1. JUDGMENT IFTIKHAR MOHAMMAD CHAUDHRY, J.- Petitioners being employees of the Balochistan Provincial Assembly Secretariate in the cadre of Private Secretary, Senior Scale Stenographer, Personal Assistants, Junior Scale Stenographers are partially aggrieved from the Notification dated 15th October, 1993, whereby respondent No.3 Rashid Ali, former Superintendent in Selection Gade- 17, has been promoted as Assistant Secretary (B-17).
2. It is the claim of petitioners that in pursuance of Provincial Assembly Secretariate Recruitment Rules 1975, (hereinafter referred to as the 'Recruitment Rules f 1975') recruitment by promotion, in terms of Rule-6 in case of a Selection post, is to be made in the basis of Selection on merits and in case of non-selection post, on the basis of seniority-cum-fitness, in addition to the appointment to the post from one grade to another, from one category of a post to another, shall be made on the recommendation of a Promotion Committee, consisting of not less than three members to be constituted in the case of posts in Grade-17 and above by the Speaker and in case of all other posts by the Speaker. As there being two cadre posts ie. Superintendents and Senior Scale Stenographers etc. The. Cadre to which petitioners belong, quota for each category is to be fixed according to the Balochistan Secretariate (Section Officers) Service Rules, 1982, which have been adopted by the Provincial Assembly Secretariate in terms of rule-13 of the Recruitment Rules, 1975. It is also their case that by means of impugned Notification, u n-official respondent, has been promoted without having obtained recommendation from the Promotion Committee and in violation to the Balochistan Civil Secretariate (Section Officer) Rules, 1982, because the vacant post against which, he has been promoted was falling in share of cadre of Senior Scale Stenographers etc. Therefore against this post, promotion from amongst the Superintendents of the Provincial Assembly Secretariate, is un-warranted.
3. Mr. Shakeel Ahmad, learned Counsel, representing the official respondents, objected on the maintainability of the petition by inter-alia contending that in view of Artical-69 read with 127 of the Constitution of Islamic Republic of Pakistan, 1973, Courts are not required to enquire into the proceedings of the Provincial Assembly.
4. In this context, Mr Aslam Chishti, learned counsel for petitioners, referred to Parliamentary Practise by Erskine May, Nineteenth Edition and cited therefrom the definition of expression 'proceedings'. A perusal whereof, lead us to hold that un-doubtedly internal proceedings which were to be carried out by the House, during its session, are not amenable to the jurisdiction of Court, however, all other administrative actions by the Speaker, including the recruitment of employees, does not enjoy immunity from judicial review, particularly if it has been demonstrated that action of the Speaker under challenge, prima facie, is in violation to the existing Rules or discretion vested in him to take certain decisions in order to run smoothly the function of the Provincial Assembly Secretariate, has not been exercised judiciously, High Court under Article-199 of the Constitution is competent to examine the validity or otherwise of such action. In forming this view we are supported by the case of Ahmad Saeed Kirmani Vs. Ch. Fazal Ellahi and Others (PLD 1956 W.P) Lahore 807), Pakistan Vs. Ahmad Saeed Kirmani and others (P.L.D. 1958 S.C.(Pak.) 397) and Mohammad Anwar Durrani Vs, Province of Balochistan (P.L.D. 1989 Quetta 25) and the view taken by this Court in C.P.No.501 of 1993.
5. It was also stated by Mr. Shakeel Ahmad Advocate that relief being claimed by petitioners certainly relates to the terms and conditions of their services, as such appropriate alternative remedy is available to them under Article-212 of the Constitution, instead of invoking the jurisdiction of this Court under Article-199 of the Constitution. This objection was also endorsed by Syed Ayaz Zahoor, Learned Counsel for private respondent.
6. Contrary to it, Mr Aslam Chishti, learned Counsel for petitioners, argued that in view of the Provisions of Article-87 and 240 of the Constitution read with rule-17 of the Recruitment Rules, 1975, and in view of the definition of 'Civil Servant' in Balochistan Civil Servant Act.1974, the petitioners are not the Civil Servants, because Government is not their Appointing Authority and merely for the reasons that they are holding civil posts in connection with the affairs of the Province, they cannot be termed as 'Civil Servants'. In this behalf, learned Counsel placed reliance on 1986 SCM R 1063 (University of Balochistan through Registrar Vs. Saeed Ahmad Khan and others).
