2005 PLP (C (PLC(CS))

In Imam Bakhsh and 4 others v. Deputy commissioner Layyah and 1 others (1992 SCMR 365) an order passed by the Deputy Commissioner appointing Kanungos was challenged before the Commissioner who set aside the same by directing inter alia that a joint list of all the Patwaris functioning in the District be prepared and matter be decided afresh in terms of the guidelines given by him. The order of the Commissioner was challenged in the High Court by filing a writ petition, which was entertained and allowed. The aggrieved persons, some of whom were not even parties before the High Court, challenged the decision in the Supreme Court, by contending that:‑‑ "Mr. Hamid Khan, Advocate, the learned counsel for the appellants contended that the High Court failed to take note of the fact that there was a Constitutional bar to the jurisdiction of the High Court in view of Article 212 8f the Constitution. The controversy related neither to the fitness nor to the suitability of the writ petitioners for appointment/promotion to the post of Kanungo but one of rules of eligibility/ineligibility for being considered for such promotion. Such a question had of necessity to be resolved by the Service Tribunal and not be the High Court. He also contended that while adjudicating on merits, the High Court completely failed to take note of rule 4(b) (ii) of unrepealed. The Punjab Kanungos Service Rules, 1945 and rule 11 of the West Pakistan Kanungo Service (Northern Zone) Rules, 1964. For the first proposition he relied on the decision of this Court in Aish Muhammad and 68 others v. Pakistan and 75 others 1985 SCMR 774; Government of Pakistan v. Muhammad Sadiq 1985 SCMR 699 and Iqan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153." The Hon'ble Supreme Court held as under: "The facts pleaded before the High Court and the decision given do not relate either to fitness or suitability of the writ petitioners. The question directly in issue was the specific rule making them eligible/ineligible for being considered for promotion of or excluding them from consideration for promotion. This question squarely, falls within the exclusive jurisdiction of the Service Tribunal as held by this Court in the cases Superintendent of Police, Headquarter, Lahore and 2 others v. Muhammad Latif PLD 1988 SC 387, Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 and Nek Muhammad Ropaal v. Government of the Punjab through Secretary to Cooperative Department and 2 others PLD 1990 SC

672. For the foregoing reasons, without going into the merits of the rule applicable, we accept both the appeals, set aside the judgment of the High Court as without jurisdiction and recall the writ. " The facts of the case reported as Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539) were that certain staff members of the Customs Department voiced their grievances before late President Muhammad Ziaul Haq when he visited West Wharf of Karachi Port to see off Haji pilgrims, and under orders of the then President, CBR issued Notification upgrading the posts of Preventive Officers working in NPS‑10 to NPS‑13 and those of Principal Appraisers/Appraisers working in NPS‑16 and 13 respectively, to NPS‑

