' Muhammad Gulshan Khan, the petitioner was appointed as Inspector, F.IA. On 12-6-1986. On occurrence of vacancies of BPS-17 (Assistant Directors) vide order dated 26-11-1991 M/s. Shaukat Mehmood, Ejaz Ahmad Bajwa and Muhammad Shard, the respondents Nos. 13 to 15, were promoted as Assistant Directors in BPS-17 against the said vacancies and the petitioner was not promoted although according to him the said respondents were junior to him in the seniority list, then in the field, according to which the petitioner figured at serial No, 22, whereas the said respondents were at Serial Nos. 35, 44 and 78 respectively. Aggrieved of the said orders the petitioner filed a service appeal before the Federal Service Tribunal, Islamabad which was decided by the said Tribunal vide order dated 13-4-1993. Operative part of the order is reproduced as under:-- "At this stage, we can neither go into the question of fitness or otherwise of the appellants, nor can set aside the impugned notification of promotion of the respondents. But since the request of the appellants appears to be reasonable, we direct the competent Authority to consider the cases of the appellants on merits and according to law, for promotion in case it has not been done after 1989 and this exercise, in view of the above observations. May be completed within three months."
(Underlining is by me.)
2. Subsequently the petitioner submitted an Application No, 229 of 1993 to the said Tribunal for implementation of the order dated 13-4-1993. This application was disposed of by the Federal Service Tribunal with the following observations: "We have perused the record produced by the respondent department whereby' it is clear that the cases of the appellants were examined along with others, by the D.P.C., in pursuance of the judgment of the Tribunal, but they could not be promoted for want of regular vacancy. We are satisfied that the judgment of the Tribunal has been implemented and the miscellaneous application is misconceived and is accordingly dismissed."
(Underlining is by me.)
' This order was challenged by the petitioner in CPSLA No, 107 of 1994 before the honourable Supreme Court of Pakistan. Vide order dated 10-5-1994, after stating facts in the order their Lordships disposed of the petition, with the following observations:-- "Mr. Munir Peracha learned counsel for the petitioners very vehemently argued that there are at least 5 vacancies in the Department but the Departmental Authorities are illegally and mala fidely refusing to implement the order of Tribunal by promoting them. There is nothing on the record before us to reach the conclusion that the petitioners were not promoted in spite of vacancies in the Department. On the contrary, on our querry the learned counsel for the petitioners admitted that after the order of Tribunal dated 13-4-1993, no one has been promoted by the Departmental in BPS-17. However, if the petitioners feel sure that there are vacancies in the Department, they may approach the Departmental Authorities for action according to the order of Tribunal dated 13-4- 1993 and upon their refusal follow the necessary course. No case for interference with the order of Tribunal is made out. The petitions are dismissed and leave is refused." (Underlining is by me.)
' Nine vacancies of Grade-17 occurred in the Department in the year 1994. Till occurrence of the said vacancies a final seniority list had been published by the respondents. As per this seniority list, the petitioner is shown at serial No, 18 and hence is junior to respondents Nos. 4 to 12. Subsequently when the cases of promotion of the officers were referred to the Departmental Promotion Committee, it is the respondents Nos. 4 to 12 who have been recommended for promotion and the petitioner has not been recommended for promotion. Hence this Constitutional Petition has been filed with the following prayers: {{URDU TEXT}}
4. Report and parawise comments have been filed by respondent No, 3, whereas written statement has been filed by respondent No,
8. Rejoinder has been filed by the petitioner. In the report and parawise comments as well as in the written statement preliminary objections have been raised regarding the , locus standi of the petitioner to file this writ petition and also jurisdiction of this Court to entertain this petition to grant the reliefs as prayed for.
5. M/s. Habib-ul-Wahab Alkhari, and Sardar Muhammad Ghazi, Advocates, have appeared on behalf of the petitioner, whereas M/s. Bashir Ahmad Kiani, Khalid Javed Khan, G.S. Khan, Asad Iqbal and Sabih ud Din, Advocates have appeared on behalf of the respondents Nos. 1 to 5 and 8 to 10 along with Syed Feroze Shah, Assistant Director, Legal. None has appeared for other respondents.
6. Preliminary arguments were heard and vide a short order dated 21-6-1995, writ petition was dismissed in limine. This detailed judgment shall be read in continuation and as a part of the short order dated 21-6-1995.
