' The petitioner by means of this writ petition seeks that on the principle of equivalence due benefit be given to him i.e, the status of Additional Secretary in the civil service. He, at present, is serving as Joint Secretary in the Ministry of Establishment Division, Government of Pakistan. The basis of his claim primarily proceeds on the assumption that the recommendation for promotion as Major- General was approved by the President of Pakistan on 5-6-1988 on the summary sent to him in this behalf by the Ministry of Defence.
2. The brief history of this case is that the petitioner was serving as Military Secretary to the Prime Minister of Pakistan in the year 1988. At the relevant time, his rank was Brigadier. A summary was sent to The Prime Minister of Pakistan, prepared by the Ministry of Defence, which is as under:-- ' MINISTRY OF DEFENCE ' SUMMARY FOR THE PRIME MINISTER ' Subject:-- Promotion of Army Officers -- Brigadier to Major-General
13. A meeting of the Army Selection Board No, 1 was held on 30th April, 1988 to consider the cases for promotion of Brigadiers to Major-Generals. The Selection Board has recommended 8 Officers (Brigadiers) listed at Annexure 'A' for promotion to the rank of Major-General.
13(2) These officers will be promoted to the temporary rank of Major-General with effect from the dates they assume charge of their appointments. The officers will be promoted against regular vacancies currently available or which may occur in the near future.
13(3) Particulars of officers who have not been recommended for promotion are given at Annexure 'B'. The GHQ have stated that PA-6266 Brigadier Sultan Sher Afghan Kayani. Inf was reconsidered and declared unfit by the subject Selection Board due to service reason.
13(4) Of the superseded officers the case of Brig. Muhammad Saeed Akhtar (serial No, 4 of Annexure 'B') merits special mention. His reports up to 1984 are High Average to above Average and the Brigadiers selected have a better record. His latest three reports as Military Secretary to the Prime Minister are 'Outstanding'. The three reports really change the complexion of his overall grading. He could be considered for promotion to the rank of Major-General if the post of M.S. To the Prime Minister is upgraded (Annexure 'C').
13(5) Submitted for orders of the Prime Minister.
13(6) Confidential record of all the officers considered by the Selection Board is placed below as Vol. I (for Annexure 'A') and Vol. II (for Annexure 'B').
(Sd.)
(Syed Ijlal Haider Zaidi)
Secretary.
21-5-1988.
' Minister of State for Defence (away).
' Secretary to the Prime Minister.
' M/o Def. U.O. No, 3718/Secy/88, dated 21-5-1988.
14. Due to dissolution of Cabinet, submitted for orders to the President.
(Sd.) 30-5.1988 (U A G Isani) Secretary.
COS TO THE PRESIDENT (Sd.) 5-6-1988 The President.
15. Approved.
Secretary Defence A.S.I.
16. Para 4 has been redundant. JSI SOD2" (Sd.)
5-6-1988.
(Sd.)
6-VI-1988.
(Sd.)
6-6-1988.
(Sd.)
6-6-1988.
' Normally, this summary was to be routed to the President of Pakistan through the Prime Minister but incidently the Cabinet was dissolved. However, the President accorded the approval on 5-6- 1988. The approval was neither conveyed not acted upon but kept dormant without any apparent reason. According to his information, which he received quite lately, the same was treated redundant by Additional Secretary, Ministry of Defence, Government of Pakistan. In the meantime, he was retired from Army as Brigadier and inducted into Civil Service of the Government of Pakistan, which position he was entitled to on the principle of equivalence. Lately, on acquiring knowledge of the approval and its treatment by the Additional Secretary, Ministry of Defence as redundant, he sought redressal in the form of equal status in the civil service i.e, Additional Secretaryship in which effort he failed and has thus constrainedly filed the present writ petition. The relief, he claims is that the approval dated 5-6-1988 accorded by the President of Pakistan may be implemented whereby, in law, he was promoted to the rank of Major-General. He, however, submits that his relief be restricted only to the extent that he be given the rank of Additional Secretary in the Civil Service which is equal status to that of Major-General on the principle of equivalence and has categorically given up any further claim regarding army working, as far as the present petition is concerned.
3. Learned counsel for the petitioner insisted that the petitioner had to be considered promoted after the accordance of the approval by the President and the Additional Secretary was not competent to nullify the same by saying or treating it redundant.
' To substantiate his point of view for the implementation of approval dated 5-6-1988, learned counsel submitted that the petitioner was, in fact, promoted on the approval accorded by the President of Pakistan, who was the competent Authority. He relied upon para. 4 of the summary referred to above, which was sent to the President for his approval, which, in fact, was accorded. He referred to the summary, copy whereof was called for and placed on the file of this Court with the consent of the parties. He has candidly reiterated that the petitioner does not claim any benefit beyond the grant of equal status of Major-General i.e, Additional Secretaryship, if the approval dated 5-6-1988 is ordered to be implemented.
4. Learned Standing Counsel for the Government of Pakistan while replying on behalf of the respondents, however, strenuously opposed the writ petition, primarily on the question of maintainability. In this regard, he argued that Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973, bars the exercise of the writ jurisdiction. He relied upon Abdul Ghaffar Lakhani v.
