1993 PLP (C (PLC(CS))

MUHAMMAD HUSSAIN ADIL KHATRI, J: ‑‑The petitioner is seeing as Upper Division Clerk in the Income Tax Department East Zone, Karachi. The Commissioner of Income Tax, East Zone, by his letter dated 9‑4‑1988 invited applications for recruitment to the post of Inspectors in the Income Tax Department against the vacancies reserved for direct appointment. The petitioner, being possessed of requisite qualifications, applied for the said post on 17‑4‑1988. As the record shows, the candidates had to undergo written and viva voce tests, which were held on 3‑6‑1986 and 18‑6‑1988 respectively. Five candidates passed the written test, including the petitioner and respondent No.

4. In viva voce, the petitioner and two other candidates qualified by obtaining the requisite marks. Respondent No. 4 and the other candidate failed in the said examination.

2. However, the petitioner was dropped out, whereas respondent No. 4, Khawar Iqbal and two other candidates were appointed against the three posts reserved for direct appointment.

3. The petitioner made representations against the appointment of respondent No. 4, who had failed to qualify for appointment because of his failure in the viva voce examination, but his representations did not yield any fruit. He served legal notice on the department through his Advocate but in vain. The petitioner, therefore, filed this petition praying for declaration that the appointment of respondent No. 4, to the post of Inspector is illegal and unconstitutional and for an order in the nature of directions to the Income Tax Department to appoint the petitioner to the post of Inspector with effect from 20‑6‑1988, being the date on which respondent No. 4, has been appointed and for further directions for payment of all the back benefits, salaries, remunerations etc., to the petitioner.

4. On 14‑10‑1991 and 15‑10‑1991 we had heard Mr. Muhammad Nasim, Advocate for the petitioner and Mr. S.M. Shahudul Haq, Advocate for respondents Nos. 1, 2 and

3. Mr. Habibullah Sammo, learned Advocate for respondent No. 4, was not present on the aforesaid dates of hearing. After hearing the arguments, the matter was reserved for judgment. In the meanwhile, the learned Advocate for respondent No. 4, submitted an application to be heard in the matter. Such request was granted and he was heard on 12‑11‑1991.

5. The learned counsel for the petitioner has submitted that the appointment of respondent No. 4 to the post of Inspector is in violation of S.R.O. No. 281(1)/85, dated 26‑3‑1985, read with SRO No. 657(1)/82, dated 5‑7‑1982 and Circular No. 18(28)/82/AIT/2, dated 13‑7‑1982. He has also relied on Rule 3(1)(b) and Rules 11, 12, 13 and 14 of the Civil Servants (Appointment. Promotion and Transfer) Rules, 1973. He has also referred to great number of authorities on the proposition that this Court is competent to grant relief to the petitioner. On the other hand learned counsel for the respondents have taken up the stand that the jurisdiction of this Court is barred under Article 212 ‑ of the Constitution of the Islamic Republic of Pakistan, 1973, as the dispute raised falls within the exclusive jurisdiction of the Services Tribunal constituted under the Service Tribunals Act (LXX of 1973).

6. The Federal Government in exercise of its power under sub‑rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, issued S.R.O. No. 657(1)/82, dated 5‑7‑1982, notifying the qualifications and conditions for appointment to several posts including that of the Inspector in the Income Tax Department. It is inter alia provided that 50 per cent. of the posts of Inspectors shall be filled in by promotion from among the Upper Division and Lower Division Clerks and Steno‑typists and 50 per cent by direct appointment. The candidates are required to be graduates from the recognised Universities. It is further provided that the candidates have to qualify the written examination as well as viva voce test. Following are the details of the tests prescribed under the aforesaid rules:‑ (a) There shall be three papers of 100 marks consisting of the following subjects:‑ Paper ‑‑ I .... General Knowledge (Pakistan and International) Paper ‑‑ II .... Arithmetic. Paper ‑‑III .... Viva Voce. (b) The qualifying marks for each paper including viva voce will be 50 per cent.

7. As stated above, five candidates had appeared in the examination held for direct appointment to the posts of Inspector and following are their results:‑ S. No. Name Roll No Collective Interview Marks. (1) Mr. Ghulam Haider 86 141 50 (2) Mr. Khawar Iqbal 37 137 35 (3) Mr. M. Nayyar Karim 36 125 74 (4) Mr. Irshad‑ur‑Rehman 31 112 51 (5) Mr. Ghazanfar Ali 5 111 37

8. As the above results indicate respondent No. 4, Khawar Iqbal and Ghazanfar Ali had secured 35 and 37 marks respectively in Viva Voce whereas the qualifying marks prescribed were 50 per cent. Thus they failed to qualify for appointment. Under these circumstances, the petitioner who had secured qualifying marks in written as well as in viva voce examination was entitled to be appointed on one of the three posts reserved to be filled in by direct appointment.

