P L D 1975 Lahore 813 (PLP)

The petitioner is a member of the All‑Pakistan Unified Grades, which has been established under the Administrative Reforms carried out recently by the Government of Pakistan. These reforms were announced by the Prime Minister on 28th August 1973, and its main features were as follows : (i) abolition of all services and classes among Government servants, (ii) their merger into a unified structure, (iii) discontinuance of the use of service labels and (iv) provision for lateral entry into the service.

2. To appreciate as to what posts are borne on the cadre of the newly created All‑Pakistan Unified Grades, it may be mentioned that the new cadre has been established by amending the Civil Service of Pakistan (Composition .and Cadre) Rules, 1954: This object was carried into effect by issuance of a notification, bearing No. S. R. O. 1237(1)/73, dated 21‑8‑1973, which provided for the omission of rules 5 to 7 from the said Rules. The consequence of deleting the aforesaid rules was that reservation of all posts, including judicial posts, for the erstwhile C. S. P. was ended. Thereafter, by further rule, promulgated through notification bearing No. S. R. O. 1307(1)/73 dated 14‑9‑1973, called the "All‑Pakistan Services (Change of Nomenclature) Rules, 1973, the names of Civil Service of Pakistan and Police Service of Pakistan were changed to all Pakistan Unified Grades and all persons who, immediately before the coming into force of these rules, were members of the Civil Service of Pakistan or the Police Service of Pakistan were appointed, in their existing posts, to All‑Pakistan Unified Grades. Since all posts of Deputy Secretaries and of and above the rank of Joint Secretaries under the Federal Government were according to the current schedule to the Civil Service of Pakistan (Composition and Cadre) Rules, 1954, borne on the cadre of the Ex‑C.S.P., these posts also came to be included in ‑the cadre strength of the All‑Pakistan Unified Grades.

3. The petitioner became a member of the All‑Pakistan Unified Grades with effect from 21‑8‑1973 on account of the fact that the President was pleased to approve the appointment to All Pakistan Unified Grades of all non‑C.S.P. officers who were holding C.S.P. Cadre posts on 21‑8‑1973 (vide Notification No. 1/1/73‑ARC dated 14th September 1973). This Notification was issued in pursuance of rule 5(1) of the Rules framed through notification No. SRO 1238(1)/73 dated 21‑8‑1973, which rules, it may be mentioned had been framed in exercise of the powers conferred under rule 3 of the Civil Service of Pakistan (Composition and Cadre) Rules, 1954. In this way the petitioner who had been holding a C.S.P. Cadre post, namely the post of Deputy Secretary (Regulations) in the Finance Division since January 1970, became a member of the All‑Pakistan Unified Grades with effect from 21‑8‑73.

4. The petitioner continued to work as Deputy Secretary until 7th of November 1973. On 8th November 1973, however, be was promoted to grade 20 and appointed to officiate as Joint Secretary (Regulations) in the Finance Division with effect from the date he assumed the charge of the post and until further orders (Annexure "A"). He assumed the charge of the office of Joint Secretary (Regulations), on 26th November 1973.

5. On 15th December 1973, by a letter received from the Establishment Division (Annexure "C") the petitioner was informed that his appointment as officiating Joint Secretary was subject to his passing the written test and qualifying for the post, as laid down in paragraph 2 of a circular letter, issued by the Establishment Secretary (D. O. letter No. 5(1)73‑R 111, dated 27th October 1973 (Annexure "D" with the writ petition) and that he should apply for the written test by 20th December 1973. The petitioner submitted a representation to the Secretary, Establishment Division, Government of Pakistan, asserting that the requirement of passing the written test did not apply to his case and that the letter of the Establishment Division, dated 15th December 1973, requiring him to take the above test may be withdrawn. The above representation appears to have been ignored and the petitioner was again directed to take the written test on 15‑1‑1974 vide letter dated 11th January 1974 (Annexure `F').

6. Dissatisfied with the said direction the petitioner submitted a final representation on 14th January 1974 to the Establishment Secretary for the redress of his grievance, but apparently no reply was sent to this representation either. However, the petitioner did not take the written test, whereupon the respondent, vide its order dated 19‑8‑1974, reverted him to the post of Deputy Secretary (Annexure "H"). This writ petition under Article 199 of the Constitution is directed against the above order and it is prayed that the action of the respondent to declare the petitioner unfit to bold a post of Joint Secretary in Grade 20 without qualifying in the written test be declared to be without lawful authority and of no legal effect and the impugned order of reversion, passed in consequence of the aforesaid impugned action of the respondent be also declared to be without lawful authority and of no legal effect. It is further prayed that the respondent be restrained from with holding the monthly salary of the petitioner and other benefits and privileges under grade 20.

