KARAMAT NAZIR BHANDARI, J.-The respondent-Administrator has entered appearance in person and is also assisted by his learned counsel. He has placed on record parawise comments. His personal appearance was directed to explain as to how he could pass the two contradictory orders dated 6-11-1997 (Annexure-H) and 31-3-1998 (Annexure-K)' by stating that this was in compliance with the orders of the High Court passed in Writ Petition No. 24273 of 1997.
2. The petitioner and respondent No. 3 are. Both employees of respondent- Zila Council. The petitioner is in B.P.S. 11 while the respondent is junior to the petitioner and is in B.P.S. 7. On 26-7-1997, the respondent No. 3 was appointed as Head Clerk in his own pay and scale. On representation of the petitioner, this order was cancelled on 8-8-1997. On 9-8-1997, National Industrial relations Commission, on a petition of respondent No.3 suspended the order dated 8-8-1997. Ln view of this suspension, on 20-10-1997 the petitioner was to handover the charge of the post of Head Clerk to respondent No. 3. The petitioner filed Writ Petition No. 24273 of 1997 impugning the order of National Industrial Relations Commission and this Court while entertaining the the order of the National Industrial Relations Commission. .As a result, respondent- Administrator withdrew the order dated 20-10-1997. Once the order dated 20-7- 1997 disappeared, the petitioner on 26-2-1998 withdrew the writ petition. After withdrawal, the respondent-administrator again restored the order dated 26-7-1997, Annexure-K, "in compliance with the order passed by the Hon'ble Lahore High Court, Lahore dated 26-2-1998". It is this order which is subjected to challenge.
3. As noted, the respondent appeared personally to explain as to in compliance of which order of the High Court he has passed the impugned order. In the course of hearing, the respondent admitted that the use of expression "in compliance" is inappropriate and what he actually wanted to say was as a result of the order of the High Court or some thing like that. I am satisfied that there is no attempt on the part of the respondent No. 1 to use or misuse any order passed by this Court for passing the impugned order.
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4. Essentially the petitioner is aggrieved against the appointment of respondent No. 3 as Head Clerk and the ground of attack is that under Rule 3 of the Punjab Local Councils Servant (Service) Rules, 1997, a member of the service Name Of Overall Assessm ent Quality and Recommendation of The Officer Out Put of the CSB. II Work Regarding Promotion.
Bashir Ahmed 61 52 Cleared Muhammad Idress 58 57 Superseded Muhammad Aslam 59 57 Cleared Jadoon. In view of the fact that the score of the officer was not materially different from the other two officers, the Board agreed to recommend the conversion of the supersession of the officer in 1985 into deferment. The Board noted that the officer had already been promoted to BS. 29".
4. Above findings were forwarded to Ministry of Communications for further proceedings >but its result was not conveyed to petitioner alongwith he submitted application to obtain copy of the approval orders of the Competent Authority. As such on 16th January, 1996 petitioner was informed that Competent Authority has approved conversion of supersession into deferment vide letter dated 10-1-1996 as such instant Constitutional petition has been preferred claimirtg following relief:- "It is prayed that this honourable Court may graciously be pleased to issue appropriate direction in nature of writ of directing respondents to reconsider and finally decide petitioner's representation for antedating of promotion". ,
5. Mr. M.A Chisti, Advocate appeared on behalf of petitioner; whereas Mr. M.S. Rakhshani D.A.G, represented to official respondents and private respondents were declared ex-parte as despite of service they did not appear to contesHhe petition.
6. Learned Deputy Attorney General raised following preliminary objections on maintainability of the petition: A. This Court has no territorial jurisdiction to grant relief as prayed for in the petition because both offieial/respondents are not residing in the territory of Balochistan nor any .Pne of them has passed an adverse order against petitioner within the jurisdiction of this Court. Thus petition deserves to be rejected. Reliance was placed on 1979 SGMR B, The petitioner has claimed antedation promotion to BPS-19 and such relief falls within the terms and conditions of service, therefore, in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 except Service Tribunal no other Court has jurisdiction to grant relief as it has been prayed for; ?
