Full Judgment Text & Judicial Ruling

2005 P L C (C

2005 P L C (C.S.) 679 [Quetta High Court] Before Raja Fayyaz Ahmed, C.J. and Fazal-ur-Rehman, J SHAFI MUHAMMAD MUGHAL, SUPERINTENDENT OF POLICE (ACTING CHARGE) PAKISTAN RAILWAYS POLICE, QUETTA versus SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and 5 others C.P. No. 254 of 2000, decided on 27th June, 2000.

(a) Civil Servants Act (LXXI of 1973)--- ----S. 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion---Entitlement---Both petitioner and respondent were considered and examined by Departmental Promotion Committee which, by diligent application of mind of entire service record of both candidates and material available with it, found petitioner to be unfit for promotion to the next higher grade in the light of vigilance report ---No adverse material or report having been found in the case of respondent, Departmental Promotion Committee, in proper and legitimate exercise of authority vested in it, recommended his promotion and petitioner s case for promotion was deferred---Petitioner had challenged said order of competent Authority in his Constitutional petition---Validity---High Court could not substitute its opinion on merits nor any other possible view could prevail upon determination of fitness of promotion by competent Departmental Promotion Committee unless it was shown that it acted arbitrarily or in derogation of rules---None of the conditions warranting interference existed in the present case---Constitutional petition being devoid of force, was dismissed.

PLD 1994 SC 539; 1983 PLC (C.S.) 1265; 1998 SCMR 2280; PLD 1960 SC 1964; 1991 SCMR 1129; PLD 1997 SC 351 and 1991 SCMR 1129 ref.

(b) Service Tribunals Act (LXX of 1973)--- ----S. 4---Civil Servants Act (LXXI of 1973), S. 9---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Promotion---Eligibility and suitability for promotion---Determination of---Jurisdiction of Service Tribunal and High Court---Scope---Administrative Courts or Tribunals had exclusive jurisdiction in respect of matters relating to terms and conditions of persons in service of Pakistan including disciplinary matters within meaning of Cl. (1)(c) of Art. 212 of the Constitution---Appropriate Tribunal by virtue of subsection (1) of S. 4 of Service Tribunal Act, 1973, had the exclusive jurisdiction to hear appeal of any civil servant aggrieved by any final order whether original or Appellate made by Departmental Authority in respect of any of the terms and conditions of service provided that where an appeal, review or representation to departmental authority was provided under Civil Servants Act, 1973 or in any rule against any such order, no appeal would lie to a Tribunal unless aggrieved civil servant had preferred an appeal or application for review or representation to such departmental authority---Matter relating to fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher post or grade and determination of such question by Departmental Authority, would not fall within the jurisdiction of Tribunal nor a departmental appeal or representation against an order or decision of a Departmental Authority on such questions would lie---Jurisdiction of Service Tribunal stood excluded in relation to matters specified in cl. (b) of proviso to subsection (1) of S. 4 of Service Tribunals Act, 1973---Since the matter related to the fitness and promotion of civil servant to the next higher grade same would not fall within the jurisdiction and domain of Service Tribunal---Petitioner/civil servant, in circumstances could competently invoke Constitutional jurisdiction of High Court.

PLD 1994 SC 539 ref. M. Aslam Chishti for Petitioner. K.N. Kohli, Deputy Attorney General and H. Shakeel Ahmed for Respondents Nos.2 to 5. Choudhary Muhammad Rafique for Respondent No.6. Date of hearing: 14th June, 2000.

