Sanaullah Vs Govt

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, BANNU BENCH

(Judicial Department)

W.P No.688-B of 2017.

Sanaullah Khan Vs Provincial Government etc.

JUDGMENT

Date of hearing ______________________19.12.2017_____ Appellant-Petitioner: By Muhammad Nisar Khan Sokari, Advocate.

Respondent :_______________________________________ SHAKEEL AHMAD, J.--- Through instant petition the petitioner has sought the following reliefs:- “It is,therefore, respectfully prayed that the petitioner may kindly be promoted from BPS- 15 to PBS-16 according to the rule and regulations annunciated by the Government and the order of respondent may graciously be declared as illegal, without lawful authority and without jurisdiction and ineffective upon the rights of petitioner.”

2.Succinctly, relevant facts as set out in the instant petition are that the petitioner is a civil servant and that he has

rendered more than 11 years service as PTC/PST. The petitioner was refused promotion by the respondents / department on the ground that petitioner was not fulfilling the criteria of promotion as prescribed by the Government of KP, thus, the petitioner filed departmental appeal and requested for promotion, but the same was rejected by the respondent. Hence, this petition.

3.We have heard the learned counsel for the

petitioner and learned AAG representing the respondents No.1 to 3 at length and scanned the record with their valuable assistance.

4.Learned counsel for the petitioner submits that the petitioner was illegally refused promotion, though he has earned good ACRs on his credit; He lastly contended that Service Tribunal has no jurisdiction against order or decision of Departmental Authority determining fitness or other-wise of a person to be appointed to hold a particular post or to be promoted to a higher post or grade in view of bar imposed by Cl.(b) of S.4 (1) of Service Tribunal Act, 1973.

5.As against that the learned AAG appearing on behalf of the respondents No.1 to 3 submits that the petitioner is

a civil servant, he cannot invoke jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in view of embargo placed by Article 212 of the constitution. He further asserted that section 4(a) of the Khyber Pakhtunkhwa Service Tribunal Act, 1974 is a valid piece of legislation, and prayed for dismissal of the writ petition.

6.Perusal of the record evince that petitioner is a civil servant, he is aggrieved that he has not been promoted to next higher scale. The matter agitated by him as defined under the Service Tribunal Act, 1974 has arisen from a final order of a departmental authority, and it relates to the promotion of other candidate/respondent No.5, therefore, not covered by exception mentioned in proviso b-(i) and (ii) of section 4 of the ibid Act.

Article 212 of the constitution states that where any administrative Court or Tribunal is established, no Court shall grant an injunction, make an order or entertain any proceeding in respect of any matter to which jurisdiction of such administrative Court or Tribunal extends.

7.Perusal of section 4 of the Khyber Pakhtunkhwa Tribunal Act, 1974 reflects that 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 his service may within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.

8.Case of the petitioner does not fall within the exception contained in proviso b-(i) and (ii) of section 4 of Service Tribinal Act, therefore, we hold that writ petition is not maintainable. In this respect we respectfully follow the law laid down in the case “Fauzia Siddiqui Qureshi Vs. Secretary, Ministry of Education, Islamabad and others” (2004 SCMR 521), wherein it has been held that any matter pertaining to the terms and conditions of the civil service or disciplinary matters cannot be entertained by any Court including High Court.

9.Moreover, jurisdiction of this Court is also barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 to take cognizance in the matter relating to the terms and conditions of service of a civil servant. The Apex Court in the case of I.A Sharwani and others vs. Government

of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) and recently in Ali Azhar Khan Baloch’s case (2015 SCMR 456), has again laid down that the issue relating to the ‘terms and conditions’ of service cannot be entertained by a High Court in its constitutional jurisdiction being barred under Article 212 of the Constitution.

10.For the foregoing reasons, this writ petition being bereft of merit is, dismissed in Limine.

Announced.

J U D G E.

*Imranullah*

J U D G E.