7. Learned counsel for the petitioner have contended that respondents Nos. 1 to 3 having made a commitment before the Federal Service Tribunal that whenever there is a vacancy, the petitioner shall be promoted, without following any qualifying requirement; that the respondents had no lawful authority to prepare a final seniority list in the year 1993 to the detriment of the petitioner; that recommendations of the Departmental Promotion Committee which are in violation of the commitment made by the respondents Nos. 1 to 3, are illegal and without a lawful authority and are also contemptuous in nature and that as per provisional seniority list, the petitioner was senior to the respondents Nos. 4 to 12, who have now been recommended to be promoted out of whom the respondents Nos. 6, 11 and 12 are not even eligible for promotion in view of the facts stated in para. 6 of the writ petition; that refusal of the respondents to promote even on the basis of the final seniority list is illegal and tainted with mala fides; that right to claim promotion is vested and fundamental right of the petitioner and that bar of jurisdiction as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is not at all attracted in this case as a remedy before the Federal Service Tribunal is illusory in nature because the said Tribunal does not have jurisdiction, to enforce its orders. In support of his arguments learned counsel has referred to the provisions of Articles 2-A, 9, 14, 20, 25, 37 and 38 of the Constitution of Islamic Republic of Pakistan, 1973 and has also placed reliance on the following cases:
(1) S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others (PLD 1981 SC 612);
(2) IA. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) and
(3) Munawar Khan v. Niaz Muhammad and 7 others (1993 SCMR 1287).
8. As against the above arguments learned counsel appearing on behalf of the respondents have contended that the gamut of dispute as contained in this Constitutional petition is not justiciable before this Court as per bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the grievance regarding eligibility for promotion and seniority can only be determined by the Federal Service Tribunal and not by this Court, therefore this writ petition is not competent; that the case is still at recommendation stage, which have been submitted by the Departmental Promotion Committee, therefore the petition is liable to be dismissed, as being pre- mature and that the order passed by the Federal Service Tribunal already stands implemented as observed by the Tribunal itself. Hence the writ petition is liable to be dismissed. In support of their contentions learned counsel besides making reference to the orders passed by the Service Tribunal which have been appended with the petition, have placed reliance on the following cases:
(1) Muhammad Akhtar v. Government of Pakistan through Secretary of Ministry of Interior, Islamabad and another (1992 PLC (C.S.) 1203).
(2) Pakistan through Secretary, Ministry of Commerce and 2 others v. Salahuddin and 3 others (PLD 1991 SC 546).
(3) Mrs. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another (PLD 1988 Lah. 553).
(4) Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Kar. 290).
(5) Dr. Habibur Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144).
(6) Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129).
(7) Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738).
(8) Muhammad Hashim Khan and others v. Province of Balochistan and others (PLD 1976 Quetta 59).
(9) Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 SC 508),
(10) Syed Badurd-ud-Din and 10 others v. Government of N.-W.F.P., through Agriculture Forest and Cooperative, Peshawar and 11 others (PLD 1994 SC 345).
' 8-A. Before embarking upon the discussion of issues involved in this case, it will be appropriate to have in view a brief resume of the case-law cited at the Bar which hence is taken note of as under:
9. In case of Muhammad Akhtar (supra) it has been held that in case of termination of an ad hoc employee as the dispute relates to the terms and conditions of a civil servant, even if there is plea of mala fide and ulterior motive the only forum before which the remedy will be available before Service Tribunal and not before the High Court as per bar of jurisdiction as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
' In case of Pakistan through Secretary, Ministry of Commerce (supra) it has been held that Doctrine of promissory estoppel extends to the executive authorities as well but it is subject to the following limitation:
(1) The doctrine of Promissory estoppel cannot be invoked against the legislature or the laws framed by it because the legislature cannot make a representation;
(2) Promissory estoppel cannot be invoked for directing the doing of the think which was against law when the representation was made or the promise held out;
(3) No agency or authority can be held bound by a promise or representation not lawfully extended or given;
(4) The doctrine of Promissory estoppel will not apply where no steps have been taken consequent to the representation or inducement so as to irrevocably commit the property or the reputation of the party invoking it; and
(5) The party which has indulged in fraud or collusion for obtaining some benefits under the representation cannot be rewarded by the enforcement of the promise.
' In case of Mrs. Saeeda Bukhari (supra) referring Muhammad Aboo Abdullah (PLD 1960 SC 164) his Lordship Mr. Justice Fazal Kareem, J., (as his Lordship then was) presently an honourable Judge of the Supreme Court of Pakistan at page 557 of the report, has held that suitability for or promotion to a particular post, is a matter to be dealt with by the Government on its administrative side and is not justiciable in Court of Law, "except possibly in a case of proved mala fides".
