The petitioner is working as Director of Education (EE) under the Punjab Government in BS-19.
Respondents Nos.6 to 21 are also officers in the Education Department and they have been recommended by the Provincial Selection Board for promotion in BS-20. This Constitutional petition has been filed to challenge the aforesaid recommendations basically on the ground that selection has been made on the basis of wrong seniority list prepared against the Rules. Direction is sought for preparation of combined seniority list in accordance with the Service Rules, and to make fresh promotions on basis thereof.
2. The petitioner belongs to the comprehensive cadre while the aforesaid respondents belong to the general cadre. The case of the petitioner is that according to the provisions of Service Rules, 1987 as amended vide Notification dated 5-4-1989 all the officers belonging to the general cadre and the comprehensive cadre are eligible for promotion in BS-19 and BS-20 on the basis of the combined seniority of the to cadres determined at BS-18 stage. Letter of the Punjab Government, dated 4-1-1996 which says "since in the Service Rules presently applicable, no such ratio in recruitment i.e. From the General Cadre and the comprehensive Cadre stands prescribed, therefore, a combined seniority list Will have to be prepared of all the respective officers working in BS-18 for their future promotion to BS-19 and BS-20 respectively" has been relied to contend that impugned recommendations have been wrongly made on the basis of seniority separately calculated regarding the to Cadres.
3. It is submitted by the learned counsel for the petitioner that if combined seniority list of the officers belonging to the comprehensive Cadre and the General Cadre had been prepared and put before the Provincial Selection Board, then the petitioner was entitled to be promoted in BS-20 in preference to respondents Nos.6 to 21 because he is senior to all of them in BS-18.
4. On the statement of petitioner's learned counsel that the recommendees of the Provincial Selection Board would not retire in 1996, an injunctive order was passed by this Court on 4-7-1996, restraining promotions of the respondents and the case was fixed for hearing in the second week of August. Respondents Nos. 18 and 20 moved C.M. No. 1/96 for recalling the order on the ground that officers of the General Cadre are older in age and some of the recommendees have already retired while some more are due to retire shortly. Objection with regard to the lack of jurisdiction was also raised. Accordingly the arguments of the learned counsel for the parties with regard to the maintainability of this Constitutional petition have been heard.
5. Mr. Faqir Muhammad Khokhar, Advocate has appeared on behalf of respondents Nos. 18 and 20.
He submitted that his clients were appointed in BS-17 in 1971 in the General Cadre of the School Education. They were promoted in BS-18 in 1986. They were further promoted in BS-19 on the basis of their seniority in the general cadre on 8-3-1994. The petitioner, on the other hand, was appointed as BS-17 officer in 1978, thus he is much junior to his clients and other respondents who have been recommended for promotion in BS-20. It is further submitted by him that the petitioner was promoted in BS-19 vide Notification dated 8-5-1994 subsequent to the promotion of his clients. He has further submitted that promotions to the posts in BS-19 and BS-20 are made for various functional units in terms of the existing rules of eligibility. On the question of maintainability of this petition he has contented that the question involved herein is relatable to the terms and conditions of service of the petitioner and respondents Nos.6 to 21 and hence jurisdiction of this Court is barred by Article 212 of the Constitution.
6. Ch. Amir Hussain, learned counsel for the petitioner, on the other hand, submitted that the bar created by Article 212 of the Constitution is not attracted in the circumstances of the present case and has urged the following points: -
(i) Jurisdiction of the High Court under Article 199 of the Constitution is not ousted where jurisdiction of the Service Tribunal is not extendable. The appeal under section 4 of the Punjab Service Tribunals Act is competent only against a final order. In the instant case, however, only recommendations for promotion have been made and the final notification for promotion of respondents Nos.5 to 21 is yet to be made. There being no final notification yet, the Punjab Service Tribunal has no jurisdiction in the matter. Reliance is placed on S.H.M. Rizvi and 5 others v. Maqsood Ahmed and 6 others (PLD 1981 SC 612).
