P L D 2004 Supreme Court 317 (PLP)

90% by initial recruitment and 10% by promotion on the basis of selection on merits from among information officers with five years' service as such; or Project Assistant with 10 years' service as such." After amendment it reads as under:‑‑ "Assistant Director/Project Manager NPS‑17. 80% by initial recruitment and 20% by promotion on the basis of selection on merit from Project Assistants who fulfil the following conditions: (i) who are graduates (ii) Possess 10 years' experience as such." This amendment has been declared to be ultra vires of the vested right of the respondents, as to promotion to the post of Project Manager through the impugned judgment, against which this appeal by leave of the Court is directed.

3. Leave was granted to consider the following questions:‑‑ "(1) Whether the Constitutional petition was not barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973? (2) Whether the Punjab Service Tribunal has exclusive jurisdiction in respect of the matters agitated in the Constitution petition? (3) Whether the amendment made through the notification in question is illegal and ineffective in law? (4) Whether the Government is competent to revise or review recruitment policies through amendment in the Service Rules? (5) Whether any vested right exists with regard to promotion and any amendment in the rules can be challenged on the ground of adverse effects on the promotions in future?

4. Learned Advocate‑General, Punjab, in support of his arguments, that the Constitutional petition was not maintainable as jurisdiction of High Court was barred under Article 212 of the Commissioner as the matter brought before the said Court was in respect of their terms and conditions of their service as to right of promotion, relied upon Iqan Ahmad Khurram v. Government of Pakistan (PLD 1980 SC 153), Muhammad Insha Ullah v. Chief Conservator of Forest (P & E) (PLD 1988 SC 155) and Khalid Mahmood Wattoo v. Government of Punjab (1998 SCMR 2280).

5. It has been held in the case of Iqan Ahmad Khurram (supra) that, if an objection is raised qua the validity of amendment in the rules by a civil servant on the ground that the same had adversely affected his right in the service as to promotion, jurisdiction of the High Court was barred by virtue of Article 212 of the Constitution. The civil servant should approach the Service Tribunal for redressal of his grievance, which was vested with the jurisdiction not only to go into the question of validity or vires of the rules qua right of such a civil servant but also the question of mala fides, if raised in the appeal. This view has been affirmed latter by this Court in the judgment in case of Khalid Mahmood Wattoo v. Government of Punjab (supra). It appears that the law declared by this Court in the above cited reported judgments was not brought to the notice of learned Judge of the High Court, who decided the Constitutional petition wherein reliance was placed on the judgment of the High Court.

6. Learned Advocate‑on‑Record for the respondents, when asked to argue the case submitted that he had informed Mr. Muhammad Uns, Advocate Supreme Court, who had been engaged to argue the case but he has not appeared and he himself is unable to argue the case.

7. We are not inclined to adjourn the case. The arguments raised by learned Advocate‑General have force. The matter brought before the Court was relatable to terms and conditions of service. The respondents who are admittedly civil servants, their remedy was to file appeal before the Service Tribunal and jurisdiction of High Court in such matter was barred.

8. For the foregoing reasons, this appeal is accepted, judgment dated 14‑11‑1997 passed by Lahore High Court is set aside and the Constitutional petition dismissed. Respondents may, however, seek remedy in accordance with law before the Service Tribunal. It may, however, be observed that since in the High Court no objection was raised on behalf of the appellants about the jurisdiction, therefore, if appeal is filed before the Tribunal the question of condonation of delay and laches, if raised, shall be decided compassionately. M.H./G‑1/S Appeal allowed.