2001 PLP (C:S (PLC(CS))

The petitioner, a civil servant, being aggrieved of non-fixation of his seniority in terms of the order of the Establishment Division, Government of Pakistan contained in letters dated 6-6-1997, 1-8-1998 and 14-12-1999 through this petition has sought direction to respondent No.2 for the implementation of the abovesaid orders in letters and spirit and in the light thereof determine his seniority for the purpose of next promotion. The Section Officer, Establishment Division, has informed the Court that the petitioner was initially inducted in Grade-17 as Scientific Officer on the recommendation of the Federal Public Service Commission, and in the year 1997 when he was discharging his function as Assistant Drug Controller was transferred to the Ministry of Health and subsequently having been absorbed in the said Ministry was promoted as Deputy Drug Controller. He has clarified that in the case of transfer of an employee from one cadre to another cadre under the policy of the Government, the incumbent will retain his original seniority but if such transfer is ordered on the request of the incumbent then his seniority shall be reckoned from the date of his induction in the new cadre. He added that since the transfer of the petitioner in the Ministry of Health was not on his request, therefore, he would not loose his seniority. On the contrary, Deputy Secretary, Ministry of Health submitted that the Establishment Division at the time of absorption of the petitioner on the Ministry of Health, expressed opinion through letters dated 19-11-1978 and 14-7-1988 that the seniority of the petitioner would be considered from the date of his absorption in the Ministry of Health.

2. Learned counsel appearing on behalf of the respondents have vehemently argued that since the matter relating to the seniority of the etitioner has attained finality in the light of the letter dated 19-11-1978 and 14-7-1988 issued by the Establishment Division, therefore, the subsequent letters dated 6-6-1997, 1-8-1998 and 14-12-1999 issued by the Establishment Division would not be benefited to him in the matter of seniority and the Ministry of Health is not bound to give effect to the said letters and determine the seniority of the petitioner accordingly. Learned counsel while placing reliance on Asadulldh Rashid v. I-Iaji Muhammad Munir and others (1998 SCMR 2129). Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280) and Sarfraz Ahmad Hiraja v. Water and Power Development Authority and others (1999 SCMR 2828) has contended that the matter being related to the terms and conditions of service of the petitioner as a civil servant would not e adjudicatable by this Court in its Constitutional jurisdiction and, therefore, this petition being barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1,973, is not I maintainable.

3. Learned counsel for the petitioner on the contrary while placing reliance on Finance Secretary, Government of Pakistan, Islamabad and 2 others. v. Shahid Hussain and others (1992 SCMR 77), Muhammad Azam Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others (1992 PLC (C.S.) 637), Khaliq-uz-Zaman Chaudhry, Civil Judge 1st Class, Lahore and 72 others v. Government of the Punjab (1993 PLC (C.S.) 1322), and Ghulam Hussain Baluch v. Liaqat Ali Baloch (1999 PLC (C.S.) 397) has contended that the direction being sought by the petitioner for the implementation of the order of Establishment Division by the Ministry of Health would have no nexus with the terms and conditions of service of the petitioner, therefore, Article 212 of the Constitution is not attracted. He has vehemently argued that this Court in exercise of its power of judicial review can issue appropriate direction to the Ministry of Health for the implementation of the orders of the Establishment Division; as the order of said Division having supremacy under the Rules of Business of the Federal Government would be binding on other Ministries.

4. Having heard the learned counsel for the private parties and the learned Standing Counsel as well the departmental representatives, I am clear in my mind that the dispute of seniority raised by the petitioner in the present petition relates to terms and conditions of service of a civil servant, as provided under Civil Servants Act, 1973, therefore, this Court is not supposed to entertain and adjudicate such disputes due to bar contained under Article 212-of the Constitution. The Establishment Division and the Ministry of Health have taken a contradictory stand regarding the claim of seniority of the petitioner on the date of his absorption in the Ministry of Health. Anyhow the petitioner after absorption in the Ministry of Health as Assistant Drug Controller was subsequently promoted as Deputy Drug Controller and, therefore, suffered no loss in his service career and only for the purpose of next promotion in his present cadre was seeking benefit of his service as Scientific Officer on` the strength of the view taken by the Establishment Division.

5. Be that it may, in view of the fact that the matter being related to terms and conditions of service cannot be agitated before this Court the petitioner may, if so advised, invoke the jurisdiction of Service Tribunal for the purpose of determination of his seniority. For the foregoing reasons, I without commenting upon the merits of the case lest prejudice the petitioner before the departmental authorities or the Service Tribunal, as the case may be, dispose of this petition being not maintainable. H. B. T. /K-80/L ???????????????????????????????????????????????????????????????????????????????? Petition dismissed