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Petitioner: NIGHAT NAZ VS Respondent: GOVERNMENT OF PUNJAB, LAHORE
1995 P L C (C
1995 P L C (C.S.) 597
[Lahore High Court]
Before Abdul Majid Tiwana and Ch. Khurshid Ahmad, JJ
Mst. NIGHAT NAZ
Versus
GOVERNMENT OF PUNJAB, LAHORE through Secretary, Education Department, Punjab, Lahore and others
Intra‑Court Appeal No. 86 of 1994 in Writ Petition No. 3517 of 1994, decided on 25th August, 1994.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 199 & 212‑‑‑Punjab Service Tribunals Act (IX of .1974), S. 4‑‑‑Civil servant's appointment on temporary basis‑‑‑Termination of service‑‑ Competent forum‑‑‑Civil servant's appointment was purely temporary and her service could have been terminated on one month's notice‑‑‑Civil servant's services were terminated in accordance with terms and conditions of service‑‑ Civil servant taking recourse to Constitutional jurisdiction of High Court‑‑ Validity‑‑‑Constitutional jurisdiction of High Court could not be invoked for S.4, Punjab Service Tribunals Act, 1974, was attracted and jurisdiction of High Court was barred under Art. 212 of the Constitution‑‑‑Constitutional petition was rightly dismissed in circumstances.
Mst. Shugufta Yunus v. Director, Education and others 1994 PLC (C.S.) 163; M. Yamin Qureshi's case PLD 1980 SC 22 and WAPDA v. Zahoor Hussain 1993 SCMR 582 rel.
The Regional Commissioner for Income‑Tax, Central Region, Lahore and others v. Zafar Hussain and others PLD 1992 SC 869; Sh. Mudassar Ahmad v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others 1991 PLC (C.S.) 1047 and 1994 PLC (C.S.) 163 ref.
Syed Aqa Asaf Jafri for Appellant. 10
Nazir Ahmad Ghazi, Asstt. A.G./Government Pleader for Respondents.
ORDER
ABDUL MAJID TIWANA, J.‑‑‑ This Intra‑Court Appeal arises out of the order, dated 4‑8‑1994, passed by a learned Single Judge of this Bench, dismissing the writ petition in limine on the ground of its non‑maintainability and lack of jurisdiction. Writ Petitions Nos. 3514, 3515 and 3516 of 1994, on similar grounds were also disposed of accordingly the same day by the same learned Judge and Intra Court Appeals amanating from those writ petitions are also before us.
2. The appellant was appointed as a junior instructor at Government Polytechnic Institute for Women, Multan is BS‑14 under Women Division in 1988 in a temporary capacity and was still in service when the Federal Government transferred the management of all such Technical Institutes to the Provincial Government. Government of the Punjab decided to close down all the Institutes for Women except those at Faisalabad and Multan. The services of the appellant were terminated with effect from 30‑6‑1994 by Director, Technical Education, Punjab, Lahore, vide his letter dated 12‑7‑1994 which has been challenged.
3. The learned counsel for the appellant has contended that the Government of the Punjab (Education Department) had vide their letter dated 3‑7‑1994 communicated the accord of sanction to the continuance of posts and other provisions for two Government Polytechnic Institutes for Women including the one at Multan on temporary basis and that a provision for pay of Junior Instructors in BS‑14 was also made. According to him the Institute at Multan had not been closed and the termination of the services of the appellant on 12‑7‑1994 was done in a mechanical manner by the Director, Technical Education, Punjab, Lahore, without applying his independent mind. He has argued that her departmental authority was the Regional Director, Technical Education, Multan and the order of termination having not been passed by the departmental authority the jurisdictional bar as contained in section 4 of the Punjab Service Tribunals Act, 1974 (Act IX of 1974) was not applicable and not only the writ petition was maintainable but also the High Court had the jurisdiction in the matter. To support this view, he has placed reliance on "The Regional Commissioner for Income‑Tax Central Region, Lahore and others v. Zafar Hussain and others (PLSC 869 and "Sh. Mudassar Ahmad v. Government of Pakistan through Secretary, Establishment Division, Islamabad and 2 others 1991 PLC (C.S.) 1047).
