1. ' In Constitutional Petition No, 328 of 1995 (Muhammad Azam Dawi v. Speaker, Balochistan Provincial Assembly), following Notification dated 6th April, 1995, issued by Secretary, Balochistan Provincial Assembly, has been challenged, in pursuance whereof, respondent Khair Muhammad Shahwani, Protocol Officer (B-18) was transferred on newly created post of Deputy Secretary (B- 18):-- "NOTIFICATION No, Admn. II (271)/77 ' In exercise of powers conferred upon him vide Rule 16 of the Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 1975 and on recommendations of the Promotion Committee, Speaker, Balochistan Provincial Assembly. Assembly is pleased to appoint. Mr. Khair Muhammad Shahwani, Protocol Officer (B-18) to the newly created post of Deputy Secretary (B-18) by transfer with immediate effect and until further orders. He will. Be on probation for a period of six months. He will, however, retain his lien on the substantive post of Protocol Officer to Speaker (B-18).
(2) The expenditure involved will be debitable to the head "000-General Administration-010- Organs of State-0 1 1 Provincial Assembly Secretariat" from within the sanctioned buget grant for the current financial year 1994-95."
2. ' The prayer of petitioner is that appointment of respondent No, 2, vide above Notification is without lawful Authority and of no legal effect, therefore, writ of co warranto be issued calling upon him to show by what authority, he holds the post and as a consequence, thereof, directions be made to respondent No, 1 (Speaker, Provincial. Assembly) for considering the petitioner for appointment against the post of Deputy Secretary.
3. ' In C. P. No, 338 of 1995 (Rehmatullah Jattak. v. Speaker, Balochistan Provincial Assembly), the Notification dated 7-11-1995, has been. Challenged, whereby respondent Muhammad Ali Rind has been appointed as Deputy Seem/any, against vacant post. It reads as under:-- "NOTIFICATION No, Adnm. II (271)/77 ' In exercise of powers conferred upon him vide Rule 10 of the Balochistan Provincial Assembly Secretariat (Recruitment) Rules, 1975 and on recommendations of Selection Committee, Speaker, Balochistan Provincial Assembly is pleased to appoint Mr. Muhammad Ali Rind son of Haji Muhammad Ashraf Rind, as Deputy Secretary in Grade-18 (Rs, 5085--336--8,745) in Balochistan Provincial Assembly Secretariat, against vacant post with immediate effect on the terms and conditions offered vide this Secretariat letter of even number dated 1st November, 1995. He will be on probation initially for a period of one year.
4. (Sd.) AKHTAR HUSSAIN KHAN, Secretary, Balochistan 'Provincial Assembly Dated Quetta, the 7-11- 1995."
5. ' In this Constitutional petition as well, same relief as prayed for in connected petition, has been claimed.
6. ' Raja M. Afsar, learned counsel for Speaker as well as for Private respondents and Chaudhrary Ejaz Yousaf, Additional Advocate-General, objected on the maintainability of Constitutional petitions in view of the bar laid down by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, and observations made by Hon'ble Supreme Court in Hadi Bakhsh v. Government of Sindh and another (PLD 1994 SC 532), wherein it has been declared that employees of Provincial Assembly, holds civil posts, in connection with the affairs of Province and can invoke the jurisdiction of Service Tribunal.
7. They also relied on Syed Badruddin v. Government of N.-W.F.P. Through Agriculture Forest Department (PLD 1994 SC 345). In this context, Raja M. Afsar, Advocate, placed reliance on 1979 SCMR 498 and PLD 1983 SC 100.
8. ' Mr. Muhammad Aslam Chishti, learned counsel for petitioners urged that in view of the judgment of Hon'ble Supreme Court, latter in time, i,e, Shahid. Iqbal v. Government of Pakistan through Secretary, Establishment Division, Islamabad and others (1995 SCMR 660), the employees of Provincial Assembly Secretariat, cannot be deemed in service of Province, therefore, they are not civil servants and except invoking Constitutional jurisdiction of High Court, no other remedy is available to them. Learned counsel also emphasised that case of Hadi Bakhsh is distinguishable, because according to section 4 of Balochistan Civil Servants Act, 1974, an employee can challenge his terms and conditions of service before the Tribunal and no relief can be given to him against the terms and conditions of employee, whose transfer, appointment, act has been challenged, therefore, according to him, in view of the judgment reported in 1992 PLC (C.S.)--289, petitioners have rightly approached this Court, for redress of their grievance. Learned counsel by making reference to another judgment reported in 1995 PLC (C.S.) 567, contended that this Court has already held that bar under Article 212 of the Constitution, would not apply to writ petition, which seek determination of, eligibility of respondent to hold.a post, as Service Tribunal, would have no jurisdiction, where appeal to question appointment/induction into service of any person other than appellant is before it.