7. Before me the question whether this petition was competent was argued at some length and Mr. Irshad Hassan Khan, Advocate, who argued the case with great zeal and enthusiasm strenuously contended that it could be entertained by this Court and the relief prayed for, could be granted. His submissions in support of this point of view were briefly as follows : Under rule 3(2) of the Rules contained in Notification No. S. R. O. 1238(1)/73 of 21‑8‑1973 (referred to in para. 3 above) Government servants with fifteen years' service as Assistant Commissioner, or S. D O. or in equivalent or higher post (i.e. in Grade 17 or above) are eligible for appointment to the cadre post of the rank of Joint Secretary. The petitioner, who had rendered over eighteen years' service in grade 17 and above, on the relevant date was, accordingly, liable for appointment/promotion to the post of the rank of Joint Secretary, which fell under grade

20. The question of appointment by promotion or transfer is dealt with under sections 5 and 9 of the Civil Servants Act, 1973 (Act No. LXXI of 1973) and rules 7 and 8 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, which for facility of reference may be reproduced hereunder "Civil Servants Act, 1973. Appointments.‑Appointments to an All‑Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with. defense, shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf. Section

9. Promotion.‑(I) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in the higher grade of the service or cadre to which he belongs. (2) A post referred to in subsection (1) may either be a selection post or a non‑selection post to which promotions shall be made as may be prescribed‑ (a) in the case of a selection past, on the basis of selection on merit ; and (b) in the case of a non‑selection post on the basis of seniority‑cum -fitness." Civil Servants (Appointment, Promotion and Transfer) Rules, 1973: "Rule 7.‑Promotions and transfers to posts in Grades 2 to 18 shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in Grades 19 to 21 shall be made on the recommendations of the Central Selection Board Provided that posts in Grade 18 which carry a Special Pay would also be referred to the Central Selection Board if proposed to be filled by promotion or transfer. Rule 8.‑Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be." According to the petitioner, he was, after completion of all the prescribed formalities i.e. after complying with the mandatory provisions of Rules 7 and 8 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973,. read with sections 5 and 9 of the Civil Servants Act, 1973 and on the recommendation of the Central Selection Board, as the said phrase is defined in rule 2(b) of the Civil Servants (Appointment, Promotion or Transfer) Rules, 1973, read with section 2(1)(h) of the Civil Servants Act, 1973, which defines the meaning of the expression "selection authority", declared fit for promotion to grade 20 and was, consequently, promoted to that grade unconditionally under the notification issued on 8‑11‑1973. The said notification also ordered the consequential appointment of the petitioner to officiate as Joint Secretary (Regulations) Finance Division until further orders. The above promotion took full legal effect from 26‑11‑1973 when the petitioner actually took the charge of the grade 20 post of Joint Secretary (Regulations), Finance Division, and started performing the duties of that post and drawing salary and enjoying other benefits and privileges attached to grade

20. But notwithstanding the fact that the petitioner's fitness for post in grade 20 had already been determined by the competent authority, as a result of which he has been unconditionally promoted to that grade under notification dated 8‑11‑1973, he has been declared unfit to hold a grade 20 post without passing the written test and qualifying for that post. This action of the respondent, according to the learned counsel for the petitioner, was without lawful authority.

8. The case of the respondent on the other hand is that a perusal of the rules issued, vide Gazette Notification SRO 1238(1)/73, dated 21st August 1973, referred to in para. 3 above, reveals that except for the post of Assistant Commissioner (Rule 3(1) ), there is no mention that any of the higher posts in the cadre of the All‑Pakistan Unified Grades including the post of Joint Secretary is earmarked for promotion either for officers who are already members of the All‑Pakistan Unified Grades or for any other service. With the omission of Rules 5, 6 and 7 of the Civil Service of Pakistan (Composition and Cadre) Rules, vide S. R. O. No. 1237(1)/73, dated 21st August 1973 (referred to in para. 2 above) all previous reservations for promotion to posts included in the cadre of the All‑Pakistan Unified Grades in respect of any existing services were abolished with effect from 21‑8‑1973. The President could make appointment of these posts in accordance with the manner determined by him. Accordingly, the Federal Government, in the circular letter, dated 27th October 1973, to all Secretaries of Federal Ministries/Divisions and Chief Secretaries of Provincial Governments (Annexure "D") specified that posts of Deputy Secretaries and Joint Secretaries will be filled by inviting applications for these posts from eligible categories of persons and required all Government Servants, if eligible, to apply for these posts. It was also stated in the above circular letter‑ "if in the exigencies of service, a post is required to be filled by a person who has not been selected through this process, his appointment would be treated as provisional and such a person will have to take the written test and qualify for the post and in competition with others before his appointment is regularised. If he fails to be selected, he will be reverted." Reference is also invited to the provisions of section 9(1) of the Civil Servants Act, 1973, wherein it is laid down that "a civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to post for the time being reserved under the rules for departmental promotion in the higher grade of the service or cadre to which he belongs" and it is submitted that in so far as the posts of Deputy Secretaries and Joint Secretaries are not reserved for departmental promotion, section 9 of the Act is not applicable to these posts. Nor, it is urged, would the provisions of rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 be attracted.

