2000 PLP (C (PLC(CS))

HAMID ALI MIRZA, J.‑‑‑This civil appeal by leave of this Court is directed against the judgment, dated 16‑4‑1997 of the Peshawar High Court, Dera Ismail Khan, Bench, whereby Writ Petition No.81 of 1995 preferred by respondent No.1, Abdul Ghaffar Babar was allowed and consequently impugned order, dated 28‑8‑1995 passed by respondent No:2 selecting appellants Abdul Qadeer Khan and Ghazi Nawaz as Naib‑Tehsildars was declared null and void, corum non judice, discriminatory and of no legal effect. and the official respondents were directed to convene a meeting of the Departmental Selection/Promotion Committee within. reasonable time not exceeding 60 days, and to consider respondent Abdul Ghaffar for selection as Naib‑Tehsildar by condoning the upper age limits as per orders of respondent No.2, dated 26‑8‑1993 whereby the upper age limit of respondent No.1 was relaxed till the meeting of the Departmental Selection/Promotion Committee. The brief facts of the case are that respondent Abdul Ghaffar Babar filed Writ Petition' No.81 of 1995 before the Peshawar High Court stating therein that he joined the service on 22‑10‑1969 as Junior Clerk/Assistant/Revenue Moharrir, Land Reforms Clerk and Consolidation Clerk, while appellants Abdul Qadeer Khan and Ghazi Nawaz joined service on 13‑1‑1987 and 22‑5‑1985 respectively and that since 1990 the posts of Naih‑Telisildars were available for which he was eligible and qualified but tire Department Selection/Promotion Committee constituted for recruitment of Naib‑Tehsildars in the Division did not hold meeting deliberately so as to render him not eligible as he was on the top of the seniority list and in his presence respondents 2 ,and 3 could have not selected persons of their own choice. He further stated that he because over‑age and, therefore, applied to respondent No.2 for relaxation in upper age limit effective from 15‑11‑1992, which was granted, but the Departmental Selection /Promotion Committee meeting was held on 28‑8‑1995, and by then the period of relaxation had expired; this way respondents 2 and 3 rendered respondent Abdul Ghaffar not eligible for the post due to overage. The Departmental Promotion/Selection Committee selected six persons including appellants Abdul Qadeer Khan and Ghazi Nawaz. Respondent Abdul Ghaffar being aggrieved filed the said writ petition before the Peshawar High Court, which was allowed on 16‑4-199'7 as stated above. The appellants being aggrieved by the said judgment have preferred this appeal by leave of this Court. We have heard the learned counsel for the parties and perused the record and case‑law cited. The main point involved, as contended by the learned counsel for the appellants, is that respondent Abdul Ghaffar was considered not eligible for the post of Naib‑Tehsildar because he was not lets than, 50 years of age on the 1st January of the year in which the appointment vas to be made in terms of Rule 6(b) , of the West Pakistan Tehsildari and Naib‑Tehsildari Service Rules, 1962, therefore, the High Court had not ‑jurisdiction to the matter in view of Article 212 of the Constitution‑ and hence the impugned judgment is liable, to be set aside. The learned counsel for respondent Abdul Ghaffar submitted that the respondents‑ Government functionaries, with a mala fide intent, did not hold the Departmental Promotion/Selection Committee meeting earlier when the respondent Abdul Ghaffar was within the age limit in order to accommodate the appellants and other persons of their own choice. He further submitted that respondent, Abdul Ghaffar had applied to respondent No.2 for relaxation in upper age limit, but the said application remained pending for disposal when the meeting of the Departmental Promotion/ Selection Committee in respect of the appointment in question was held: He further submitted that respondent No. l could not have appealed against the order of the Departmental Promotion/Selection Committee before the Service Tribunal, therefore, the High Court was not barred in view of Article 212 of the Constitution. The learned Additional Advocate‑General on behalf of the respondents‑Government functionaries supported the contention of the learned counsel for the appellants that the case of respondent No. l related to eligibility and not fitness and suitability for appointment as Naib‑Tehsildar, therefore, the High Court was barred under Article 212 of the Constitution. We find substance in the contention of the learned counsel for the appellants. Admittedly, the question directly in issue was in respect of Rule 6(b) of the West Pakistan Tehsildari and Naib‑Tehsildari Service ; Rules, 1962 which makes age limit of 50 years on the 1st January of the year in which the appointment is to be made as one of the conditions for eligibility for being considered for appointment as Naib‑Tehsildar. The said question would fall within the exclusive jurisdiction of the Service Tribunal.' Reference may be made to Imam Bakhsh v. Deputy Commissioner (1992 SCMR 365). In tire instant case, respondent No.1 did not approach the Service Tribunal against the order passed by respondents‑Government functionaries; consequently, the judgment of the High Court being without jurisdiction is set aside and, the writ issued is revoked. Consequently, the appeal is allowed. However, the respondent No. 1, if so advised may seek his remedy before the proper forum in accordance with law.