9. ' Although one of us (Justice Iftikhar Muhammad Chaudhary) who was the Author of judgment repotted in 1995 PLC (C.S.) 567, but said judgment has been set aside by Hon'ble Supreme Court in C.P. No, 100-Q of 1995, relevant para. Therefrom, is reported hereinbelow:-- "3. Mr. Yakub K. Eusafzai, learned AdVocate-General, Balochistan, appeared before us and stated that he had called respondents 1 and 2, who admitted before him that since they have been promoted to Grade-20 and the petitioner is also in Grade-20 they hold no grievance against the petitioner and do not want to contest the petition. Respondents 1 and 2 have filed such statement in writing, which is placed on the record. In the circumstances and for the reasons stated above, leave is granted and petition is converted into appeal, which is allowed. In consequence, judgment of High Court, impugned herein, is set aside."
10. ' Therefore, in our considered opinion, principle of law, earlier discussed in noted case, cannot be pressed into service, as the judgment is not holding field.
11. ' It is to be observed that in the case of Hadi Bakhsh, the Hon'ble Supreme Court, after considering relevant provisions of law, in a very categorical terms had declared that employees of Provincial Assembly. Can invoke the jurisdiction of Service Tribunal, as they hold civil post in connection with the affairs of Province. As far as the case of Shahid Iqbal is concerned, with utmost respect, it is observed that it has proceeded on concessional statements made by parties, on the point that employees of Senate Secretariat, are not civil servants.
12. ' Mr. Aslam Chishti, Advocate, argued that where there are two different judgments of Hon'ble Supreme Court, on an identical point of law, then in view of Major-General (Retd.) Ghulam Jailani v.
13. Federal Government through Secretary, Government of Pakistan, Interior Division, Islamabad (PLD 19.75 Lah. 65) the judgment which decides question of law or it is based upon a principle of law or it enunciates a principle of law will be relied upon. Thus in view of the provisions of Article 189 of the Constitution of Islamic Republic of Pakistan, and judgment cited in this behalf by learned counsel for petitioners, with utmost respect we are inclined to hold that as per the ratio decidendi in the case of Hadi Baldish, the employees of Balochistan Provincial Assembly have remedy before Service Tribunal, as they hold civil posts in connection with the affairs of Province.
14. ' Now turning towards the contention of Mr. Aslam Chishti, Advocate that as petitioners are not claiming relief for their own terms and conditions therefore, in view of section 4 of Balochistan Civil Servants Act to challenge the transfer/appointment of respondents in both the matters, legitimately Constitutional jurisdiction can be invoked by them. In this behalf, it would be relevant to reproduce hereinbelow the parent .Law i,e, Article 212 of the Constitution:-- "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; "
15. ' A careful perusal of above Article, suggests to hold that there is no distinction, concerning challenging of his or other, terms and conditions of service by a civil servant. It is the duty of this Court to interpret Constitutional provisions and a law promulgated under any Article thereof, in a harmonised manner to ensure that Constitutional provisions must prevail upon the sub- Constitutional law. Since the parent Article, itself, does not create distinction for determination or challenging his or others, terms and conditions of service, therefore, in our opinion, except invoking the jurisdiction of Service Tribunal, petitioners are debarred to question the transfer/appointment of respondents in .These Constitutional petitions. This question can be determined from another angle i,e, petitioners indirectly had sought relief for consideration. Of their case against the post which are presently occupied by respondents. It would mean that they apprehend that if respondents continued occupying these posts, they will not be considered nor posted against said posts, as such it would amount to violate their own conditions of service.
16. ' In the case of Muhammad Ismail v. Province of Punjab (1979 SCMR 488), the Hon'ble Supreme Court held that promotion of a civil servant pertains to terms and conditions of service, therefore a civil servant aggrieved by any final order, whether original or appellate, can approach the Service Tribunal, which possess exclusive jurisdiction to hear disputes. Similarly in Islamic Republic of Pakistan v. Dr: Safdar Mehmood (PLD 1983 SC 100), it has been held that dispute relating to service rights of a civil servant is now exclusive concern of Service Tribunal. In S. Badruddin's case (PLD 1994 SC 345) with reference to the eligibility of a civil servant to hold the post, it has been held that except Service Tribunal, no other Court has jurisdiction. Relevant para. Threefrom is reproduced hereinbelow, for guidance:- "We have considered to averments made by the petitioners in their plaint in the civil suit and have also considered their prayer in the above suit and are of the view that the controversy raised by them in the above suit related to their eligibility for further promotion to Grade-1$ and onward. In these circumstances, the learned Judge in Chambers rightly held that the suit was not maintainable as the question of eligibility was cognizable exclusively by the Service Tribunal, in view of the law laid down by this Court in 1991 SCMR 1129 ibid. There is no merit in this petition, which is, accordingly, dismissed. However, it is left open for the petitioners to agitate their grievance before the Service Tribunal, if it is so available to them under the law." .
17. ' Thus in view of above discussion, we are inclined to hold that petitions are not maintainable, which are hereby dismissed.
18. ' Parties are left to bear their own costs.