' In case of Abdul Bari (supra) it has been held that as per provisions of Article 212 of the Constitution, jurisdiction of the High Court is complete ousted, even in relation to interim orders which may have ultimate to form basis of fmal orders which will be challengeable in appeal before the Service Tribunal. At page 301 of the report it has been held as under:-- "But the situation under Article 212 is entirely different. The ouster contemplated under the Article is of the Constitutional nature and, therefore, of necessity curtails the jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunal. The second important reason is that the plain reading of the provisions of clause (2) of Article 212 leaves no manner of doubt that these provisions did not envisage concurrent jurisdiction of the Civil Courts and the Tribunal in regard to any matter on any ground in respect of the terms and conditions of service.
The situation contemplated in the said provisions is that the jurisdiction conferred on the Service Tribunals and the jurisdiction vested in the Civil Courts in respect of the terms and conditions of service of civil servants is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the Civil Courts including the High Court. That orders which are mala fide, ultra vires or coram non judice are within the ambit of the Service Tribunal has been held in several cases."
' In iqal Ahmad Khurrum v. Government of Pakistan PLD 1979 Kar. 610, a D.B. Of this Court held that orders which are ultra vires or violative of rule of natural justice or void were within the competency of the Service Tribunal to determine. In Muhammad Hashim Khan's case PLD 1976 Quetta 59 already referred to, also it was held that the Service Tribunal's exclusive jurisdiction extends to ultra vires and mala fide orders. Similarly a Division Bench of the Peshawar High Court in the case of Dr. Raja Mansoor Elahi v. N.-W.F.P. Held that an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the Civil Courts including the High Court would be ousted. Similar view was taken in the case of Muhammad Aslam Bajwa by the Lahore High Court as already referred to. All these cases have been extensively reviewed in an exhaustive judgment if we may say so with respect by Shah Abdul Rasheed, J. In the Full Bench in case of Amanul Mulk v. N.-W.F.P. PLD 1981 Pesh. 1 in which the following reasons were given in support of the view that the High Court's jurisdiction stands ousted even in regard to such orders: "In our opinion all that is necessary is that the order to be impugned should be an order of the departmental authority and if it is an order of such authority and the Tribunal has been conferred jurisdiction by the law under which it is established, the jurisdiction of the High Court is totally ousted. As a consequence, wherever the jurisdiction of the Tribunal exists, it is not open to the aggrieved civil servant to invoke the jurisdiction of the High Court under Article 199 of the Constitution by saying that the order of the departmental authority is without jurisdiction or it is void or it is mala fide or it is in the nature of coram non judice."
' In case of Dr. Habibur Rehman (supra) it has been held that recommendation of the Public Service Commission for the appointment of a civil servant are advisory in nature which may or may not be accepted by the President or the Governor, therefore writ petition is not competent to challenge the such recommendation.
' In case of Mian Abdul Malik (supra) it has been held that if the grievance of the civil servant arises out of violation of statutory rule or a notification the only remedy available him to file an appeal before the Service Tribunal.
' In case of Pir Sabir Shah (supra) it has been held that even if the impugned act or action has been protected by the Constitutional provision by ouster clause, the superior Courts still have the jurisdiction to interfere with three categories of the cases, namely, without jurisdiction, Coram non judice and mala fides. In case of Mian Abdul Malik (supra) it has been held that question of eligibility for promotion of a civil servant cannot be determined by the Civil Court as the matter is relatable to the terms and conditions of his service.
' In case of Muhammad Hashim Khan (supra) it has been held that except for two items mentioned in proviso to section 4 of Act V of 1974, Services Tribunal's jurisdiction is exclusive in matters relating to terms and conditions of service including disciplinary matters and no Court is possessed of jurisdiction to grant injunction or make an order or entertain proceedings in respect of any matter to which Tribunal's jurisdiction extended.
' In case of Abdul Wahab Khan (supra) it has been held that jurisdiction of the High Court in service matters as per bar of jurisdiction as contained in Article 212 is completely ousted.
' In case of Syed Badurd-ud-Din (supra) it has been held that question relating to determination of eligibility a civil servant to a post, was not outside the jurisdiction of the Service Tribunal constituted under Article 212 of the Constitution, such question therefore, could not be tried and gone into by Civil Court as the question of eligibility to promotion was exclusively cognizable by the Service Tribunal.
