2003 PLP (C (PLC(CS))

AMANULLAH KHAN, J.

Petitioners have sought following relief, from this Court:-- "It is, therefore, humbly prayed that this Hon'ble Court may be pleased to accept the petition in the following terms:-- A. Declaring that the Notification issued by respondent No. 1, in giving accelerated promotion to the respondents 4 and 5 on the, ground of meritorious services rendered, by them, is totally against the object and mandate of all Service Laws as well as totally unlawful and without jurisdiction and thus of no legal affect; B. Learned Court may also be pleased to issue writ of qua-warranto calling respondents 4 and 5 to show by what authority they hold the appointment/promotion as Superintendent of Police. C. Any other relief deemed tit and proper in the circumstances of the case may also be awarded, alongwith the cost of petition, in the interest of justice."

2. Facts relevant for the disposal of this petition under Article 199 of the Islamic Republic of Pakistan are that, petitioners are serving as Deputy Superintendents of Police; and have been posted at various places. It is their case that, as per Seniority List issued on 5-1-2002, they stood at Serial No.9 to 39, whereas respondents 4 and 5 are junior to them, as their names appear at Serial Nos.40 and 42 of the Seniority List.

3. In the month of January, 2002 respondents 4 and 5 arrested one Noor Muhammad alias Noora, who was directly involved in the murder of late Mr. Justice Mir Muhammad Nawaz Marri, and thereafter on interrogation the entire terrorist network was exposed and other culprits directly involved in marry terrorist cases, including murder of late Mr. Justice Mir Muhammad Nawaz Marri, were also arrested. On the disclosure of Noor Muhammad, a raid was conducted at Kalat, where encounter took place resulting in killing of three Terrorists and serious injuries to one Constable. A large quantity of arms and ammunition was also recovered. Since all was due to the extraordinary endeavour of respondents 4 and 5 who were directly involved in exposing and destructing the Terrorist Gang, therefore, in recognition of their meritorious services, recommendations were made by the Inspector General of Police, for their accelerated promotion. Thus, on 3rd June, 2002, respondents 4 and 5 were given accelerated promotion as Superintendents of Police in BPS-18 with immediate effect. Being aggrieved from the said Notification issued by Respondent No. 1, petitioners have filed the instant Constitutional petition.

4. Syed Ayaz Zahoor, learned Counsel for petitioners, contended, that accelerated promotion given to respondents 4 and 5 is in violation of the Service Laws, as there is no provision for accelerated promotion, on the basis of meritorious services. Thus the Notification impugned is liable to be struck down. He further contended that, since private respondents were promoted on the basis of their fitness, therefore, their case would fall under section 4(1)(b) of the Balochistan Service Tribunal Act. 1974, therefore, this Court has got jurisdiction to adjudicate upon the same.

5. M/s. H. Shakeel Ahmad and Muhammad Riaz Ahmad, learned counsel for respondents 4 and 5 respectively argued; that the Government is competent to give accelerated promotion to respondents, in recognition of their meritorious services and since 'promotion' and 'seniority' pertains to the terns and conditions of Service, therefore, in view of Article 212 of the Constitution of Islamic Republic of Pakistan, the jurisdiction of this Court under Article 199 of the Constitution is ousted. Mr: Muhammad Riaz Ahmad, Advocate, further argued that since some of the petitioners have also filed departmental appeals, meaning thereby, they have resorted to the statutory remedy available under the law, therefore, this Court may abstain from issuing writ. Mr. H. Shakeel Ahmad, Advocate, argued that since both the jurisdictions are destructive to each other, and as the petitioners have resorted to remedy available under the Statute, therefore, jurisdiction of this Court under Article 199 is barred in view of Article 212 of the Constitution.