7. Chaudhry Ejaz Yousaf, learned' Additional Advocate General, made a categorical statement that employees of Balochistan Provincial Assembly Secretariate are not the Civil Servants for the purposes of Civil Servant Act and Service Tribunal Act, in view of the law, laid down by the Hon'ble Supreme Court in case of Government of Punjab through Secretary Finance Department, Lahore Vs. Mubarak Ali Khan and 8 others (P.L.D. 1993 S.C375).
8. It is to be seen that under Article-87(3) read with 127 of the Constitution, pending legislation by the Provincial Assembly, the Speaker has been, authorised to make rules with the approval of the Provincial Governor, for the recruitment and conditions of service of persons appointed to the Secretarial staff of the Assembly. In pursuance of such powers, Recruitment Rules were framed by the Speaker, way back in 1975. The scheme of the Rules indicates that either the Speaker "himself or the Committee appointed in that behalf by him has been empowered to make the recruitment of Assembly staff. As far as, the Provincial Government is concerned that does not figure anywhere.
9. Additionally under Article-240 of the Constitution, subject to the Constitution, Parliament in case of employees of Federation and Provincial Assembly with regard to the employees of the Province has been empowered to take legislative measures to frame the laws, determining the terms and conditions of the service. In this Article expression 'subject to Constitution' has been used by the Framers of the Constitution to save the, powers of other Constitutional authorities to legislate the law for appointments of the employees, whose cases are not covered under this Article. In this behalf, besides Article-87(3) read with 127, Article-208 of the Constitution lays down that Supreme Court and the Federal Shariat Court with the approval of President and the High Court with the approval of Government concerned, may make rules for the appointment of Officers and servants, describing the terms and conditions of their employment therefore, it is held that Article-240 of the Constitution deals in respect of those employees of the Federation or Provincial Governments, whose Employers separately have not been authorised to frame the relevant rules. In this very context the Hon'ble Supreme Court in the case of Government of Punjab, has held that the employees of the Provincial High Courts are hot Civil Servants. Relevant para from the judgment is reproduced herein- below:-
12. The view taken by the Lahore High Court that the employees of the High Court are not civil servants is based on the decision given by a Division Bench in the case of Manzoor Hussain and 37 others (Supra) who were serving as Private Secretaries in the Lahore High Court and had by a Constitution Petition claimed upgradation of their post from BPS-16 to 17 w.e.f. 1.7.1993 on the basis of a Memorandum of the Government of the Punjab dated 18th of March, 1986. A similar objection with regard to the jurisdiction was taken, it was indeed rejected and the employees of the High Court Establishment were held to be not civil servants. The reasoning given appears as hereunder:- Th expression 'civil servant' has been defined in section 2(b) of the Punjab Civil servant means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province. The Punjab Civil Servants Act (VIH of 1974) has been enacted to regulate the appointment to, and the terms and conditions of service in respect of the service of the Province of the Punjab. This law has been enacted pursuanct to Article 240 of the Constitution of Islamic Republic of Pakistan, which empowers the Provincial Legislature to make law to determine the conditions regarding appointment and other terms and conditions of service in case of services of the province. It is, however, note worthy that the law thus to be made by the Provincial Legislature is subject to the Constitution as provided in the opening words of Article 240 supra.
10. Article 208 ibid speaks of officers and servants of the Supreme Court and of a High Court. This Article empowers a High Court to make rules providing for the appointment by the Court of Officers and servants of the court and for their terms and conditions of employment. Such rules are, of course, to be made with the approval of the Governor concerned. In case of this High Court, such rules have already been framed in the form of the High Court Establishment (Appointment and Conditions of Service) Rules.
11. Prospects of promotion and upgradation of a post have never been considered a term and condition of service for which the Service Tribunal has exclusive jurisdiction. In this behalf reference may be made to the case of Dr. Ehsan-ul-Haq v. The Province of Punjab and others (1980 SCM R 972).
12. In the light of the above discussion, it is concluded that m the petitioners, being officers and servants of the High Court, do not fall within ambit of expression 'civil servant' as occurring in section 2(b) of the Punjab Civil Servants Act (VHI of 1974) and, therefore, according to their terms and conditions of service, the jurisdiction of the High Court is not excluded".