17. Later on, it was clarified that the Preventive Officers and Appraisers shall continue to draw pay, in the upgraded Scales "as personal to them so long as they hold those posts." A seniority list was then issued, along with a covering letter wherein it was mentioned that in the combined seniority list of promotees and direct appointees, the promotees shall have placed against vacancies which become available against promotion quota. Muhammad Anis and others, appellants before the Supreme Court were then promoted, whereupon the respondents filed a Constitutional petition in the High Court of Sindh a Division Bench of the said High Court allowed the writ petition, overruling the objection to the maintainability of the petitioner founded on Article 212 of the Constitution. The decision was challenged before the Supreme Court. The contention raised on behalf of the appellants prevailed with their lordships, resultantly the decision of the High Court was reversed by inter alia holding as follows:‑‑ "We are, therefore, inclined to hold that the controversy before the High Court was, whether private respondents were eligible for consideration for promotion to Grade‑18 as Assistant Collectors along with the private appellants. The above question could not have been decided without reference to the terms on which the private respondents were give higher grade, namely, Grade‑17 upon the up-gradation of the posts of Appraiser arid the Principal Appraisers pursuant to the above order of the late President Muhammad Ziaul Haq, which in turn will involve consideration of the above various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 23 of the Civil Servants Act etc. The above matters pre‑eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it. " In Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) upon merger of C.S.P. and P.S.P. cadres into All Pakistan Unified Grades, the question of inter se seniority of officers, opting for any of the four occupational groups created a~ a consequence therefore, in the Gradation Lists, was raised before the Federal Service Tribunal. The appeal filed by Hamed Akhtar Niazi having been dismissed by the Tribunal, he challenged the decision before the Supreme Court. Doubtless, Mr. Justice Mukhtar Ahmad Junejo had struck a dissenting note that the appeal before the Tribunal was not maintainable but the majority of the learned Judges accepted the appeal and remitted the matter to the Tribunal for re‑consideration by inter alia observing as under:‑‑ "There is no doubt that the seniority of an officer, who is working in a Province or elsewhere, cannot be distorted/disturbed to his determent on account of the merger of above two cadres of C.S.P. and creation of APUG. His junior cannot be made senior to him nor a junior to his junior can be made senior to him. But, this is to be done within the framework of the rules of reorganization as given in the above ESTACODE. If the case of any civil servant does not fall within the ambit of the above rules, section 23 of the Act can be pressed into service by the President to obliviate the inequitable and unjust result arising out of the above reorganization in respect of seniority of any of the civil servants. " From the above observations, it is abundantly clear that the question of inter se seniority, involved in that case, was remitted to the Tribunal for its determination. In Muhammad Siddique Ahmed Khan v. Pakistan Railways (1997 SCMR 1514) one of the questions involved was as to from which date seniority of the parties as Sectional Pay Masters should be reckoned. In the seniority list issued by Pakistan Railways with letter dated the 27th of September, 1984, placement of certain persons senior to the appellants on the ground that they had been granted Selection Grade was also questioned. The appeals were entertained by the Federal Service Tribunal but were rejected on merits. The decision of the Federal Service was challenged in the Supreme Court. The appeals were accepted by the Supreme Court and Pakistan Railways was directed to grant Selection Grade in BS‑15 to the appellants from the date their juniors were given such grade. Doubtless maintainability of appeals does not appear to have been raised in the said case, but the fact remains that the appeals were entertained and decided. In Iftikharullah Khan, Sub‑Divisional Officer and others v. The Secretary, Irrigation and Power Department, Government of Punjab, Lahore and 3 others (2002 PLC (C.S.) 720) certain Constitutional petitions were dismissed by a learned Judge of this Court by observing that:‑‑ "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." The fats of the case reported as Khalid Mahmud Wattoo v. Government of Punjab and others (1998 SCMR 2280) were that on the 2nd of February, 1995, the then Prime Minister of Pakistan while approving appointment abroad of 12 persons as Community Welfare Attaches further directed that the remaining two posts shall be filled by a candidate each from Sindh Rural and Baluchistan. Khalid Mahmood Wattoo, who was a Joint Director, Labour and Manpower Department. Government of the Punjab, had also applied to the Federal Government for being posted on deputation abroad as Community Welfare Attache and whereas he had also been recommended along with the twelve other persons who had, in fact, been appointed as aforementioned, but he was dropped presumably on account of reduction of seats from 16 to

