2001 PLP (C (PLC(CS))

By this application under Order. XXXIX, Rules 1 and 2 read with section 151, C.P.C., the plaintiff seeks an interim injunction against defendants Nos. l to 3 restraining them from implementing and enforcing the result of the meeting of Provincial Selection Board-II held on 12-10-2000. The plaintiff has prayed for further order restraining the defendants from notifying defendants Nos.4 to 6 as Officers of Grade (BPS-19). The claim of the plaintiff is that he is an employee of the Communication and Works Department, Government of Sindh, employed as Executive Engineer (BPS-18) with effect from 18-1-1987 and presently posted as Executive Engineer, Highways at Thatta. It is further alleged 5 vacancies existed in the Communication and Works Department for the posts of Superintending Engineers (BPS-19). Plaintiff claims that the Communication and Works Department prepared a working paper for placement before the provincial Selection Board-11, wherein the Seniority position of the plaintiff is No.5 after Abdullah Shah, Sarfraz Shah, Abdul Kadir Shah and Abdul Razaq Domki. Plaintiff asserts on the basis of information received by him through reliable sources that the meeting of the Provincial Selection Board-11 held on 12-10-2000 to consider the fitness of the Officers' for the posts of superintending engineers. The first three incumbents mentioned above were superseded. The case of Abdul Razaq Domki was deferred, as Departmental Enquiry was pending against him, thus, the plaintiff' is the senior most officer eligible for promotion to the post of Superintending Engineer (BPS-19). Plaintiff relies upon the fact that lie has completed 10 years qualifying service and against the basic requirement of 60 marks, Plaintiff has 68 marks to his credit. However, his case for promotion by the Provincial Selection Board-II was not considered and he has been superseded by Provincial Selection Board-II recording the following remarks:-- "(i) In last 5 years he remained awaiting, for posting order and under suspension for 2 years. The remaining two ACRs indicate him careless and below the average." Plaintiff claims that the above remarks are neither factually correct nor legally sustainable. In support of which plaintiff has relied upon Synopsis covering the period of 5 years which the plaintiff claims are attributable to the defendants and for which it is alleged that the plaintiff cannot be held answerable. In the plaint the plaintiff has also claimed that on the basis of the change of the Promotion Policy of the defendants the ACRs for the previous five years are not the only criteria for determination of fitness. Under the present policy- the present criteria for evaluation is the requisite number of marks attained on the basis of overall performance of an Officer for the purpose of promotion and the purpose of determination of fitness of plaintiff. The old Promotion Policy adopted and followed by the Provincial Selection Board-11 for the determination of fitness- of plaintiff is illegal as the same is no longer applicable and has no validity. - Against the existing vacancies two posts are reserved for the officers senior to plaintiff as their cases were deferred pending the Departmental Enquiry. For the remaining three posts defendants Nos.4, 5 and 6 who are Officers junior to plaintiff have been cleared for promotion as Superintending Engineers (BPS-19). Plaintiff further claims to be entitled to promotion and is aggrieved by the negative determination under the prescribed conditions under the previous promotion policy which is no longer applicable to his case and directly affects the determination of his fitness for promotion to the post of superintending engineer. On these facts plaintiff instituted the above suit for declaration and permanent injunction with the prayers for declaration that the meeting of Provincial Selection Board-11 held on 12-10-2000 at Karachi be declared null and void and the recommendation as to the supersession of plaintiff for the post of Superintending Engineer (BPS-19) is also null and void and illegal. Plaintiff also seeks further reliefs for re-evaluation of his fitness, to reserve the post of (BPS-19) till the claim adjudicated alongwith the further prayer, for injunction against implementation of the result of determination of fitness of plaintiff for his promotion of BPS-19 as a result of the meeting of Provincial Selection Board-II held on 12-10-2000. The original case file was misplaced after the grant of interim order and reconstructed in pursuance to the order of this Court on 15-12-2000. Learned counsel for the plaintiff in his argument stressed upon the fact that the question of fitness cannot be agitated before the Federal Services Tribunal and the question of determination of seniority has been carried on by the Departmental Promotion Committee-II contrary to the applicable policy, according to him the plaintiff having 68 marks to his credit is entitled to be promoted to the post of Superintending Engineer (BPS-19). Learned counsel placed reliance on the case laws reported in 1995 SCMR 881; 1983 PLC (C.S.) 652; NLR 1978 (Service) 249; 1993 PLC (C.S.) 937; 1994 SCMR 759; 1995 SCMR 650 and 1999 PLC