6. We have heard the learned Counsel for parties at length and also perused, the case-late on the subject.

7. Before dilating upon the arguments of learned Counsel for parties, it would be appropriate try refer to the impugned Notification, which reads as under:- "GOVERNMENT OF BALOCHISTAN SERVICES AND GENERAL ADMINISTRATION DEPARTMENT (SECTION-I) Dated Quetta, the 3rd June, 2002. NOTIFICATION. No. 15-10(4)/2002/SO-19 S&D). In recognition of their meritorious services the Government of Balochistan is pleased to promote following Deputy Superintendents of Police (BPS-17) to the rank of" Superintendents of Police (BPS-18) with immediate effect:--

1. Mr. Muhammad Saleem Lehri.

2. Mr. Wazir Muhammad Khan Nasir. Induction of the above named officers in the PSP cadre would be considered on their turn. Pervaiz Saleem, Chief Secretary. A plain reading of the same indicates that the respondents 4 and 5 were promoted in recognition of their meritorious services. The main thrust of the arguments of Syed Ayaz Zahoor, Advocate was that, in view of section 3(i)(b) of the Act of 1974, the Service Tribunal has no jurisdiction, as the private respondents were snot fit to be promoted in B-18. He contended that, they were given accelerated proalotion, as they were considered entitled to be promoted in higher rank, in recognition of their so called meritorious service. Learned Counsel argued that. Government had no authority to grant accelerated promotion to respondents by bypassing the Rules.

8. The pivotal question for consideration before us is; whether this Court can issue writ in exercise of jurisdiction under Article 199 of the Constitution.

9. Much emphasis have been laid down on the interpretation of section 4(1)(b) of the Act of 1974, which reads as follows:--

4. Appeals to Tribunals.

(1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal Provided that:-- (a) ................... (b) No appeal shall lie to a Tribunal against an order of decision of 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 post or grade."

10. It is well-settled that, service Tribunal has no jurisdiction to adjudicate and determine the question of fitness, which has been decided by a departmental authority or otherwise of a person for promotion to higher post or grade. In this respect Hon'ble Supreme Court has distinguished the words 'eligibility' or 'fitness' of a Civil Servant in many cases. The controversy regarding 'fitness' and 'eligibility' has been dealt with in the case of Mian Abdul Malik v. Dr. Sabir (1991 SCMR 1129) by Mr. Justice Shafi-ur -Rehman, the operative portion of the same is as follows:-- "What is barred from the jurisdiction of the Tribunal is the question of fitness of a civil servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution of or an opinion of the competent authority is not possible by that of a Tribunal or a Court. It is in this background that the question fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court of Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification no such bar exists either in express words of section 4 of the Services Tribunals Act or even by implication. The petitioner had approached the Civil Court for determination of his eligibility and also for being declared eligible to be promoted. Such an exercise could not be undertaken by the Civil Court with the limited number of parties arrayed before it nor could it have jurisdiction as the matter related to the terms and conditions of the services." The said question was further discussed in detailed, in the case of Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539), wherein the dictum laid down in the case of Main Abdul Malik v. Dr. Shabbir (Supra) was affirmed.

11. It may be observed that, sub-clause (a) of clause (1) of Article 212 of the Constitution, lays down that, administrative Courts or Tribunals will have exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the services of Pakistan, including discretionary matters. A perusal of section 4(1)(b) of the Act of 1974, indicates that, on appeal shall lie to the Tribunal, against the order or decision of departmental Authority, determining 'fitness or otherwise' of a person to be promoted to a higher post or grade.

12. From the aforesaid authoritative judgments, it can be inferred that, when a case of civil servant is referred to the Departmental Promotion Committee or Departmental Authority, for promotion 'alongwith other civil servants, and the Committee or Authority after evaluating the record and performance of such civil servant, amongst others considers him 'fit for promotion' in such a case only, do appeal would lie to the Service Tribunal. As observed hereinabove, question of fitness is determined on a subjective evaluation on basis of objective criteria, where substitution of opinion of the competent authority is not possible by that of a Tribunal or a Court. Thus in such background, as observed by Mr. Justice Shafi-ur-Rehman, in the case of Mir Abdul Malik (supra), the jurisdiction of Service Tribunal will be barred as the question of 'fitness' or 'suitability' for promotion have always beers considered, to be the exclusive jurisdiction of the competent authority or Departmental Promotion Committee.

13. Thus considering the case of respondents 4 and 5 on the touchstone of the dictum laid down in the aforementioned cases, in our considered opinion, the case of respondents does not fall' under the said criteria, as laid down by the Hon'ble Supreme Court. It may be observed that, cases of respondents and petitioners, were not before the departmental Selection Committee or the competent Authority for promotion to higher post and while giving accelerated promotion to the private respondents, cases of petitioners were not before the Departmental Promotion Committee to come to a conclusive decision; as amongst the petitioners and respondents as to who was fit for promotion to higher post. It may be pointed out that, it was only on the basis of their meritorious services, that the respondent No.4 and 5 were considered and promoted, thus the case of accelerated promotion does not fall within the definition of 'fitness' as laid down by the Hon'ble Supreme Court in the afore-cited cases.