(ii) The recommendations/proceedings of the Provincial Selection Board are without jurisdiction.
The bar of Article 212 is not attracted where proceedings are taken without jurisdiction. Despite the ouster clause the High Court in writ jurisdiction can always interfere where the order/proceedings are found to be without jurisdiction, coram non judice or mala fide. Reliance is placed on Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738).
(i.e) The very action of placing the matter of promotion before the Selection Board without first preparing the combined seniority list is mala fide, because persons who were responsible for preparing the joint seniority list under the rules did not do so they belong to the general cadre.
According to the learned counsel, respondent No.5 who was charged with this duty is an officer belonging to the General Cadre.
7. Mr Faqir Muhammad Khokhar, learned counsel for respondents Nos. 18 and 20 has countered the above submissions. He has contended that irrespective of the fact whether the order passed can or cannot be said to be a final order, matters relating to the terms and conditions of service of civil servants cannot be agitated in the Constitutional jurisdiction of this Court. He has relied on Abdul Wahab Khan v. Government of the Punjab (PLD 1989 SC 508) and Saghir Ahmad Naqvi v. Province of Sind through Chief Secretary, S&GAD, Karachi and another (1996 SCM R 1165) to submit that the petitioner should- wait till final order is passed and thereafter approach the Service Tribunal. With regard to mala fides he has submitted that even this question has to be raised before the Service Tribunal. He has also placed reliance on Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) to further submit that where eligibility to promotion with reference to the rules is claimed, then the matter has to be decided by the appropriate Service Tribunal and the jurisdiction of the High Court is ousted by the bar contained in Article 212 of the Constitution.
8. After carefully considering the arguments of the learned counsel for the parties, I am of the view that the bar created by Article 212 of the Constitution is absolute and unabridged in matters relating to the terms and f conditions of service of the civil servants in respect whereof jurisdiction of the Service Tribunal is extendable. In Pakistan Telecommunication Corporation and another v.
Riaz Ahmed and 6 others (PLD 1996 SC 222) it has been held that matters relating to the eligibility of a civil servant for promotion to a particular post fall outside the jurisdiction of the High Court on account of the bar contained in Article 212 of the Constitution. The relevant observation of the honourable Supreme Court is reproduced below:-- "In view of the above legal position, it is quite clear that the matters relating to the eligibility of a civil servant for promotion to a particular post are matters which fall within the jurisdiction of the Service Tribunal established in pursuance of Article 212 of the Constitution. Since the question raised by respondents Nos. l to 5 in the writ petition related to the eligibility for appointment against a quota reserved for departmental promotees under the rules, the High Court could not issue the direction prayed for in the writ petition on account of bar contained in Article 212 of the Constitution."
In the precedent case it was further held that where enforcement of service rules is a condition for eligibility for promotion to a higher post relief under Article 199 of the Constitution cannot be sought from the High Court on account of the bar of Article 212 of the Constitution. It was contended before the honourable Supreme Court that the petitioners in the High Court were not seeking enforcement of any of the terms and conditions of their service but they were only seeking the enforcement of the rules under which the respondents in the writ petition were bound first to fill up the vacancies by promoting departmental _ candidates and thereafter making the direct recruitments in proportion of 40/60 per cent. Respectively. Thus the writ petition was filed to enforce the question of eligibility of the petitioners under the rules for promotion.
9. In the instant case also it is the question of eligibility of the petitioner for promotion in the higher grade in BS-20, which has been raised in the writ petition. In para. 6 of the writ petition it is stated that according to Service Rules of 1987 as amended in 1989, all the officers belonging to general cadre and the comprehensive cadre are eligible for promotion for the post of Director and the higher posts. In para. 7 it is stated that it was mandatory to issue a combined seniority list of the officers for promotion purpose. In para. 8 it is stated as follows:- "That instead of circulating the combined seniority list respondent No.5 circulated the seniority list of comprehensive cadre and general cadre on the basis of this wrong tentative seniority list respondent No.1 constituted a Selection Board for filling up the posts of BS-20 only to deprive the petitioner and his colleagues from their legal right of consideration for promotion on the basis of established malice."
