1998 PLP (C (PLC(CS))

ABDUL GHANI SHAIKH, J.

Mr. Manzar Alam, Advocate for the petitioner has filed this petition wherein he has stated that the petitioner had joined the Board of Intermediate and Secondary Education, Sukkur as Senior Superintendent on 9-4-1983 and was promoted to the post of Assistant Secretary (Accounts) on 26-6-1988 and he had been performing his duties as such till 10-4-1996 on which date he was appointed as Audit Officer in BPS-l8 but it is said by the petitioner that he was reverted on 20-5-1997. The petitioner has challenged this reversion order and has prayed for the following relief:-- (A) To declare that the petitioner is fit to hold or to be appointed as Audit Officer in BPS-18 and subsequent order dated 20-5-1997 of reversion is illegal, without backing of law, in violation of rules and regulations, hit by principle of locus poenitentiae and principle of natural justice. (B) That it may further be declared that once an employee is selected/promoted by the competent Authority, cannot be reverted. (C) Costs of the petition.?????????? (D) Any other relief which this Honourable Court deems fit. Pre-admission notice was issued to the respondents and the learned Additional Advocate-General. The respondent No. 2 has filed the comments wherein it is stated that the petitioner was not possessing the required qualification for the post advertised and as such his reversion was proper and furthermore the jurisdiction of this Court was said to be barred under Article 212 of the Constitution of the Islamic Republic of Pakistan. The learned Advocate for the petitioner was asked to satisfy about the maintainability of the petition. He in support of his contention has submitted that the petitioner was appointed in BPS-18, on 10-4-1996 and his reversion on 20-5-1997 viz. after about more than one year is illegal for the reason that the petitioner has accrued the vested right and he cannot be reverted. He has placed the reliance on the following case-law:-- (1) 1996 P L C (C.S.) 1061. (2)1994 P L C (C.S.) 336. (3) P L D 1996 SC 632. (4)1997 P L C (C.S.)

422. Mr. Zawar Hussain Jaffri, learned Additional Advocate-General and Mr. Qadir Bux Memon, Advocate for respondents Nos. 2 and 3 have argued that this Court has no jurisdiction as the petitioner is admittedly a civil servant and, therefore, reversion comes within the purview of the terms and conditions of the service and thus, challengeable before the Service Tribunal and not before this Court by way of filing writ petition. They have relied on the case of Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290) and the case of I.A. Sherwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1049). It is an admitted position that the petitioner is a civil servant and the case-law cited by the learned counsel for the petitioner does in no way support the petition. In case of Abid Mahmood v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 241 others (1996 PLC (C.S.) 1061 para. 6 at page 1064, of the judgment reads as under:-- "The High Court was, therefore, justified in holding that the question of eligibility to be considered for appointment or promotion to a post related to the terms and conditions of service and the jurisdiction of the High Court under Article 199 was ousted on the strength of Article 212 of the Constitution which has a non-obstante clause." Case of Hidayatullah v. Government of Sindh (1994 PLC (C.S.) 336) does also not support the case of the petitioner, as in specific term it is held that the jurisdiction of this Court is barred. The relevant portion at page 337, para. 2 reads as under:-- "By now it is more or less a settled position of law that wherever the jurisdiction of the Service Tribunal exists, it is not open to the aggrieved person to invoke the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, by saying that the order of the departmental authority is without jurisdiction, or it is void, or it is mala fide, or it is in the nature of coram non judice." In case of Mrs. Shahida Zahir Abbasi and others v. President of Pakistan and others (PLD 1996 SC 632) the facts are quite distinguishable and, therefore, this authority does not seem applicable in the circumstances of the present case. The case of Secretary to Government of N.-W.F.P. v. Muhammad Nawaz (1997 PLC (C.S.) 422) is also not relevant for the purpose of deciding the case of the petitioner for the reason that the facts of the reported case are quite different and distinguishable from the case of the petitioner as in the reported case the promotions were made or the basis of examination conducted by the Department itself and the qualified persons were promoted and then the promotions were cancelled. But in the present case no departmental examination was conducted for promotion. The petitioner in the present case has been reverted on account of not possessing the required academic qualification. Whatever the facts may be, we are of the considered view that the petitioner is admittedly a civil servant and in case of reversion of the petitioner, he has to agitate his grievances before the Service Tribunal as the petitioner cannot invoke the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan by saying that the departmental authority is without jurisdiction or is void or is mala fide as when the jurisdiction of any administrative Court or Tribunal exists appearing in clause (1) of Article 212 of the Constitution of Islamic Republic of Pakistan clearly makes-ouster the jurisdiction of this Court to correspond with the impugned orders placed within the jurisdiction conferred on the Tribunal. For the abovesaid reasons, this Constitutional petition is dismissed in limine with no order as to costs. The pending Civil Miscellaneous Application 1278 of 1997 has become infructuous and is dismissed. H.B.T./A-214/K ???????????????????????????????????????????????????????????????????????????????? Petition dismissed.