13. This Judgment did come up this Court, twice once by means of a petition for leave to appeal and next by way of Civil Review Petition No.6- R/1989 alongwith other connected matters (C.R.P34-R and 35-R of 1989 and C.P.LAs. Nos.10 and 11 of 1989) but at no stage this question was attended to directly or indirectly. The petitions for leave to appeal as well as the review petition arising out of them were disposed of on the question of limitation and not considered on merits at all. The view taken by the High Courts that the employees of the Provincial High Courts are not civil servants for the purpose of Civil Servants Act and the Service Tribunals Act is correct."
14. In the case of University of Balochistan (1986 SCMR 1064) it was declared by the Hon'ble Supreme Court, that to test as to whether an employee does fall within the definition of "Civil Servants", it is necessary to determine that he has been appointed by the concerned Government or by persons authorised by it in that behalf and every such Civil Servant shall hold office during the pleasure of Government of Balochistan and the terms and conditions of his service should be those which are provided in the Civil Servant Act and the Rules.
15. Applying the above test on the case in hand as well as borrowing the principle laid down by Hon'ble Supreme Court in the case of Government of Punjab, it is absolutely clear that the employees of Provincial Assembly Secretariat are to be appointed by the Speaker under the Recruitment Rules framed under Article-87(3) read with 127 of the Constitution and Provincial Government of Balochistan or any other person authorised by it has no concern with their appointment. Moreover they are not holding the office to the pleasure of the Government of Balochistan nor their terms and conditions of appointment (recruitment) are regularised under the Civil Servant Act 1974.
16. Therefore, it is concluded that despite of the fact that the employees of the Provincial Assembly Secretariate are holding posts in connection with the Provincial Affairs but for the purpose of Civil Servant Act.1974 and Service Tribunal Act. They are not Civil Servants As such, no alternate and afficacious remedy is available to them except invoking the jurisdiction of this Court under Article- 199 of. The Constitution.
17. On merits learned counsel for the petitioner argued that according to rule-13 of the Recruitment Rules, it was obligatory upon the Speaker or for that matter the Secretary Provincial Assembly to follow the procedure laid down in Baluchistan Secretariat (Section Officers) Service Rules, 1982, to fill up the 50% vacancies on promotion basis. In accordance to which, out of 7 posts, two are to be allocated for the employees belonging to the petitioners cadre, but the competent Authority had been labouring under a wrong conception believing that the West Pakistan Secretariat (Section Officers) Service Rides, 1962, are still applicable, whereas these rules have been substituted by the Balochistan Secretariat (Section Officers) Service Rules, 1982, Learned Counsel also emphasised that if the competent authority wanted to have any modification in the Prevailing Secretariat Rules, then it should have independently announced the quota of promotion for the Superintendents and Privatery, Senior Scale Stenographers etc. Of the Provincial Assembly Secretariat, but in absence thereof, the rules of the Provincial Secretariat, prevailing on the day when the impugned Notification was issued, should have been followed strictly. However, even now directions can be made by this court to the competent authority for allocating the quota of promotion for both the categories of employees which is to be filed up in fixture. He was also of the opinion that the respondent No3 has been promoted against the quota which was falling in the share of employees of the petitioners category for which, he being the Superintendent has no lawful authority to hold the post, because out of the Cadre of Superintendent five officers have already been promoted.