In ground (v) of the writ petition it is stated as follows:-- "That the respondent No.5 instead of submitting the combined seniority list of the officers who are in BS-20 is bent upon to notify the persons/officers i.e. Respondents Nos.6 to 21 in BS-20 in violation of the Rules as amended' in the year, 1989 and in violation of the order of this Hon'ble Court passed in W.P. No. 11317/1995 on 16-5-1996."
In ground (vi) it is stated that "if respondents Nos.6 to 21 are notified in BS-20, who are junior to the petitioner, they will become senior to the petitioner and the career of the petitioner will be at stake".
10. The case of the petitioner as established in the writ petition is that promotions in BS-19 and 20 have to be made in accordance with the seniority determined on the basis of the combined seniority list of the comprehensive cadre and the general cadre. If combined seniority list is prepared then the petitioner would become senior and the contemplated promotions in pursuance of the impugned recommendations of Provincial Selection Board, would be violative of the rules.
11. The question of seniority is certainly a matter relating to the terms and conditions of service, which is to be exclusively determined by the appropriate Service Tribunal. Indeed so is the question of eligibility for promotion as held in the case of Pakistan Telecommunication Corporation (supra).
In the instant case it is not the question of suitability and fitness of the petitioner to hold the higher post but it is the question of his eligibility for promotion based on his claim of seniority in the light of the Rules, which has been agitated in the writ petition. It is thus clear that question of eligibility for promotion based on seniority falls within the exclusive jurisdiction of the appropriate Service Tribunal, and hence, jurisdiction of this Court under Article 199 of the Constitution is completely barred by the express provisions of Article 212 of the Constitution.
12. The contention of the learned counsel for the petitioner that the Service Tribunal has no jurisdiction because final notification has not yet been issued in favour of the recommendees of the Provincial Selection Board, and hence, the Constitutional petition in the High' Court is competent, is not tenable in view of the law laid down in the case of Sagheer Ahmed Naqvi (supra).
It was a service matter falling within the exclusive jurisdiction of the Service Tribunal. The contention in favour of the plea that jurisdiction of the High Court remained intact in the absence of a final order, was repelled by observing that "the Statute excluding a right of appeal from the interim order cannot be bypassed by bringing under attack such interim order in the Constitutional jurisdiction.
The party effected has to wait till it matures into a final order and then to attack it in the proper exclusive form created for the purpose of examining such order". Similarly the contention of the learned counsel based on the plea of mala fides cannot be seriously attended to because even the questions of mala fides have to be agitated before and decided by the appropriate service tribunal, in matters relating to the terms and conditions of service of the civil servants. The case of Pir Sabir Shah (supra) is also of no help to the petitioner. It was held in that case that notwithstanding an ouster clause in the Constitution the Courts have jurisdiction in the three categories of the cases, namely, where the impugned order is without jurisdiction, coram non judice or mala fide. This is a distinguishable case because ouster of jurisdiction was claimed on the ground that the impugned proclamation under Article 234 cannot be questioned in any Court in view of the ouster clause contained in Article 236 of the Constitution. In service matters, however, the Constitution by express provisions of Article 212 has ordained that jurisdiction shall be exclusively exercised by the appropriate Service Tribunal in matters relating to the terms and conditions of service of the civil servants. The bar is only to the extent that such disputes should be agitated in the Tribunal of exclusive jurisdiction and not in the Constitutional jurisdiction of the High Court or any other Court. Present one is not the case where a party is left with no remedy or no forum. The aggrieved civil servant can approach the appropriate Service Tribunal for redress of his grievance and the decision of the Service Tribunal can be further assailed in the Supreme Court.
For what has been discussed above, this petition is dismissed in limine, being not maintainable. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.