' AMIRUL MULK MENGAL, J.---The petitioner was inducted in the defunct-Provincial Service (Executive Branch) on 16-6-1967 vide Government of West Pakistan Notification No, 51-8-1/64 (SO)IX, dated 5th June, 1967. Subsequently vide Notification No, SO-II-XII(6)/S&GAD-70, dated 1-1-1974 issued by Government of Balochistan he was confirmed in the said cadre on 10-6-1969. He has been in continuous service for more than 35 years as he was a confirmed Lecturer against permanent post from 10-3-1958.
2. The petitioner got promotion to Grade-20 and was posted as Secretary, Population Welfare Department vide Government of Balochistan Notification No, SO-II-1-1(13)/79-S&GAD, dated 4-11- 1987. He held two other postings as Secretary, Livestock Department and Member, Balochistan Service Tribunal.
3. The Federal Government selected petitioner for a regular training of 5 months from 3-1-1990 to 3- 6-1990 to 'qualify for Grade-21 vide Government of Pakistan letter No, 1/B/89-I-II, dated 2-12-1989.
After successfully completing the training the petitioner's case for promotion to Grade-21 was duly considered and approved by the Promotion Committee in November, 1991 and the petitioner was unconditionally recommended to be confirmed in Grade-21 vide letter No, S-II-1(13)/92/S&GAD, date 23-4-1992.
4. It is the case of the petitioner that the Government of Balochistan decided that two posts of Grade-21 exist for the Balochistan Civil Service Officers on which the petitioner as well as another officer namely Sardar Sultan Muhmammad Nasir be considered and approved although latter had not passed the training as required for promotion to Grade-21. However, the petitioner was not promoted despite the fact that he successfully completed the Staff College Course.
5. The petitioner has alleged mala fides on account of the fact that while acting as Member of the Balochistan Services Tribunal he gave judgements independently some of which with strictures against the Government of Balochistan. Thus the S&GAD and Home Department became vindictive to the petitioner.
6. The grievance of petitioner was that though he was cleared unconditionally for promotion to Grade-21 yet he was not promoted till his retirement whereas Sardar Sultan Mahmammad Nasir whose approval was conditional with passing of the training has been promoted to Grade-21 without successfully completing the training.
7. Heard Mr. Muhammad Raees in person and learned Advocate-General for the official respondents.
8. Besides, we perused the comments filed by Chief Secretary, Balochistan, who admitted the fact that petitioner was considered and his case was forwarded to the Federal Government to which no reply has been received. It is further revealed from the said comments that the Provincial Special Selection Committee had recommended his case to B-21 which was forwarded to the Federal Government for consideration but the Establishment Division replied that his case would be considered for finalisation of the quota of APUG and BCS officers. It is also not denied that the petitioner was sent for Staff College Course at Lahore passed the said course.
9. The petitioner was heard in person. He emphatically urged that two posts of Grade B-21 were required to be filled by the Provincial Government. Two names i.e, name of petitioner and one Sardar Sultan Nasir were recommended against the two posts. It was submitted by the petitioner that he was recommended unconditionally because he had already completed the staff college training at Lahore which was a condition precedent for promotion. Thereafter the Provincial Special Selection Committee recommended his name. The Provincial Government had failed to produce any material on record indicating that the Establishment Division had any objection to the promotion of the petitioner. Thus there was absolutely no justification whatsoever for not promoting the petitioner. The second limb of argument as advanced by the petitioner was that although he is not aggrieved from promotion of Sardar Sultan Nasir to B-21 but at the same time the Provincial Government by not promoting him to B-21 in fact clearly made a discrimination as he was qualified by successfully completing the training of staff college but yet he was not promoted. This discrimination according to the petitioner was due to the fact that while Member of Balochistan Service Tribunal he had given independent decisions which annoyed the S&GAD. The third argument advanced by the petitioner was that the Balochistan Service Tribunal has no jurisdiction firstly because the right of promotion is the prerogative of the Government and no appeal lies under Balochistan Service Tribunals Act to the Balochistan Service Tribunal and secondly because the Provincial Special Selection Committee considered and recommended his name and the Government kept silent and did not take action nor passed any final order, therefore, the only remedy available to him was to file Constitutional petition.
