1983 PLP (C (PLC(CS))

4. Learned counsel for the contesting‑respondent No. 3 on the other hand submitted that the order passed by the learned Senior Civil Judge, Gujranwala was in violation of notification dated 10th March, 1980 issued by the Provincial Government, constituting Promotion Committees. It was also submitted that the learned District Judge under Chapter 18‑A of the High Court Rules and Orders, Volume‑I is competent authority to hear appeal against the order of the Senior Civil Judge, because the existing rules are not. repugnant to the provisions of Civil Servants Act. It was submitted that the order passed by the learned District Judge in appeal being final the petitioner ought to have approached the Punjab Administrative Tribunal for the relief claimed in this petition. It was also submitted that the learned District Judge had remanded the case to the competent authority for fresh decision: the petitioner's case would be considered on merits by the competent authority and decided in accordance with law, therefore, this Court may not interfere with the order in the exercise of the Constitutional jurisdiction of this Court. He relied on Muktada Karim, etc. v. Government of Pakistan and another (P L D 1981Lah. 359), Abdul Bari v. Government of Pakistan and 2 others (P L D 1981 Kar. 290) and Ghulam Rasool v. Province of the Punjab (P L D 1982 Lah 264 .).

6. I have considered the arguments advanced by learned counsel for the parties and have seen the documents on the file. The first question that needs examination in this case, whether this petition is maintainable in view of the provisions of Article 212 (2) of the Constitution of the Islamic Republic of Pakistan. For facility of reference Article 212 relevant to the extent is reproduced hereunder : ‑ "Administrative Court.; and Tribunals.‑(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of‑ (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including discip linary matters); (b)

(c)

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all pro ceedings in respect of any such matter which may be pending before other Courts immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court, shall abate on such establishment. (3)

. It is evident that this Article provides for establishment of Adminis trative Courts or Tribunals having exclusive jurisdiction to deal with matters relating to terms and conditions of service of persons in service of Pakistan and non obstante clause for other Courts to entertain and deal with the matter which falls within the jurisdiction of such Administrative Courts or Tribunals. As envisaged in this Article the Punjab Administrative Tribunals Act IX of 1974 was promulgated. Section 4 of the Act provides for appeals to Tribunals by Civil Servants aggrieved by final orders whether original or appellate made by the departmental authorities in respect of the terms and conditions of their service. Proviso (b) to this provision reads: "No appeal shall lie to Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade". It is therefore, clear that as the dispute in the case relates to promotion of the petitioner to a higher post or his appointment to higher post the matter is covered by proviso (lid' to subsection (1) of section 4 of the Administrative Tribunals Act IX of 1974. The Tribunal, therefore, had no jurisdiction to hear appeal against, an order passed in the matter relatable to the promotion of the petitioner to a higher post. This Court is, therefore, competent to examine the vires of the impugned order in its Constitutional jurisdiction. It is, however, observed that the petitioner may not be necessarily aggrieved against an order depriving him of his vested or juristic right m the strict sense of the term to invoke Constitutional jurisdiction of this Court but he can maintain his petition if he is aggrieved of an order adversely affecting his entitlement to hold a particular post.

