2016 P L C (C.S.) 1314
[Balochistan (Sibi Bench)]
Before Muhammad Kamran Khan Mulakhail and Ghulam Mustafa Mengal, JJ
AURANGZAIB
Versus
DIVISION SUPERINTENDENT PAKISTAN RAILWAYS and 3 others
Constitutional Petition No.99 of 2013, decided on 24th July, 2014.
Civil service ---
----Employees of Pakistan Railways --- Promotion--- Terms and conditions of service ---Bar
contained under Art.212 of the Constitution--- Scope --- Employees of Pakistan Railways sought
promotion on the basis of reserved quota ---Validit y---Pakistan Railways was the department of
Federal Government and its employees were covered by "persons in the service of Pakistan" ---
Employees were seeking promotion to the next higher grade ---Remedies of appeal, review or
representation before the departmental authorities had not been availed by the employees ---
Employees had directly approached the High Court for their promotion which relief could not be
granted in view of bar contained in Art.212 of the Constitution---Matter, in the present case, did
not relate to fitness of the employees but promotion to the next higher grade had been sought on
the basis of reserved quota ---Prayer made by the employees was with regard to "terms and
conditions" of their service which could not be granted under the const itutional jurisdiction of
High Court ---Employees -petitioners would be at liberty to avail the remedy available to them
under the law ---Constitutional petition was dismissed in circumstances.
Zubaida Khatoon v. Tehmina Sajid Sheikh 2011 SCMR 265 distingui shed.
Chairman of Pakistan Railways Board Lahore v. Muhammad Ali 1987 SCMR 638;
Government of Pakistan v. Syed Akhlaque Hussain PLD 1965 SC 527 and Mufti Mushtaq
Ahmed v. Federation of Pakistan PLD 1981 SC 172 rel.
Chaudhary Anwar -ul-Haq for Petitioners.
Sadiq Guman for Respondents Nos.1 and 2.
Date of hearing: 5th June, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. --- Through this petition the
following prayer has been sought:
"... in the light of above mentioned submission the petition in hand ma y kindly be
allowed and the promotion orders dated 07.09.2013 bearing No.757- E/64 -PT-I/P-I and
11.09.2013 bearing Notice No.757- E/64 -PT-I/P-I, issued by the respondent No.1 in
favour of respondents Nos.3 and 4 may kindly be declared null and void as well a s
against the constitution and the respondents Nos.1 and 2 be directed to promote the
petitioners after reversion of respondents Nos.3 and 4 being deserving employee, keeping
the view of fundamental right of the petitioners, in the interest of justice, fair play and
equity please."
2. Chaudary Anwar -ul-Haq, the learned counsel for the petitioners contended that the
petitioners were initially appointed as Ticket Controller ("TCR") Grade -I in Pakistan Railways
on 7th May, 2004, thereafter both of them were pr omoted as TCR in Grade -II, respectively vide
order dated 31st May, 2008 and 16th March, 2009. He asserted that on 30th April, 2012, the
respondent No.1 issued a seniority list of TCRs of grade -I & II in Quetta Division, wherein the
petitioners were at seri al Nos.3 and 4. He maintained that the officials at serial Nos.1 and 2 were
promoted as Special Ticket Examiner ("STE") and on 7th September 2013 the respondent No.4
was promoted as STE and thereafter on 11th September 2013 the respondent No.3 was also
promoted on the same position of STE. He referred to a policy of respondents' department and
stated that the promotion of respondents Nos.3 and 4 was in utter violation of Pakistan Railways
Policy for promotion to the position of STE, which was prescribed acc ording to the following
criteria/ percentage:
* TCR Grade -II 80%
* SCA (booking) 10%
* SCA (Parcel) 5%
* SCA (Goods) 5%
The learned counsel for the petitioners finally urged that promotion of the respondents Nos.3 and
4 may be declared as having been made in violation of reserved quota and further sought
direction to the official respondents for promotion of petitioners to the position of STE. He also
relied upon a judgment in case of Zubaida Khatoon v. Tehmina Sajid Sheikh, 2011 SCMR 265.
3. On recei pt of notice, the respondents entered appearance and filed their para -wise
comments. The respondents Nos.3 and 4 were appearing in person, while the respondents Nos.1
and 2 i.e. Pakistan Railways was represented by Mr. Sadiq Ghuman, Advocate, who at the ve ry
outset raised an objection on maintainability of the petition and contended that in view of Article
212 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), the
petitioners are civil servants. He further referred to the reply filed by the Pakistan Railways and
contended that the departmental appeals of the petitioners have been dismissed by the competent
authority, but they instead of availing of alternate remedy, invoked the jurisdiction of this court,
therefore, the petit ion is not maintainable and prayed for its dismissal.