122. Counter-affidavit is filed by defendant No.6 objecting to the maintainability of the suit and the jurisdiction of the Court to determine the fitness or otherwise of the plaintiff as the same is determined by the Departmental Selection Board-II. Defendant No.6. It is further objected that the criteria for promotion being suitability and fitness the same cannot be determined by this Court. After this exercise has been carried out by the Departmental Selection Board-II the same cannot be substituted by the Court. Reliance is also placed on the bar contained under Article 212 of the Constitution. Mr. Raja Qureshi, the learned Advocate-General, Sindh appearing for defendants Nos. 1, 2 and 3 argued that the suit is hit by Article 212 of the Constitution and if the remedy of the plaintiff lies with the departmental authorities and the present suit is not maintainable as the exercise for determination of fitness of the incumbent to a post cannot be undertaken by the Court in a civil suit to perform the function of the departmental authority. In support of his contention he places reliance on PLD 1980 Quetta 68; 1998 PLC (C.S.) 1175; 1999 PLC (C.S.)

122. He has further argued that promotion is not a right under the law and the present suit is barred under section 42 of the Specific Relief Act, Reliance is placed on PLD 1978 Karachi

703. The learned Advocate for defendants Nos.4 to 6 has advanced additional arguments that as no notification is issued nor any cause of action accrued in favour of plaintiff. That promotion is not a matter of right under law. He placed reliance on PLD 1978 Karachi

703. He states that this is a service matter, 'it' falls within the jurisdiction of the Sindh Service Tribunal and barred by the provisions of the Sindh Services Tribunal Act, 1973. The plaint being barred by the said law is liable to be rejected under the provision of Order 7, Rule 11 of the Civil Procedure Code, 1908. The grievance of the plaintiff as set forth in paragraph No.6 of his plaint pertaining to the question, of application of the policy covering his case is reproduced as under:-- "

6. It is further submitted that these reasons are not legally sustainable for the reason that Government of Sindh has changed the Promotion Policy whereunder the previously 5 years ACRs used to be considered for determination of the fitness. The Present Promotion Policy lays down qualification whereunder the officer qualifies the requisite marks and that qualification is based on evaluation of his ACR and overall performance as an officer. The Formula of consideration 5 years ACRs is now existing only for the determination of entitlement to Move-over and not promotion. Thus, it does show that the Provincial Selection Board-11 has determined the fitness of the plaintiff under the Promotion Policy which was absolete and no more in force " A bare reading of the above paragraph reveals that this is primarily a question pertaining to the application of the condition of service of the plaintiff. The question of determination of fitness is then to follow in pursuance to the terms and conditions applicable as laid down under either of the Policies. The plaintiff has placed reliance on section 4(b) no appeal shall lie to, a. Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade; and .... On the basis of the above it has been stressed that the only forum available under the law for redressal of grievance of the plaintiff is the Civil Court. The plaintiff is aggrieved by the application of the terms and conditions contained in the Promotion Policy and is seeking the application of present Promotion Policy. This obviously is not the question of determination of the fitness simpliciter but first involves the question of determination of the terms and conditions applicable for the purpose of evaluation of fitness. The fact of determination of fitness is then to follow when one or the other policy providing for the terms and conditions prescribed under the said policy are applied. As such in this case the questions involved are the application of the terms and conditions and