7. The next question which requires consideration is whether the learned District Judge had the jurisdiction to hear appear/petition against the order of the learned Senior Civil Judge, dated 10th March. 1980 promoting the petitioner or appointing him to a higher post of Civil Naazar. It is significant to point out that before promulgation of Punjab Civil Servants Act VIII of 1974 for regulating the terms and conditions of appointment of Civil Servants in the Province the subordinate services attached to Civil Courts were regulated by rules embodied in Chapter 18‑A of High Court Rules and Orders: Volume I. Para. `X' of this Chapter provides right of appeal to aggrieved employee before the District Judge against the order passed by any Court subordinate to him except Court of Small Causes and appeal to the High Court in case of order passed by the District Judge. Last para. of sub‑para. (3) of para. X thereof provides :‑ "Nothing in these rules debars the, High Court of a District Judge, from altering, if deemed fit, any order of punishment or appointment not provided for above which may be passed by a District Judge, Senior Subordinate Judge or the Judge of a Small Cause Court in respect of ministerial or menial establishment when an aggrieved per son petitions or otherwise. District and Sessions Judges should not therefore, withhold any petition addressed to the High Court whether an appeal lies to it in the case or not under these rules. In a case in which no appeal lies the District and Sessions Judge should forward it without any comments and relevant documents unless, he wishes to do so or if so required by the High Court." The District Judge therefore, had the jurisdiction under these rules to beat appeals/petitions against the orders passed by the Subordinate Court to him. It is now to be seen whether the enforcement of Civil Servant Act VIII of 1974 has saved or repealed these rules, if so, to what extent. Section 23 of the afore‑mentioned Act provides :‑ "

23. Rules.‑‑(1) The Governor, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act. (2) Any rules, orders or instructions in respect of any terms and conditions of service of civil servant‑ duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall; in so far such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act." It means that only those rules, in respect of the terms and conditions of service of Civil Servants issued by the competent authority prior to the enforcement of the aforesaid Act were saved which were not inconsistent with the provisions of the Act. Under section 21 of the aforementioned Act no appeal or representation would lie on matters relating to the determination or fitness of a person to hold a particular post or to be promoted to a higher post or grade. So to this extent the relevant rules of the High Court Rules and Orders referred to above are inconsistent to the provisions of Act VIII of 1974.

8. The last question which needs examination in this, case is whether the order passed by the learned Senior Civil Judge promoting the petitioner suffered from want of jurisdiction, if so, whether writ should issue to annul the impugned order of the District Judge and allow the order of the learned Senior Civil Judge to stand in the field. Undoubtedly under section 23 of the Civil Servants Act, 1974 the Punjab Civil Servant (Appointment and Conditions of Service) Rules, 1974 were promulgate and enforced w. e. f. 28th August, 1974. Rule 4 envisaged constitution of Promotion Committees whereas rule 9 contemplated appointments by promotion to posts in specified grades on the recommendation of the Promotion Committees. Admittedly in the instant case the Promotion Committees were constituted on 10th March, 1980 as notified in Gazett No. SO (Cab)/III‑1‑11/80 whereby appointment and promotions of posts in grade 1 to 15 belonging to process‑serving establishment were require to be made by the afore‑mentioned Promotion Committees. The learned Senior Civil Judge, Gujranwala on 10th March, 1980, therefore, had n jurisdiction to promote or make appointment to a higher post without recommendations of the Promotion Committees which stood already constituted. The order promoting the petitioner as Civil Naazar on 10th March, 1980 was passed by a departmental authority not competent to do so, as such the order would be coram non judice.

9. The case, entitled Muhammad Ismail v. Province of Punjab, relied by learned counsel for the petitioner and the cases, namely, Muktada Karim, etc. v. Government of Pakistan and another, Abdul Bari v. Government of Pakistan and 2 others and Ch. Ghulam Rasool v. Province of Punjab cited by learned counsel for the respondent are distinguishable, and not helpful in the circumstances of the instant case because the orders passed by the departmental authorities in this case related to appointment of the petitioner to a higher post, which are not assailable in appeal before the Administrative Tribunal being hit by the provisions of proviso (b) to subsection (1) of sections 4 of Act IX of 1974 ; as such this Court ca examine the vires of the orders in writ jurisdiction.

10. For the foregoing reasons, I do not consider it a fit case nor feel inclined to exercise discretionary Constitutional jurisdiction of the Court to interfere in the impugned order and allow illegal order of the Senior Civil Judge, Gujranwala to hold the field, particularly, when in pursuance of the impugned order of remand, the competent authority ha to reconsider the case of the parties on merits. In the result this petition fails and is dismissed with no order as to costs. A. E. petition dismissed.