4. The respondents Nos.3 and 4 also appeared and were heard at length. The arguments
advanced by the parties relate to the reserved quota for promotion to the position of STE from
the various categories, but, albeit, we intentionally refrain ourselves to give any observation on
merits of the case and decided to proceed with the matter, keeping in view the objection in
respect of maintainability of the petition.
5. No cavil is left to hold that the Railways is, admittedly, a department of Federal
Government, therefore, the employees of Pakistan Railways are covered by persons in the
service of Pakistan. We are fortified in our view by the judgment of Hon'ble Apex Court in case
of Chairman of Paki stan Railways Board Lahore v. Muhammad Ali, 1987 SCMR 638. The
relevant portion of the said judgment is reproduced hereunder:
"The respondent was definitely in the service of Pakistan being an employee of the
Pakistan Railways that being the function conne cted with the affairs of the Federation.
Hence, the bar of Article 13 of the Provisional Constitution Order. This appeal is
accordingly allowed, the judgment of the High Court is set aside and the proceedings in
the High Court are declared to have abated."
This proposition came up before the Hon'ble Supreme Court in case of Government of Pakistan
v. Syed Akhlaque Hussain, PLD 1965 Supreme Court 527, wherein it is held in clear terms that a
condition of holding an office means obviously a condition on which office is held. Any benefit
or disadvantage that attaches to the holding of an office as such is a condition of service or
condition of holding of office.
The interpretation clauses contained in Article 260 of the Constitution, is applicable in
this case, which defines the service of Pakistan as follows:
"Service of Pakistan" means any service, post or office in connection with the affairs of
the Federation or of a Province, and includes an All -Pakistan Service, service in the
Armed Forces and any other service declared to be a service of Pakistan by or under Act
of Majilis -e-Shoora (Parliament) or of a Provincial Assembly, but does not include
service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister,
Federal Minister, Minister of State , Chief Minister, Provincial Minister, Attorney -
General, Advocate -General, Parliament Secretary or Chairman or member of a Law
Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant
to the Prime Minister, Adviser to the Prime Minister, Special Assistant to Chief Minister,
Adviser to a Chief Minister or member of a House or a Provincial Assembly."
6. In this case the petitioners are seeking promotion to the next higher grade as STE on the
strength that reserved quota allocated f or promotion in various cadres have been violated. The
question of paramount importance involved in this case would be that the available remedies by
way of appeal, review, or representation before departmental authorities are not exhausted, and
the petitioners directly approached this court under the constitutional jurisdiction, which relief
cannot be granted to them in view of bar contained in Article 212 of the Constitution. For
holding this view we have been supported by the reported judgment of Mufti M ushtaq Ahmed v.
Federation of Pakistan, PLD 1981 Supreme Court 172. The law on this subject is clear, which
provides a remedy without any ambiguity. The referred to judgment relates to clause -b, whilst in
the instant case the requirement of clause- a was to be fulfilled, because the question involved in
this petition does not relate to fitness of the petitioners, but their promotion to the next higher
grade according to reserved quota was sought to be granted.
In referred to judgment of the Hon'ble Supreme Court it is observed that in view of
specific bar contained in Section 4(1) of Service Tribunal Act, 1973, the question of fitness for
promotion is beyond the jurisdiction of service tribunal, therefore, in that case the constitutional
jurisdiction exercis ed by the High Court was affirmed. The sub- clauses (a) and (b) of subsection
(1) of Section 4 of Service Tribunal Act, 1973 are relevant in this case, which provide as under:
"(a) where an appeal, review or representation to a departmental authority is pro vided
under the Civil Servants Act, 1973 (LXXI of 1973), or any rules 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
ninety days has elapsed from the date on which such appeal, application or representation
was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental
authority determining the fitness or othe rwise for a person to be appointed to or hold
particular post or to be promoted to a higher post or grade;"
7. Therefore, we are of the considered view that the prayer made by the petitioners relates to
the terms and conditions of their service, which cannot be granted under the constitutional
jurisdiction of this court. The judgment referred to by the learned counsel for the petitioners does
not provide any assistance to the petitioners' case being irrelevant.
These are the reasons that we intentionally r efrain ourselves to give any observation in
respect of legality of promotion granted to the respondents Nos.3 and 4 as well as to the
entitlement of the petitioners for their promotion to the next higher grade. Thus, petition being
devoid of merits is dism issed accordingly; however, the petitioners are at liberty to avail the
remedy provided to them under the relevant law.
ZC/43/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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