Federal Government of Pakistan and 2 others (PLD 1986 Karachi 525).
Learned 'counsel further argued that para. 4 of the summary relied upon by the petitioner, in no way, contained the recommendations for promotion nor is there any approval in favour of the petitioner. He added that, at the most, in view of para. 4 of the summary it could be said that the petitioner's case could be considered.
5. Replying to the contention raised by the learned counsel for the respondents regarding the maintainability of the writ petition. Raja Muhammad Anwar, learned counsel for the petitioner, submits that Article 199(3) of the Constitution of Islamic Republic of Pakistan envisages the following position :- " or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, " (relevant portion has only been quoted)
' He submits that the bar should be strictly construed as it curtails the remedy to the aggrieved persons. Besides, in his view, this sub-Article has no application in the present case as the petitioner is no more a subject to the Army Act or is a member of Armed Forces of Pakistan and particularly in view of the remedy he is seeking for. He submitted that Article 199(3) of the Constitution of the Islamic Republic of Pakistan is subject of Article 4 of the Constitution which provides that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. In his view, grave injustice has been done to the petitioner especially by an order passed by a person who was not authorised in law i.e, Additional Secretary, Ministry of Defence, to brush aside the approval accorded by the Head of State within the sephere of his competence. He submitted that in case of confusion, clarity was required or the approval needed for any modification, the only course left with the Ministry was to re-refer the matter to the President. The treatment given to the approval by the Additional Secretary besides being unlawful tantamount to interference with the functioning of the President in his Constitutional authority. He referred to Article 90 of the Constitution by virtue of which the President was the Chief Executive at the relevant time and was exercising the powers of the Prime Minister as well. He submitted that in such a situation, the only course left to aggrieved person is resorting to the protection which the Constitution guarantees in its Article 4 which reads as follows :- "Right of individuals to be dealt with in accordance with law, etc.-- (1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not require him to do."
' According to the learned counsel for the petitioner, the factors i.e, the summary's result was not acted upon. It was kept secret and not conveyed to the petitioner which smacks of mala fide. He asserted that in such a situation heavy legal obligation is cast upon the Court to come to the rescue of a victim of injustice. I am fortified in my view that the Additional Secretary had no authority or precedence over the order/approval accorded by the competent authority because of the dictum laid down in Finance Secretary, Government of Pakistan, Islamabad and two others v.
Shahid Hussain and others (1992 SCMR 77). Besides, there is another judgment reported as S. Inamul Haq v. Secretary, Establishment Division, Government of Pakistan (1983 CLC 1954).
6. I am prone to agree with the contention of the learned counsel for the petitioner so far as the maintainability of the writ petition is concerned. The words "who is for the time being subject to any law relating to any of these Forces, in respect of this terms and conditions of service, in respect of any matter arising out of his service," have special significance while dealing with the matter in question. The key words in the sub-Article are: who is for the time being subject to any law relating to any of those Forces (underlining is mine) which mean that this sub-Article concerns the case of a person, who is presently in active service and debars him for the time being which means so long as he is in Army service and pressing for the terms and conditions of that service alone. The petitioner's claim is altogether different particularly if viewed in the context of his restricted claim on the basis of principle of equivalence seeking the status in civil service.
7. There is lot of force in the argument that Article 199(3) of the Constitution is subject to Article 4 of the Constitution. Agreeing with the same, I am of the view that the opening word of Article 199 that it is subject to the Constitution and, of course, Article 4 of the Constitution, which guarantees fundamental right of protection against any illegality or injustice to every citizen without any exception or classification. Article 4, for that reason, stands on a higher pedestal and Article 199(3) of the Constitution must give way to it. I am not reluctant for a moment to say that it has overriding effect. In this regard, case reported as Mr. Fazlul Quader Chowdhry and others v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486) is referred where it was held by the Hon'ble Supreme Court that only another adequate remedy provided by law can bar the Constitutional jurisdiction of the High Court.
' For the above reason, the preliminary objection regarding maintainability of the writ petition is overruled.
8. As regards the argument raised by the learned counsel regarding para. 4 of the summary, 1 am of the view that it was intended to seek approval for promotion from Brigadier to Major-General, which in fact, was accorded. In this view of the matter, the petitioner shall be deemed to have been promoted from the date of approval i.e, 5-6-1988 accorded by the competent authority. However, it was conditioned to the tenability of the post by Major-General which had no bearing in the situation as it was not required to be met because it was already notified to be tenable by Major- General as well, requiring no formal upgradation of the post.
9. Pith and substance of the relief sought is the implementation of approval accorded by the competent Authority with the restricted relief of granting a post in the civil service equal to the status of Major-General on the principle of equalence, therefore, neither any objection to the maintainability of the writ petition is sustainable nor is there any justification to refuse the relief of implementing approval accorded on 5-6-1988 by the competent Authority much less in the circumstances of the case and the manner in which it was unactuated.
' The respondents are, therefore, directed to implement the approval dated 5-6-1988 accorded by the President of Pakistan in its true perspective and context in the light of the abovementioned observations. The writ petition is accepted.