2003 PLP (C (PLC(CS))

11. Arguments heard. Writ petitions and the annexures appended therewith perused.

12. Regarding the bar of jurisdiction of High Court, learned counsel for the petitioners urged that where an order passed by any authority is unlawful, without jurisdiction or void, there would be no bar to the filing of Constitutional petition in spite of alternate remedy being available the rule that invoking Constitutional jurisdiction was possible only after exhausting all other remedies is a rule of convenience and discretion and not a rule of law affecting jurisdiction. Reference was made in this behalf to:-- (i) Chairman, Central Board of Revenue, Islamabad and 3 others v. Messrs Pak Saudi Fertilizer Ltd. and another (2001 SCMR 777); (ii) Standard Chartered Bank v. Karachi Electric Supply Corporation Ltd through Managing Director. (PLD 2001 Karachi 344); and (iii) Gatron (Industries) Limited v. Government of Pakistan and others. (1999 SCMR 1072).

13. I do not agree with the above argument because Article 175 of the Constitution provides that no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law. Article 199 of the Constitution qualifies the power conferred thereunder on High Court with the words "Subject to the Constitution". Article 212 of the Constitution opens with the non obstinate clause "Notwithstanding anything hereinbefore contained".

14. Constitutional power of judicial review vested in High Court under Article 199 is not inherent as distinct from the judicial power but is subject to limitation provided in the Constitution itself. Hence while exercising said power, Limitation imposed by the Constitution can neither be overlooked nor dispensed with.

15. Therefore, when it appears or is brought to the notice of High Court that a particular order of departmental authority lies within the ambit of Service Tribunal, jurisdiction of High Curt is ipso facto ousted as a result of barring provision of Article 212 of the Constitution and it is not competent on any ground to examine the validity of an order which falls within the jurisdiction of the Tribunal.

16. Authorities referred by the learned counsel for the petitioners neither relate to service matters nor aforesaid aspect of bar of jurisdiction under Article 212(2) of the Constitution was considered to the same. Therefore, they do not apply to the facts and circumstances of this case.

17. It was next argued that the dispute was with regard to the suitability and fitness of the petitioners and respondents No.3 to 6, for promotion. Service Tribunal has no jurisdiction against an order or decision of the Departmental Authority determining the fitness o: otherwise of a person for promotion to a higher post or grade. In support of the said argument reliance was place on:-- (i) Rana Muhammad Asif v. The Secretary to Government of the Punjab, Revenue Department, Punjab Lahore and 4 others (1994 PLC (C.S.) 1331). (ii) Shafi Mughal v. Secretary Establishment Division and others. (2001 SCMR 1446). The above contention is repelled for the reason that the matter in dispute did not relate to the suitability or fitness for promotion and it was also considered as such by the petitioners on account of which earlier order passed by respondent No.1 on 2-8-2002 whereby proceedings of D.P.C. were quashed, was assailed by the petitioners themselves before the Service Tribunal wherefrom the matter was remanded to respondent No. 1 for fresh decision. After the remand when the same view was again expressed by respondent No.1, it does not lie in the mouth of the petitioners to say that Service Tribunal has no jurisdiction to hear appeal against the order of respondent No. 1.

18. Secondly the contention is also misconceived inasmuch as plain reading of the impugned order shows that, dispute before respondent No. 1 was not that of suitability and fitness or otherwise of the petitioners and respondents Nos.3 to 6, to a higher post but the matter was regarding alleged violation of rules and procedure in the selection and that of not considering the case of respondents Nos.3 and 4 for promotion when they were allegedly eligible for promotion and had a right to be considered for promotion.

19. It was held in the case of Muhammad Anees and others v. Abdul Haseeb and others (PLD 1994 SC 539) that where question involved in the matter was consideration of various notifications, rules relating to the appointment or promotion of civil servants and interpretation of section 23 of Civil Servants Act, such matters preeminently fell within the exclusive jurisdiction of Service Tribunal and High Court had wrongly assumed jurisdiction in the case under Article 199 of the Constitution, which did not vest in it. It was further held that question of eligibility for promotion relates primarily to the terms and conditions of service and their applicability to the civil servant concerned and therefore, Service Tribunal has jurisdiction in the matter. Question of eligibility is not excluded from the purview of the jurisdiction of Service Tribunal. It confers a right on a civil servant to be considered for promotion if he possess minimum qualifications as may be prescribed for the eligibility of promotion but question whether he has been rightly selected or not selected on account of fitness to be promoted has been excluded from the jurisdiction of the Tribunal.

20. In this case it was agitated by respondents Nos.3 and 4 that inspite of being eligible for promotion they were not considered and their case for promotion was deferred by the D.P.C. without any justification.

21. Dispute before respondent No.1, therefore, related to service rights of civil servants which are exclusive concern of service Tribunal which, in respect of such matters, is competent to determine all questions arising therefrom, connecting or ancillary thereto, determination of which it necessary for decision of the main dispute including vires of relevant rules, regulations and notifications.

22. The question before respondent No. 1 did not relate to the fitness of petitioners or respondents Nos.3 to 6 for promotion. No order was passed by respondent No. 1 that any of the petitioners, or respondents Nos.3 to 6 were fit or not fit for promotion. High Court is, therefore, not competent on any ground to examine the validity of the impugned order which falls within the exclusive jurisdiction of Punjab Service Tribunal including the ground that the impugned order is without jurisdiction and a nullity because said question can be competently inquired into by the Tribunal. Reference to be made in this behalf to Khalid Mehmood Wattoo v. Government of the Punjab and others (1998 SCMR 2280).

23. The authorities referred by the learned counsel for the petitioners which are mentioned hereinbefore, are, therefore, not relevant as dispute did not relate to suitability and fitness for promotion which matters are excluded from the purview of the jurisdiction of the Tribunal.

24. It was finally submitted by the learned counsel for the petitioners that the orders of promotion of the petitioners were not only made but were also acted upon as after issuance of letters of promotions, the petitioners had joined as Naib Tehsildars. Hence, the said orders could not have been withdrawn. Reliance was placed in this behalf on the Chairman, Central Board of Revenue and others v. Muhammad Malook and 11 others (1991 SCMR 1540), Pakistan through Secretary Ministry of Finance v. Muhammad Hamayat Ullah Farukhi (PLD 1969 SC 407) and Muhammad Mansif and others v. Government of the Punjab Department of Communication and Works Lahore and others (2000 PLC (C. S.) 1070).

25. The above argument is entirely misconceived because it is not a case of withdrawal of order of promotion by the D.P.C. In the present case orders of promotion were quashed by the higher authority and not by the D.P.C. Hence principle of locus poenitentiae is, therefore, not applicable.

26. For the reasons stated above, the impugned order passed by respondent No. 1 falls within the exclusive jurisdiction of Punjab Service Tribunal under Article 212(2) of the Constitution and no writ is competent in this Court. Writ petitions dismissed. H.B.T/Z-186/L Petitions dismissed.