1998 P L C (C.S.

) 264

[Karachi High Court]

Before Mrs. Majida Rizvi and Saiyed Saeed Ashhad, JJ

ABDULLAH CHAUHAN and others

versus

NATIONAL BANK OF PAKISTAN and others

Constitutional Petitions Nos. D-2205,'D-2206, D-2207 of 1996 and D-1338 of 19.97, decided
on 24th October, 1997.

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4 [as inserted and amended by Service Tribunals (Amendment) Act (XVII of
1997)--Constitution of Pakistan (1973), Arts. 199 & 212--Constitutional petition---
Competency---Service under statutory corporation--Promotion to next higher grade granted
to petitioners was subsequently put in abeyance and they were reverted---Petitioners' locus
standi to file Constitutional petition against order of reversion---Employees of statutory
corporations having been declared to be civil servants, they would have to approach Service
Tribunal for filing appeals against impugned order---No bar existed for petitioners for filing
appeals against impugned order before Service Tribunal for word "final" appearing in S. 4(l),
Service Tribunals Act, 1973 had been omitted---Effect of omission of word "final" would be
that every order passed by Departmental Authorities would be appeal able or could be
challenged before Service Tribunal---Petitioners, thus, could not invoke Constitutional
jurisdiction of High Court in view of bar provided under Art. 212 of the Constitution.

Manzoor Ali Khan for Petitioners (in all Petitions).

Gulzar Ahmed for Respondent No. 1.

Date of hearing: 1st October, 1997.

ORDER

SAIYED SAEED ASHHAD, J---All the aforesaid four petitioners who are employees of
respondent/National Bank of Pakistan have filed the aforesaid Constitutional petitions to
challenge the validity and legality of President's Office Circular No.7/95, dated 28-3-1995,
by virtue of which all the orders issued from 26-3-1995 including the orders of promotions of
the petitioners to the next higher post, made on 27-3-1995, were held in abeyance and the
petitioners were reverted and/or disallowed promotion.

Attention of Mr. Manzoor Ali Khan, for the petitioners, vas drawn to the recent amendment
in the Service Tribunals Act, 1973 by virtue of the Service Tribunals (Amendment) Act,
1997, amending section 2 of the Service Tribunals Act. 1973 and adding new section 2-A in
the said Service Tribunals Act, whereby the petitioners have acquired the status of civil
servants for the purposes of Service Tribunals Act and in view of the provisions of Article
212 of the Constitution of Pakistan, 1973 are precluded from invoking the Constitutional
jurisdiction of this Court for redress of their aforesaid grievances. It was also pointed out that
the petitioners' remedy lies only in approaching the Service Tribunal and that the aforesaid
petitions have become infructuous and are liable to be dismissed as such.

Mr. Manzoor Ali Khan, learned counsel for the petitioners very frankly conceded that on
account for the amendment made in the Service Tribunals Act by the Service Tribunals
(Amendment) Act, 1997, the petitioners have acquired the status of civil servants for the
purpose of Civil Servants Act and any issue or controversy relating to terms and conditions
of their services could only be agitated or raised by them before the Service Tribunal. He also
did not controvert the position that the aforesaid amendment in the Service Tribunals Act
would affect employees of the Government/Semi-Government Corporations, Companies and
Organisations, controlled or managed either by Federal Government or Provincial
Government, all of which are to be treated as corporations and their employees as civil
servants and admitted that the aforesaid petitions would have become infructuous and would
have abated if the issue/controversy involved therein pertained to the terms and conditions of
the petitioners' services in the respondents' organisation. He however, submitted that the
issues involved in the aforesaid petitions, do not pertain to or relate to the terms and
conditions of services of the petitioners, but pertain to their fitness of otherwise for holding
various posts to which the aforesaid petitioners were promoted and that according to the
proviso (b) to section 4 of the Service Tribunals Act, 1973, the subject-matter or the issues in
dispute, did not fall within the jurisdiction or scope of authority of the Service Tribunal and
the same can only be agitated before this Court, inasmuch as the jurisdiction of this Court has
not been barred or curtailed to adjudicate upon the said issues or controversy in respect of
which neither any other forum has the jurisdiction nor which have been specifically ousted
from the jurisdiction of this Court by Article 212 of the Constitution

Another contention advanced by Mr. Manzoor Ali Khan in support of the maintainability of
the aforesaid petitions, is that the orders of promotions of the petitioners were put in
abeyance by the President's Office Circular No.7/95, dated 28-3-1995 and have not been
recalled, withdrawn or cancelled and further that an Appellate Review Committee was
formed by respondent No.2 for reviewing the cases of promotion which have been put in
abeyance but the said Appellate Review Committee has not submitted its report by the due
date or even thereafter with the result that no final order has yet been made or passed relating
to the promotions or denial thereof to the petitioners which also debars the petitioners from
approaching the Service Tribunal.

In support of his first contention Mr. Manzoor Ali Khan has placed reliance on the case of
lqan Ahmed Khurram v. Government of Pakistan and others, reported in PLD 1980- SC 153;
and in support of his second contention he has placed reliance on the case of S.H.M. Rizvi
and 5 others v. Maqsood Ahmad and 6 others reported in PLD 1981 SC 612.