JUDGMENT RAJA FAYYAZ AHMED, C.J.---In response to pre-admission notice parawise comments on behalf of the respondent No.1 as well as respondents Nos.2 to 5 have been filed. The parties learned counsel have also been heard. 2. The petitioner has claimed the following reliefs in the amended Constitutional petitions:-- 1. That action of D.P.C. (respondent No.3 through its Chairman and respondents Nos.4 and 5) in recommending petitioner s supersession and promotion of respondent No.6 as Superintendent of Pakistan Railways Police (BS-18) (Investigation Wing) was ultra vires, arbitrary, violative of principles of natural justice, mala fide and as such without lawful authority. 2. Approval by respondent No.1 dated 12-4-2000 of recommendation of D.P.C. dated 11-3-2000 was illegal, mala fide and without lawful authority. 3. Promotion of respondent No.6 and petitioner s reversion from acting charge of S.R.P. Quetta and transfer to Karachi vide order dated 17-4-2000 issued by respondent No.5 is mala fide and unlawful and order dated 17-4-2000 (so far as it concerns petitioner and 6th respondent) was without lawful authority. B. Honourable Court may be further pleased to set aside the recommendation of the D.P.C. dated 11-3-2000; approval of recommendations by respondent No.1 dated 12-4-2000; promotion order of respondent No.6 and reversion of petitioner and his transfer from S.R.P. Quetta to Karachi vide order dated 17-4-2000 and to direct respondent No.1 to promote petitioner as Superintendent of Police (BS-18) against existing vacancy in Investigation Wing of Pakistan Railways Police. Alternatively, after setting aside the impugned orders, to direct respondent No.1 to place promotion case against existing vacancy of Superintendent of Police in Investigation Wing of Pakistan Railways Police before D.P.C. with direction to consider petitioners and respondent No.6 within the parameters guidelines as laid down in the promotion policy vide S. Nos.172 and 172-A of Esta Code with clarification to exclude Vigilance report and further direct that pending decision of D.P.C. and final orders thereon, petitioner shall continue to hold acting charge of S.R.P., Quetta . 3. The Brief facts of the case as disclosed in the Constitutional Petition relevant for purposes of the order are that the petitioner claimed to be senior most Inspector in Pakistan Railways Police and promoted as Deputy Superintendent in the year 1993 and also had been working as Acting Superintendent Police Pakistan Railways Sukkur, Multan, Workshop Division Mughalpura and lastly as Superintendent Police Pakistan Railways, Quetta and on account of retirement of Mr. Maqbool Hussain Gilani, a vacancy of Superintendent Police (B-18) in the Investigation Wing of the Pakistan Railways Police occurred, for which names of the petitioner and respondent No.6 as D.S.Ps. were forwarded to the Departmental Promotion Committee hereinafter called D.P.C. and the first meeting of the D.P.C. was convened on 17-8-1999 but was cancelled which was statedly not only mala fide but unprecedented as well and further, the petitioner was placed on special report vide letter of Joint Secretary, Ministry of Railways dated 13-8-1999 with the result that the meeting of D.P.C was postponed for want of A.C.R. of the year 1998. Against the cancellation of A.C.R. and placement of the petitioner on special report, he made representation dated 4-9-1999 to the Secretary/Chairman, Ministry of Railway. Eventually in the light of orders of Railways Ministry, A.C.R. for the year 1998 was initiated afresh and reported as satisfactory. Subsequently; second D.P.C. was held on 14-12-1999 and although; the petitioner was statedly found to be fit and qualified for promotion to B-18 but for want of special report (required under Ministry of Railways reference dated 13-8-1999), the petitioner s case for promotion was again deferred, and; statedly without awaiting for special report and decision on the representation of the petitioner dated 4-9-1999, Ministry of Railways vide letter dated 29-1-2000 directed General Manager, Pakistan Railways Headquarters office, Lahore that the respondent No.6 (being junior to petitioner as D.S.P.) be considered to the post of Superintendent Police, Pakistan Railways and the aforesaid direction/observation of the Ministry of Railways was also agitated through representation dated 3-2-2000 and 4-2-2000 made to the respondents Nos.3 and 5 and also a written request dated 2-2-2000 for personal interview to respondent No.2 but was also not granted. It is the case of the petitioner that the satisfactory special report was written by D.I.G. of Pakistan Railways Police, countersigned by I.G. Railways Police and the same was filed for consideration by the next D.P.C. Eventually for the third time; D.P.C. was held on 11-3-2000 and the case of the petitioner and that of the respondent No.6 was considered by the D.P.C. and the petitioner was superseded on the basis of a Vigilance report about which the claim of the petitioner is that he was not aware nor any notice was given to him about any such report, inasmuch as; the Vigilance report is even alien to the considerations relevant for recommendations by the D.P.C., and; apprehension has been expressed in the pleadings by the petitioner that D.P.C. was also influenced by the above-quoted letter of the Ministry of Railways dated 29-1-2000, however; the petitioner statedly on coming to know of his supersession and reasons on 20-3-2000 made representation through proper channel to respondents Nos.1 and 2 but the same were statedly withheld by respondent No.5. The petitioner feeling himself aggrieved of his supersession and recommendation made by D.P.C. for promotion of respondent No.6 to the rank of Superintendent Police (B-18) filed Constitutional petition in this Court on 13-4-2000 claiming the following reliefs:-- 1. To declare that action of D.P.C. in recommending respondent No.6 for promotion as Superintendent of Police (B-18) in Pakistan Railways Police and supersession of petitioner is illegal, arbitrary and ultravires of its power and as such without lawful authority. 2. To issue Writ of Injunction restraining respondent No.1 from acting on recommendation of D.P.C. (respondent No.2) or from making order of promotion in favour of respondent No.6 as Superintendent of Police Pakistan Railways. Which came up for preliminary hearing on 17-4-2000 and the petitioner s learned counsel was heard on the petition as well as on his application for interim relief and the orders were reserved by the Hon ble Bench. On the same date subsequently; according to the case of the petitioner, he received on his official fax machine order No.A-3/10 PRP from the I.G., Pakistan Railways Police, Lahore to the effect that respondent No.3 has been promoted against only available post in Investigation Wing of Pakistan Railways Police. On 18-4-2000 the petitioner filed C.M.A.S. Nos.595, 593 and 594 of 2000 seeking for suitable and necessary amendments and consequential reliefs, in view of the order dated 12-4-2000 and 17-4-2000 to be made in the pleadings vide C.M.A. No.595 of 2000 and by means of C.M.A. No.594 of 2000 exemption from filing of certified copies of the aforesaid orders was sought for, and; exemption was already applied for in respect of the minutes of D.P.C. dated 11-3-2000, whereas; by means of C.M.A. No.593 of 2000 the request was made for staying operation of the aforesaid two orders. The Hon ble Bench vide common order dated 18-4-2000 allowed the Misc: Applications seeking for amendments and for exemption for the time being and as far as C.M.A. No. 593 of 2000 is concerned, notice was directed to be issued to the respondent, and; in the meanwhile, operation of the impugned orders was suspended as regards the petitioner s reversion as acting S.R.P., Quetta and transferring to Karachi relates. The petitioner is aggrieved of the recommendations of the D.P.C. dated 11-3-2000 for his supersessions and promotion of respondent No.6; approval of respondent No.1 dated 12-4-2000 of D.P.C. recommendations and of promotion of respondent No.6; consequential order of Ministry of Railways (respondent No.1) dated 14-4-2000 and; further order respondent No.5 dated 17-4-2000 reverting him from acting S.R.P., Quetta and posting his D.S.P., Karachi. 4. Mr. Muhammad Aslam Chishti contended that petitioner was superseded as he was not found fit by the D.P.C on account of so called vigilance report and not on account of anything involving terms and conditions of service already fulfilled by him for promotion as Superintendent Railways Police (S.R.P) and about the vigilance report no notice was given to the petitioner nor he was heard by the D.P.C. on such report and even no vigilance report was obtained in respect of respondent No.6 which otherwise, was procured out of mala fides at the instance of Ministry of Railways as is evident from its letter dated 29-1-2000. According to the learned counsel the vigilance report was issued unlawfully to cause harm to the petitioner, as also for the reason that earlier two D.P.C. meetings were postponed in order to create ground for extending undue favour for promotion of respondent No.6. Mr. Chishti, argued that respondent No.1 fell in serious error in acting upon the recommendation of D.P.C. dated 11-3-2000 substantially based upon so called vigilance report being not part of guide lines for D.P.C. or of promotion policy. According to the learned counsel that since the grievance of the petitioner does not relate to the question of his eligibility primarily concerned with the terms and conditions of his service, rather; his claim is about his fitness for promotion therefore, the Constitutional jurisdiction has been competently invoked in the matter by the petitioner wherein appropriate reliefs have been claimed on the subject to which jurisdiction of the Service Tribunal does not extend, hence, this Court is competent to entertain the matter and grant the reliefs as prayed for in the Constitutional Petition. Mr. Chishti, also contended that obtaining of the vigilance report was not in vogue when the vacancy to be filled in by promotion was available, hence, no retrospective effect could have been given to the same, as at the relevant time, the petitioner fulfilled all other conditions as per rules and guide - lines meant for evaluation of fitness, but in deprivation of his right already matured, device for obtaining vigilance report was unlawfully carved out. The learned counsel in support of his arguments placed reliance on the reported judgments i.e. PLD 1994 SC 539, 1983 PLC (C.S.) 1265 and 1998 SCMR 2280. 