the consideration of the plaintiff's case as prescribed under the conditions laid for determination of the fitness of the plaintiff. In the case of Zafar Iqbal v. M.G.O., M.G.O. Branch, G.H.Q. Rawalpindi and 3 others 1995 SCMR 881, the point involved was only that the petitioner was denied promotion by Departmental Promotion Committee on the ground that he was not fit for promotion on account of certain adverse entries in his ACRs. The petitioner seeking promotion on the basis of his seniority was aggrieved by the decision of the Tribunal against dismissal of his appeal in view of the bar contained in section 4(1) of the Services Tribunals Act, 1973 as the result of which the Tribunal has no jurisdiction to go into the question of fitness or otherwise of a civil servant to hold a particular post. The Hon'ble Supreme Court upheld this view and leave to appeal against the findings of the Service Tribunal was refused. The instant case pertains to the application of one or the other Promotion Policy which is not a question of determination of fitness but is the question which one of the policy is applicable for the purpose of determination and the application of the conditions laid down under that policy and applicable which forms the basis of determination of fitness and as such is distinguishable from the facts of the present case. In the case of Ghulam Sarwar v. Punjab Province and others NLR 1978 Service 249, where a time-barred appeal was filed without reasonable explanation for the delay the Punjab Service Tribunal was pleased to leave the question of determination of fitness to be decided by the departmental authority and observed as under-- "It has nowhere been alleged by the appellant that there had been no determination as to his fitness or otherwise, appellant conceded before us that he had been considered but wrongly ignored. We cannot go into merits of such determination by the Department in the case of promotion. " This report is distinguishable as the present case involves the question of application of terms and conditions contained in the policy is the grievance, which falls within the jurisdiction of the Services Tribunal. The case of Bashir Ahmed v. District Judge, Gujranwala an others 1983 PLC (C.S.) 652, pertains to the powers of the District Judge to hear the appeal against the decision of Senior Civil Judge promoting the petitioner to the post of Nazir of that Court and the effect of the notification dated 10-3 1980 whereby Selection and Promotion Committees were established to deal with initial appointments and promotions to posts in Grades 1 to 15 belonging to the process Serving Establishment. The notification was not published in the gazette. The Division Bench of the Hon'ble Punjab High Court at Lahore upheld the order of the learned District Judge, Gujranwala and was pleased to dismiss the appeal taking the view that in the cases involving the right of a person to be considered 'for promotion as apart from his right to challenge his fitness or otherwise to be promoted, an appeal to the tribunal is maintainable. Reliance was placed on the case of Muhammad Afzal and others v. Province of the Punjab and others 1977 PLC (C.S.T.) 195; 1993 PLC (Civil Service)

937. In the case of Jamal Khan Jaffar and another v. Rahim Shah and 3 others 1994 SCMR

759. The Hon'ble Supreme Court by allowing the appeal has held as under:-- "There is nothing either in the language of Article 212 of the Constitution or section 4 of the Balochistan Service Tribunal Act, 1974, to indicate that the Tribunal cannot give relief in respect of a grievance brought before it by a civil servant relating to his terms and conditions of service, unless such grievance is founded on a right recognised by the service law as a 'vested right'. However, for enforcement of a right, it is not at all necessary that the right must be a vested one. If a person is wrongfully deprived of something or is denied something to which he is entitled to or his title to something is wrongfully affected he is said to have suffered a legal grievance and if a forum is provided for redress, he can successful impugn the wrongful action. We are, therefore, of the view that notwithstanding the fact that seniority in service of a civil servant has been specifically declared under section 8 of the Act as not a vested right of the civil servant, a civil servant who has been wrongfully denied his rightful seniority in service is entitled to seek redress before the Service Tribunal in a properly instituted proceedings." In the case of Muhammad Azad Khan and others v. The Secretary, Azad Jammu and Kashmir Council and others 1999 PLC (C.S.)