10. As against this learned Advocate-General, Balochistan emphatically argued that Constitutional petition is not maintainable and that the matter falls within the exclusive jurisdiction of Balochistan Se rvices Tribunal as it relates to the terms and conditions of services of the petitioner. Reliance was placed on (i) PLD 1989 SC 508, (ii) 1990 SCM R 790 and (iii) PLD 1983 SC 100.
11. Since the main thrust of argument is regarding maintainability of the petition, therefore, we would attend to this objection before deciding the remaining issues. Learned Advocate-General has referred to the case of Islamic Republic of Pakistan v. Dr. Safdar Mehmood (PLD 1983 SC 100).
The Hon'ble Superme Court while interpreting Article 212 of Constitution of Islamic Republic of Pakistan read with section 12 of Services Tribunal Act surveyed the history of service matters and held that the Services Tribunal has exclusive jurisdiction regarding terms and conditions of appointment. This view was further confirmed in PLD 1989 SC 508 (ante), wherein it was held that the jurisdiction of the High Court is barred in service matters as contained in Article 212 of the Constitution. But a clear observation was made by Mr.Justice Muhammad Afzal Zullah (as he then was) in the following terms:- .
"Even without such observation, the petitioner is entitled to seek remedy in accordance with law applicable to Tribunal concerned with regard to filing of appeals. The petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the Tribunal should be such which is appealable in accordance with relevant Service Tribunals Act."
' The main legal questions arising out of the arguments advanced by learned Advocate-General as regards jurisdiction by this Court and maintainability of the petition may be summed up as under:-
(i) Whether promotion is covered under terms and conditions of service.
(ii) If so whether the service tribunal has jurisdiction to entertain an appeal of an aggrieved civil servant in this regard.
' Besides the aforementioned two questions Article 212 of Constitution of Islamic Republic of Pakistan as interpreted by Hon'ble Supreme Court in different cases shall be kept in mind while disposing of the aforementioned two issues.
12. It would be beneficial and .Convenient to reproduce Article 212 of Constitution as follows:-- "212. (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide 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 hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order to entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings on 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 an 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 to such a Court or Tribunal.
(3)
From plain reading of the aforementioned Article it becomes abundantly clear that Tribunals constituted under aforesaid Article have exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in the service of Pakistan and that the jurisdiction of any other Court shall be barred in matters within the exclusive jurisdiction of the Tribunal. This view is further supplemented by Hon'ble Supreme Court in 1990 SCM R 790. Thus it is almost settled that in matters relating to terms and conditions of civil servants except Tribunals no other Court shall giant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such administrative Tribunal or Court extends. Thus a Tribunal constituted under Article 212 of Constitution shall exercise exclusive jurisdiction in respect of matters relating to terms and conditions of persons in service of Pakistan. In pursuance of this Article the Balochistan Service Tribunal has been constituted which has exclusive jurisdiction in respect of matters relating to terms and conditions of service of persons in the service of Province.
' In this regard Balochistan Civil Servants Act, 1974 and Balochistan Service Tribunals Act, 1974 have been enacted. It is to be seen whether terms and conditions include matters relating to promotion under the said Act or not. Chapter II of said Act relates to terms and conditions of Balochistan Civil Servants and section 9 relating to promotions is mentioned in said Chapter. Likewise section 4 of Balochistan Service Tribunal Act prescribes right to prefer appeal in respect of terms and conditions of service. Yet there is anothers section in Chapter II i.e, section 22 describing right of appeal or representation.
13. From the aforementioned discussion we have come to the conclusion that promotion falls under the terms and conditions of service, thus the first issue is answered in affirmative.
14. We now attend to the second proposition whether the Service Tribunal has been vested with jurisdiction to hear appeals as regards promotion?. We have already referred to section 9 read with section 22 (2) of Balochistan Civil Servants Act, 1974 read with section 4(b) of Balochistan Service Tribunals Act, 1974. This section is reproduced below for the sake of convenience:- "4. Appeal to Tribunals.---Any Civil Servant aggrieved by any final order, whether original or appellate, made by departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter:- ' Provided that:- (a)
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining :-
(i) The fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; or (ii)
Explanation ...................................
