ORDER IJAZ AHMAD CHAUDHARY, J. - I intend to decide all the following writ petitions by one consolidated order having similar facts and law:- W.P. No. 9073-99, 22034-99, 22430-99, 8119- 99,19710-99,19635-99, 9173-99,21678-99 and 19709-99.
2. Through these Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioners pray for a direction to the respondents that the recommendations made by the Departmental Promotion Committee and the action of the respondents in ignoring the petitioners and the proforma respondents from being considered for promotion to the post of Assistant Engineer (BS-17) may kindly be declared to be illegal, without lawful authority and may be set aside.
3. Brief facts of the cases are that the petitioners were appointed as Sub-Engineers (Mechanical) in Irrigation and Power Department and have been successfully serving since the time of their appointments, that as per provisions of the West Pakistan Irrigation Engineering Services Class-II Rules, 1967, which govern the service of the petitioners and the proforma respondents, it is a pre- requisite that in order to get themselves inducted in BPS-16 and for further promotion to the rank of Assistant Engineer/Sub-Divisional Officers, the Sub-Engineers should qualify in the departmental promotion examinations prescribed under the said rules. The petitioners and the proforma respondents have passed the aforementioned examination. Consequently, their names have been Included in the list of Sub-Engineers in BPS-16 who are eligible for promotion to the rank of Sub- Divisional Officers/Assistant Engineers in BPS-17. It is submitted that in the past the names of the Sub-Engineers were included in the- common list in the order of seniority irrespective of the fact whether they are Sub-Engineers (Mechanical) or Sub-Engineers (Civil) and they used to be promoted as per above-referred seniority position. However, respondent No. 1 vide notification dated 26.1.1999 prepared and circulated two separate seniority lists of the Sub-Engineers (Mechanical) and Sub-Engineers (Civil). This notification has caused grievance to the petitioners to file these writ petitions.
4. Parawise comments and report were called for from the Department. Preliminary objections have been raised about the maintainability of these writ petitions owing to the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan and also on the basis that the Service Tribunal has exclusive jurisdiction in respect of all matters relating to the terms and conditions under Section 3, subsection (2) of the Punjab Service Tribunals Act IX of 1974; and u/S. 10, sub-section (2) and Section 11 of Punjab Civil' Servants Act, 1974, the petitioners have no right to file these writ petitions, It is submitted that Service Rules of Sub- Engineers (Civil) and Sub-Engineers (Mechanical) are separate i. e. 1968 and 1962 respectively. Their nature of work and certificate/diploma is also different. Therefore, their seniority lists were also issued separately keeping in view their service rules and quota of their promotion; and the seniority list of Sub- Engineers (Civil) and (Mechanical) cannot be issued jointly due to their separate service rules.
Moreover, they have to be considered for promotion against 20% quota against their sanctioned Sub-Divisions.
5. Learned counsel for the petitioners contends that joint list has to be prepared as it is a previous practice and under the rules separate lists could not be prepared as is being done by the Department through the impugned notification. It is further contended that the petitioners due to the act of the respondents will not be considered for promotion and this writ petition has been filed for a direction to the respondents to consider the petitioners for promotion which does not fall within the ambit of the Punjab Service Tribunal Act and direction can be issued by this Court by exercising powers under Article 199 of the Constitution of Islamic Republic of Pakistan. It is further contended that the nature of the job of both the civil and mechanical is the same and the Department has wrongly mentioned that separate jobs are performed by both cadres. It is further contended that if the impugned notification is not set aside and the direction for preparation of the joint seniority lists and for the consideration of the petitioners to the post of the S.D.O, is not passed, the petitioners cases will be prejudiced and they will not be considered for promotion and this Court can direct the respondents to consider the petitioners for promotion.
6. On the other hand, Mr. Muhammad Shan Gull, Advocate appearing on behalf of the A.G. Has opposed these petitions on the ground that representations of the petitioners are pending and these writ petitions are pre-mature. Further contends that under Rule 10(b) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 read with Section 11 of the Punjab Civil Servants, Act, 1974 if charge is given as a stop-gap arrangement and a civil servant is posted on current charge basis against this stop-gap arrangement he can be reverted without any notice.
It is further contended that the Service Rules of Sub-Engineers (Civil) and (Mechanical) are separate i.e. 1968 and 1962. Therefore, separate seniority lists have been prepared according to the rules and no writ can be issued against the rules which have the status of law. It is further contended that the seniors to the petitioners have been promoted and their posting on current charge basis was stop-gap arrangement which has been done away with rightly and the persons who were seniors to the petitioners have been rightly considered by the respondents.