We have considered and examined the contentions advanced by Mr. Manzoor Ali Khan and
have also perused the relevant provisions of law applicable to the facts of the case as well as
the case-law referred to us by Mr. Manzoor Ali Khan. Vide order dated 27-3-1995
respondent No.2 in his capacity as President of respondent No.l had issued promotion orders,
promoting the petitioners to the next higher posts. From perusal of the material on record it
transpires that before the petitioners could take over or assume the charge of posts to which
they were promoted, the orders of promotion were put in abeyance on account of a policy
decision made by respondent No. 2, which was notified by issuance of Presidents' Office
Circular No.7/95, dated 28-3-1995. As such, the petitioners had no occasion to perform the
functions and discharge the duties of the higher post to which they were promoted. Mr.
Gulzar Ahmad on behalf of respondent No.l submitted that since the petitioners had already
been cleared and promoted but they neither performed the functions nor discharged the duties
of the higher posts to which they were promoted, the question as to whether they were fit or
otherwise to hold the post and to continue to perform the functions and duties thereof, is not
and cannot be the subject-matter of the petitions, requiring adjudication and this contention is
to be ruled out of consideration. Such a situation, according to Mr. Gulzar Ahmed, would
have arisen only if the petitioners had assumed the charge of the higher post to which they
were promoted and had occasion to perform the functions and discharge the duties of the said
higher posts and therefore were reverted or demoted to their original posts.

From perusal of the President's Office Circular No.7/95 it is crystal clear that the promotion
orders of the petitioners were put in abeyance by respondent No.2 for the purpose of re-
organization, relating to promotions, transfers and postings. Mr. Gulzar Ahmed, the learned
counsel for the respondents submitted that the contents of the aforesaid President's Office
Circular did not, in any manner, disclose or convey the intention to re-call, withdraw or
cancel the promotions of the petitioners nor the said Circular had raised or touched the issue
of fitness or otherwise of the petitioners to hold the posts to which they were promoted.

From perusal of the material on record it is evident that the petitioners had been promoted to
the posts next higher to the posts which they respectively held at the time when the orders of
promotions were made. The action of the respondent No. 2 in ordering the promotion of the
petitioners clearly implies and suggests that all the facts and requirements relevant to the
promotion of the petitioners clearly implies and suggests that all the facts and requirements
relevant to the promotion of the petitioners had been considered and examined, after which
the petitioners having been found fit for holding the higher posts to which they were
considered for promotion, were ordered to be promoted. Thus, the fitness and/or eligibility of
the petitioners for the promotion had been considered, examined and determined, and it is
now not open to the petitioners to raise the issue of their fitness and/or eligibility for
promotions for holding the higher posts to which they were promoted. By the impugned
order dated 28-3-1995 issued by respondent No. 2 putting in abeyance the orders of
promotion of the petitioner, the fitness or otherwise of the petitioners to be promoted and
hold the higher posts has neither been challenged nor can be said to be an issue for
consideration and determination, as it stood finally decided as and when the orders of
promotion of the petitioners were made.

In the circumstances, we are unable to agree with the contention on behalf of the petitioners
that the issues or the controversies involved in the aforesaid petitions are relative to their
fitness or otherwise for holding the posts to which they were ordered to be promoted but
pertain to the terms and conditions of service of the petitioners. The impugned order by no
stretch of imagination can be said to be dealing with, or touching the issue or question of
fitness or otherwise of the petitioners for holding the various posts to which they were
promoted The case of Iqan Ahmed Khurram v. Government of Pakistan, supra, referred to us
by Mr. Manzoor Ali Khan, is of no help to the petitioners in deciding whether the issues or
controversies involved in the aforesaid petitions relate to the terms and conditions of the
petitioners or their fitness or otherwise for holding the various posts to which they were
promoted, inasmuch as the judgment in the aforecited case does not lay down any test for
making a distinction between an order relating to the terms and conditions of a civil servant
and an order relating to fitness or otherwise and what has been held is that in the former case
an appeal would he to the Service Tribunal, whereas in the latter case no appeal would lie as
per the situation prevailing prior to the amendment, brought in the Service Tribunals Act,
1973. The case of S.H.M. Rizvi v. Maqsood Ahmed, supra, also does not advance the case of
the petitioners as to the maintainability of the aforesaid petitions.

There is yet another aspect of the case. Admittedly, prior to the amendment only a final order
of the departmental authority could be challenged by way of an appeal and adjudicated upon
by the Service Tribunal. In the aforesaid petitions, according to the petitioners no final orders
have yet been made regarding the issue relating to their promotions, which remain in
abeyance by virtue of the impugned order dated 28-3-1997 According to Mr. Manzoor Ali
Khan the said order dated 28-3-1997 is an interim order and cannot be challenged before the
Service Tribunal. This, however, would not authorise the petitioners to invoke the
Constitutional jurisdiction of this Court in respect of the impugned orders which are not final
in nature and the orders which do not finally decide or settle the disputes in issue cannot be
challenged by way of a Constitutional petition in view of the pronouncement made by the
Supreme Court in the case of Syed Saghir Ahmed Naqvi v. Province of Sindh and another
reported in 1996 SCMR 1165, wherein the Supreme Court repelled the contention that since
appeal lay to the Service Tribunal only against a final order, a Constitutional petition
challenging the interim order could be maintained and held the contention to be erroneous.
After the amendment in the Service Tribunals Act, 1973 by the Service Tribunals
(Amendment) Act, 1997 whereby the petitioners have been declared to be civil servants, they
have to approach the Service Tribunal for filing appeals against the impugned order as now,
there is no bar for the petitioners to challenge the impugned order before the Service Tribunal
as the word-"final", appearing in subsection (1) of section 4 of the Service Tribunals Act, has
been omitted. The resultant effect of the, omission of the word "final" in subsection (1) of
section 4 is that every order passed by the departmental authorities would be appealable or
can be challenged before the Service Tribunal.

Upon the above discussions we are satisfied that the petitioners have no locus standi to
invoke the Constitutional jurisdiction of this Court in respect of the issues/controversies
involved in the aforesaid petitions and that the same are not maintainable. Accordingly, all
the four petitions are dismissed, as they stand abated.

MRS. MAJIDA RAZVI, J----I agree.

A.A./A-158/K Petitions dismissed.