14. Peeling aggrieved, Khalid Mahmood Wattoo challenged the order, dated the 22nd of February. 1995 by means of a Constitutional petition filed before Rawalpindi Bench of this Court and a learned Single Judge having allowed the same directed the Government to process his case in accordance with the merit already determined by the Special Selection Board which had already recommended him for appointment abroad on deputation. The Government challenged the decision rendered by the learned Single Judge by filing an Intra‑Court Appeal. A Division Bench accepted the appeal and re‑called the writ issued by the learned Single Judge. Khalid Mahmood Watoo then assailed the decision of I.C.A. Bench in the Supreme Court. Leave to Appeal was refused to him. The observations of the Supreme Court, relevant for the present purpose, are to the following effect:‑‑ "The impugned order dated 2‑2‑1995 related to the terms and conditions of service of the petitioner. If there was any law or rule or instructions regarding allocation of posts to the Province or changing the allocations to the Province and the same affected the rights of the petitioner in relation to his service, Article 212 of the Constitution was a bar in the way of the petitioner in maintaining a writ petition under Article 199 of the Constitution. Learned counsel had relied upon a judgment of this Court in the case of Federation of Pakistan v. Abdul Aziz (1998 SCMR 91) for the proposition that, despite Article 212 of the Constitution, a writ petition is maintainable in respect of matters relating to terms and conditions of service of a Government employee. The judgment relied upon is distinguishable and, in any case, the question of bar under Article 212 of the Constitution was not considered in the said judgment. The consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of the provisions contained in Article 212 of the Constitution." In Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others (2003 SCMR 1241) where a learned Single Judge of Multan Bench of the Lahore High Court had entertained a Constitutional petition regarding the alleged entitlement of the respondents to the grant of BS‑16 with retrospective effect, the Supreme Court set aside the decision by observing that the subject‑matter of the writ petition undoubtedly pertained to the terms and conditions of service of the respondents and that the provisions of Article 212(2) of the Constitution and sections 6 of the Service Tribunals Act, 1973, made it abundantly clear that after the establishment of Service Tribunal, the jurisdiction of all other Courts regarding service matters stood ousted. Relying on Pakistan International Airlines v. F.M. Shamsi (PLD 1990 SC 943) and the Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951) it was recently held in Fauzia Siddiq Qureshi v. Secretary, Ministry of Education, Islamabad and others (2004 SCMR 521) that jurisdiction of the High Court is ousted with regard to all matters which fall within the jurisdictional domain of Service Tribunal. The case reported as Din Muhammad v. Director‑General, Pakistan Post Office, Islamabad and 20 others (2003 SCMR 333) is almost on all fours. The following facts mentioned at page 335 of the Report bring out the relevancy thereof to the instant case:‑‑ "The appellant, was appointed as Sorter in Railway Mail Service, Rawalpindi on 14‑7‑1969 and later he was transferred as Upper Division Clerk (B‑7) to the office of Post Master General, Northern Circle, Rawalpindi, vide order dated 2‑8‑1978 against 25% reserved quota. The appellant joined in the above said office on 4‑8‑1978 and on 1‑1‑1985 he was permanently absorbed in the office of Post‑master General, Northern Circle, Rawalpindi. In the seniority list of UDSs issued by the Office of Post Master General, Northern Circle, Rawalpindi on 13‑5‑1987, the appellant was placed at S. No.49 and respondents Nos.4 to 21 were shown senior to him in the said seniority list. The appellant being aggrieved of his position as junior to the private respondents, preferred a departmental appeal/representation and on dismissal of said appeal, he did not further agitate the matter. The department published another seniority list of UDCs of the Office of Post‑master General, Northern Circle, Rawalpindi on 5‑4‑1999 in which the appellant was again junior to the private respondents, therefore, he filed a departmental appeal but same was not disposed ‑of within the prescribed period, therefore, he approached the Federal Service Tribunal through a service appeal which was dismissed vide impugned judgment." For detailed reason, to which reference is not necessary because of the limited question involved herein, the decision of the Federal Service Tribunal was set aside. In the context of the present case, the following observations clinch the issue involved herein:‑‑ "Learned counsel for the appellant has contended that the fresh seniority list published in the year 1999 would give fresh cause of action to the appellant to challenge the wrong position of seniority assigned to him in the said seniority list and that the seniority list issued in 1987 would deem to be a tentative in nature therefore, on filing of appeal before the Service Tribunal against dismissal of departmental appeal/representation preferred against seniority list of 1987 would not debar him from challenging the subsequent seniority list." "The objection relating to maintainability of appeal raised by the learned Deputy Attorney‑General on the ground that the seniority list published in 1987 remained unchallenged would be of no consequence as on publication of subsequent seniority list in the year 1999, there would be a fresh cause of action in favour of appellant, therefore, the appeal before the Tribunal was maintainable." Thus, any challenge to a seniority list, even if it is founded on the applicability or otherwise of a particular rule, would eminently be a subject‑matter of appeal before the Service Tribunal, and a Constitutional petition is not competent in view of the bar contained in Article 212(2) of the Constitution of the Islamic Republic of Pakistan, 1973.

15. The case of Muhammad Idrees (supra), relied upon by the learned counsel for the petitioners, is distinguishable. In that case, the petitioner was denied pro forma promotion from a previous date. The writ petition was entertained by observing that the Tribunal had no jurisdiction to entertain an appeal 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) of subsection (1) of section 4 of the Service Tribunal.

16. The second contention of the learned counsel that the grievance of the petitioners being against the tentative seniority list and no final order having been passed as yet, an appeal before the Service Tribunal would not be competent, has also no substance. In Khalil‑ur‑Rehman and others v. Government of Pakistan and others (PLD 1981 Karachi 750) a Full Bench of Sindh High Court, while repelling a similar contention, held as follows:‑‑ "It was then contended that inasmuch as the jurisdiction of Service Tribunal has been confined to entertain appeals from `final' orders made by the departmental authorities, the jurisdiction in respect of other orders continues to remain intact, so far as the High Court is concerned. In the view that we have taken, there can be no cavil against this proposition of law. However, it seems to us that if impugned order, although no final as far as the departmental authority passing it is concerned, is in the nature of a step forwards the final orders that may eventually be passed, apparently such interlocutory order will eventually merge in the final order and in any, case can be brought up before the Service Tribunal in an appeal from final order. Clearly, therefore, such orders which are in the nature of interlocutory steps and are germane to the final order which is appealable before the Tribunal, will also be outside the jurisdiction of the High Court. However, in all the petitions before us there is no question of an order other than a final order." In Abdul Wahab Khan v. Government of the Punjab and others (PLD 1989 SC 508), the writ petition filed by Abdul Wahab Khan, 'challenging the appointment of an "authorized officer" in departmental enquiry against him was dismissed on the ground that the same was not maintainable. His appeal met the same fate. While refusing leave to appeal, the Supreme Court held: "But the order impugned before the High Court vis‑a‑vis the stage at which it has been passed, is not appealable, the petitioner would have to wait till such an order is passed against him which is appealable before the Tribunal." Then, in Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (C.S. 442) a Full Bench of this Court, after reviewing the case‑law on the subject. held as follows:‑‑ "The contention that in the absence of a final order the respective Service Tribunal will not have any jurisdiction in the matter has not impressed us. Initiation of disciplinary proceedings is a preliminary step towards passing of a final order The Legislature, in its wisdom, clearly excluded challenge to an interim order before the Punjab Service Tribunal. We are of the view that if a final order cannot be interfered by this Court, interference in an interim order will manifestly frustrate the object of law." "Therefore, we are clearly of the view that even if no final order has been passed, this Court does not have jurisdiction under Article 199 of the Constitution which is subject to the other provisions of the Constitution and Article 212 has the effect of curtailing the jurisdiction of this Court under Article 199 in respect of a matter to which the jurisdiction of the Tribunal extends. " Recently, in Qazi Asif Jah Bahadur v. Government of the Punjab through Education Secretary Lahore and 3 others (2004 PLC (C.S.) 292) a writ petition, assailing initiation of departmental proceedings having been dismissed, the writ‑petitioner filed an I.C.A. which was dismissed by a Division Bench of this Court by observing as follows:‑‑ "So far as the contention of the learned counsel that no final order has since been passed, therefore, petition before this Court is competent as the matter cannot be taken to the Service Tribunal is concerned, the contention is equally untenable in view of the legal position stated in Abdul Wahab v. Government of Punjab (PLD 1989 SC 508), the Superintendent of Police, Headquarter, Lahore v. Muhammad Latif (PLD 1988 SC 387) and Akhtar Ali v. Province of Punjab (PLD 1992 Lahore 127). The precedents cited by the learned counsel are of' no help to the appellant. In this view of the matter, we find that jurisdiction of this Court under Article 199 of the Constitution stood excluded by operation of Article 212 of the Constitution. The petition has, therefore, rightly been dismissed by the learned Single Judge." Thus, the contention that in the wake of issuance of tentative seniority list only, and no final order having been passed as yet, the writ petition is maintainable, also fails.