122. The role of the Departmental Promotion Committee leading to the question of creation and recognisition of right of the incumbent to have his case for promotion placed for consideration before the competent Authority has been examined and on consideration of the function of the Departmental Promotion Committee the legal value its recommendation carry, the right so recognised is protected and held to be actionable so as to avoid arbitrariness but to be based on sound reasons the validity whereof is open to scrutiny by the Service Tribunal for redress of the grievance of an aggrieved employee. While holding that the Service Tribunal is the competent forum in the case involving selection for promotion, it has been held as under:-- "It is true that Departmental Promotion Committee is only a recommendatory body and the competent Authority is not bound to accept a recommendation made by it. There is no doubt about that. But it cannot be accepted as a correct proposition that such a recommendation does not have any legal value at all. It may not create a right in strict juristic sense but it cannot be denied that the recommendation of the Selection Committee has a peculiar role to play for the selection process. Power of the Government or the competent Authority to order the promotion of a civil servant to a post in higher grade, particularly in respect of selection posts, is dependent on the recommendation of the relevant Selection Board. Just as it is true that the recommendation is not binding, in the similar way it is also true that the competent Authority cannot act independently of the Selection Board. It, therefore, follows that the promotion to a selection grade, as the present case is, is the outcome a joint exercise of the Selection Board and the competent Authority. We have already observed that arbitrariness has to be avoided. Thus, seen in the overall context it is clear that the correct legal position is that if the recommendation of the Departmental Promotion Committee has to be rejected, there must exist some reasons. These reasons should be such that the action based on them it follows that the validity of the reasons can be gone into by the said Tribunal. " In the case of Ahsanullah A. Memon v. Government of Sindh through Chief Secretary and 3 others 1993 PLC (C.S.) 937, where the question was not limited to the fixation of seniority the Hon'ble Supreme Court held that appellant has the locus standi to insist that the Government should act in accordance with Service Laws. While considering the effect of the determination of seniority Mr. Justice Ajmal Mian (as he then was) observed as under: "In my view, the question in the present case is not simpliciter fixation of seniority inter se between the appellant and respondent No.4, but the point in issue is, as to whether respondent No.4 could have been permanently absorbed in the Education Department with retrospective effect by virtue of section 24 of the Act, which admittedly had adversely affected the appellant as to his prospects of future promotion. The appellant may not have any vested right in a particular seniority in view of above section 8 of the Act but nevertheless, he has sufficient locus standi to insist upon that the Government should act in accordance with Service Laws/Rules and not in contravention thereof as to affect him adversely, in purported exercise of its plenary power under section 24 of the Act." In the case of Walayat Ali Mir v. Pakistan International Airlines Corporation (PIAC) and others PLJ 1995 SC 387, the Hon'ble Supreme Court was pleased to allow the appeal and set aside the judgment of the Federal Service Tribunal against the order refusing the promotion to respondent No. l in Group IX. The question of exercise of discretion by the departmental authority was examined and the guidelines are laid down for exercise of the discretion to advance the purpose of the policy. It was observed that the authority exercising discretion should take into consideration and advance the aim arid object of the enactment, rule or regulation under which it is authorised to act as under:-- "The discretion is not to be exercised on whims, caprices and moods of the authorities. It is now well-settled that exercise of discretion is circumscribed by principles of justice and fairness. The authority exercising discretion should take into consideration and advance the aim and object of the enactment, rule or regulation under which it is authorised to act. 1t should not act in complete negation of the object of such law, rule, regulation or established policy otherwise it will not be fair, reasonable and just exercise of power. The pre condition imposed for exercise of discretion should be honoured and respected unless for valid reasons they have to be discarded. Considering the present controversy in the light of the above principles, it emerges that prima facie grounds have been established that the competent Authority on the existing material