18. Lastly learned counsel contended that although the Promotion Committee has been constituted but the case of respondent No3 was not referred to it as such on this score as well the impugned Notification is partially bad in the eye of law and is liable to be declared so. - On the other hand, Mr.ShakeeI Ahmad, learned counsel for official x and Syed Ayaz Zahoor, learned counsel for private respondent, vehemently opposed the contentions of petitioner's counsel. It was urged by them that Speaker being a competent authority had rightly promoted respondent No3, in accordance with the Recruitment Rules and the petitioners have no locus standi to challenge the impugned Notification because Petitioner No.1 Shamsuddin is already holding post in Grade-17, whereas remaining petitioners are too junior to claim right of promotion to the post of B-17. Additionally, it was stated by them that promotion cannot be claimed as a matter of right. As such, no relief in this behalf can be granted to them in exercise of Constitutional jurisdiction. The Speaker of the Provincial Assembly being a functionary of its own jurisdiction is not bound to allocate quota of promotion in B-17 for the employees holding the cadre of Superintendents and Senior Scale Stenographers etc. As for as the objection regarding approval of promotion of respondent No.3 from the. Promotion committee is concerned that has not been specifically raised in the Constitutional petition. Thus this ground is not available to them. Moreover the prayer clause of the petition indicates that the impugned promotion by means of Notification dated 15th October, 1993, has not been challenged specifically. Even otherwise now the respondent No.3 has assumed the office of Assistant Secretary (B-17) there fore, the circumstances of the case does not warrant to exercise discretion in favour of petitioners because it would cause injustice to respondent No3, as such, on this score as well the petition deserves dismissal.
19. Chaudhry Ejaz Yousaf, learned Additional Advocate General supported to the stand taken by the respondents' counsel. However, he contended that Constitutional petition is no remedy for seeking promotion in the next higher grade as such, the petition be dismissed.
20. We have heard the learned counsel for parties and with their assistance have also gone through the relevant rules. r It is an uncontroverted factual position that no independent rules for Promotion have been framed for the employees of Provincial Assembly Secretariate therefore, the competent authority i.e. Speaker/Secretary to the Assembly or Promoton Committee are bound to follow the corresponding rules applicable in the Secretariat of the Provincial Governments in terms of rule-13 of the Recruitment Rules, 1975. Although under rule-5(2) of the said Rules, the Speaker is empowered to specify the method/methods for recruitment to a post or class of posts and shall specify the percentage of vacancies to be Tilled by each method. It is also an undisputed position that so far, no percentage of vacancies to be filled by each method has been specified. Therefore pending such specification the cases of promotion of the employees of assembly Secretariate necessarily shall be governed under the specification which has been made by the Provincial Secretariat in that behalf. It is also to be seen that the posts of Assistant Secretary (B-17) is equal to the post of Section Officer (Grade-17) of the Provincial Government Secretariat. Initially the erstwhile Government of West Pakistan made Rules regulating recruitment of the Section Officer in West Pakistan Secretariat in the year, 1962. According to rule-5 of the said rules, 50% of the vacancies were allocated to be filled by initial recruitment whereas remaining 50% of the vacancies were to be filled by selection on merits with due regard to seniority from amongst the Superintendents of the West Pakistan Secretariat, ministerial staff and in case of non-availability of such Superintendent, the promotion against such posts used to be made from amongst the suitable Assistants of the Secretariat. No separate quota was allocated for promotion against the category to which petitioners belong. Lateron the West Pakistan Rules, 1962 were substituted with the Balochistan Secretariat (Section Officer) Service Rules, 1982, whereby a drastic following change was introduced in the previous rule-5 relating to method of recruitment:-
5. Method of Recruitment- Recruitment to the service shall be made as follows:- a....... - b. The remaining fifty percent of the vacancies shall be filled by promotion in the following manner-
(i) Five-seventh of the vacancies by selection merit with due regard to seniority from among the members of the Provincial Secretariat (Ministerial Service) holding the post of Superintendents or, if no such superintendents the service, then amongst the members of the Provincial Secretariat (Ministerial Service holding the post of Assistants with at least twelve-years service as such; and
(ii) Two-seventh of the vacancies by selection on merit with due regard to seniority from amongst the Private Secretaries of the Balochistan Secretariat; or if no such Private Secretaries are considerd suitable for appointment to the service, then from amongst the Senior Scale Stenographers of the Balochistan Secretariat with at least twelve-years service as such."
21. Subsequently on 17th February, 1991, above quoted rule-5 was substituted vide Notification No.SOR II(2)105/S&GAD, as under- NOTIFICATION.
22. No.SOR-II(2)105/S&GAD 735-815. In. Exercise of the powers conferred by Section-25 of the Balochistan Civil Servants Act. 1974 (IX of 1974) the (government of Balochistan is pleased to amend the Balochistan Secretariat (Section Officer) Service Rules, 1982, namely,
1. In part II (Recruitment for rule-4 ............ 3.
23. 3.NUMBER AND NATURE OF POSTS.
