' The instant civil revision is the result of the judgment and decree, dated 26-5-1998 of the learned Additional District Judge, D.I. Khan, whereby he while setting aside the judgment and decree, dated 15-12-1994 of the trial Court had decreed the suit of the respondent.
2. The short resume of the instant case is that the respondent, being an employee of the Cantonment Board, D.I. Khan, instituted a suit for a declaration to the effect that the show-cause notice No,2-3/MN/3627, dated 3-1-1991 issued by the petitioner/defendant No,3 was wrong, frivolous, fictitious and being collusive based on personal grudges was thus, void and contrary to law and liable to cancellation. The suit was resisted by the petitioners who filed written statement wherein several legal and factual objections were taken. The significant amongst them are that the trial Court had no jurisdiction in the matter and the promotion of the respondent from BPS.1 to BPS.5 was violate of the rules and policy of the Government, manifestly incorporated in Letter No,92/56/G/ADB/MLD/80, dated 3-2-1981 and thus, the promotion was termed as totally illegal. The pleadings of the parties gave birth to the following issues:--
(1) Whether the plaintiffs have got a cause of action?
(2) Whether the plaintiffs have no locus standi?
(3) Whether the suit is within time?
(4) Whether the plaintiff is estopped to sue by his own conduct?
(5) Whether the Court has the jurisdiction to adjudicate upon the present suit?
(6) Whether the suit is incompetent in its present from?
(7) Whether the plaintiff is not entitled to challenge the policy of the Government?
(8) Whether the plaintiff has not preferred departmental appeal against the impugned order, if so, its effect?
(9) Whether the plaintiff is entitled to the declaration and permanent prohibitory injunction as prayed for?
(10) Whether the plaintiff is entitled to the decree as prayed for?
(11) Relief?
3. It appears that at some stage the suit of the plaintiff was dismissed on 23-5-1992 by the learned Senior Civil Judge, D.I. Khan on the question of lack of jurisdiction, but subsequently, the Appellate Court while accepting the appeal remanded the case to the trial Court for trial de novo on 14-10- 1992. After remand of the case, the parties adduced their desired evidence and resultantly suit of the plaintiff/respondent was dismissed by the Senior Civil Judge, D.I. Khan vide her judgment and decree, dated 15-12-1994. An appeal was filed by the respondent before the learned District Judge, D.I. Khan which was entrusted to the Additional District Judge, D.I. Khan, who by accepting the same on 26-5-1998 set aside the judgment and decree of the lower Court and decreed the suit of the respondent. Hence the present revision petition.
4. The learned counsel appearing on behalf of the petitioners has vehemently argued that the judgment and decree of the learned Appellate Court was not only the outcome of misconception of law, but was also patently suffering from misreading and non-reading of evidence and, as such, the impugned judgment and decree are not sustainable. While advancing his arguments he submitted that the very promotion of the respondent was patently violative of the rules, who was promoted from BPS.1 directly to BPS.5, ignoring the fact that no illiterate persons could be promoted as a Sanitary Supervisor in BPS No,5, as the respondent was totally an illiterate person and was employed as an orderly to the Cantonment Executive Officer. In this regard, he referred to Letter No,92/56/C/AD(B)/ML&C/80, dated 3rd February, 1981 (Exh.P.W.1/D.1), which clearly provide that only Matriculate will be given BPS.5. Thus, the promotion of the respondent was in flagrant violation of the Government policy and the rules. He secondly contended that the respondent, in the instant suit, had challenged only the show-cause notice, dated 3-1-1991, whereas he was reverted to his original BPS.1 on 12-1-1991 which order he has not challenged. It was also argued that no stay order was issued in favour of the respondent to the effect that pursuant to the impugned show-cause notice, no action will be taken against him. It was further submitted that after passing of the order of reversion on 12-1-1991, the respondent did not bother even to ask for any amendment in the plaint so as to include in the plaint the order of reversal. He further submitted that the Pakistan Cantonment Service Rules, 1954 provides that an appeal shall be preferred before the Director- General, but the respondent has not preferred any such departmental appeal against the order of his reversion, which means that the filing of the suit was by way of bypassing the statutory rules which was an invalidating factor to the filing of the suit, or any proceeding taken thereafter. He further submitted that after the insertion of section 2-A in the Civil Servants Act No,XLII of 1973, the jurisdiction of the Civil Courts in such-like matters had ceased and, as such, the Civil Court had no jurisdiction to entertain the instant suit. He submitted that after the emergence of the above section the proceedings of suchlike matters, even if were pending in any Court other than the Service Tribunal, were abated and, thereafter, all kinds of proceedings were coram non judice.
Arguing on the proposition of the lack of jurisdiction of Civil Court, he relied on 1999 SCMR 197 and PLD 1999 SC 990 = 1999 PLC (C.S.) 1032.