7. Mr. M.A. Chishti learned counsel for petitioner to meet the above objections contended: a. Petitioner received final letter dated 16-1-1996 at Quetta during his posting as General Manager Western Telecommunication Region. This letter refers to decision dated 17-3-1994 passed by Establishment Division in pursuance of findings of CSB-II forwarded by Secretary Communications Islamabad, therefore, both respondents, i.e, No. 1 & 2 being functionaries acting on behalf of the Federal Govemment can be sued before any of the four High Courts. To substantiate his arguments he placed reliance on PLD 1965 SC 310, PLD 1968 SC 387, PLD 1976 Karachi 1084, 1985 SCMR 758 and PLD 1997 SC334; b. Antedating promotion is not covered by the terms and conditions of a civil servant, therefore, except invoking jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner has no remedy for the redresses of his grievance. He referred to PLD 1974 Karachi 01,PLD 1994 Lahore 545, PLD 1981 SC 137, 199 SCMR 1492, 1991 SCMR 1041, 1991 CLC 204, 1991 SCMR 1041, 1995 PLC (C.S), and unreported judgment of honorable Supreme Court in Civil petition No. 146-Q/1993 wherein judgment in 1995 PLC (CS)151 has been confirmed. He also relied on PLD 1980 Quetta 58 as well as PLD 1981 Peshawar 01.
8. We heard both the learned. Counsels at length and also minutely examined above objections.
According to Article 199 (1) (a) of the Constitution & Islamic Republic of Pakistan, 1973, High Court has jurisdiction to examine any order and action taken by a functionary acting on behalf of provincial authority or federal authority to declare such action/order as having been passed without lawful authority and jurisdiction. As far as Federation is concerned it represents to all the Provinces, therefore, if an aggrieved person residing in any of the provinces where such order action has been communicated to him , he can invoke the jurisdiction of said respective High Court.
9. In the case of Pakistan v. Waliullah Sufiani (PLD 1965 SC 310) honourable Supreme Court has held with regard to general principle of invoking jurisdiction of particular Court as under:- "A suit against a person can only be brought under the CPC at a place where the cause of action arose or where the defendant resides or carries on business or personally works for gain. A suit would not lie in the Indian Courts because the cause of action arose at a place which is not in India and a Government neither resides anywhere nor carries on business nor works for gain".
10. In the case of "Asgher Hussain v. The Election Commission of Pakistan" PLD 1968 SC 387, honourable Supreme Court while.Examining Article 98 (2) (l)r/w Article 153 observed that the person or authority to whom a direction' may be given under Clause-C must be functioning in relation to territory within the jurisdiction of a High Court. In this matter the Election Tribunal constituted under Presidents Order No. 13/1962 except the petition filed by a candidate who has lost bye election to Provincial Assembly was accepted. This decision of the Tribunal was challenged before the High Court of East Pakistan for quashment of the order of Tribunal under Article 98 of the Constitution on various grounds but both the petitions were dismissed by East Pakistan High Court.
Petition for leave to appeal before the honorable Supreme Court was also refused. Thereupon the Election Commission was approached to disqualify the returned candidate, from being elected as a member of any Assembly under Article 77 of the President's Order No. 4/1962 as amended by the President's Order No. 39/1962.
11. It appears that the Election Tribunal did not take any action on the petition, therefore, again a Constitutional' petition was filed before the High Court of East Pakistan seeking relief for issuance of rule nisi to declare disqualified the respondents from being or being elected as member of ay Assembly and also directions to Election Commission to take action against the respondents which is required by law to do with further direction to restrain one of the respondents Mr. Mafuzuddin not to participate in issuing elections etc. But relief was not given to aggrieved person and writ petition was dismissed for want of jurisdiction in the High Court. However, certificate was given to the petitioner to prefer appeal before honourable Supreme Court, to consider substantial question of law involving interpretation of the Constitution. Honourable Supreme Court examined the question of jurisdiction of the East Pakistan High Court where proceedings pending before the Election Commission were challenged and ultimately held as under: '
"Decision given by the High Court of East Pakistan that it had no jurisdiction to issue a writ or direction to Election Commission of Pakistan is thus unsustainable in law from every point of view.
The Election Commission is a person or authority which exercises in the Province of East Pakistan functions in confection with the affairs of the Center namely, Elections to the office of President, National Assembly and the Provincial Assemblies and for holding a referendum ass provided for in the Constitution. In that the Commission is subject to the jurisdiction of the High Court under the Articles 98 (2) (a) (1) notwithstanding that its main office and Secretariat are located in the Province of West Pakistan". l2. In the case of "M/s. Ai-Iblagh Limited v. The Copy Right Board Karachi & others" 1985 SCMR 758, Hon'ble Supreme Court re_afirmed its earlier decision referred to herein above and held as under: ''The rule laid down in the said case would, we think be applicable also in the circumstances of this case The Central Govemment has set up a Copy Right Board for the whole of Pakistan and it performs functions in relations to the affairs of the Federation in all the provinces, hence any order passed by it or proceedings taken by it in relation to any person in any of the four provinces of Pakistan would give the High Court of the Province in whose territory the order would affect such a person jurisdiction to hear the cases"; 13; The above judgment has been distinguished by honourable Supreme Court in the case of "Sandalbar Enterprises CB & Others " reported in PLD 1997 SC 334. However, concerning jurisdiction of the High Court against the order passed by the functionaries of the Federal Government it was held as under: "The learned Judges of the Division Bench have pointed out the language originally employed in Article 98 (2) (a) (i) of 1962 Constitution prion to the incorporation clause (c) by the First Amendment Act, 1963 for distinguishing the case of Asghar Hussain v. Election Commission of Pakistan etc PLD 1968 SC 387, The view found favour with the learned Judges of the Division Bench in the case in hand seems to be in consonance with Article 199 (1 (a) (i) and (ii) of the Constitution of the Islamic Republic of Pakistan, 1973 hereinafter referred to as the Constitution A perusal of the above sub-classes (a) (i) of the above Article indicates that a High Court has power to issue a direction to a person performing within its territorial jurisdiction functions in connection with the affairs of the Federation, a Province or a local authority to refrain from doing any thing he is not permitted by law to do Similarly, under sub-clause (a) (ii) a.Declaration without lawful authoritv or of no leeal effect can he piven hv a Hi oh Pnnrt in respect of any act done or proceeding taken within its territorial jurisdiction by a person performing functions in connection with the affairs of the Federation, a province or a local authority."
14. At this juncture it would be appropriate to examine the case of "Sabir Din v. Government of Pakistan through Secretary Ministry of Defence & others (1979 SCMR 555) cited by learned Deputy Attomey General. In this case honourable Supreme Gourt refused to grant leave to appeal against the order of honourable Peshawar High Court dismissing the writ petition on the ground of lack of territorial jurisdiction in a service matter. Briefly facts of this case are that petitioner (Sabir Din) was promoted and duly confirmed as Deputy Military Estates Officer in the Directorate of ML&C Department under the Ministry of Defence Government of Pakistan. He was posted in the office of M.E.O Hazara Circle Abbotabad from were he was transferred to Muzaffarabad (Azad Jammu & Kashmir) as Deputy Military Estates Officer (Military Estates Section) which statedly falls within Hazara Circle (NWFP) The petitioner's case was that respondent No. 3 the Departmental Promotion Committee at Rawalpindi acting under a letter of the Establishment Division of Pakistan Govemment made recommendations for his reversion and 3 others which was approved by the Director ML&C Rawalpindi, lt was his case that about the reversion order he learnt at Rawalpindi from an employee of Rawalpindi Circle, there fore, he challenged his reversion order in Peshawar High Court though a' writ petition seeking relief for quashment of the order. The petitioner was dismissed in limine on the ground of lack of territorial jurisdiction, therefore, he moved petition for leave to appeal Honourable Supreme Court after hearing the petitioner's counsel opined as under: "The normal station of residence etc and the cause of action qua territorial jurisdiction even if attracted in the circumstances do not support the petitioner's case. The cause of action partially arose at Muzaffarabad and partially at Rawalpindi. The Central Govemment as held in the case of Waliullah Sufwani does not reside at any one place in the realm. However the Respondent No. 2 whose order (Annexure- B) to tlte writ petition was brought under challenge is at Rawalpindi. In this view the Peshawar High Court would have no territorial jurisdiction. The Hazara office of the Respondent No. 1 & 2 is only one Chair in the Administrative set up. It has not done any thing against the petitioner more any relief has been sought against it, nor even a formal one. Indeed it has not been imlpeaded as a party. That aspect of the case either would not confer territorial jurisdiction on the
15. In our considered opinion the above judgment is distinguishability particularly in view of the recent law laid down by honourable Supreme Court in the case of "Sandalbar Enterprises v. CBR & others (PLD 1997 SC 334). As the petitioner has claimed relief against Ministry of Establishment & Communications who have passed adverse order against him during his posting at Quetta-, therefore, he was not supposed to approach the Lahore High Court within whose jurisdiction the Offices of Respondent No. 1 &2 are situated for redresses of his grievances because the Ministry of Telecommunication discharge its functions through number of Organizations in every province including the PTCL (T&T). Since adverse order was passed against the petitioner on the recommendations of the Ministry of Communication by the Establishment Ministry, therefore, legitimately petitioner can sue both the respondents within the territorial jurisdiction, of Balochistan High Court.
16. Thus it is concluded that objection raised in this behalf by the learned Deputy Attorney General has no substance which is accordingly over ruled concluding thereby that this Court has territorial jurisdiction to entertain the Constitutional petition against the functionaries of the Federal Government because cause of action accrued to petitioner against the adverse orders detrimental to his service interest passed by a competent authority during his posting at Quetta.
17. Adverting to second objection put forth on behalf of official respondents by learned Deputy Attorney General it would be appropriate to attend it keeping in view Section 4 of the Service Tribunals Act, 1973 which confers right upon civil servants prefer appeal if he is aggrieved by any final order, whether original or appellate made by a Departmental Authority in respect of any of the terms and conditions of his servjce. Its Clause-b of the Sub-section (1) however, identifies those areas in which no appeal shall lie to the Tribunal against an order or decision of a Departmental Authority determining, (1) fitness or otherwise of a person to be appointed, (2) holding a particular post and (3) to be promoted to higher post; grade.
18. By the time lot of work has been done by the superior Courts in the above field with reference to facts involved in different cases to determine the jurisdiction in these matters of the Tribunal. In this context in the judgment reported in PLD 1974 Lahore 545 a Division Bench held that Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants including disciplinary matters.
19. Similarly honourable High Court of Sindh examined the scope of Section 4 of the Service Tribunal Act and opined in PLD 1979 Karachi 01 that the Tribunal has exclusive jurisdiction in respect of the matters relating to terms and Quetta 58 exhaustively examined said section and concluded that with regard to terms and conditions exclusive jurisdiction shall vest in the Tribunal but in respect of the following cases it will have no jurisdiction;
1. When the impugned order was passed before 1-7-1969;
2. When the civil servant punished is not a "civil servant" for the person of his exclusion from definition f civil servant in section 2 (1) (b) of the Civil Servants Act:
3. When the order is not a final order;
4. When the punishment imposed is Other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time scale;
5. When the impugned order relates to a persons fitness to hold a post or to be appointed to such post or to be promoted to a higher post or grade; and '
6. When the order is not passed by a competent departmental authority and is for such reason void. '
20. In this behalf honourable Full Bench of Peshawar High Court in PLD 1981 Peshawar 01 concerning the fitness of a civil servant to.Hold a post or to be appointed to such a post or to be promoted to a higher post, observed as under:- "The High Court shall have the jurisdiction to adjudicate upon whether v the impugned order relating to a civil servant of the Federation or a civil servant of the Province relates to his fitness to hold a post or to be appointed to such post or to be promoted to a higher post or grade. In this respect we have already discussed in detail the purport and meaning of fitness to hold a post or to be appointed or to be promoted to a higher'post or grade".
21. Honourable Supreme Court in the case reported in PLD 1981 SSC 137 after examining scope of Article 212 (1) (a) of the Constitution held that the jurisdiction of the ordinary Courts is excluded only in respect of a matter to the extent of which the jurisdiction of administrative Courts or Tribunal extends and not beyond it.
