This is a suo motu revision to examine the question whether the suit filed by respondent Muttaqi Husain Rizvi in the District Court, Hyderabad, challenging his reversion, is maintainable.
2. Respondent Muttaqi Husain Rizvi joined the Government of Sind on 11-8-1953 as an Overseer. He was promoted to the grade of Sub-- Divisional Officer in 1955 and continued to work in that grade until by order No. ENQ/2-157/S. O. TT(E)/75, dated 31-3-1975, of the Government of Sind he was reverted as Sub-Engineer. Before his reversion he was given a show-cause notice, dated 15-7-1975, containing the allegations that he had misused Government Vehicle No. HDA 3342 and made incorrect entries in the log book of the vehicle. The show-cause notice was on the basis of the report of an Anti-Corruption Inspector who on 17-5-1973 had stopped the vehicle as it was allegedly being misused. Respondent Muttaqi Husain challenged his reversion as Sub-Engineer by means of a civil suit wherein he contended that his reversion was illegal and contrary to the rules and that on the contrary be was entitled to promotion to grade 17 which grade had been wrongly denied to him. He accordingly prayed for a declaration that he was entitled to be considered for promotion to and absorption in grade 17 and further for grant of a permanent injunction to restrain the Government and its officers from giving effect to the orders of his reversion. Along with the plaint, respondent Muttaqi Husain filed an application under Order XXXIX, rules I and 2, Code of Civil Procedure, for an interim injunc--petition against the implementation of the orders of his reversion.
3. Respondent No. 3, the Superintending Engineer, Mechanical Circle, Hyderabad, filed his written statement, wherein be challenged the jurisdiction of the civil Court to entertain the suit. It was also alleged in the written statement that orders of Muttaqi Husain's reversion were passed after affording him full opportunity of hearing and representing his case. In regard to his claim for promotion to grade 17, it was asserted that he was not entitled to such promotion as promotion to grade 17 could only be made from officers who held B. E. Degree, while Muttaqi Husain was a diploma holder.
4. The matter was heard by the learned IIIrd Additional District Judge, Hyderabad, who, by his order, dated 12-3-1976, dismissed the application under Order XXXIX, rules 1 and 2, C. P. C. For injunction, but held that this was not the stage when it can be said that the Court has no jurisdiction to try the suit. It is this question whether the civil Courts have jurisdiction to entertain the suit which is to be examined in these revisional proceedings.
5. The learned Additional District Judge, in support of his tentative view that the civil Courts seem to have jurisdiction, placed reliance on proviso (b) to section 4 of the Sind Service Tribunals Act, 1973, as amended by Sind Act IX of 1974. The relevant part of the said section reads as follows :- "Appeals to Tribunals.-----Any civil Servant aggrieved by any final order, whether original or appellate, made by a departmental authority in res--pect of any bf the terms and conditions of his services may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter; Provided that------ (a)----------------------.
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining-
(i) 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 ; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental enquiry, except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement from service."
6. As respondent Muttaqi Husain and his learned counsel, Mr. Aftab Ahmad Shaikh, have chosen to remain absent in these proceedings, I have had the benefit only of hearing Mr. Hassan Akbar, the learned counsel for respondent No. I, the Province of Sind. He submitted that the issues raised in the suit exclusively fell within the jurisdiction of the Sind Tribunal and consequently the jurisdiction of the civil Courts to entertain the suit was barred by the Constitution. The learned counsel contended that so far as the issue of reversion of respondent Muttaqi Husain was concerned, there can be no manner of doubt that it fell within the purview of the Tribunal. As to respondent Muttaqi's claim for promotion, though the learned counsel conceded that it did not come within the purview of the Service Tribunal, he submitted that a claim to promotion was not a vested right and hence could not be enforced through Courts, and that moreover, in view of Muttaqi's order of reversion, the question of his promotion to a higher post than that he was holding before his reversion did not arise. The order, dated 31st March, 1976, reverting respondent Muttaqi Husain recites that it has been passed under the Sind Servants (Efficiency and Discipline) Rules, 1973, after he was served with a show-cause notice, as required under rule 5 (3) of the said Rules. The reversion thus prima facie was the result of a departmental enquiry and consequently squarely fell within the purview of the Service Tribunal and did not come within any of the exceptions to section 4 of the aforesaid Act.
Article 212(2) of the Constitution bars the jurisdiction of all Courts, including the superior Courts, in respect of the `~ matters falling within the jurisdiction of the Service Tribunals, when such Tribunals have been set up. The Tribunal for the Province of Sind having been set up, the questions relating to the legality and the propriety of the order of reversion of Muttaqi Husain could only be agitated before such Tribunal and a suit in respect thereof cannot be maintained before a civil Court.