5. On the other hand, the learned counsel for the respondent argued that issuance of the show- cause notice was challenged by way of the instant suit and after filing of the suit, the petitioners were left with no authority to issue the order of reversion. Therefore, the order, dated 12-1-1991 reverting the respondent from BPS.5 to BPS.1 was not challenged, nor any amendment was sought in the plaint as according to the learned counsel there was no need to do so. He further argued that the matter of the respondent regarding his reversion, or for that matter, issuance of the show- cause notice did not fall within the competency of Service Tribunal, as the respondent did not fall within the definition of 'civil servant', being the employee of the Cantonment Board. The learned counsel, however, did not advance any argument on the point of failure of the respondent to prefer a departmental appeal as provided in the rules referred above.
6. I have heard the rival arguments of both the combatants and have anxiously gone through the record with the valuable assistance of the learned counsel for the parties.
7. The learned counsel for the respondent has not controverted the abovementioned factual position regarding the initial appointment of the respondent as an Orderly to Cantonment Executive Officer and also regarding the fact that the respondent is an illiterate person. So far as his first contention is concerned that there was no need to challenge the order of reversion, dated 12- 1-1991 and, as such, there was no need to make any amendment so as to include the order, dated 12-1-1991 in the plaint, is mis-conceived. If the order of reversion is not challenged, it means that the respondent had accepted its correctness and the said order still holds the field having gone unchallenged. Therefore, the fact is that the said order would remain operative and the respondent would be considered as an employee in BPS.1. The second contention of the learned counsel is also misconceived that the matter of the respondent did not fall within the domain of jurisdiction of the Service Tribunal. In order to resolve the controversy, the newly inserted section 2-A is reproduced as under:-- "(2-A) Service under certain Corporations etc. To be service of Pakistan.--Service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to lie service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
A bare reading of the above section would show that the Cantonment Board being a body established by a Federal Law, its employees, or for that matter every person holding a post in the said Cantonment Board shall be deemed to be a civil servant for the purposes of the Civil Servants Act, which gives jurisdiction on the strength of the above section only to the Service Tribunal and in these situations, the Civil Court had no jurisdiction/authority to deal with the instant matter after the promulgation of the abovementioned rules. It is also a matter of record that on having been surfaced the illegality of the promotion of the respondent to BPS.5, the Cantonment Executive Officer wrote a letter to the Director, Military Lands and Cantts. Department, Ministry of Defence, Pak.
Sectt. No,II, Rawalpindi Cantonment vide No,1-9/Acctt/925, dated 16-10-1990 with a request that the condition of atriculation be relaxed as a special case in matter of the respondent. The said letter is Exh.P.W.1/9. However, admittedly, no such relaxation was granted. Thereafter, vide Letter No,1- 9/Act/965, dated 2-12-1990 which is Exh.P.W.1/10, the successor Cantonment Executive Officer while differing with the letter of request for relaxation and recommendations of his predecessor stated that there was no justification for the Cantonment Executive Officer's Orderly promotion from BPS.1 to BPS.5 with one stroke of pen, who is an illiterate person while the post is meant for a matriculate.
This letter was in fact a withdrawal of the request of relaxation of the condition in favour of the respondent.
8. Thus, the above correspondence shows that virtually the promotion of the respondent was in violation of the relevant rules, for which the relaxation so sought was not granted. Therefore, it is more than clear that the promotion of the respondent was made illegally. It is also a noteworthy feature of the case that when the rules provided for departmental appeal or representation, the same have to be complied with and such remedy is to be exhausted. Without exhausting such a remedy neither any suit can be filed, nor any appeal before the Service Tribunal is competent. Such a remedy having not been availed of by the respondent, any kind of judicial proceedings were not competent. Reliance can be placed on 1999 SCMR 1689.
9. It also appears from the plaint filed by the respondent that he has quoted the examples of Khuda Bakhsh Baghaira and Muhammad Aslam, who were initially recruited as Orderlies in BPS.1 but were subsequently promoted as Garden Supervisors in BPS.7 though they both were illiterate persons (this point has not been pleaded by the learned counsel for the respondent). However, the stand of the petitioners on this point is quite clear and has been explained in the written statement that the cases of the said two persons were far back than the issuance of the letter of 1988 and by that time no such rules were existing requiring any particular educational standard for promotion to BPS.5. Thus, the respondent cannot avail the benefit of the above examples. This point has been detailfully dealt with by the learned trial Court in its judgment whose reasons and findings are quite sound and uncalled for.
10. In the wake of the above circumstances, I am clear in my mind that the impugned judgment and decree of the learned Additional District Judge, D.I. Khan are not correct and proceed on illegal premises. Resultantly, this revision petition is accepted, the impugned judgment and decrees are set aside and those of the trial Court, dated 15-12-1994 are restored.