2016 PLP (C (PLC(CS))

FAISAL ZAMAN KHAN, J.

Petitioner was appointed as Assistant Research Officer with Agriculture Department on regular basis in the year 1987. Thereafter, in 2003, a seniority-list was prepared, in which he was placed at Sr. No.6. In the year 2007, new rules were framed by the department for promotion, etc., whereupon juniors to the petitioner were promoted, however, he was not considered. Feeling aggrieved, petitioner moved a representation before the competent authority (Directorate General Agriculture (Extension & A.R.), Punjab, Lahore, which was rejected on 09.12.2009 on the ground that case of the petitioner is not covered under the existing rules. Feeling aggrieved, petitioner preferred a representation before the Chief Secretary, Government of the Punjab, which remained undecided, upon which Writ Petition No.4553/2012 was filed by the petitioner, in which a direction was issued on 27.2.2012 to respondent No.1 to decide the appeal/representation of the petitioner. Vide order dated 06.6.2012, appeal/representation of the petitioner was dismissed, therefore, this petition.

2. At the very outset, learned Law Officer appearing on behalf of the respondents has raised a preliminary objection on the ground that grievance of the petitioner relates to consideration for promotion, which is part of terms and conditions of service of a civil servant, therefore, this Court in view of bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan (Constitution) will not interfere.

3. Replying to the above, learned counsel appearing for the petitioner submits that the main stay of the claim of the petitioner is based upon the question of fitness to hold a particular post, therefore, in view of barring provision of section 4(1)(b) of the Punjab Service Tribunals Act, 1974, Service Tribunal cannot be approached, therefore, petitioner has no other remedy but to approach this Court through a constitutional petition. He places reliance on Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others [1991 SCMR 1129], Muhammad Anis and others v. Abdul Haseeb and others [PLD 1994 SC 539], Zafar lqbal v. M.G.O., M.G.O. Branch, GHQ, Rawalpindi and 3 others [1995 SCMR 881] and M/s. Kausar A. Ghaffar v. Government of the Punjab and others [2013 SCMR 99].

4. I have heard the learned counsel for the parties and have gone through the record.

5. As directed by the Hon'ble Supreme Court of Pakistan in judgment reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others [2011 SCMR 592], it is duty of every court to, at the outset, look into the question of assumption of jurisdiction and in case jurisdiction can be assumed, only then an order should be passed.

6. In order to ascertain the above, it shall be important to examine the initial order dated 09.12.2009 passed by the competent authority, operative part of which is reproduced below: "The appeal was examined by the Agriculture Department and filed being not covered under the existing rules and cannot be acceded to and this office has been advised to convey the same to the appellant". Assailing the above, the petitioner has filed a representation before respondent No.1, in which a finding has been rendered on 06.6.2012, operative part of which is reproduced below: "I am of the view that the petitioner was not eligible for promotion to the rank of Research Officer under the Punjab Agriculture. Department (Extension and Adaptive Research Wing), Service Rules, 2007. Therefore, the claim of the petitioner is not covered under the rules; therefore, his petition merits no consideration." (underlining is mine)

7. Perusal of the above extracts would clearly show that both the forums below have held that case of the petitioner does not fall within the mischief of Punjab Agriculture Department (Extension Wing), Economics and Marketing Wing, Service Rules, 1980, which were amended in the years 2007 and 2009, therefore, he is not eligible to be considered for promotion.

8. It has not been denied by the petitioner that he was never considered by the Departmental Promotion Committee or the Board for promotion, upon which this could be determined that petitioner was fit to be promoted. The prerequisite to be considered for promotion is the eligibility of the said official and once he crosses this barrier and is considered for promotion, only then the question of fitness would arise. In view of the above, it can safely be held that the case of the petitioner fell within the ambit of determination of eligibility, which for all intents and purposes, is part of terms and conditions of service of a civil servant, therefore, is beyond the powers of judicial review of this Court in view of creation of Administrative Tribunals established under Article 212 of the Constitution for adjudication on the question of terms and conditions of service of a civil servant. The Hon'ble Supreme Court of Pakistan in judgments reported as M/s. Kausar A. Ghaffar v. Government of the Punjab and others [2013 PLC (C.S.) 542], Miss Zubaida Khatoon v. M/s. Tehmeena Sajid Sheikh and others [2011 SCMR 265], Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and others [2007 SCMR 682], Muhammad Anis and others v. Abdul Haseeb and others [PLD 1994 SC 539] and Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others [1991 SCMR 1129] has elaborately distinguished the question of eligibility and fitness for promotion qua exercise of jurisdiction by this Court.

9. The judgments cited by learned counsel for the petitioner fortify the findings rendered by this Court and, thus, would be of little help to the petitioner.

10. As regards the jurisdiction exercised by this Court in cases pertaining to enforcement of terms and conditions of service of a civil servant, needless to say that in view of a clear bar created by Article 212 of the Constitution, which is squarely attracted in the present case as the petitioner is asking for consideration of promotion, which falls within the ambit of terms and conditions of service of a civil servant, therefore, this Court in view of judgments reported as Peer Muhammad v. Government of Balochistan through Chief Secretary and others [2007 SCMR 54], Khalid Mahmood Watoo v. The Government of the Punjab and others [1998 SCMR 2280], Asadullah Rashid v. Haji Muhammad Munir and others [1998 SCMR 2129], Muzaffar Hussain v. The Superintendent of Police, District Sialkot [2002 PLC (C.S.) 442] and Khalil-ur-Rehman and others v. Government of Pakistan and others [PLD 1981 Karachi 750] does not have the jurisdiction to entertain or to adjudicate upon the above issue.

11. For what has been discussed above and in view of the bar of jurisdiction, as contemplated in Article 212 of the Constitution, this petition is not maintainable, therefore, the same is dismissed. RR/G-9/L Petition dismissed.