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Petitioner: ABID MAHMOOD VS Respondent: GOVERNMENT OF PAKISTAN
1996 P L C (C
1996 P L C (C.S.) 1061
[Supreme Court of Pakistan]
Present: Shafiur Rahman and Abdul Shakurul Salam, JJ
ABID MAHMOOD
versus
GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 241 others
Civil Petition for Leave to Appeal No. 292‑L of 1992, decided on 18th May, 1992.
(On appeal from the order of Lahore High Court, Lahore, dated 9‑3‑1992 passed in W.P. No. 3544/90).
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 240, 199, 212 & 185(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Civil‑Servants Act (LXXI of 1973), S. 8‑‑‑Pakistan Engineering Council Act (V of 1976), Preamble‑‑‑Petitioner's Constitutional petition under Art. 199, Constitution of Pakistan was dismissed as barred under .Art. 212 of the Constitution‑‑‑Validity‑‑‑Petitioner's grievance before High Court was that Engineering graduates arrayed as petitioners and diploma holders arrayed as respondents, being parties to litigation were effectively governed by Pakistan Engineering Council Act, 1976 in the matter of appointment and promotion, and that Act did not permit those who were not fully qualified Engineers but were Diploma Holders to hold certain specified posts involving professional engineering works‑‑‑High Court dismissed Constitutional petition as being barred under Art. 212 of the Constitution‑‑‑Validity‑‑‑Condition of service of persons in the service of Pakistan in cases of services of the Federation would be determined by or under Act of Parliament as per terms of Art. 240 of the Constitution‑‑‑Pakistan Engineering Council .Act, 1976 as well as Civil Servants Act, 1976 fall in the category of the Act framed by the Parliament‑‑‑For testing eligibility of respondents for holding specified post, petitioner would necessarily go to Service Tribunal‑‑‑What was barred under provisos of S. 4, Service Tribunals Act, 1973 was fitness or suitability and not the eligibility‑‑‑Petitioner had hot challenged fitness or suitability but eligibility of respondents for holding specified posts which was more basic and has to be crossed before fitness or, suitability can be adjudged‑‑‑If rules of service applicable to parties permit of promotions, then .vines thereof, have‑to be examined and tested arid even that exercise has to be undertaken by Service Tribunal‑‑‑High Court was, thus, justified in holding that question of eligibility to be considered for appointment or promotion to a post related to 'the terms and conditions of service and that jurisdiction of High Court under Art. 199 of the Constitution was ousted on the strength of Art. 212 of the Constitution, which has a non‑obstante clause.
Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Muhammad Hashim Khan and others v. Province of Balochistan and others PLD 1976 Quetta 59; Government of Pakistan v. Muhammad Sadiq 1985 SCMR 699 and Mian Abdul Malik v. Dr. Sabir Zameer Siddique and 4 others 1991 SCMR 1129‑rel.
Shahzad Jahangir, Senior Advocate instructed by S. Abid Nawaz, Advocate‑on‑Record for Petitioner.
Ch. Muhammad Aslam, Advocate‑on‑Record for Respondents Nos. 43, 113, 126, 146, 151, 177, 187, 227 and 228.
Nemo for the Remaining Respondents.
Date of hearing: 18th May, 1992.
JUDGMENT
SHAFIUR RAHMAN, J.‑‑‑The petitioner is an employee of the Pakistan Telecommunication Corporation, . Islamabad and like the private respondents arrayed by him, a civil servant, for the purposes of the Service Tribunals Act. He seeks leave to appeal against the judgment of the Lahore High Court dated 9‑3‑1992 whereby a Constitutional petition filed by him was dismissed as barred under Article 212 of the Constitution of the Islamic Republic of Pakistan.
2. The grievance of the petitioner before the High Court and in the writ petition was that the contesting parties to the litigation were effectively governed by the Pakistan Engineering Council Act, 1976 (Act V of 1976 ‑ hereinafter referred to as the Act) to the matter of appointment and promotion, and that Act did not permit those. who were not fully qualified Engineers but mere Diploma Holders to hold certain posts. For the purpose, he sought the following reliefs :-
"(a) The private respondents are not entitled to hold professional engineers posts involving the professional engineering works, particularly to the posts of Assistant Divisional Engineers, Divisional Engineers and Directors.
(b) Respondents Nos. 1 to 3 are not competent to recommend, consider, appoint or promote any Diploma‑Holder or any other person apart from amongst the professional engineers to any post involving the execution of professional engineering works as they are disqualified under the Act ‑ibid and do not hold the qualifications.
(c) Direct the respondents Nos. 1 to 3 while considering promotion in BPS‑18 and 19 and above involving professional engineering works, only to consider the professional engineers registered with the Pakistan Engineering Council including the petitioners."
3. Article 240 of the Constitution provides that the conditions of service of persons in the service of Pakistan shall be determined in the cases of services of the Federation by or under Act of Majlis‑e‑Shoora (Parliament). The Act as well as the Civil Servants Act fall in the category of the Act framed by Majlis‑e-Shoora (Parliament)., For testing the eligibility of‑respondents for holding the certain posts, the petitioner has necessarily to go to the Service Tribunal. What is barred under provisos to section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973) is the fitness or the suitability and not the eligibility. What the petitioner has challenged through the writ petition is not the fitness or suitability but the eligibility which is more basic and has to be crossed before the fitness or suitability and be adjudged. If the rules of service applicable to the parties permit such promotions, then its vires have to be examined and tested and even that exercise has to be undertaken by the Service Tribunal as reported in the case of Iqan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153 where this Court observed as hereunder:‑‑
"As to the ground concerning the non‑maintainability, of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis‑a‑vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Balochistan and others PLD 1976 Quetta 59 and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree."
4. The matter was again considered by this Court in Government of Pakistan v. Muhammad Sadiq 1985 SCMR 699 and the, following observation s were made:‑‑
"It is a fact that at no stage disputed that the two appellants when considered and approved for promotion or even when appointed to the upgraded posts' were not eligible to be promoted. Hence their consideration, recommendation and appointment was all against the law, in excess of the powers conferred on the Departmental Promotion Committee and the Competent Authority. It had nothing to do with their fitness or suitability. The question of fitness and suitability arises amongst eligible and not among eligible and ineligibles. The bar contained in proviso (b) to subsection (1) of section 4 of the Tribunals Act is inapplicable. "
5. More recently the matter was considered in Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 in the words that follow:‑‑
"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 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 service concerned. Fitness introduces an element of subjective evaluation once basis of objective criteria where substitution for 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 of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification no such bar exists either on express words of section 4 of the Service Tribunals Act or even by implication. "
6. The High Court was, therefore, justified in holding that the question of eligibility to be considered for appointment or promotion to a post related to the terms and conditions of service and the jurisdiction of the High Court under Article 199 was ousted on the strength of Article 212 of the Constitution which has a non obstante clause.
7. No merit is found in the petition and leave to appeal is refused.
A.A./A‑1374/S Leave refused.