1. S. SAEED ASHHAD, J.---All the aforesaid four petitioners who are employees of respondent/National Bank of Pakistan have filed the aforesaid Constitutional petitions to challenge the validity and legality of President's Office Circular No, 7/95, dated 28-3-1995, by virtue of which all the orders issued from 26-3-1995 including the orders of promotions of the petitioners to the next higher post, made on 27-3-1995, were held in abeyance and the petitioners were reverted and/or disallowed promotion.
2. Attention of Mr. Manzoor Ali Khan, for the petitioners, was drawn to the recent amendment in the Service Tribunals Act, 1973 by virtue of the Service Tribunals (Amendment) Act, 1997, amending section 2 of the Service Tribunals Act, 1973, and adding new section 2-A in the said Service Tribunals Act, whereby the petitioners have acquired the status of civil servants for the purpose of Service Tribunals Act and in view of the provisions of Article 212 of the Constitution of Pakistan, 1973 are precluded from invoking the Constitutional jurisdiction of this Court for redress of their aforesaid grievances. It was also pointed out that the petitioners' remedy lies only in approaching the Service Tribunal and that the aforesaid petitions have become infructuous and are liable to be dismissed as such.
3. Mr. Manzoor Ali Khan, learned counsel for the petitioners, very frankly conceded that on account of the amendment made in the Service Tribunals Act by the Service Tribunals (Amendment) Act, 1997, the petitioners have acquired the status of civil servants for the purpose of Civil Servants Act and any issue or controversy relating to terms and conditions of their services could only be agitated or raised by them before the Service Tribunal. He also did not controvert the position that the aforesaid amendment in the Service Tribunals Act would affect employees of the Government/Semi-Government Corporations, Companies and Organizations, controlled or managed either by Federal Government or Provincial Government, all of which are to be treated as corporations and their employees as civil servants and admitted that the aforesaid petitions would have become infructuous and would have abated if the issue/controversy involved therein pertained to the terms and conditions of the petitioners' services in the respondents' Organization.
4. He, however, submitted that the issues involved in the aforesaid petitions, do not pertain to or relate to the terms and conditions of services of the petitioners, but pertain to their fitness or otherwise for holding various posts to which the aforesaid petitioners were promoted and that according to the proviso (b) to section 4 of the Service Tribunals Act, 1973, the subject-matter or the issues in dispute, did not fall within the jurisdiction or scope of authority of the Service Tribunal and the same can only be agitated before this Court, inasmuch as the jurisdiction of this Court has not been barred or curtailed to adjudicate upon the said issues or controversy in respect of which neither way other forum has the jurisdiction nor which have been specifically ousted from the jurisdiction of this Court by Article 212 of the Constitution.
5. Another contention advanced by Mr. Manzoor Ali Khan in support of the maintainability of the aforesaid petitions, is that the orders of promotions of the petitioners were put in abeyance by the President's Office Circular No,7/95, dated 28-3-1995 and have not been re-called, withdrawn or cancelled and further that an Appellate Review Committee was formed by respondent No,2 for reviewing the cases of promotion which have been put in abeyance but the said Appellate Review Committee has not submitted its report by the due date or even thereafter, with the result that no final order has yet been made or passed relating to the promotions or denial thereof to the petitioners which also debars the petitioners from approaching the Service Tribunal.
6. In support of his first contention Mr. Manzoor Ali Khan has placed reliance on the case of Nan Ahmed Khurram v. Government of Pakistan and others, reported in PLD 1980 SC 153; and in support of his second contention he has placed reliance on the case of S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others reported in PLD 1981 SC 512.
7. We have considered and examined the contentions advanced by Mr. Manzoor Ali Khan and have also perused the relevant provisions of law applicable to the facts of the case as well as the case- law referred to us by Mr. Manzoor Ali Khan. Vide order dated 27-3-1995 respondent No,2 in his capacity as President of respondent No,1 had issued promotion orders, promoting the petitioners to the next higher posts. From perusal of the material on record it transpires that before the petitioners could take over or assume the charge of posts to which they were promoted, the orders of promotion were put in abeyance on account of a policy decision made by respondent No,2, which was notified by issuance of President's Office Circular No, 7/95, dated 28-3-1995. As such, the petitioners had no occasion to perform the functions and discharge the duties of the Higher post to which they were promoted. Mr. Gulzar Ahmed on behalf of respondent No,1 submitted that since the petitioners had already been cleared and promoted but they neither performed the functions nor discharged the duties of the Higher posts to which they were promoted, the question as to whether they were fit or otherwise to hold the post and to continue to perform the functions and duties thereof, is not and cannot be the subject-matter of the petitions, requiring adjudication and this contention is to be ruled out of consideration. Such a situation, according to Mr. Gulzar Ahmed, would have arisen only if the petitioners had assumed the charge of the higher post to which they were promoted and had occasion to perform the functions and discharge the duties of the said higher posts and thereafter were reverted or demoted to their original posts.
8. From perusal of the President's Office Circular No, 7/95 it is crystal clear that the promotion orders of the petitioners were put in abeyance by respondent No,2 for the purpose of re-organisation, relating to promotions, transfers and postings. Mr. Gulzar Ahmed, the learned counsel for the respondents submitted that the contents of the aforesaid President's Office Circular did not,, in any manner, disclose or convey the intention to re-call, withdraw or cancel, the promotions of the petitioners nor the said Circular had raised or touched the issue of fitness or otherwise of the petitioners to hold the post to which they were promoted.
9. From perusal of the material on record it is evident that the petitioners had been promoted to the posts next higher to the posts which they respectively held at the time when the orders of promotions were made. The action of the respondent No,2 in ordering the promotion of the petitioners clearly implies and suggests that all the facts and requirements relevant to the promotion of the petitioners had been considered and examined, after which the petitioners having been found fit for holding the higher posts to which they were considered for promotion were ordered to be promoted. Thus,, the fitness and/or eligibility of the petitioners for the promotion had been considered, examined and determined, and it is now not open to the petitioners to raise the issue of their fitness and/or eligibility for promotions for holding the higher posts to which they were promoted. By the impugned order dated 28-3-1995 issued by respondent No,2 putting in abeyance the orders of promotion of the petitioner, the fitness or otherwise of the petitioners to be promoted and hold the higher posts has neither been challenged nor can be said to be an issue for consideration and determination, as it stood finally decided as and when the orders of promotion of the petitioners were made.
10. In the circumstances, we are unable to agree with the contention on behalf of the petitioners that the issues or the controversies involved in the aforesaid petitions are relative to their fitness or otherwise for holding the posts to which they were ordered to be promoted but pertain to the terms and conditions of service of the petitioners. The impugned order by no stretch of imagination can be said to be dealing with, or touching the issue or question of fitness or otherwise of the petitioners for holding the various posts to which they were promoted. The case of Nan Ahmed Khurram v.
11. Government of Pakistan (supra) referred to us by Mr. Manzoor Ali Khan, is of no help to the petitioners in deciding whether the issues or controversies involved in the aforesaid petitions relate to the terms and conditions of the petitioners or their fitness or otherwise for holding the various posts to which they were promoted, inasmuch as the judgment in the aforecited case does not lay down any test for making a distinction between an order relating to the terms and conditions of a civil servant and an order relating to fitness or otherwise and what has been held is that in the former case an appeal would lie to the Service Tribunal, whereas in the latter case no appeal would lie as per the situation prevailing prior to the amendment, brought in the Service Tribunals Act, 1973. the case of S.H.M. Rizvi v. Maqsood Ahmed, (supra), also does not advance the case of the petitioners as to the maintainability of the aforesaid petitions.
12. There is yet another aspect of the case. Admittedly, prior to the amendment only a final order of the departmental authority could be challenged by way of an appeal and adjudicated upon by the Service Tribunal. In the afordaid petitions, according to the petitioners no final orders have yet been made regarding the issue relating to their promotions, which remain in abeyance by virtue of the impugned order dated 28-3-1997. According to Mr. Manzoor Ali Khan the said order dated 28-3- 1997 is an interim order and cannot be challenged before the Service Tribunal. This, however, would not authorise the petitioners to invoke the Constitutional jurisdiction of this Court in respect of the impugned orders which are not final in nature and the orders which do not finally decide or settle the disputes in issue cannot be challenged by way of a Constitution petition in view of the pronouncement made by the Supreme Court in the case of Syed Saghir Ahmed Naqvi v. Province of Sindh and another reported in 1996 SCM R 1165, wherein the Supreme Court repelled the contention that since appeal lay to the Service Tribunal only against a final order, a Constitution petition challenging the interim order could be maintained and held the contention to be erroneous. After the amendment in the Service Tribunals Act, 1973 by the Service Tribunals (Amendment) Act, 1997 whereby the petitioners have been declared to be civil servants, they have to approach the Service Tribunal for filing appeals against the impugned order as now, there is no bar for the petitioners to challenge the impugned order before the Service Tribunal as the word "final", appearing in subsection (1) of section 4 of the Service Tribunal Act, has been omitted. The resultant effect of the omission of the word "final" in subsection (1) of section 4 is that every order passed by the departmental authorities would be appealable or can be challenged before the Service Tribunal.
13. Upon the above discussions we are satisfied that the petitioners have no locus standi to invoke the Constitutional jurisdiction of this Court in respect of the issues/controversies involved in the aforesaid petitions and that the same are not maintainable. Accordingly, all the four petitions are dismissed as they stand abated.
14. MRS. MAJIDA RAZVI, J.---I agree.