9. The learned counsel for the respondents have urged that the appointments have been made on the basis of the total aggregate marks obtained by each candidate and accordingly those candidates who have obtained highest total numbers have been declared as qualified for appointment to the said three vacant posts. The same position has been adopted by the department in the comments filed in reply to the memo of petition. In the counter‑affidavit, it is further contended that the petitioner had obtained only 39 marks in Paper‑II and he was awarded 11 grace marks and the petitioner had only thus secured the passing marks. At the same time, it has been stated that one of the candidates was given 11 grace marks and the remaining three of them 10 marks each in the said Paper for securing passing marks. The respondents have contended that the petitioner has been treated fairly and not with any discrimination and the petitioner having failed to acquire 50 marks in Paper‑II, was not entitled to the appointment. The department had, therefore, acted justly in basing the appointment on the aggregate total marks secured by the candidates.

10. As noted above, it is one of the mandatory conditions of S.R.O., dated 5‑7‑198'', that a candidate "must have qualified in the written examination as well as viva voce test, the details of which are given in Schedule II". Schedule II has been reproduced above which prescribes three papers of 100 marks each and qualifying marks for each paper are prescribed to be 50%. Therefore, respondent No. 1, to qualify for appointment had to obtain 50% in viva voce also. Since he failed to secure the said marks, he had failed to qualify the, mandatory condition and thus his appointment is not warranted. The petitioner, who had secured the qualifying marks in viva voce, under the present circumstances was entitled to the appointment.

11. The Government has prescribed the subjects and set a criteria for qualification thereof and so also for viva voce. It is, however, left to the discretion of the department to frame the questions or determine standard thereof. The above inference has been drawn from the fact that the Notification, is silent in respect of the above particulars. The department in exercise of such discretion conducted the written test through the questions framed by it and having seen that all the candidates had failed, in Paper No. Il, thought it fit to allow certain number of grace marks to each of the candidates to qualify them in the Second Paper. This was well within the discretion of the department. As is disclosed in the counter‑affidavit of the department, all the five candidates had failed to secure the qualifying marks. The petitioner and Ghazanfar Ali were given 11 grace marks. Respondent No. 4 and the other two candidates were given 10 grace marks each to make up the qualifying percentage. From the above, it is evident that the Department's Selection Committee considered Paper‑II to be rather severe for the candidates of the said post, as none of them could secure the qualifying marks. The department having exercised its discretion and it is found that it was exercised justly and fairly in favour of all the candidates and not arbitrarily or discriminately, it was bound by the same and cannot be permitted to plead that the petitioner having failed to obtain the qualifying ‑marks in Paper‑II, is not entitled to the appointment.

12. Save as above, nothing is left to the discretion of the department. The objective evaluation criteria laid down by the Government for appointment is to be followed by the department, as it is. The rule of acquisition of prescribed percentage in both the tests, i.e. written and viva voce for qualifying for appointment being mandatory, is to be followed as such and the department had no jurisdiction to deviate from the same and evolve its own formula for recruitment on the basis of aggregate marks. Any deviation from the conditions prescribed, to the detriment of one or some of the candidates, would render the act of the department as violative of Article 25 of the Constitution which lays down that all citizens are equal before law and are entitled to equal protection of law.

13. This brings us to the contention of the learned Advocate for the respondents with regard to the bar of jurisdiction under Article 212 of the Constitution. Sub‑Article (1) of the aforesaid Article provides that notwithstanding anything hereinbefore contained the appropriate legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise jurisdiction in respect of the matters mentioned in clauses (a), (b) and (c). Clause (a) pertains to matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters. Sub‑Article (2) whereof, so far as relevant, reads as under:‑ "Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends

" The Services Tribunal has been established under section 3 of the Service Tribunals Act, 1973 (LXX of 1973). Subsection (2) of the said section 3 provides that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. Section 4 thereof provides that any civil servant aggrieved by any final order whether original or appellate, made by departmental authority, in respect of any of the terms and conditions of his service, may within the specified time prefer an appeal to the Tribunal.

14. It is thus seen that subsection (2) of section 3 and section 4 of the Service Tribunals Act confer exclusive jurisdiction on the Tribunal in respect of matters relating to the terms and conditions of service of civil servants in consonance with clause (a) of Article 212(1) which has invested the legislature with powers to create Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan. The jurisdiction of the other Courts is barred in respect of matters relating to (a) the terms and conditions of service and (b) terms and conditions of service of civil servants, i.e. the persons who are or have been in the service of Pakistan. For attracting the aforesaid bar in exercise of jurisdiction under Article 199 of the Constitution by the High Courts, it is to be first shown that the petitioner is a civil servant and that the dispute relates to the terms and conditions of his service. Unless the aforesaid two conditions co‑exist, the provisions relating to the ouster of jurisdiction will not be attracted. Reference in this regard may be made to the recent decision reported in 1991 SCMR 1041 (I.A. Sharwani and others v. The Government of Pakistan through Secretary, Finance Division and others), wherein the question of ouster of jurisdiction of the Courts, under Article 212 of the Islamic Republic of Pakistan came up for consideration, which has been answered as under:‑ "From the above‑quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact."

