Full Judgment Text & Judicial Ruling

2004 P L C (C

2004 P L C (C.S.) 881

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Iftikhar Muhammad Chaudhary and Rana Bhagwandas, JJ

GOVERNMENT OF THE PUNJAB and others

Versus

MUHAMMAD ZAFAR BHATTI and others

Civil Appeal No.1532 of 1998, decided on 2nd December, 2003.

(On appeal from judgment of Lahore High Court, Lahore dated 14‑11‑1997 passed in Writ Petition No.3372 of 1994).

(a) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the Constitutional petition before High Court was not barred under Art.212 of the Constitution; whether Punjab Service Tribunal had exclusive jurisdiction in respect of matters agitated in the Constitutional petition; whether amendment made through the notification was illegal and ineffective in law; whether, the Government was competent to revise or review recruitment policies through amendment in Service Rules; and whether any vested right existed with regard to promotion and any amendment in the rules could be challenged on the ground of adverse effects on the promotions in future.

(b) Punjab Service Tribunals Act (IX of 1974)‑‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Vires of amendment in rules regarding promotion‑‑‑Jurisdiction of High Court under Art. 10 of the Constitution‑‑‑Amendment made by the Authorities in rules regarding promotion, was assailed before High Court under Art.199 of the Constitution, by the civil servants‑‑‑High Court declared the amendment as ultra vires of the vested right of the civil servants‑‑ Plea raised by the Authorities was that under Art.212 of the Constitution, the jurisdiction of High Court was barred as the matter pertained to terms and conditions of service‑‑‑Validity‑‑‑Remedy for the civil servants was to file appeal before Service Tribunal and jurisdiction of High Court in such matter was barred‑‑‑Judgment passed by the High Court was set aside‑‑‑Appeal was allowed.

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 S C M R 2280 ref.

S.Shabbar Raza Rizvi, Advocate‑General. Punjab for Appellants.

M.A. Zaidi; Advocate‑on‑Record for Respondents Nos. 1 to 4

Respondents Nos. 5 to 44 : Ex parte

Date of hearing: 2nd December, 2003

JUDGMENT

MUNIR A. SHEIKH, J.‑‑‑This appeal by leave of the Court is directed against judgment dated 14‑11‑1997 of the Lahore High, Court whereby Constitutional petition filed by the respondents has been accepted.

2. Facts of the case are that the respondents, who were employees of I.R.D.P.; Village Aid Programme and Public Works Programme, which has been amalgamated and designated as Local Government and Rural Development Department filed a Constitutional petition before the Lahore High Court wherein vires of amendment in the relevant rules regarding promotion to the posts of Assistant Director/Project Manager were made, which according to them, has prejudiced them in that it had the effect of adversely affecting/disturbing their right of promotion under the rules which existed at the time of their induction in service. Relevant rules, which existed before the amendment were as follows:‑

"Assistant Director/Project Manager NPS‑17.

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 Constitution, 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

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 dismissed

Related Legal Research & Directories

• Browse all judgments from Supreme Court of Pakistan
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant