2003 PLP (C (PLC(CS))

SAIYED SAEED ASHHAD, C.J.

In this Constitutional Petition, the petitioner has sought the following reliefs: "(A) To declare that Notification dated 25-9-1984 issued by Respondent No.3 as null and void being violative to the provisions of the Sindh Standard Weights and Measures Enforcement Act, 1975 and Sindh Standard Weights and Measures Enforcement Rules, 1976 and action as to the promotion of the Respondents Nos.4 and 5 is contrary to law and liable to be struck down by this Hon'ble Court. (B) To quash the promotion of Respondents Nos.4 and 5 from the post of Assistant Inspector to Inspector being violative to the Sindh Standard Weights and Measures Enforcement Act, 1975 and Sindh Standard Weights and Measures Enforcement Rules, 1976. (C) To mandate that the Respondents Nos.3 and 4 are under legal obligation to act strictly in accordance with the provisions of the Sindh Standard Weights and Measures Enforcement Act, 1975 and Sindh Standard Weights and Measures Enforcement Rules, 1976 and direct the concerned Respondents to take action for the promotion of the Petitioner purely according to the aforesaid Act and Rules. (D) To grant any relief which this Hons'ble Court deems fit looking to the circumstances of the case. (E) To award cost of petition." The brief facts giving rise to this Constitutional petition are that the petitioner was appointed as Manual Assistant in Weights and Measures Wing on 14-11-1973 before the legislation of the Sindh Standard Weights and Measures Enforcement Act, 1975 and after promulgation of the Sindh Standard Weights and Measures Enforcement Rules, 1976 he was deemed to have been appointed as Assistant Inspector (BPS-4). The grievance of the petitioner is the notification dated 25-9-1984 issued by respondent No.3, whereby he introduced a method of recruitment and promotion for the officers of the Weights and Measures Department in contravention and negation of the statutory rules called Sindh Standard Weights and measures Enforcement Rules 1976 promulgated by notification dated 17-6-1976. The petitioner has also challenged the promotions of respondents Nos.4 and 5 as inspectors in accordance with the notification dated 25-9-1984 on the ground that it was in clear violation of the rules of 1976. The petitioner had assailed the promotion orders of respondents Nos.4 and 5 and had sought their annulment by filing a departmental appeal, which remained undecided for a period of 90 days forcing the petitioner to file an appeal before the Sindh Service Tribunal being Appeal No.92 of 1999. During the pendency of the appeal respondent No.2 by letter dated 8-7-1999 addressed to respondent No.3 issued directives to hold a fresh D.P.C. meeting to legalise the promotions already done, which resulted in dismissal of the appeal as haying become infructuous. After dismissal of the appeal, respondent No. 3 legalised the illegal promotion orders made in pursuance of notification dated 25-9-1984, which according to the petitioner was absolutely illegal and void. Not having been able to secure redress of his grievance, the petitioner has approached this Court by way of this Constitutional petition. We have heard the arguments of M/s. Muhammad Nawaz Shaikh and Ch. Rasheed, the learned counsel for the petitioner and respondents Nos. 4 and 5 respectively, Sarwar Khan, the learned A.A.-G. on behalf of the Official Respondent and have perused the material on record. By consent of the parties. It was decided that the petition would be heard and disposed of on merits at the Katcha peshi stage. It was submitted by Mr. Muhammad Nawaz Shaikh that the main issue involved in this Constitutional petition was with regard to the fitness for promotion, to the post of Inspector as he had completed about 27 years as Assistant Inspector and was qualified to be promoted to the post of Inspector in accordance with the Sindh Standard Weights and Measures Enforcement Rules, 1976 and in view of proviso (b) to Section 4 of the Service Tribunals Act the petitioner was barred from approaching the Service Tribunal for redress of this grievance. Mr. Muhammad Nawaz Shaikh further submitted that the respondents with mala fide intention to cause harm to the petitioner issued notification dated 25-9-1984 whereby he introduced an uncalled for method of recruitment and promotion in complete Negation and Violation of the Mandatory Rules of 1976 to enable the concerned authority to make appointments/promotions according to his illegal discretion and to deprive the petitioner of his right of promotion to the post of Inspector, Weights and Measures, who according to the provisions of the Sindh Standard Weights and Measures Enforcement Rules, 1976 had acquired a vested right to be promoted as Inspector; Weights and Measures on having put in about 27 years of service as Assistant Inspector which was more than five times than the experience of five years required for promotion. Mr. Ch. Rasheed, the learned counsel for respondents Nos.4 and 5, on the other hand, objected to the maintainability of this Constitutional petition on the ground that issue involved in this petition was with regard to the fitness of the petitioner to be promoted to the post of Inspector and submitted that the same could not be determined either by the Tribunal or this Court as it was the exclusive discretion of the employer or the department concerned to see whether a particular civil servant was fit to be promoted to a higher post. In support of his above contention he placed reliance on the cases of (1) Muhammad Anis and others v. Abdul Haseeb and others, reported in PLD 1994 SC 539; (2) Province of the Punjab Through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari reported in PLD 1997 SC 351, (3) Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others, reported in 1991 SCMR 1129; and (4) Aurban Ali Kalwar and 38 others v. S.S.P. Ghotki and 38 others, reported in PLJ 1999 Karachi 154(DB). He further submitted that the petitioner had already approached the Service Tribunal by filing an appeal wherein he had challenged the notification dated 25-9-1984 and promotions of respondents Nos.4 and 5 in pursuance of such notification. This appeal was dismissed as having become infructuous vide order dated 10-7-2000 in view of the letter issued on behalf of respondent No.2 to respondent No.3 wherein the D.P.C. held on 14-11-1998 ordering promotion of respondents Nos.4 and 5 was held to be null and void on the grounds that the then Director was only performing duties of the post of Director General as a stop gap arrangement and was directed to look after only day to day business, the Recruitment Rules framed vide notification dated 25-9-1984 was held to be void, and directions were issued to respondent No.3 to convene a D.P.C. meeting for regularizing the promotions already made. Mr. Ch. Rasheed further submitted that the petitioner neither moved an application for recalling the above order nor challenged the same before the Supreme Court on the ground that it had been wrongly dismissed as having become infructuous as declaration of the notification dated 25-9-1984 as null and void by respondent No.2 was of no value inasmuch as such declaration could have been made only by the Tribunal. It was further submitted by Mr. Ch. Rasheed that after the said order of the Service Tribunal the petitioner has been precluded from challenging the vires of the Rules framed by notification dated 25-9-1984. Mr. Sarwar Khan, the learned A.A.-G. appearing on behalf of the Official Respondents adopted the arguments of Mr. Ch. Rasheed and prayed for dismissal of the petition. After taking into consideration the arguments of the learned counsel for the parties and from a perusal of the material on record it transpires that the main grievance of the petitioner is with regard to the notification dated 25-9-1984, whereby fresh rules were framed for appointment/promotion of the employees in the Sindh Weights and Measures Wing. The petitioner has questioned the authority of respondent No.3 to provide for the qualifications and mode of recruitment/promotion of the employees/officers of the Sindh Weights and Measures Wing by superseding the Rules of 1976 and promulgating fresh rules by means of notification dated 25-9-1984. The f petitioner basically has challenged the notification dated 25-9-1984 relating to the promotions to the post of Inspector. At the time when notification dated 25-9-1984 was enforced, the petitioner holding the post of Assistant Inspector and he could not have any locus standi to challenge the rules framed for the purpose of promotion to a higher post as promotion of a civil servant to a higher post is not a vested right. The only right which a civil servant can claim is to be considered for promotion to a higher post. Basically notification dated 25-9-1984 has laid down the terms and conditions of recruitment and promotion of the employees/civil servants in the Weight and Measures Wing which are relatable to the terms and conditions of service, thus precluding the petitioner from invoking the jurisdiction of this Court under Article 199 of the Constitution in view of the provisions of Article 212 of the Constitution. It is also a settled law that appointment/promotion of a civil servant is to -be governed by, the rules applicable and the conditions required to be satisfied on the, date of appointment/promotion and not on the basis of earlier requirements. In the case of Province of The Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari, supra the Supreme Court pronounced that law has since been well-established that the rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at the earlier date. The Supreme Court further observed that .the respondent (civil servant) was claiming protection of the terms and conditions not of his service but that of the higher post and that he could not have any vested right in respect of the terms and conditions of a post which was higher to the one which he was holding and the respondents could have some connection only on being promoted or appointed but not prior to it. A similar observation was made by the Supreme Court in the cases of (1) Government of N.