15. The case of the department is that the petitioner is working as Upper Division Clerk in the Income‑tax Department and as such is a civil servant. Therefore, only the Service Tribunal has the exclusive jurisdiction in the matter and this Court can exercise jurisdiction under Article 199 of the Constitution to resolve the dispute. The above contention is not warranted. Though the petitioner is a civil servant, but he had applied for appointment to the post of Income Tax Inspector reserved for direct appointment. The said appointment or non appointment is not in any manner relatable to the terms and conditions of his service as Upper Division Clerk. Under the Service Rules, if the petitioner is appointed, his previous service, for the purpose of seniority or any other purpose, is to be kept out of consideration. In short, his previous service as Upper Division Clerk is to be treated as non‑existent. Therefore, in so far as the matter relates to the appointment of the petitioner to the post for which he had applied, he is not to be deemed to be a civil servant. Assuming for the sake of arguments that anyone of the other candidates, who was not working in the department, had filed the petition, would it be open to the department to plea bar of jurisdiction of this Court. The answer is manifestly in negative. If it be correct for such a person, it would equally be correct to hold that the petitioner has the right to maintain the petition before this Court. The Service Tribunal has no jurisdiction in the matter of appointments. The learned counsel for the respondents have relied on the following case‑law:‑ (i)1990 SCMR 927 (MA. Rafique v. Managing Director (Power), WAPDA and 7 others). (ii) 1990 SCMR 1321 (Government of N.‑W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzafar Iqbal and others). (iii) 1991 SCMR 2027 (Saifullah and others v. Tariq Hussain and others). The first two cases pertain to question of promotion of civil servants to higher posts. In the third one ad hoc appointees were required to undergo written examination and selection procedure which was being followed for making initial recruitments. The civil servants invoked the jurisdiction of High Court of Balochistan under Article 199 of the Constitution. The High Court entertained the petition and granted the relief, holding that the case was relatable to the fitness of the writ petitioners to hold a particular post. The Hon'ble Supreme Court observed that the question raised before the High Court essentially was whether as ad hoc appointees, it was part of the terms and conditions of their appointment that they should take examination in the manner prescribed and proposed. The question of petitioners' fitness or otherwise would have arisen only when they had been adjudged, as a result of such test and interview, fit or otherwise not fit for appointment. As such the matter being relatable to terms and conditions of service, the jurisdiction of the High Court was barred under Article 212(3) of the Constitution. The above authorities do not support the proposition canvassed by the learned counsel for the respondents.

17. The learned counsel for the respondents also referred to the following observations made in the case of Mian Abdul Malik v. Sabir Zamir Siddiqui and 4 others (1991 SCMR 1129):‑ "

The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification no such bar exists either on express words of section 4 of the Service Tribunals Act or even by implication:' The learned counsel for the respondent on the basis of the above observations contended that the question of fitness introduces subjective clement, therefore, the question of fitness or suitability for appointment to the post is exclusively within the jurisdiction of the Income‑tax Commissioner and the Court cannot substitute its own opinion in this regard. The petitioner having the required qualification and qualified the test prescribed. became eligible for appointment. Even if we assume that it is the question of fitness or suitability as no doubt the question of subjective satisfaction of the appointing authority would normally arise, but where the subjective satisfaction has been replaced by prescribed objective criteria and left it to be determined by a process which exclusively contemplates objective standards, the appointing authority cannot turn back and say that it has the prerogative not to appoint a person who has satisfied the test of the objective criteria and give preference to the person who has failed in such test by changing the pattern of evaluation criteria prescribed. in the rules. This would amount to allowing the authority to act arbitrarily and unjustly and such an act would be in violation of Articles 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973. Former provides that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and latter guarantees that all citizens are equal before law and are entitled to equal protection of law.

18. In the case of Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290, a Full Bench of this Court while considering the bar of jurisdiction of the Courts under Article 212 of the Constitution, quoted with approval observations made by ZA. Channa, J. (as he then was) in the case of Mushtaq Hussain Rizvi v. P.O Sindh (PLD 1978 Kar. 703) as under:‑ "In view of the liability of the civil servant to serve in any bush 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 Civil Court except in case where it can be shown that some legal right based on specific statutory provisions has been violated." The case in hand precisely attracts the aforesaid observations, for the respondent had acted in violation of the statutory provisions, namely, the Notification dated 5‑7‑1982. We, therefore, quash the Minutes of the Departmental Promotion Committee's Meeting held on 18‑6‑1988 for recruitment of the Inspectors, declare that the appointment of respondent No. 4 to the post of Inspector is illegal and without jurisdiction and direct respondents Nos. 1, 2 and 3 to give effect to the results of the examination held by the department, on the basis of evaluation criteria as laid down in Part IV of SRO‑657(1)/82, dated 5‑7‑1982, read with Schedule II, thereof. The petition is allowed in above terms with costs to the petitioner payable by respondents Nos. 2, 3 and 4 severally and jointly. A.A./S‑880/K Petition allowed.