could not have been so satisfied to justify the exercise of discretion and rejecting the recommendation of the Board. It was for the respondents to show to the Court that material or valid reasons existed on the basis of which the competent Authority had genuinely formed the opinion which it claims to have made. The respondents have not succeeded in establishing it. The contention that no employee has a vested right in promotion may be correct but where rules, regulations and policy have been framed for regulating appointment and promotion, any, breach or deviation for mala fide reasons or due to arbitrary act of the competent Authority, the aggrieved person would be entitled to challenge it. In Ch. Muhammad Insha Ullah and others v. Chief Conservator of Forests (P&E) and others PLD 1988 SC 155, it was observed that Even if, no vested right exists, if a principle of policy is given effect to and the principle of policy is such which has not matured into a vested right, none can say that in the absence of the vested right, the principle of policy should not be recognised or enforced. Therefore, in the light of the above observation, the regulation providing for recommendation of the Promotion Board for promotion should have been taken into consideration which cannot be brushed aside lightly without due reason. Respondent No.2 was inducted irregularly, the charge held by the appellant and respondent No.2 was inter-changed, even after the induction of respondent No.2 the Promotion Board for the second time recommended the appellant for promotion, respondent No.2 was never recommended for promotion and yet he was absorbed in Group IX against a permanent vacancy. These facts go a long way to point out the illegalities, irregularities and breach of regulation without any just and reasonable ground leading to the conclusion that the impugned order of respondent No.l was arbitrary, unfair and devoid of good faith. By such act, the appellant was deprived of promotion which he was entitled under the Regulation' and under the above circumstances the case was on calling for the exercise of its jurisdiction by the Federal Service Tribunal in favour of the appellant." In the case of Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC

153. The Hon'ble Supreme Court was pleased to up hold the judgment of Sindh High Court dismissing the petitions on the ground that the matter. of determination of the vires of rules having the effect of altering the terms and conditions of Service was within the jurisdiction of the Service Tribunal it has been given the exclusive jurisdiction to do so and the contention that in such case no appeal to the Service Tribunal was competent in view of section 4(a) and (b) of the Service Tribunal Act, 1973 did not find favour. The Hon'ble Supreme Court was pleased to observe that the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. The reports of Muhammad Hashim Khan and others v. Province of Balochistan and others PLD 1976 Quetta 59 and Fazal Elahi Ejaz and others v. Government of the Punjab and others PLD 1977 Lahore 549 were cited with approval. In the report Syed Afzal Muhammad Farooq v. Secretary (Establishment Division) Government of Pakistan and others 1998 PLC (C.S.) 1175, referred to by both the sides in this case where mala fides were alleged by the petitioner due to ignoring of the prescribed procedure as laid down in "Guide to performance Evaluation" for the purpose of determining the fitness of the petitioner, the Division Bench of this Court in exercise of its power under Article 199 of the Constitution on arriving at a conclusion that the case of the petitioner required consideration as he was eligible for promotion left the exercise of determination of fitness to be conducted by the competent authority and held that "keeping in view PLD 1978 Karachi page 703 (Muttaqi Hussain Rizvi v. Province of Sindh) duly ' approved by a Full Bench of this Court in Abdul Bari v. Government of Pakistan PLD 1981 Karachi 290 at page 297 and also being mindful of the aspect that it is only the competent Authority who could form an opinion in relation to the fitness of a person to be promoted and we cannot substitute our opinion to the opinion of the competent authority, nor can any Tribunal substitute its opinion in relation to the fitness of a person". In view of the above discussion it is clear that the question of the determination as to which of the policy prescribing the relevant terms and conditions is a question of the determination of application of the terms and conditions of service under the provision of section 4 of the Sindh Service Tribunals Act, 1973. This being the position the plaint filed is being barred by express provision of law is hit by Order VII, Rule 11 of the Civil Procedure Code, 1908, which provides for, amongst other in a case where the suit is barred by law. In the case of Burmah Eastern Limited v. Burmah Eastern Employees Union and others PLD 1967 Dacca 190, it has been