14. As regards 'eligibility' it has been held time and again that same primarily relates to the terms and conditions of service, which question falls within the exclusive domain of Service Tribunal. It may be observed that Syed Ayaz Zahoor, learned Counsel, could not give any satisfactory reply; as to how the question of fitness, which is a subjective evaluation on the basis of objective criteria, was evaluated by the Authority, without considering the cases of petitioners. Recommendations made by the Inspector General. of Police would further show that, respondents 4 and 5 were only recommended for promotion out of turn, on basis of their meritorious services, which by no stretch of imagination can be termed as subjective evaluation on basis or objective criteria, declaring them fit for-promotion; neither their case was before Departmental Promotion Committee to see whether they were fit for promotion. It may be pointed out that the petitioners were never superseded by any committee or departmental authority that they were unfit for promotion, on the contrary their cases were never considered for promotion.

15. Thus the question of accelerated promotion of respondents Nos.4 and 5 on the basis of their meritorious services, falls within the definition of terms and conditions of their service, where obviously the Service Tribunal has the exclusive jurisdiction.

16. It may be observed here that, since the Service Tribunal is the creation of Constitution itself, and Article 212 ousts the writ jurisdiction of High Court, thus in Service matters, the scope of powers of Service Tribunal is very vast and even if the orders passed are based on mala fides, or same are ultra vires, coram non judice or without jurisdiction, even then, the same come within the exclusive jurisdiction of Service Tribunal and the jurisdiction of High Court is barred in view of Article 212 of the Constitution. As regards the powers of Service Tribunal, the same have been discussed in the case of I. A. Shewani and others v. Government of Pakistan (1991 SCMR 1041), wherein following observations were made:-- "

10. From the above-cited cases, it is evident that it has been consistently held inter alia by this Court that a Civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves wires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. 'We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in the terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioners' case is found solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and further pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot bye-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."

17. Further, it may be pointed out that it has been consistently held by the Superior Courts that, eligibility or otherwise for promotion of an aggrieved person can be judicially scrutinized by the Service Tribunal, as it relates to the terms and conditions of service. Reference in this behalf, is made to recent Judgment of Hon'ble Supreme Court in the case of Zafar Ullah Baloch v. Government of Balochistan (2002 SCMR 1056).

18. It may be pointed out that under stab-Article (1) of Article 199 non -availability of an adequate and efficacious remedy to an aggrieved party, is a condition precedent for exercising jurisdiction under the said Article and in case alternate and efficacious remedy is available under the Statute, then the High Court would be reluctant to exercise jurisdiction under Article 199 of the Constitution, which is an extraordinary discretionary relief.

19. During course of arguments, it was pointed out that, petitioners 2,3,7,8,12 and 15 have also filed departmental appeals against the impugned Notification of promotion of respondents 4 and

5. It was argued by the learned counsel for respondents that since petitioners at their own have resorted to remedy as provided tinder the service laws, therefore, this Court may refuse to exercise writ jurisdiction. The contention of learned Counsel has substance in such-like cases; the High Court would abstain from exercising jurisdiction under Article 199 of the Constitution. Besides, invoking Constitutional jurisdiction and by passing statutory remedy, without reasonable cause, has been deprecated and not approved by Hon'ble Supreme Court. In this regard, as the matter is already sub-judice before the departmental authority, thus, we are not inclined to entertain the petition. Reference if needed can be made to Al-Ahram Builders v. Income-tax Appellate Tribunal (1993 SCMR 29), wherein following observations were made by Hon'ble Supreme Court. "

10. In the present case, the appellant had opted to avail of the hierarchy of forums provided for under the Ordinance upto the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a Constitutional petition. In our view, once a party opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet will switch over to Constitutional jurisdiction of the High Court in the mid of the proceeding in the absence of any compelling and justifiable reason."

20. Thus, in view of the above discussion, without dilating upon the, merits of the case, in our considered opinion, this Court has no jurisdiction to entertain the instant petition.

21. As a result, the petition is dismissed for want of jurisdiction, with no order as to costs. S.A.K./148/Q Petition dismissed.