22. Honourable Lahore High Court in a .Later judgment reported in PLD 1990 Lahore 352 while examining the same proposition concluded that the bar of oe r>r*toin*/4 in A T 1 1 rtf tho Pnnctihtttnn U/ill Tint hp finPrfltlVP if the disciplinary proceeding initiated or order made is without jurisdiction and illegal and secondly that no appeal is competent before the Service Tribunal.
Honourable Supreme Court in the case of "I.A Sherwani & others v. Govemment of Pakistan Through Secretary .Finance Division Islamabad & others" (1991 SCMR 1041) interpreted Section 4& 3 of Service Tribunals Act, and identified those provinces in which appeal before the Service Tribunal would not be competent. For the sake of advantage relevant para from the judgment is reproduced hereinbelow:- "It may also be pointed out that Sub-section (1) of section 4 of the Act provides right of an appeal before the Service Tribunal to a civil servant if he is aggrieved by any final order, whether original or appellate; made by a departmental authority in respect of any of his terms and conditions of the service within 30 days of communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, subject to sub clauses (a) ' which provides a precondition for filing of a service appeal by providing that an aggrieved civil servant before approaching the Service Tribunal should file an appeal, review, or representation as may be provided for under the relevant Rules before the departmental authority and should wait for the expiry if the above period. Whereas sub clause (b) and (c) provide the case; in which no appeal shall lie to the Service Tribunal, namely, (i) against an order or decision of a departmental authority determining 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, and (ii) against an order or decision of a departmental authority made at any time before the 1st July, 1969. It may further be noticed that under clause (a) of Sub-section (2) in case of I penalty of dismissal from service, removal from seryice compulsory retirement or reduction to a lower post or time scale or to a lower stage in a time scale, the appeal shall lie to a Tribunal referred to in Sub-section (3) of section 3 of the Act, and in any other case under clause (b) to a Tribunal referred to in Sub-section (7) of section 3 of the Act. It may also be noticed that the explanation to Sub-section (2) of section 4 defines the term "departmental authority" as means an authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of the civil servant".
23. After making above observations the honourable Court in preceding para categorically held that "from the above quoted Article 212 and Section 4 of the Act, it is evident that jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under Sub-section (1) of Section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate on a particular type, of grievance the jurisdiction of the Courts remains intact".
24. This Court also examined the scope of Articles 212 and 199 in the case of "Muhammad Raees
(Azam) v. Govemment of Balochistan through Chief Secretary'' S&GAD with reference to right of promotion of civil servant. In this case one of us (Mr. Justice Iftikhar Muhammad Chaudhary) is a member; whereas honourable Mr. Justice Amir-ul-Mulk Mengal present Chief Justice, was the author of the judgment. In this case petitioner was selected for regular training to qualify for Grade 21 and after successful completion of training his case was duly considered and approved by the Govemment alongwith another Office as at that time two posts of Grade 21 existed for Balochistan Civil Service Officers, but despite of recombinations he was not promoted, therefore, he invoked Constitutional jurisdiction of this Court.
25. In view of deep analysis of relevant articles of the Constitution it was held that since right of appeal has not been provided in respect of matters of promotion and particularly in view of such circumstances of this casethe Service Tribunal has no jurisdiction to entertain any appeal by the petitioner, therefore, it was concluded that since no remedy is available to the petitioner under Balochistan Civil Servants Act, the only way out for him was to invoke the writ jurisdiction of this Court".
26. The Govemment of Balochistan took up this matter before the Supreme Court of Pakistan in Civil Petition No. 146-Q of 1993. Petition for leave to appeal .Was dismissed with observations that in cases where Tribunal has no jurisdiction, the jurisdiction of the High Court has not been ousted. At this juncture it would not be out of context to make reference to another judgment-of honourable Supreme Court reported in 1990 SCMR 1492. In this case leave was prayed by the petitioner to file appeal against the judgment of Punjab Service Tribunal Lahore which was refused and the order , of the Tribunal 'dismissing the appeal of petitioner on limitation was confirmed, However, with observations that the Tribunal could not have gone into evidence to determine the fitness or otherwise of the petitioner for promotion.