7. Since the suit by respondent Muttaqi Husain in respect of his reversion is not maintainable, obviously his claim for promotion cannot be agitated before the civil Courts, as adjudication of such claim necessarily would involve consideration of the legality and the propriety of the orders of his reversion. The claim of respondent Muttaqi Husain for promotion thus e cannot be considered spart from the question of his reversion, which is constitutionally outside the purview of the civil Courts. On this short point alone, the suo motu revision has to be allowed and the plaint ordered to be rejected under Order VII, rule 11, C. P. C.
8. There is, however, another ground on which, in my opinion, the claim of respondent Muttaqi Husain for promotion cannot be agitated before the Civil Courts. This ground involves the question whether claim to promo--petition is a vested right, and if not, under what circumstances a claim in relation to it can be agitated before the civil Courts or the superior Courts in the exercise of their Constitutional Jurisdiction. No doubt the question of the "fitness" or otherwise of a person "to be appointed to or hold a particular post" is expressly excluded from the purview of the Tribunal, and, therefore, the bar under Article 212 of the Constitution will not apply to such an issue or question, but in my opinion the above expression, as used in section 4 of the Sind Service Tribunals Act, has to be given a narrow and limited con--notation and would obviously exclude not only cases of reversion but also cases of promotion to higher posts and grades and also to cases of reduction in rank. As such, the expression would appear to be limited in its applica--petition to cases of persons seeking appointments to posts for the first time or outside their cadre or to appointment to a particular post or office in the same or equivalent grade. This provision, in my opinion, is to be read in conjunction with the provisions of section 10 of the Sind Civil Servants Act, 1973, which provides that every civil servant shall be liable to serve any--where within or outside the Province in any post under the Government of Sind, any other Provincial Government, the Federal Government, a local authority or any corporation or body set up by any such Government. In view of the liability of the Civil Servants to serve in any such post, obviously the claim of a civil servant to be appointed to a particular post or to hold a particular post cannot be allowed to be agitated before the o civil Courts except in cases where it can be shown that some legal right, based on a specific statutory provision, has been violated.
9. So far as the question of promotion to higher posts or grades is con--cerned, it is also excluded from the purview of the Tribunals and consequently there is no bar under the Constitution to the entertainment of suits by the civil Courts in regard to such a matter. The question however, may be considered E whether, and if so in what circumstances, claim to promotion is a vested right and can be enforced through a civil suit or by invoking the writ jurisdiction o the superior Courts.
Subsection (1) of section 9 of the Sind Civil Servants Act, 1973, provides that a civil servant, who possesses such minimum qualifications as may be prescribed, shall be eligible for promotion to the posts for the time being reserved under the rules for departmental promotion in the higher grade in the service or cadre to which he belongs. Subsection (2) of that section divides promotion posts into two broad categories, namely, selection posts and non-selection posts and provides that promotion to the former type of posts will be on the basis of selection on merit while promotion to the latter category of posts will be on the basis of seniority cum-fitness. The first point to be considered thus is whether the said section gives a right of promotion to a civil servant if he possesses the prescribed minimum qualifica--tions. It will be noticed that all that the section provides is that such civil p servant shall be "eligible" for promotion and not "entitled" to promotion.
The connotation of the word "eligible" has received judicial interpretation in a number of cases in the English Jurisdiction. In Thomas Baker Baker v. John Lee ((1860) 8 H L C 495) at p. 522 Lord Chelmisford observed :- "The Minister of the Rolls was of opinion 'that persons dissenting from the doctrines of the Church of England are eligible to be appointed, and to act as trustees of the charity, 'and he therefore confirmed the appointment which had been made. The word 'eligible', as here used by the Master of the Rolls, is ambiguous. It may mean either 'legally qualified', or 'fit to be chosen'.
10. In Morriss v. Winter ((1930) 1 K B D 243) Horridge, J., held that a provision in the Prison Rules providing that prisoners are in certain conditions to be "eligible for remission" does not create a legal right to remission and "that if it was intended to confer a legal right on prisoners clearer and stronger words than 'eligible for remission' would have been used. "In Faramus v. Film Artistes Association ((1964) 1 All E R 25), Lord Evershed, while considering the question whether a person who had been convicted in a Court of law for a criminal offence, was eligible for membership of a Trade Union, said; "It is no doubt true, as counsel for the appellant submitted, that the word 'eligible' according to the dictionary may, in certain contexts, mean 'suitable for election', as distinct from 'qualified for election'. As I have said, however, in the context of the word in the present rule I cannot for my part entertain any doubt but that, as a matter of English, the word 'eligible' must mean and can only mean 'legally qualified'."
11. In my opinion the word 'eligible' in the sense in which it is used in' section 9 of the Sind Civil Servants Act, 1973, means only legally qualified to be promoted-but does not mean entitled to or having a vested right to, promotion.