17. The last contention of the learned counsel for the petitioners that if the act complained of is mala fide or coram non judice, writ petition can be maintained, is also destitute of any valid foundation. In Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department though Secretary and others (1997 SCMR 169), Ayyaz Anjum and Muhammad Younis Chohan (respondent No.3 before the Supreme Court) were serving in the Public Health Engineering Department and there had been a number of orders of their inter se transfers, both accusing the other of exerting political influence in getting the posting of his choice at the suffering of the other. As a final bid to the battle, Muhammad Younis Chohan filed a Constitutional petition calling in question the legality of his transfer order, obviously on the ground of mala fides. A learned Judge of this Court, while calling for the record from the Department, suspended operation of the transfer order. The Supreme Court while setting aside the order of the learned Single Judge, observed as follows:‑‑ "Clearly, the matter relating to the posting and transfer of a civil servant relates to the terms and condition of his service. Disputes about these matters fall within, the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of High Court is barred in these matters by the express provisions of Article 212(2) of the Constitution. We are therefore unable to support the interim order made by it in this case. Accordingly, we convert this petition into appeal and set aside the said order." The case reported as Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 2129) furnishes a complete answer to the argument of the learned counsel for the petitioners. In that case, Haji Muhammad Muneer had challenged the order of his transfer by filing a writ petition which was admitted to regular hearing, and the operation of the order of transfer was also suspended by observing that prima facie the impugned order was mala fide, having been passed due to political influence. The interim order so passed was challenged before the Supreme Court, and was set aside by holding as follows:‑‑ "In a recent decision dated 27‑5‑1998 dismissing Civil Petition for Leave No.727-L of 1998 (Khalid Mahmood Wattoo v. Government of Punjab) this Court observed as follows:‑‑ 'The consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of the provisions contained in Article 212 of the Constitution .' In that decision, Full Bench judgment of Sindh High Court in the case of Khalil‑ur‑Rehman v. Government of Pakistan (PLD 1981 Karachi 750) was also approved where it was held that orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Court including High Court was ipso facto ousted as a result of barring provisions of Article 212 of the Constitution." Thus, the last attempt of the learned counsel for‑ the petitioners in support of maintainability of this petition also fails.

18. In view of the discussion on the stands of the parties and after review of the case‑law, cited at the Bar by the parties, I have come to .the conclusion that this is a matter, which should be agitated before the Punjab Service Tribunal by the petitioners, which is competent to give adequate relief to the parties concerned.

19. As the petition is being disposed of on the point of jurisdiction only, the merits/de‑merits of the case of either of the parties have not been discussed nor have been adverted to, lest their case might be prejudiced before the Service Tribunal.

20. The petition is disposed of. As the petitioners had approached this Court shortly after circulation of their revised seniority‑list, it is hoped that question of limitation would not stand in their way. The seniority‑list, otherwise has not been acted upon and the cause of action is still alive, therefore, the matter can be competently agitated before the Punjab Service Tribunal. S.A.K./A‑441/L Order accordingly.