4. Pre‑admission notice was issued to respondents Nos.3 and 4. The learned Assistant Advocate‑General on their behalf has contested the appeal on the ground that the appellant was a temporary employee and her Services were liable to be terminated on one, month notice or one month pay in lieu thereof, as specifically mentioned in her letter of appointment and if she has any grievance, she can seek the remedy before the Service Tribunal. In his view, the bar of jurisdiction under Article 212 of the Constitution of 1973 read with section 4 ibid was absolute and the order under appeal is unchallengeable. He has differentiated the authorities quoted by the learned counsel for the petitioner and has cited 1994 PLC (C.S.) 163 in aid of his own contention.
5. In the present appeal the real issue before us is that of the maintainability of the writ petition and jurisdiction of this Court. The authority 1991 P.L.C (C.S.) 1047 quoted by the learned counsel for the petitioner was not applicable to the facts of the present case. In case supra the services were not terminated in accordance with the terms and conditions of service and were rather made pursuant to a policy decision of the Cabinet, without examining the individual cases and the order of termination had been passed without having recourse to the terms and conditions of appointment. In the case before us the petitioner was appointed Junior Instructor and the terms and conditions of appointment were given in the appointment letter. Condition No.2 of the said letter reads as under:
"2. Your appointment in Technical Education Department is purely temporary and your services may be terminated at one month's notice without any reason being assigned at any time irrespective of the fact that you are holding a post other than one to which you were originally recruited or on the payment of one month's salary in lieu of the notice."
The termination letter impugned in the writ petition reads as under:‑
"In accordance with the terms and conditions of services, your services are hereby terminated with effect from 30‑6‑1994 as the Government of the Punjab has decided to close down your Institute."
The termination letter read with condition 2 of the appointment letter makes it abundantly clear that section 4 of the Punjab Service Tribunals Act (IX of 1974) was attracted and the jurisdiction of this Court was barred under Article 212 of the Constitution.
6. PLD 1992 SC 869 was the admitting notes. Moreover it was the minority view which was being relied upon. This citation was not available to the petitioner in her support.
7. The question of' maintainability and that of competency of the authority passing the orders was examined by this Court in "Mst. Shugufta Yunus v. Director Education and others" 1994 P PLC(C.S) and Mr. Justice a Mahmood Mirza, as he then was observed:
"7. In the aforesaid view of the matter, I hold that the petitioners could well assail the impugned order of their termination in an appeal before the Punjab Service Tribunal which has an exclusive jurisdiction in the matter with the result that the jurisdiction of this Court stands completely ousted by virtue of Article 212 of the Constitution. Needless to observe that the powers of the High Court under Article 199 of t e Constitution are very limited and it cannot interfere with an order of an authority unless it is made without jurisdiction or without lawful authority whereas the Service Tribunal being a Court of Appeal has very wide powers and it can in appropriate cases examine even the propriety of an order passed by a departmental authority. Refer the case of M. Yamin Qureshi (PLD 1980 SC 22 )."
8. This view is also supported by the judgment of the Supreme Court in Wapda v. Zahoor Hussain 1993 SCMR 582)
9. In view of the above, the impugned judgment suffers from no -infirmity. The I.CA. fails and the same is accordingly dismissed in limine.
10. However, before parting with this appeal we would like to observe that the appellant herein and three other appellants in the connected appeals were provided employment in 1988/89 and having been in continuous service till 12‑7‑1994 they have been thrown out of service. We understand that it is the declared policy of the present Government to provide jobs to the unemployed educated women. We see no reason as to why these ladies should be deprived of their livelihood in violation of that policy. These observations should be brought to the notice of the Women Division, Government of Pakistan, Islamabad.
AA./N‑297/L Petition dismissed.