15. From bare perusal of the aforementioned 'sections it becomes crystal clear that the right of appeal has not been provided relating to matters of promotion under Balochistan Civil Servants Act or Balochistan Service Tribunals Act, both. Of course from plain reading of Article 212 of Constitution of Islamic Republic of Pakistan, the exclusive jurisdiction vests with the Tribunals constituted thereunder in respect of terms and conditions of any person in service of Pakistan or a Province but the legislature has not provided any right of appeal to the persons aggrieved in respect of his promotion. Here again we may take resort to the observations made by Hon'ble Supreme Court in case reported in PLD 1989 SC 508. It was observed therein that the petitioner would have to satisfy all the conditions for filing such an appeal. One of the conditions being that the order impugned before the Tribunal should be such which is appealable in accordance with the relevant Service Tribunals Act. As narrated hereinabove the legislature has not provided a right to prefer appeal to an aggrieved person against his promotion, thus an aggrieved person shall have , no remedy under any law except a representation to be made within 30 days of the communication of such order to the authority next above the authority which made the order. The petitioner has already made such representation but of no avail. Since right of appeal has not been provided in respect of matters of promotion and particularly in view of such circumstances of this case, the Service Tribunal has no jurisdiction to entertain any appeal by the petitioner. In these circumstances it is to be determined whether the petitioner should be left with no remedy or that this Court in exercise of its writ jurisdiction under Article 199 of the Constitution may entertain the petition as there can be no wrong without remedy (UBI JUS UBI REMIDIUM). As the petitioner has no other remedy under the Balochistan Service Tribunals Act or Balochistan Civil Servants Act, the only way out for him was to invoke the writ jurisdiction of this Court. Therefore, he has rightly invoked the jurisdiction of this Court and the petition cannot be held incompetent.
16. Adverting now to the merits of the case, the plea of the Government of Balochistan is manifest from the comments filed by the Chief Secretary that the Federal Government has submitted no reply to the case of promotion of petitioner. It is nowhere mentioned in the comments that the petitioner did not qualify for promotion to B-21.
' Neither the learned Advocate-General nor the Chief Secretary in his comments have ever mentioned that Federal Government had given its consent for promotion of the other officer who has been promoted to B-21 on the recommendations of Provincial Special Selection Committee.
These are the circumstances under which the plea of the petitioner that there was clear discrimination is to be determined. Undoubtedly the petitioner has successfully completed his training at Lahore. There is no dispute that his name was recommended for promotion. No letter has been placed before us that Federal Government has any objection to the promotion of petitioner to B-21. However it transpired from the comments that service record of the petitioner has not been good and in 1990 he was charge-sheeted on account of misappropriation of Government money but the inquiry could not be fmalised for want of a Grade-21 DMG officer. In reply thereto the petitioner filed a rejoinder contending that his service record is good since 10-3- 1958, and no inquiry was conducted against him. It is indeed strange that if that was the position why the case of petitioner for promotion to B-21 was considered and forwarded to the Federal Government by the Provincial Government. Not only that but the petitioner completed his training and was recommended by Special Selection Committee unconditionally for promotion. There is no mention whatsoever in the comments about the other officer who was promoted to Grade-21 without undergoing the Staff College training, nor any material was placed that the Federal Government had no objection to his promotion. In the circumstances the objection of the petitioner that there was a clear discrimination has substantial force.
' Having said so we must mention that the petitioner has retired from service with effect from 4-6- 1993. In view of this factual position he wants a pro forma promotion from the date when he was recommended till the date he retired and consequent emoluments. As is evident from the above discussion there was no justification for not promoting the petitioner to Grade-21. We, therefore, direct the respondents to allow pro forma promotion to the petitioner from due date and further allowing all the resultant benefits under the service rules. The petition is thus disposed of in the aforementioned terms with no orders as to costs.