5. Mr. K.N Kohli, the learned Deputy Attorney General appearing for respondent No.1 contended that the case of the petitioner and that of respondent No.6 was considered and examined by the D.P.C. which by diligent application of mind of the entire service record of both the candidates and the material available with it, found the petitioner to be not fit to be promoted to the next higher grade in the light of the vigilance report seriously affecting his fitness for promotion, whereas; in the case of the respondent No.6 no adverse material or report could be found, hence, in the proper and legitimate exercise of the authority vesting in the D.P.C. recommendations were made for promotion of the respondent No.6 found to be enjoying complete fitness to hold office of the next higher grade and ultimately; the competent authority i.e. respondent No.1 passed the order impugned in the petition. Mr. K.N Kohli strenuously argued that this Court in the given facts and circumstances of the case, has not to substitute its own findings for that of made by the D.P.C. on consideration of entire facts and circumstances relevant in the matter laid before the D.P.C. for the purpose of reaching to a just conclusion nor the question of mala fide as has been raised in the petition can be gone into in the exercise of Constitutional jurisdiction primarily based on probe by entering into controversial questions of facts etc., inasmuch as; for want of undisputed material in support of the allegation of mala fides, reliefs claimed cannot be granted nor on such plea Constitution Petition is entertainable. According to the learned DAG, the question of fitness of a candidate for promotion or to hold a particular post exclusively lies within the domain of D.P.C. and therefore, same cannot be lightly interfered with unless the exercise of authority was made in abuse of the powers by the D.P.C. or in violation of the rules which is lacking in the instant case nor the claim of the petitioner is about the exercise of authority by the D.P.C. is a justiciable right by this Court simply because the matter in hand might not be amenable to the jurisdiction of the Service Tribunal, and; to supplement his contentions the learned DAG placed reliance on PLD 1960 SC 1964, 1991 SCMR 1129 and PLD 1997 SC 351. 6. Mr. H. Shakil Ahmed, the learned counsel for respondent No.1 candidly argued that the question of promotion of the petitioner relates to the terms and conditions of the service which falls within the exclusive jurisdiction of Service Tribunal, consequently; the Constitutional Petition is not maintainable in view of the provisions of Article 212 of the Constitution of the Islamic Republic of Pakistan read with section 4 of the Service Tribunals Act, 1973, however; the learned counsel strenuously argued that the case of the petitioner as well as of the next senior most candidate i.e. respondent No.6 was considered by the D.P.C. and after full exercise and application of mind by the competent forum, it came to the conclusion that the petitioner lacks proper fitness to be recommended for the promotion to the next higher post in view of the adverse material seriously affecting suitability of the petitioner and therefore, the respondent No.6 against whom there was no material adverse respecting his fitness coupled with seniority hence, the respondent No.6 was appropriately recommended to be promoted for the post of S.R.P. According to the learned counsel, the promotion of the candidate does not solely depend on his seniority, rather; the D.P.C. has to determine the fitness or a candidate as well and; such jurisdiction exclusively vesting in the D.P.C. has been exercised in view of the material laid before it. Mr. H. Shakil Ahmed submitted that the authority exercised by the D.P.C. on sound grounds cannot be shared by a Court or Tribunal exercising supervisory jurisdiction and to supplement his view point the judgment of the Hon ble Supreme Court reported in 1991 SCMR 1129 in the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and four others was cited. 7. Chaudhry Muhammad Rafique, the learned counsel for the respondent No.6 adopted the arguments of the learned Deputy Attorney General and submitted that the question of suitability of a candidate falls within the exclusive jurisdiction of the Departmental Promotion Committee which considered and exercised the jurisdiction within its specified sphere, does not call for any interference therefore, the Constitutional petition deserves to be dismissed in limine. 