10. I have given anxious consideration to the arguments addressed by the learned counsel for the parties and have perused the record in the light of the case-law cited at the Bar and legal principles stated therein. As regards the grievance of the petitioner with regard to the promotion of respondents Nos.13 to 15 suffice it to say that to that extent the matter is now past and closed as the petitioner challenged the promotions of respondents before a forum of competent jurisdiction and was satisfied with the order passed in appeal: that whenever a vacancy occurs in department at the subsequent age his case for promotion shall be considered in accordance with law, therefore, he is estopped to challenge the promotion of the respondents through this Constitutional petition and to this extent writ petition is barred by the principles of res judicata.
11. As regard the arguments of the learned counsel for the petitioner to the effect that the writ petition is competent because the order of the Federal Service Tribunal is not being implemented, the same is misconceived and is based on misreading of the orders passed by the Service Tribunal upheld by the Honourable Supreme Court of Pakistan on his application seeking implementation of the order dated 13-4-1993 as it has been specifically been held by the said Tribunal that the order dated 12-1-1994 stands implemented. This order has not been set aside by their Lordships of Supreme Court and therefore it cannot be said that the order passed by the Federal Service Tribunal has not been implemented by the respondents. Even otherwise in the light of the commitment/statement made by the departmental representative, the appeal was disposed of with the direction that the promotion case of the petitioner shall be considered in accordance with law, therefore, arguments of the learned counsel for the petitioner to the effect that the petitioner should have been promoted merely on the basis of the statement made before the Federal Service Tribunal is misconceived and erroneous in law. The principle of estoppel against the Government functionaries as well as the Statutory Authorities is applicable to the extent that the commitment has to be lawful and has to be carried in accordance with law, and that is why the learned Federal Service Tribunal while deciding the appeal has ordered that the petitioner's case of promotion shall be decided in accordance with law, therefore, respondents Nos. 1 to 5 in order to take a decision in matter of his promotion, have to take into consideration his eligibility and fitness for promotion as per final seniority list, he being junior to the respondents Nos. 4 to 12 could not have been promoted as such. It is not the case of the petitioner that he has not been considered for promotion, his grievance is that he should have been treated as senior to the persons who have been promoted on the basis of the provisional seniority list which was enforced in the year 1991 and on the basis of final seniority list which has been issued in October, 1993. This claim definitely is not lawful and as such has rightly been refused and the Departmental Promotion Committee has not recommended the petitioner and has neither committed an illegality nor has violated the order passed by the Federal Service Tribunal or by their Lordships of Supreme Court of Pakistan. Even otherwise dispute relating to seniority cannot be gone into by this Court as held in cases referred to in the earlier part of this judgment.
12. As regards the arguments of the learned counsel for the petitioner that some of the respondents were recommended to be promoted are not eligible for promotion, this question also cannot be gone into by this Court, as it is the prerogative of the Government, who is competent Authority to go into this question and at any rate the recommendation has not yet been accepted by the respondents, therefore, grievance at this stage appears to be pre-mature and misconceived.
13. As regards the arguments of the learned counsel for the petitioner to the effect that the action of the respondent is mala fide suffice it to say that the mala fides have to be proved by positive allegations and evidence. In the case in hand there is nothing on the record on the basis whereof it could be said that the petitioner is not being promoted mala fidely. So long as the seniority list, 1993 is in the field the Government is bound to follow the same and cannot grant out of turn promotion to the petitioner at the costs of other persons who definitely rank senior to him, therefore, action taken by the respondents is not established to be tainted with mala fides and as such arguments of the learned counsel is repelled.
14. As regards the argument of the learned counsel for the petitioner to the effect that remedy before the Service Tribunal is not efficacious therefore this writ petition should be entertained for the redress of the petitioner's grievance, the same is misconceived as in view of the clear bar of jurisdiction as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and the gamut of dispute as raised in this Constitutional petition being relatable to the terms and conditions of petitioner's service being a civil servant this Court has no jurisdiction to entertain this petition, hence the same is not competent before this Court in view of the law declared in the judgments referred to above. Even the petitioner had earlier gone to the Federal Service Tribunal to get decide a similar dispute by that forum, and merely because now he feels that if he approaches the Service Tribunal, he may not get proper relief cannot confer jurisdiction upon this Court which otherwise stands ousted as per Article 212 of the Constitution.
15. As regards the argument of the learned counsel that this is the fundamental right of the petitioner to claim promotion, this question can also be raised before the Federal Service Tribunal, therefore, even on this score as well it is not a fit case wherein the proceedings under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, may be entertained by this Court.
16. Resultantly, I see no force in this Constitutional petition; hence the same is dismissed in limine.