IHSAN-UL-HAQ CHAUDHRY, J:- The petitioners are Police Officers. They have through this Constitutional petition prayed that the order dated 2-10-1993 be declared without lawful authority and set aside. The brief background is that they were either promoted to the next rank of Inspectors against substantive vacancies or confirmed by the competent authority on account of acts of extraordinary bravery etc. The orders were issued in respect of petitioners, in this petition on 1- &1992 while in \V.P. No. 14581 of 1993 and W.P. No. 14988 of 1993 on 26-9-1992. The grievance of the petitioners now is that the respondent No. 2 vide impugned order dated 2-10-1993 has reverted them to the substantive ranks. The petition was admitted to regular hearing and notices were issued to the respondents, who are represented by the learned Additional Advocate-General.
2. The learned counsel for the petitioners in support of the petition argued that the order was passed, communicated and acted upon, therefore, the respondents have lost locus poenitentiae. It is argued that once the order has taken a- legal effect, the same could not be rescinded or withdrawn. Moreso, when the order was not void and was passed by the competent authority. In this behalf, the learned counsel has referred to Rule 13.20 of the Police Rules and section 8-A of the Punjab Civil Servants Act, 1974. The next submission is that the Police Rules would govern the promotion of the petitioners and not the rules framed under the Punjab Civil Servants Act, 1974. The learned counsel, in this behalf, has referred to Inspector-General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and 2 others PLD 1985 SC 159. The arguments are concluded with the submission that the promotion once granted cannot be taken away as is the case of awards under Rule 15 of the Police Rules.
3.On the other hand, the learned Additional Advocate-General has argued that the petitioners were appointed on ad hoc basis, therefore, no vested right had accrued in their favour. The order could be withdrawn at any moment in view of the provisions of section 11 of the Punjab Civil Servants Act, 1974. It is added that the respondent No. 2 had no authority to grant out of turn promotion on any ground and Rule 13.20 is not relevant. It is submitted that this rule deals with the individual cases of hardship.
The learned Additional Advocate-General has also raised a preliminary objection as to the- competency of the writ petition and jurisdiction of this Court. It is argued that the reversion order could only be challenged before the Punjab Service Tribunal after exhausting departmental remedies. It is submitted that the jurisdiction of this Court to deal with these matters is specifically barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973: The learned Additional Advocate-General rightly argued that Article 212 controls the earlier Articles including Article 199, therefore. Constitutional jurisdiction of this Court is abridged by Article 212. The learner: Additional Advocate-General submitted that in the case of Muhammad Ameer Abdullah Khan and 3 others v. Inspector-General of Police, Punjab, Lahore 1987 PLC (C.S.) 676 not only the appeal was entertained and relief was granted. The appeal of the I: G. Was dismissed by the Supreme Court and the judgment is reported as Inspector-General of Police, Punjab, Lahore v. Muhammad Ameer Abdullah Khan and 4 others 1990 SCMR 1414.
4, The learned counsel for the petitioners while replying to the arguments of the learned Additional Advocate-General submitted that the matter is not within the jurisdiction of the Service Tribunal, therefore, the petitioners can maintain this petition. It is argued that the matter of fitness is excluded from the jurisdiction of the Punjab Service Tribunal in view of proviso (2) to section 4(1) of the Punjab Service Tribunals Act, 1974 and Section 21 of the Punjab Civil Servants Act, 1974. The petitioners could, therefore, neither maintain a representation nor file an appeal. It is argued with reference to Article 212 of the Constitution of Islamic Republic of Pakistan that the bar is only in respect of the matter to which the Tribunal has jurisdiction and not other matters. The learned counsel, in this behalf, has referred to I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Dr. 'Bashir Ahmad v. Province of Punjab and others 1992 PLC (C.S.) 306. It is submitted that there is no merit in the preliminary objection because in similar circumstances the Service Tribunal did entertain and accept an appeal but the Supreme Court reversed the same. In this behalf, reference is made to the cases reported as Muhammad Ashiq v. Mahmood Akhtar Ansari and another 1991 SCMR 1548 and Government of Punjab v. Raja Muhammad Iqbal 1993 SCMR 1814.
5. I have given my anxious considerations to the arguments of the parties. There is no need to discuss the merits of the arguments of the either side in view of the proposed order. The case of the petitioners as set out in this petition is that they, were granted promotions for exemplary bravery etc. The orders were passed on 1-8-1992 and 26-9-1992. The same were not only communicated to the petitioners and all concerned but acted upon and the petitioners accordingly posted. The petitioners now have prayed that the impugned order dated 2-10-1993 be declared to be without lawful authority and set aside as such. It is clear from the petition as well as arguments of the learned counsel for the petitioners that the petitioners had already earned the promotion/confirmation and their plea is that they cannot be reverted back. It is relevant to refer here to the impugned order, which reads as under: -- "ORDER Dated Lahore, the 2-10-1993.