27. From the above over all consistent judicial pronouncements of honourable different Courts it is concluded that the Service Tribunal shall have PYrlucivp inricHintinri aotainct am/ final nrHpr nrhpthpr nriainal nr annpllntp naccprl hv a Departmental Authority in respect of any of the terms and conditions of his service, but subject to fulfilling conditions laid down in Section 4 (1) Clause-(a) but the Tribunal will have no jurisdiction against an order or decision of a Departmental Authority determining fitness or otherwise of a person to be appointed to hold a particular post or to be promoted to a higher post or grade in view of the bar of Clause-(b) Sub-section (1) of Section 4.
28. In the case in hand grievance of petitioner is that respondent No. 1 has refused to grant him antedation promotion/proforma promotion unlawfully contrary to the service laws, therefore, he had no remedy before the Service Tribunal except invoking jurisdiction of this Court by filing instant Constitutional petition.
29. Mr. M.A. Chishti learned counsel on merits contended that no sooner conversion of the supersession of the petitioner is removed by the Central Selection Board-II in its meeting dated 2- 22-1994, Respondent No. 1 being competent authority had unlawfully deferred his promotion knowing well that private respondents who were junior;to him have already been promoted to Grade 19, therefore, petitioner was also entitled for promotion from the date when they were promoted.
30. Mr. M.S.Rakhshani learned Deputy Attomey General stressed that Government retains authority to promote a person to a higher grade subject to fitness and promotion cannot be claimed as a matter of right. The case of petitioner for antedation of promotion was considered by the Central Service Board, His supersession was converted into reversion, but his promotion was deferred for want of quality of performance which was evident from the service record.
31. There is nor dispute that the Federal Service Tribunal while disposing of appeal filed by petitioner challenging his supersession had not remanded the case with observation that he must be promoted. However, it was observed that his representation for antedation of his promotion does need re-consideration by the competent authority. Evidently on re-consideration to some extent relief was given to him because the stigma of his supersession for his promotion was removed. But it was covered into deferment from 1985.
32. In our opinion Respondent No. 1 under the circumstances acted illegally and in violation to following para of Esta Code printed at page-225 in Volume 1989:- "B. Departmental Promotion (i) Officers who are approved by the Selection Board/DPC for promotion to the higher grade on an earlier date shall rank senior to those who are approved on a later^date, provided that: a. Ap officer eligible for promotion who is inadvertently omitted from consideration in the original reference and is superseded, when he is subsequently considered and approved for promotion, he will take his seniority with the original batch. b. When in a single reference, the Selection Board/DPC are asked to recommended more than one person and the recommendation of the Selection Board/DPC is held up in respect of one or more such persons for want of complete papers etc, or for reasons beyond the control of the persons concerned, the recommendation of the selection Board/DPC in respect of such persons when made subsequently will be deemed to have been made on the date when the recommendations in respect of the original batch was made"
33. This fact is also uncontested that respondent No. 3 to 6 were junior to petitioner, but on account of his supersession they were promoted in Grade 19 between the period of 20-2-1985 to 12-12-1987, therefore, in view of the above provision of Esta code petitioner is also entitled for antedation of promotion from the date when in the year of 1985 he was due for promotion in Grade 19. Had the respondents have not been promoted to next higher grade the petitioner had no legitimate right to base his claim of antedation promotion, but as his juniors have been promoted, therefore, instead of passing an order of deferment he was entitled for promotion from the date when his original batch mates were promoted.
34. It may be noted that as far as petitioner is concerned he has already been promoted to Grade 20 with effect from 2-8-1995, keeping in view his fitness to hold a higher responsibility, but he would rank junior in seniority list if his promotion is not antedated in Grade 19 from the date when alongwith private respondents he was due for promotion and if this relief is not granted to him he would also become junior in Grade 20, therefore, in the interest of justice and keeping in view over all circumstances it was incumbent upon Respondent No. 1 to have granted antedation of promotion to the petitioner in Grade 19 with effect from 12-2-1985.
35. For the foregoing reasons writ is issued with directions to Respondents No. 1&2 for reconsidering and finally deciding petitioner's representation for antedation of promotion, parties are left to bear