by terming the appointments of an incumbent as officiating, provided the promotion has been made by following the prescribed procedure; this submission finds full support from the judgment of this Court, Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan and another (PLD 1970 Quetta 115).
6. However, no final opinion can be expressed in view of the preliminary objection raised by the learned Advocate-General and learned counsel for respondent No.8 to the maintainability of this petition on the strength of Article 212 of the Constitution, of Islamic Republic of Pakistan, 1973. Both learned counsel have emphasised that the petitioner is civil servant and the dispute relates to his terms and conditions of service which cannot be competently brought before this Court. Reliance has been placed on behalf of respondents upon Mohib Ullah v. Federation of Pakistan (PLD 1975 Lahore 813), Accountant General Baluchistan Quetta v. Abdul Majeed Babar and others (1990 SGMR 790), Sikandar Khan v. Member (Colonies'! Board of Revenue & others (1990 SCMR 943), Sardar & others v. Shaukat Ali & others (1990 SCMR 951) and some other judgments from the High Courts.
7. In reply, Mr Asif Saeed Khan Khosa, Advocate, learned counsel for the petitioner, has argued that the dispute raised in this petition relates to the fitness of the petitioner to hold a particular post and, therefore, is not amenable to the jurisdiction of the Punjab Service Tribunal constituted under the Punjab Service Tribunal Act, 1974, in view of the proviso (b) to Section 4(1) of the said Act.
8. The objection as to the maintainability of this petition on behalf of the respondents is well-taken.
Admittedly, the petitioner is a civil servant in the employment of respondent No.1 and the dispute pertains to the terms and conditions ol his service.
9. The next question, which, therefore, arises, is as to whether the dispute raised in this petition can be adjudicated upon the Punjab Services Tribunal. It is correct that according to proviso (b) to Section 4(1) of the Punjab Civil Servants Act, 1974, no appeal lies to the Tribunal against the determination of fitness or otherwise of a person to be appointed to hold a particular post. But the dispute in this case is not with respect to the fitness of the petitioner to hold any post but about his reversion. There is nothing in the order impugned dated 31.10.1991, by which the fitness or otherwise of the petitioner has been determined. On the other hand, the order is purely an order of reversion.
10. The authority relied upon by learned counsel for the respondents viz. Mohibullah's case supra applies with full force and negates the stand taken by learned counsel for the petitioner that the dispute is related to fitness of the petitioner to hold a particular post. While repelling a similar contention, Dr. Nasim Hassan Shah J (as his Lordship then was) observed that: "This order was nothing but an order of reversion and not an order 'determining the fitness or otherwise or a person to be appointed to or hold a particular post or to be promoted to a higher grade' so as to come within the purview of proviso (b) of clause (1) of Section 4 of the Service Tribunals Act. The impugned order affected the terms and conditions of service of the petitioner. It, accordingly, could be challenged by way of an appeal before the competent Service Tribunal. It may be pointed out that the petitioner himself was at one stage also of the same opinion, as is evident from the fact that on receipt of the letter dated 15th December 1973 (Annexure 'C') asking him to take the written test, he filed a representation under section 22 of the Civil Servants Act, 1973 against imposition of a condition of passing a written test in respect of my promotion to grade 20 which stands already made and notified in the prescribed manner without any such condition".
11. The exclusive nature of the jurisdiction vesting in the Services Tribunal under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 in disputes relating to the terms and conditions of service of an employee, has time and again been impressed upon by the Supreme Court of Pakistan in various cases and it has been held that the High Courts lack jurisdiction in these matters.
12. Learned counsel for the petitioner has cited some judgments to show that the dispute about the fitness or a civil servant cannot be brought before the Services Tribunal. There is no cavil with this proposition, but as already observed that the dispute raised in this petition is not about the fitness of the petitioner to hold any post but the question is as to whether he has been rightly reverted.
In view of what has been stated above, this petition is dismissed, as having not maintainable, leaving the parties to bear their own costs.