No. SE.I/5931/E.1/93: REVERSION TO SUBSTANTIVE RANK OF SI: The following ad hoc Inspectors who were promoted as stop 'gap measure are reverted to their substantive rank of SI with immediate effect in order to adjust regular Inspectors:-- 1 Muhammad Anwar 694/L.
2 Abdul Rashid L/6.
3 Muhammad Feroze L/352
4. Ramzan Ali 363/L.
5. Noor Hussain 352/L.
6. Nasir Mushtaq 73/L.
7. Muhammad Sharif 495/L.
8. Akbar Ali 379/L.
9. Riasat Ali L/451.
Mian Muhammad Amin, Addl. Inspector-General of Police, Punjab, Lahore."
The question whether tile petitioners had earned promotions or whether it was only ad hoc arrangement is to be decided after the hurdle of jurisdiction is cleared. The petitioners through this petition have prayed that the impugned order be declared without lawful authority and set aside, therefore, the petitioners can straightaway challenge the impugned order in appeal before the Punjab Service Tribunal as done by them in this writ petition. This prayer is in no way covered by the mischief of proviso (b) to section 4(1) of the Punjab Service Tribunals Act, 197-1. The petitioners first of all have to tile a representation as the impugned order has been passed by the Addl. I.-G.
6. The precedent cases relied by the learned counsel for the petitioners do not advance the arguments in any manner as in the case of IA. Sherwani (supra). It was held that if the Service Tribunal does not have the jurisdiction to adjudicate upon a particular type of grievance then the jurisdiction of the Courts remains intact. 'The other grievance was discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Punjab Civil Servants Act or any service rules. This case in a way supports the preliminary objection as is clear from the following para., which reads as under:-- "10.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."
While in the case of Dr. Bashir Ahmad (supra), the writ petition was entertained and decided because it was held that the petitioner can challenge order of the appointment of the respondent No. 2, which formed part of the impugned order and fitness of respondent No. 2 could not be examined by the Tribunal. It was in this background that the petition was granted. While in the case of Muhammad Ashiq (supra), it is only a leave grant order. The last in the series comes the case of Raja Muhammad Iqbal (supra), wherein the civil servant was recommended for accelerated promotion. The proposal was placed before the Provincial Selection Board, which turned down the same. Raja Muhammad Iqbal challenged this decision of the Selection Board through an appeal before the Punjab Service Tribunal. The appeal was accepted and case was remitted to the Chief Secretary for re-consideration. The matter again was placed before the Provincial Selection Board and accelerated promotion to the respondent was refused. The civil servant again filed an appeal before the Punjab Service Tribunal. This appeal was accepted and it was held that he was entitled to grant out of turn promotion. The Government assailed this decision through an appeal before the Supreme Court, which was accepted and the concluding para. Reads as under:- "We have considered the declaration given and the direction made, by the Service Tribunal, in the impugned order and are of the view, that the same is not within the scope of the jurisdiction/vested in the Tribunal. No specific direction for `out of turn promotion' to the respondent, could have been issued much less from a specific date."
It was a clear case of fitness for promotion, therefore, has no relevancy to the case in hand. I am fortified in my view by the judgment of Supreme Court in the case of Muhammad Ameer Abdullah Khan and 4 others (supra), which reads as under:-- "4. The Inspector-General who has rescinded the orders did not proceed on the ground of nullity, incompetence or absence of power of the authority passing the orders. He based his orders only on the ground of propriety and fairness. Where rights had come to vest, such or these grounds could not be sufficient to unilaterally justify the rescission of the orders, apparently passed competently. The Service Tribunal has, in insisting on the standard of minimum fairness in passing such orders, only reinforced the observance of rule of law by and in a disciplined force. The contention that, in C.P. 767 of 1986, it is the probation which has been terminated, is misconceived because it is basically the order of regular appointment to the post of Inspector which has been rescinded and consequently of the probation and the reasons had nothing to do with the performance during the period of or relatable to probation."
7. The learned counsel for the petitioners in order to overcome the preliminary objection tried to argue that in fact the order as to fitness of the petitioners to promotion has been reversed, therefore, the petitioners can maintain the present writ petition. This argument is not worth consideration because it is clear departure from the case of the petitioners as pleaded in the writ petition, wherein it is clearly stated that firstly, respondent No. 2 announced that the orders were issued and acted upon. The question of fitness for promotion, therefore, does not arise even indirectly and remotely. The petitioners cannot be allowed approbate and. Reprobate and take up inconsistent please.
8. The upshot of this discussion is that the preliminary objection is upheld. The petition is dismissed for want of jurisdiction. However, no order as to costs.