-W.F.P. Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal, reported in 1990 SCMR 1321; and (2) Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari, supra. The observations and pronouncements made by the Supreme Court in the afore-cited cases are applicable in all fours to the facts of this case as the petitioner who is an Assistant Inspector has challenged that provision of the notification which relate to the conditions and requirements for promotion of officers/civil servants to the post of Inspector in the Weights and Measures Wing when he was holding a post next below the post of Inspector. As such, he has no connection with the conditions and requirements laid down for promotion to higher post. Another question which requires determination is whether this Court in the facts and circumstances of the case would have jurisdiction to entertain a Constitutional petition under Article 199 of the Constitution in view of the bar contained in Article 212 of the Constitution. In this connection it is to be observed that the petitioner had challenged the vires of the notification dates 25-9-1984 which had introduced the method, conditions and requirements for recruitment and promotion for employees/civil servants in the Weights and Measures Wing. Challenging or assailing the validity or vires of Service, Rules, Notification and the eligibility of a civil servant to be considered for promotion to a higher post are issues which are to be agitated before the Service Tribunal. If any authority is required in support of the above the same is available in the case of Muhammad Anis and others v. Abdul Haseeb and others, supra. The next ground urged by Mr. Muhammad Nawaz Shaikh was that the question involved for determination was the fitness of the petitioner for promotion to the post of Inspector and the determination of such question was beyond the scope of jurisdiction of the Service Tribunal in view of section 4(6) of the Service Tribunals Act thus forcing the petitioner to invoke the jurisdiction of this Court for determination regarding his fitness for promotion. This contention is also without any force. The Supreme Court to the case of Muhammad Anis and others v. Abdul Haseeb and other, supra observed that the question of fitness was a subjective evaluation on the basis of objective criteria and an opinion formed by the competent authority which could not be undertaken by the Service Tribunal or by a Court. It was also observed that the question of fitness pertained to the competency of the person concerned for promotion which was to be decided by the competent authority. The petitioner had already filed an appeal before the Service Tribunal wherein he had questioned the validity of the notification dated 25-9-1984 whereby rules/method for recruitment and promotion of the employees/civil servants in the Weights and Measures Wing were promulgated and had also challenged the legality of the promotions of respondents Nos.4 and 5 as Inspectors in accordance with the rules/methods promulgated by notification dated 25-9-1984. This appeal was dismissed as having become infructuous on the ground that the competent authority had set aside the promotions and had directed for holding a fresh D.P.C. for promotion to the post of Inspector. The question of vires of notification dated 25-9-1984 was still open and the petitioner ought to have pursued his appeal before the Service Tribunal. On it being dismissed as having become infructuous, the petitioner neither moved any application for recalling the order of 'dismissal of the appeal on the ground that one of the questions agitated before the Service Tribunal relating to the vires of notification dated 25-9-1984 was still available to him nor filed any petition for leave to appeal before the Supreme Court against the Judgment/order of the Service Tribunal. In the circumstances, by accepting the judgment/order dated 10-7-20110 of the Service Tribunal the petitioner precluded himself from challenging the vires of notification and he is deprived from further challenging the vires of the notification dated 25-9-1984. By a short order dated 31-1-2002 we had dismissed the petition in limine alongwith the miscellaneous application pending therein for reasons toll be recorded later. These are the reasons for the said short order. H.B.T./M-361/K Petition dismissed.