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Petitioner: JAVAID IQBAL VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, CABINET SECRETARIAT, GOVERNMENT OF PAKISTAN, ISLAMABAD
1998 P L C (C
1998 P L C (C.S.) 42
[Lahore High Court]
Before Raja Muhammad Khurshid, J
JAVAID IQBAL
versus
THE SECRETARY, ESTABLISHMENT DIVISION, CABINET SECRETARIAT, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others
Writ Petition No. 2008 and Civil Miscellaneous Nos. 3601 and 3602 of 1997, decided on 19th September, 1997.
Civil Servants Act (LXXI of 1973)-
----S. 8---Constitution of Pakistan (1973), Arts 199 & 212---Constitutional petition---Maintainability---Denial of promotion---Validity---Dispute between parties related to terms and conditions of service, which fell within exclusive jurisdiction of Service Tribunal---No other Court would grant injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of such Administrative Court or Tribunal extended---Constitutional petition was, thus, not competent---Even if mala fides was alleged, then too, such action would fall within jurisdiction of Service Tribunal---Service' Tribunal would have jurisdiction in service matters even if orders were challenged on ground of mala fides, being arbitrary or passed in fanciful exercise of authority.
Miss. Rukhsana Ijaz v. Secretary Education, Punjab and others 1997 SCMR 167; Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169 and Munshi Muhammad Azam v. A.C. etc. 1996 PLC (C.S.) 415 rel.
Shaukat Rauf Siddiqui for Petitioner.
ORDER
This writ petition is filed by the petitioner in order to challenge the order dated 1-9-1997 and 9-9-1997 passed by respondent No. l respectively on the ground that those are illegal, without lawful authority and smacks mala fide.
2. The brief facts are that the petitioner was appointed as Lower Division Clerk in Defence Science and Technology Organisation (DESTO) with effect from 23-12-1964 and since then has rendered ~2 years of service. The petitioner was allegedly promoted as Superintendent (BPS-l6) with effect from 10-10-1984 vide DESTO (HQ) Letter No.1067/3/DESTO/Adndn-2 dated 15-10-1484 (Annexure A). He was granted Selection Grade BPS-17 with effect from 18-5-1994 vide letter dated 19-6-1994 (Annexure B). The post of Admin Officer (BPS-17) fell vacant at DESTO Labs Chaklala, Rawalpindi on 6-2-1997 on the retirement of one Abdur Rashid, the then Admin Officer. The post was to be filled by promotion as per recruitment rules. The petitioner being the senior most Superintendent was given current charge of the Admin Officer in BPS-17 subject to his promotion, to this post. The petitioner took-over the charge of the post of Admin Officer with effect from 6-2-1997 and was still continuing. A No Objection Certificate (NOC) was required to fill in that post as some officers were also placed in surplus pool and according to the Government Instructions any post falling vacant will have to be filled from amongst those officers and in case none was available, then No Objection Certificate was to be issued for filling the post. The petitioner was allegedly granted N.O.C. which was later on cancelled vide order dated 1-9-1997 (Annexure K). An officer from the surplus pool namely Hafiz Nazir Muhammad, O.S.D. (BPS-17) was absorbed as Admin. Officer of DESTO which allegedly effected the right of promotion of the petitioner adversely. It is, therefore, contended that the posting of Hafiz Nazir Muhammad, OSD, surplus pool to post of Admin Officer DESTO was mala fide in order to deprive the petitioner of his well-deserved promotion.
3. The facts stated above will clearly show that dispute between the parties relate to the terms and conditions of service, which falls within the exclusive jurisdiction of Federal Service Tribunal created under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Clause (2) of the Article ibid clearly shows that in such a situation, no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. Hence the Writ petition would not be competent, in view of the above provisions and as has been held in;
(i) Miss. Rukhsana Ijaz v. Secretary Education, Punjab and others reported as 1997 SCMR 167; and
(ii) Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and other's reported as 1997 SCMR 169.
4. The learned counsel for the petitioner contended that since mala fide against the impugned order has been alleged in this petition, therefore, High Court shall have jurisdiction to entertain the matter irrespective of the provisions contained in Article 212(2) of the Constitution. I am afraid, this view cannot be accepted because the detail of mala fide is not provided in the petition itself and even if mala fide is alleged then too, such an order would fall within the jurisdiction of the Service Tribunal, as held in Munshi Muhammad Azam v. A.C. etc. reported as 1996 PLC (C.S.) 415. It was observed therein that the Service Tribunal shall have jurisdiction in service .matters even if the orders were challenged on the ground of mala fide, being t arbitrary or passed in fanciful exercise of authority.
5. In view of the above discussion, I do not find any merit in this writ petition, which is dismissed in limine.
Civil Miscellaneous No. 3601 of 1997
Civil Miscellaneous No. 3602 of 1997
With the dismissal of main petition these miscellaneous applications also stand disposed of.
A.A./J-26/L Petition dismissed