IMAM BAKHSH and 4 others vs DEPUTY COMMISSIONER, LAYYAH and 16

' SHAFIUR RAHMAN, J.---Leave to appeal was granted in these two appeals to examine, subject to limitation, whether the Lahore High Court had at all the jurisdiction in the matter in view of Article 212 of the Constitution read with Punjab Civil Servants Act and Punjab Service Tribunals Act.

2. The Deputy Commissioner, Sargodha on the recommendation of District Selection/Promotion Committee in meetings held on 13-1-1986 and 11-8-1986 notified purely temporary and temporary ad hoc appointments of Kanungos. Those adversely affected represented under section 21(2) of the Punjab Civil Servants Act, 1974 against these orders. All these representations were allowed by the Commissioner on 21-12-1986 holding as hereunder:--- "In view of what has been discussed aove it is advised that a joint list of all the patwaris functioning in the district be prepared and those having crossed the upper age barrier of 40 should be referred to the Director Land Records for a verdict in one way or the other as was done in the case of petitioner Safdar Ali son of Muhammad Sharif referred to above. Thereafter the District Selection/Promotion Committee should sit down and consider the cases of all the remaining candidates left out after scrutiny/advice of and by the Director Land Records, Punjab. That would be a fair situation, a fair selection and a fair verdict. With these observations the impugned order is set aside and the cases remanded to the learned D.C./District Collector, Sargodha for fresh decision in accordance with the guideline given above."

' On the same day another matter was disposed of in the same terms.

3. These orders of the Commissioner were challenged in Constitutional jurisdiction. The prayer made in the Writ Petition was as hereunder:--- "It is, therefore, prayed that both the impugned orders of the Commissioner, Sargodha Divisio y Sargodha dated 21-12-1986 may graciously be declared as illegal, without lawful authority and ineffective against the rights of the petitioners and that the selection of the petitioners was made competently by the District Selection/Promotion Committee in accordance with law."

4. The High Court by its judgment dated 1-3-1989 accepted the constitution petition, concluding as hereunder:- "A person has a right to know as to why he has been excluded from selection. A mere observation that a group of named persons is selected while another set of persons is being rejected would be bad in law for vagueness and may smack of arbitrariness at times.

' In view of the position which has emerged, I have no hesitation in setting aside the impugned order of the Commissioner Sargodha Division as well as the two selections already made and to remit the case to the Deputy Commissioner/Collector who is the competent authority in the matter to hold fresh selection after faithfully observing the requirements of law, and hearing those of the parties who wish to be heard."

5. The appellants before us were not parties to these proceedings before the Commissioner. All the same, they were adversely affected when the decision of the High Court was sought to be given effect to. They approached this Court, within time from the date of their knowledge of this order but somewhat late, as from the date of the order of the High Court impugned by them. What happened subsequent to the decision of the High Court and before the departmental authorities and the Service Tribunal is a long story, but neither relevant nor necessary for the present adjudication.

Considering that the appellants were not parties to the proceedings, that they are within time from the date of their knowledge and that the issue relates to the constitutional jurisdiction, the delay whatever is occurred, is condoned.

6. Mr. Hamid Khan, Advocate, the learned counsel for the appellants contended that the High Court failed to take note of the fact that there was a constitutional bar to the jurisdiction of the High Court in view of Article 212 of the Constitution. The controversy related neither to the fitness nor to the suitability of the writ petitioners for appointment/promotion to the post of Kanungo but one of rules of eligibility/ineligibility for being considered for such promotion. Such a question had of necessity to be resolved by the Service Tribunal and not by the High Court. He also contended that while adjudicating on merits, the High Court completely failed to take note of rule 4(b) (ii) of unrepealed The Punjab Kanungos Service Rules, 1945 and rule 11 of the West Pakistan Kanungo Service (Northern Zone) Rules, 1964. For the first proposition he relied on the decision of this Court in Aish Muhammad and 68 others v. Pakistan and 75 others 1985 SCMR 774; Government of Pakistan v.

Muhammad Sadiq 1985 SCMR 699 and Nan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153. Finally, he contended that the departmental practice has uniformly applied age restriction on promotion of Patwaris. The importance of uniform, consistent departmental practice has been recognised in Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453.

7. Mr. Riaz Anwar, Advocate, the learned counsel for one set of respondents has conceded that the issue being one of eligibility for being considered for promotion, rather than fitness or suitability for promotion, the Tribunal had the exclusive jurisdiction in the matter.

8. Mr. Hamiduddin, Advocate, the learned counsel for another set of respondents has pleaded for the protection of the impugned order both on merits as also on jurisdictional plane by reference to Mian Amanul Mulk v. N.-W.F.P. Through Chief Secretary PLD 1981 Pesh. 1 and Muttaqi Hussain Rizvi v.

Province of Sindh and another PLD 1978 Kar.

703.

9. The facts pleaded before the High Court and the decision given do not relate either to fitness or suitability of the writ petitioners. The question directly in issue was the specific rule making them eligible/ineligible for being considered for promotion or for excluding them from consideration for promotion. This question squarely falls within the exclusive jurisdiction of the Service Tribunal as held by this Court in the cases Superintendent of Police, Headquarter, Lahore and 2 others v.

Muhammad Latif PLD 1988 SC 387, Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 and Nek Muhammad Ropaal v. Government of the Punjab through Secretary to Cooperative Department and 2 others PLD.1990 SC 672.

' For the foregoing reasons, without going into the merits of the rule applicable, we accept both the appeals, set aside the judgment of the High Court as without jurisdiction and recall the writ. No order is made, as to costs.