12. The question whether promotion could be demanded by a civil servant as of right was considered by the Lahore High Court in the case of Fariduddin Ahmed v. Province of Punjab (PLD 1976 Lab. 131.0). In that case, the petitioner, who was working as an Inspector of Police, was making representations for the fixation of his seniority, pay etc. But without any decision being reached by the authorities on his representation. He was compulsorily retired from service on completion of 25 years of qualifying service. He thereupon invoked the Constitutional Jurisdiction of the High Court for the redress of his grievances. It was held that though "promotion to a higher rank cannot be demanded by way of right, but it cannot be denied that demand for a decision in relation thereto is a vested right."
13. The previous dictum which held the field was that a civil servant was not entitled to any relief though his dismissal or supersession may have been against the rules. This dictum was based on the judgment of the Privy Council in Venkata Rau's case (64 I A 55) and decision of the Federal Court in the case of Noorul Hassan v. Federation of India (PLD 1956 SC (Pak.) 331) but as pointed out by Dorab, J. In Ghulam Haider v. Province of West Pakistan (PLD 1971 Quetta 57) the Supreme Court in Pakistan v. Abdul Hameed (PLD 1961 SC 105) took a different view and upheld an order of the High Court directing the Government to grant Abdul Hameed his seniority in accordance with the rules. It may, however, be pointed out that the decision in Abdul Hameed's case was given when the Constitution of 1956 was in force under which the terms and conditions of Service of Civil Servants were fully protected and could not be altered to their disadvantage. In Abdul Hameed's case, the claim for seniority was enforced through the writ Jurisdiction, while in the Quetta case the claim for seniority was enforced through a civil suit. The question whether promotion could be claimed as of right and could be enforced by proceedings under Article 98 of the Constitution of 1962 was considered by their Lordships of the Supreme Court in Abdul Qadir v. Government of Punjab (1972 SCMR 323). In that case the petitioner, who had been promoted as a Chief Officer in the Local Council Service on probation of 2 years, was reverted to his post of an accountant and the Class 11 vacancies in the Local Councils service were filled up by initial recruitment. The petitioner accordingly challenged these actions and the orders of the Government. His petitions were dismissed by the High Court on the ground that no one has a vested right to promotion, relying upon the decisions in the Government o!' West Pakistan v. Fida Husain Khan (PLD 1960 SC 45) and Government of Pakistan v. Mr. Fatah Ullah Khan (PLD 1960 SC 105). On leave to appeal being sought by the petitioner, the Supreme Court agreed with the view of the High Court and observed that "prospects of promotion cannot be included in the conditions of service nor can they be enforced by any proceeding under Article 98 of the Constitution of 1962, which is limited only to the enforcement of the conditions of service specified in the Constitution."
14. Reference may also be made to the decision in the case of Mohammad Suleman Khan v.
Pakistan (1972 SCMR 127). The facts in that case were that the petitioner had successfully passed the qualifying examination for promotion to the higher post. However, the system of qualifying examination was abolished before he could be promoted with the result that persons who had not passed the qualifying examination but were otherwise senior to the petitioner, were placed higher in the list for eligible candidates for promotion. It was held that the petitioner by passing the qualifying examination under the system then prevailing had not acquired any vested right and could not ask for the enforcement of that right.
15. I am accordingly of the humble view that despite the enactment of the Civil Servants Act, specifically providing how promotion is to be made to the higher posts and grades, a claim to promotion is not a vested right and cannot be enforced through a civil suit or even by invoking the Constitutional Jurisdiction of the superior Courts. It may be pointed out that mere seniority, even in the case of a non-selection post, will not entitle a person to promotion, as even in such cases the basis of promotion is seniority-cum-fitness, and fitness can appropriately be determined only by the competent Administrative Authority. However, the right to be consideredfor promotion, where a person is eligible for promotion, is a vested right and if the eligible person is not considered for promotion, or a person not otherwise qualified under the rules is promoted illegally or against the rules, in such cases the aggrieved person can enforce his right to be considered for promotion or object to the person not qualified for promotion being promoted, through a civil suit or by invoking the Constitutional Jurisdiction of the superior Courts, since this matter is not within the previewof the Services Tribunal.
16. As respondent Muttaqi Husain was not claiming that his case for promotion to grade 17 was illegally not being considered by the Department nor was it his claim that some persons not qualified for promotion had been promoted to grade 17 against the rules. And further, as appears from the counter affidavit of respondent No. 3, he was not even qualified for promotion to grade 17, as promotion to such grade was exclusively reserved for officers holding an Engineering Degree, which degree respondent Muttaqi Husain does not possess, his civil suit is clearly not maintainable.
His plaint is accordingly ordered to be rejected under Order VII, rule 11, C. P. C. And the Suo Motu Revision is allowed with costs.