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Petitioner: AMIN-UR-REHMAN VS Respondent: GOVERNMENT OF KHYBER PAKHTUNKHWAHonorable Justice Waqar Ahmad SethAbdul Ghaffar Khan,Mian Arshad Jan
2015 P L C (C.S.) 1362
[Peshawar High Court]
Before Waqar Ahmad Seth and Mrs. Irshad Qaiser, JJ
AMIN-UR-REHMAN and others
versus
GOVERNMENT OF KHYBER PAKHTUNKHWA and others
Writ Petitions Nos.433-P and 2948-P of 2014, decided on 17th March, 2015.
Constitution of Pakistan---
----Arts. 199, 212(2), 4, 24 & 25---Constitutional petition---Maintainability--- Alternate remedy--- Scope--- Civil service---Promotion--- Bar of jurisdiction of High Court---Laches---Petitioner had called in question amendment brought vide notification that put petitioners at disadvantageous position against fundamental rights and terms/conditions of service---Petition was filed after a gap of almost two years of impugned notification---Effect---Delay in filing constitutional petition attracted doctrine of laches---Promotion was related to terms and conditions of service and Art.212(2) had put specific bar upon High Court in such cases---Petitioner could assail impugned notification only before competent forum---Constitutional petition was dismissed being not maintainable.
I.A. Sharwani and others v. Government of Pakistan through Secretary 1991 SCMR 1041 rel.
Abdul Ghaffar Khan for Petitioners.
Mian Arshad Jan, A.A.-G. for Respondents.
Date of hearing: 17th March, 2015.
JUDGMENT
WAQAR AHMAD SETH, J.--- Through this single judgment/ order we intend to dispose of this writ petition as well a connected W.P. No.2948-P of 2014 as common question of law and facts are involved.
2. Petitioners in both the writ petition have called in question the amendment brought about vide notification dated 13th November, 2012, whereby the post of SET BPS-16, with new nomenclature as SST, BPS-16, meant for promotion purposes, has been amended to the disadvantage of the in service employees/petitioners. The addition of clause/word, "2nd class" to the qualification for promotion to the post of SST, as per petitioners is against the fundamental rights and adverse to the terms and conditions of service, hence the violation of Articles 4, 24 and 25 of the constitution has been alleged.
3. These writ petitions have been filed by the petitioners on 6th February 2014 and 22nd September, 2014, respectively, whereas the impugned amendment was introduced on 13th November, 2012 and which has been acted upon in number of cases, hence the question of laches is also there. Promotion, even otherwise is a term and condition of service and Article 212 of the Constitution of Islamic Republic of Pakistan 1973, specifically creates a bar upon this court under Article 199, of the Constitution.
4. Since the petitioners have called in question the amendment brought in the promotion Rules and due to which they are alleging adverse effect on the touchstone of the fundamental rights etc, therefore, they have the every right to challenged the same, but before the competent forum as provided to them, i.e. Service Tribunal, where the amendment, as well be challenged. In the celebrated case of I.A. Sharwani and others v. Government of Pakistan through Secretary, reported in 1991 SCMR 1041; it has been held as under:---
(d) ----S.4---Appeal---Jurisdiction---Civil servant when aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a Notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer---If a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of S.4(1) in order to file an appeal before the Service Tribunal.
(e) ---S.4---Constitution of Pakistan (1973), Art. 25---Appeal---Jurisdiction of Service Tribunal---Civil servant cannot by-pass Service Tribunal by adding a ground of violation of the Fundamental Rights---Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental rights.
5. In view of above, these writ petitions are held not maintainable, dismissed as such, however, petitioners are at liberty to approach the competent forum, if so advised. CM No. 272-P of 2015 regarding impleadment is allowed.
MM/174/P Petition dismissed.