9. Coming to the question whether this petition under Article 199 of the Constitution is at all competent, it is to be noted that Article 212 of the Constitution of 1973 lays down that notwithstanding anything hereinbefore contained, in the said Constitution, the appropriate Legislature may provide for the establishment of, inter alia, a Service Tribunal to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of persons in the service of Pakistan and where any such Tribunal is established no Court shall make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. The Federal Legislature enacted Act LXX of 1973 (Service Tribunals Act, 1973) for the establishment of Service Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of Civil Servants, including disciplinary matters (section 3(2) ibid), The remedy of a civil servant aggrieved by a final order made by a departmental authority was by way of appeal vide section 4 ibid. This provision is important in the context of the present case, and the relevant part of it may be reproduced hereunder with advantage : "

4. Appeals to Tribunals.‑‑(I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service 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 the fitness or otherwise of a' person to be appointed to or hold a particular post or to be promoted to a higher grade." According to the petitioner what the departmental authority has found in this case is that he is not fit to be appointed/promoted to the higher grade and that against such a determination no appeal lies. Hence this constitutional petition is competent. In this connection attention is drawn to the letter dated 15‑12‑1973 of the Deputy Secretary, Establishment Division (Annexure 'C') regarding his appointment as officiating Joint Secretary to say that tae said appointment was subject to his passing the written test and "qualifying for the post" as laid down in the Establishment Secretary's D. O. letter dated 27th October 1973 (Annexure "D"). It is argued that the respondent's letter dated 15‑12‑1973 envisaged re-determination of the petitioner's fitness to hold I.e. to retain a grade 20, post of the rank of Joint Secretary and did not relate to the terms and conditions of his service. The only object of the written test, it is submitted, was to determine the degree of fitness of the persons concerned for the relevant posts. Support for this submission is sought from the following statements, contained in the report submitted by the respondent to this Court ;- "Had he taken the test and qualified in it the competent authority would certainly have considered whether or not he was fit to continue on regular basis in the post to which he had been promoted provisionally." "An order laying down a basic condition for promotion does not amount to declaring a Government servant fit or unfit for promotion." "The decision of the competent departmental authority in regard to promotion or otherwise of a civil servant is final and not appealable in a Court of law or Service Tribunal." On the above premises, it is contended that under proviso (b) to section 4(1) of the Service tribunals Act, 1973, a Service Tribunal has no power to adjudicate with respect to the legality or otherwise of an order or decision of the departmental authority, determining the fitness or otherwise of a person, inter alia, to hold a particular post. Consequently, the matter of determination of fitness or otherwise of persons for the posts/grades is not one of the matters relating to the "terms and conditions of service" within. the meaning of this phrase in section 3(2) of the Service Tribunals Act, 1973. This matter is not a "matter to which the jurisdiction of" the Service Tribunal "extends" for the purpose of Article 21212) of the Constitution. Hence the impugned action of the respondent to determine the petitioners fitness to hold a grade 20 post of Joint Secretary in pursuance of the impugned letter dated 15‑12‑1973 (Annexure "C") read with D. O. letter dated 27‑10‑1973 (Annexure "D") is exclusively within the constitutional jurisdiction of the High Court.

10. The above submissions, despite their ingenuity and originality, cannot confer jurisdiction on this Court to entertain this petition in view of the intendment of the Constitution to the contrary. The questions relating to appointment, promotion and reversion are dealt with under Chapter 11 of the Civil Servants Act, which is headed "Terms and Conditions of Service of Civil Servants." The order of 8th November 1973 is an order of promotion as the petitioner was promoted to grade 20 according to the terms of the said order itself, and appointed to the post of Joint Secretary, whereas he was formerly holding the post of Deputy Secretary. While he was holding the said post , he was asked to pass the written test in order to retain the post to which he was promoted. The petitioner on his own view of the law that the imposition of this condition in his case was unwarranted refused to take the test, whereupon the petitioner was reverted to the post of Deputy Secretary. This order was nothing but an order of reversion and not an order "determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade" so as to come within the purview of proviso (b) of clause (1) of section 4 of the Service Tribunals Act. The impugned order affected the terms and! conditions of service of the petitioner. It, accordingly, could be challenged by way of an appeal before the competent Service Tribunal. It may be pointed out that the petitioner himself was at one stage also of the same opinion, as is evident from the fact that on receipt of the letter dated 15th December 1973 (Annexure "C") asking him to take the written test, he filed a representation "under section 22 of the Civil Servants Act, 1973 against imposition of a condition of passing a written test in respect of my promotion to Grade 20 which stands already made and notified in the prescribed manner without any such condition."

11. The over‑all conclusion is that this writ petition is not competent. and is dismissed for lack of jurisdiction. The parties to bear their own costs. K. B. A. Petition dismissed.