24. 1) .......
25. 2) ..... In part-II(Rccruitment) for rule-5, the following shall be substituted:-
4. METHOD OF RECRUTMENT. Recruitment to the service shall be made as follows:- a) 38% of the vacancies shall be filled by initial recruitment based on the result of a competitive examination to be held by the Balochistan Public Service Commission in the prescribed subject; b) 62% of the vacancies shall be filled by promotion in the following manner:- i) Five-seventh of the vacancies by selection on merit with due regard to seniority from amongst the members of the Provincial Secretarial (Ministerial Service) holding the posts of Superintendents, or, if ad such Superintendents are considered suitable for appointment to the service, then fr6m amongst the members of te Provincial' Secretariat (Ministerial Service holding the posts of Assistants with at lest twelve years service as such); and (ii)Two-seventh of the vacancies by selection on merit with due regard to seniority from amongst the Private Secretaries Of the Balochistan Secretariat are considered suitable for appointment t6 the service, then from amongst the Senior Scale Stenographers of the Balochistan Secretariat with at least twelve-years service as such."
26. On perusal of the above rules, it emerges that out of seven vacancies equal to 62%, five are be filled up ' by promotion from amongst the suitable Superintendents whereas two posts are to be filled from amongst the Private Secretaries etc. It is also an undisputed fact that since 1982 till 22nd July, 1992 five Superintendents of Assembly Secretariat have already been promoted in Grade-17. The respondents in their respective rejoinder to petition have not disputed this position. However, their joint stand was that as no quota for Private Secretaries including the petitioners has yet been fixed by the Speaker .Who is competent authority to do so, therefore, no one amongst them is entitled for promotion.
27. In our opinion this arguments is not available to the respondents because in absence to quota allocated for promotion to the post of Grade-17 the competent authority in view of above rules was bound to follow the corresponding rules applicable in Civil Secretariat. In this behalf in somehow identical circumstances a case came-up for consideration before the Hon'ble Supreme Court of Pakistan i.e. Government of Pakistan through Ministry of Finance Vs.M.I.Cheema Dy. Registrar, Federal Shariat Court and others (1992 SCM R 1852). In the reported case as well, the question for consideration was that in absence of any specific provisions, whether the employees of Federal Shariat Court will be governed by the Rules and orders applicable to Civil Servants of corresponding grades in the service of Federal Government. The relevant para from the judgment with benefit is reproduced herein-below:- "A perusal of the above quoted rule 5 shows that the employees of the Federal Shariat Court subject to any special provision contained in the rules are subject to the rules and orders for the time being in force applicable to the civil servants in corresponding grades in the service of Federal Government, in respect of their terms and conditions. It is also evident that under the proviso to the above rule 5 the powers which are exercisable by the President under the relevant rules and orders in respect of civil servants are exercisable by the Chief Justice of the Federal Shariat Court in relation to the staff of the Federal Shariat Court.
28. As it has been observed hereinabove that by the dint of rule-13 of the Recruitment Rules, 1975, the promotion prospectus of the employees of the Provincial Assembly Secretariat will be governed according to the rules applicable in the Provincial Civil Secretariat therefore, following the above dictum it is held that after filling up five vacancies in Grade-17 amongst the Superintendents next two vacancies will fall in the share of the employees who belong to the Cadre of petitioner. Since five superintendents have already been promoted to the next grade, therefore, instead of promoting respondent NO.3 who was Superintendent the competent Authority should have considered suitability to promote any one amongst the petitioners against this post.
29. Syed Ayaz Zahoor Learned counsel for private respondent stated that the petitioner No.1 is already working in grade-17 whereas other petitioners are too junior being in grade-16 or below to it therefore, on this score no promotion amongst the stenographers in grade-17 could have been made by the Speaker. Suffice it to observe that petitioner No.1 Shamsuddain is not holding the substantive post in Grade-17 but he has been allowed a Selection Grade. According to following instruction which have been incorporated in Esta Code, holding an ordinary grade and the selection grade are two grades of the one and the same post, for convenience same is reproduced herein-below:- "(6) A question was raised whether for the purpose of F.R30 appointment to th (Selection grade of a cadre involves the assumption of duties and responsibilities of great importance than those attaching to posts in the ordinary grade of that cadre. The position is that the ordinary grade and the Selection grade are two grades of one and the same post. Promotion of a person from the ordinary grade to the selection grade of a grade does not mean a change of posts and the consequently duties and responsibility of great importance for the purpose of F.R.30."