7. I have heard the arguments of the learned counsel for the parties and also perused the documents attached with these writ petitions and the parawise comments and report. According to Annexure-A Service Rules of Sub-Engineers (Civil) and (Mechanical) are separate i.e. 1968 and 1962 and both civil and mechanical engineers perform separate jobs which are different in nature and separate seniority lists have to be prepared and no common list can be prepared of these writ petitioners hence the impugned notification is in line with the mels. This Court has already held that under Rule 10(b) of the Punjab Civil Servants (Appointment and Conditions) Rules, 1974 read with Section 11 of the Punjab Civil Servants Act, 1974 if a stop-gap arrangement is made and a civil servant is posted on current charge basis against this stop-gap arrangement he can be reverted without any notice, In such circumstances the petitioners have no case and the seniority lists were rightly prepared by the Department in accordance with the rules and no direction can be issued to the respondents for considering the petitioners for promotion by ignoring the seniority lists dated 26.1.1999. Even otherwise this Court has consistently held that the preparation of a seniority list is a matter which relates to the terms and conditions of a civil servant and this Court has no jurisdiction to entertain writ petitions in this connection. I am fortified by the view taken in L.H. Shaikh Vs: General Manager, Karachi Telecommunication Region and others (1974 SCM R 82). The relevant portion is at page 83 which is reproduced hereunder:-- "Unfortunately, the High Court did not notice that the writ petition itself was not maintainable under the provisions of Article 98 of the Constitution of 1962, for, under the provisions of the said Article the Constitutional guarantee given to a public servant could only be invoked in respect of terms and conditions of service guaranteed by the Constitution itself under clause (3) of Article 178 of that Constitution and the only terms and conditions of service guaranteed by the Constitution were remuneration and age of retirement of superannuation. Seniority was not one of the conditions of service which had been guaranteed by the Constitution nor could a writ petition lie to enforce the correction of a seniority list which in effect was what was desired in the present case by the petitioner, and, unless the seniority list was set aside, the order of revision could not be interfered with."
"This contention is not tenable because this decision itself shows that a condition of service which has not been guaranteed by the Constitution cannot be enforced by invoking the writ jurisdiction."
Similarly the same view has been taken in Province of West Pakistan Vs. Muhammad Akhtar Qureshi and others (PLD 1962 S.C. 428) and the relevant observations is as follows:-- "The only other question that falls for determination is whether the High Court was right in holding that the circular letter, issued by the Chief Secretary to the Provincial Government, merely contained a working principle which was not binding on the Government or the officers and therefore liable to be ignored. The learned judges were conscious of the position that if this principle had been embodied in the rules framed by the Governor, it could not have been assailed in writ jurisdiction, It was, however, brought to their notice that in the letter of the Chief Secretary itself there were indications that the rules framed with the sanction of the Governor would incorporate this very principle and that till such rules were framed, this letter was being issued for guidance of the various departments concerned, in order to determine the seniority of officers as a working basis."
In case of Manzur Ahmad P.F.S. Vs. Muhammad Rafi, P.F.S. (PLD 1961 S.C. 166) the relevant observation is as follows:-- "It remains to consider that place belongs to Manzur Ahmad in the cadre of the Punjab. Forest Service Class I, within the contemplation of the Rules. As has been seen, Rule 6 gives a were discretion to the appointing authority in regard to the fixation of the seniority, and if the facts showed that the place given to him had been fixed with due consideration to the various factors enumerated in Rule 6."
Even otherwise the consistent view of the August Supreme Court is that orders if passed without jurisdiction with mala fide intention and with ulterior motive can only be challenged before the Service Tribunal and this Court cannot interfere in writ jurisdiction as is laid down in Zahid Akhtar's case (PLD 1995 S.C. 530). Same view has been taken in the case of Pervaiz Aslam Vs. Ilyas Hussan Shah (1999 SCM R 784) and the relevant observation is as follows:- Constitutional petition under Art. 199 of the Constitution of Pakistan by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof Service Tribunal has jurisdiction, is not maintainable in view of the provisions of Art. 212 of the Constitution the instructions are not followed by the Competent Departmental Authority, the proper course for the civil servant is to approach the appropriate Service Tribunal instead of coming to the High Court through Constitutional petition."
In case of Khalid Mahmood Wattoo Vs. Government of Punjab and others (1999 SCMR 2280) the relevant observation is as follows:-- "Constitutional petition under Art. 199 by a civil servant in relation- to any matter connected with the terms and conditions of his service in respect whereof the Service Tribunal has jurisdiction is not maintainable in view of the provisions of Art. 212 of the Constitution."
Apart from this W.P. No. 9905-99 was filed at Multan Bench in which the record was produced and it was found that the separate lists have been prepared in 1992 as also in 1996 and this is a continuous practice of the Department hence the writ petition was dismissed on this score alone.
In the light of the above facts and circumstances, these writ petitions are dismissed. However, the above observations will not prejudice the case of any of the parties, in the appropriate proceedings.