held as under:-- "The first question that strikes one is that although under Order VII, Rule 11, of the Code of Civil Procedure, it is the duty of the Court to reject the plaint if, on a perusal thereof, it appears that the suit is incompetent, that parties to the suit are at liberty to draw Court's attention to the same by way of an application. The Court can, and in most cases, does hear lawyers on the points involved in the application. In fact, this is what has happened in the present case. The principles involved are two-fold: In the first place, it contemplates that a still-born suit should be properly buried, at its inception, so that no further time is consumed on a fruitless litigation. Secondly, it gives plaintiff a chance to retrace his steps, at the earliest possible moment, so that, if permissible under law, he may found a properly constituted case-- Order VII, Rule 11 of the Code, as quoted above, enumerates certain categories under which the Court is called upon to reject a plaint, but, it is obvious that they are not exhaustive. It appears from the language of Rule 11 of Order VII that it requires that an incompetent suit should he (aid at rest at 11,e earliest moment so that no further time is wasted over what is bound to collapse as not being permitted bylaw. A suit may be specifically barred by law and, in such an event the matter would come under the express terms of clause (d) of rule 11 of Order VII of the Code. But, even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has an inherent jurisdiction to reject the plaint. In view of the case law discussed above it is now settled law that the matter .of determination of fitness of an incumbent is only to be determined by the departmental authority as the fitness of a person for appointment to a particular post is a matter which is not liable to be regulated in the proceedings before any Civil Court or before the High. Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution arid these matters lie within the domain of the prerogative right of the Government to select persons found suitable for appointment. The competent authority in the Government in empowered to appoint or promote any person to hold any post or office. This' power is protected by provision of Article 212 of the Constitution and regulated by the legislation pertaining to Civil Services. The power is to be exercised in a judicious manner and the above case law confirms that arbitrariness is not to be allowed to prevail. It has further been settled that in case the promotion or selection is based on the conditions prescribed the same amount to condition of service and the right of the aggrieved incumbent to trove the Service Tribunal for redress of his grievance under the law is upheld. The Civil Courts or the superior Courts in the exercise of the Constitutional jurisdiction have exercised restraint in the cases involving questions of Fitness or otherwise of a person to be appointed or hold a particular post and the bar under Article 212 of the Constitution applies in such cases. On interpreting these provisions in conjunction with the provision of scion 10 of the Sindh Civil Servants Act, 1973 which provides that every Civil Servant shall be liable to serve anywhere within or outside the Province or in any post under the Federal Government or any Provincial Government or local authority or a Corporation or a body of set up or established by any Government. In view of this liability of the Civil Servants to serve in any post, the claim of Civil Servant to be appointed to a particular post or to hold a particular post cannot be agitated before the Civil Court being contrary to the express provision of law. Unless it can be shown that some legal right pertaining the condition of service exists. The conditions of service are duly protected and the aggrieved Civil Servant can prefer his appeal before the Services Tribunal. Pre-conditions and qualifications prescribed for the incumbents to hold a particular post creating the right of such incumbent to have his case placed for consideration before the competent authority is also settled and if aggrieved the incumbent has vested right and/or locus standi to seek his remedy by way of an appeal before the Service Tribunal. The Injunction as prayed for is also hit by the provisions of section 56(d) of the Specific Relief Act, 1877 and cannot be granted. It is settled law that plaint in a civil suit can be rejected at any stage and in view of the above report no fruitful purpose is served by prolonging the litigation that is expressly barred by law. The instant case is a case is one where it is barred by law already discussed hereinabove the plaint is liable to be rejected. Accordingly, the plaint filed in the above suit is hereby rejected under the provisions of Order VII, Rule 11 of the Civil Procedure Code, 1908 alongwith the listed applications and the interim order granted earlier is hereby vacated. Q.M.H./M.A.K./H-37/K Plaint rejected.