30. In addition to above quotation it is settled principle of law that promotion cannot be claimed as a matter of right and an employee at the best can claim for considering his name amongst others for the purpose of promotion, thus in the instant Constitution petition relief by granting promotion to one of the petitioners cannot be granted except making observations after setting aside the impugned Notification to consider any one of them for this post strictly in accordance with the promotion policy which is consistently being followed in the Provincial Government Secretariat with regard to the posts of equal grades.
31. Mr Aslam Chishti, learned counsel for petitioners stated that instant petition has been filed in the nature of Quo Warranto mandamus as well as certiorari.
32. According to him in view of the prevailing rules, respondent No.3 had no entitlement legally to continue as Assistant Secretary in grade-17 because he has been promoted against the post which falls in the share of Private Secretaries etc. And by making appropriate observations respondent No.1 be directed to specify the quota of each category of the employees viz Superintendents and the Private Secretaries etc. In exercise of jurisdiction conferred upon him under section-5(2) of the Recruitment Rules, 1975 and lastly if this court comes to the conclusion that respondent No.3 has been wrongly promoted then to the extent of his case impugned Notification be set aside and case be remanded for considering the case of any one of the petitioners suitable for promotion to grade-17.
33. The learned counsel for respondents, opposed the above relief mainly on the ground that the issuance of the writ ultimately would amount to demoting respondent No.3 to his original post who has already assumed the charge, as such, keeping in view these circumstances, writ as has been prayed for may not be issued.
34. No doubt under Article-199 of the Constitution judicial discretion has been conferred upon the court to strike down or otherwise the impugned action keeping in view the facts and circumstances of each case, but such discretion is to be exercised judiciously with the object to foster justice and if circumstances admit that Functionary whose action has been challenged had acted without jurisdiction or in excess of the jurisdiction due to which apparent prejudice has been caused to other side, then in that case, it is in the interest of justice to issue the writ, striking down the impugned action/order/notification to ensure that the jurisdiction by an Authority must be exercised in accordance with law and not otherwise. To support this view reliance can be placed on the case of Utility Stores Corporation of Pakistan Limited vs. Pubian Labour Appellate Tribunal and others P.L.D. 1987 S.C.447).
35. In the matter in hand it has been noticed that despite of the fact that the Speaker himself has constituted a Promotion Committee as back as on 7th October, 1989 vide Notification No.ADM:l(26)/75(l) but the case of respondent No.3 was not referred to it nor it was determined whether in view of the Balochistan Civil Secretariat (Section Officers) Rules, 1982, (amended upto date) the vacant post in Grade-17 falls within the share of the categories of cadre to which the petitioners belong or to the cadre of Superintendents. So much so, despite of various representations made by the employees the Speaker, Assembly has not exercised his authority in specifying the quota of promotion in various categories of service in accordance with rule-5 of the Recruitment Rules, 1975, therefore, in our opinion on account of these reasons, it is a fit case where circumstances warrant the issuance of writ as has been prayed for.
36. Accordingly for the discussion made hereinabove petition is allowed impugned Notification dated 15th October, 1993, to the extent of promotion of respondent No.3 from the post of Superintendent to the post of Assistant Secretary (Grade-17) is declared as having been issued without lawful authority/jurisdiction and in consequence thereof, it is held that respondent No.3 Rashid Ali is not entitled lawfully to hold this post.
37. However, respondent No.1 shall consider the case of any one of the petitioners for promoton against the available substantive vacancy in Grade-17, keeping in view the percentage which has beer, fixed under the Balochistan Civil Servant (Section Officers) Service Rules, 1982 read with Rule- 13 of the Recruitment Rules of 1975.
38. The speaker of the Assembly after deciding the fate of instant case will also specify the percentage of vacancies to be filled in future by promotion amongst the superintendents and Private Secretaries etc. To Grade-17 in exercise of jurisdiction conferred upon him under rule-5(2) of the Recruitment Rules, 1975. Parties shall bear their own costs.