8. We have considered the contentions of the parties learned counsel in the light of their respective pleadings, documents available on record and have also gone through the case-law cited in the matter. Undoubtedly Administrative Courts or Tribunals have exclusive jurisdiction in respect of the matters relating to the terms and conditions of the persons in service of Pakistan including disciplinary matters within the meaning of Clause (1)(a) of Article 212 of Constitution of Islamic Republic of Pakistan and by virtue of subsection (1) of section 4 of the Service Tribunals Act, 1973 an appropriate Tribunal established under the said Act, shall have the exclusive jurisdiction to hear appeal of 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 the service provided that where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of 90 days has elapsed from the date on which such appeal, application or representation was not preferred, whereas; Clause (b) of the proviso to subsection (1) of section 4 of the Act provides that no appeal shall lie to a Tribunal against any order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post to be promoted or a higher post or grade; the same provision has also been enacted in the 2nd proviso to sub-rule (1) of rule 4 of the Civil Servants (Appeal) Rules, 1977. From perusal of these provisions of the Act and Rules, it is abundantly clear that the matter relating to 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 and determination of such questions by the departmental authority does not fall within the jurisdiction of Tribunal nor a departmental appeal or representation against an order or decision of a departmental authority on such question would lie, meaning thereby that the jurisdiction of Service Tribunal stands excluded in relation to the matters specified in Clause (b) of proviso to subsection (1) of section 4 of the Service Tribunals Act. PLD 1994 SC 539 ref: the matter in hand since relates to the fitness and promotion of the petitioner to the next higher grade hence, the same does not fall within the jurisdiction and domain of the Service Tribunal, consequently; the petitioner can competently invoke the Constitutional jurisdiction of the High Court. 9. Admittedly the petitioner was not found suitable by the D.P.C. to be recommended for promotion to the next higher grade in view of the entire service record of both the candidates and the material available with it, inclusive of the vigilance report and; in respect whereof serious reservations have been expressed by Mr. M. Aslam Chishti noted hereinabove. Perusal of the findings of the D.P.C. available on record and filed by the official respondents with their rejoinder reveals that case of both the candidates i.e. petitioner and respondent No.6 was considered by the D.P.C. in its meeting held for the purpose and after lawful exercise of its authority competently considered and assessed the fitness of the petitioner in view of entire suitable material, and; on deligent application of mind, it came to the conclusion that the petitioner lacks fitness to be recommended for the promotion to the next higher grade/post on the basis of quantification of his A.C.Rs. and also for an added reason that the vigilance report submitted by the Director/Vigilance Cell, contained adverse material further affecting the suitability of the petitioner, whereas; on the basis of quantification made by the D.P.C. the respondent No.6 on the basis of marks acquired preferable position against whom there was no material adverse respecting his fitness . As a result of the consideration and exercise made by the D.P.C. evident from the findings recorded by it, the respondent No.6 earned A-1 and A reports having no adverse remarks in his A.C.Rs and in view of the quantification of both the officers made in the light of the rules and the other material placed before it, recommendations were made in supersession of the petitioner s proposed promotion in favour of the next senior most officer i.e. respondent No.6 to be enjoying complete fitness to be promoted to the next higher grade, pursuant to which the respondent No.1 issued the impugned notification by approving the recommendation of the D.P.C. It may be noted that apart from the seniority of the petitioner and quantification required to be carried out in the light of the rules and the relevant provisions of ESTA Code, the D.P.C. was also be determined about his fitness which obviously is a subjective satisfaction of the competent forum based upon objective criteria and; such process and exercise does not necessarily to revolve and confine within the parameters of the rules of seniority or having more than the required qualifications or quantification marks nor the same to be rested strictly on the assessed work and performance of the officer in the existing grade or post as reflected from the A.C.Rs, rather; the question of fitness of an officer for promotion also embraces due consideration of any material necessary for determination of fitness of any incumbant nor even the guidelines referred to by Mr. Muhammad Aslam Chishti and the rules entail any prohibition of the D.P.C. to ignore the material found essential for the determination of the question of fitness of a civil…

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