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Petitioner: Mian AMANUL MULK VS Respondent: N. W. F. P. THROUGH CHIEF SECRETARY
Court Name: Peshawar High Court Judge(s): Mian Burhanuddin Khan, Muhammad Khurshid Khan, Shah Abdur Rashid Title: Mian AMANUL MULK vs N. W. F. P. THROUGH CHIEF SECRETARY Case No.: Writ Petition No. 856 of 1979 Date of Judgment:1980-07-12 Reported As: PLD 1981 Peshawar 1 Result: Petition dismissed
JUDGMENT
JUDGMENT SHAH ABDUL RASHID, J.-This petition, involving the question of the extent of the jurisdiction of this Court under Article 199 of the Constitution in matters ;slating to the terms and conditions of civil servants, has come up before the Full Bench on account of apparent conflict of decisions on the issue and also because the petitioner's counsel sought to challenge the correctness of the view taken by this Court in the case of Raja Mansoor Elahi v. North West Frontier Province (PLD 1980 Pesh. 81) for allegedly being at variance with some other cases where this Court has assumed jurisdiction in certain like matters. 2. Mian Amanul Mulk, the petitioner herein, was an officer in Grade-17 in the Education Department and was last posted as Principal, Government High School, Risalpur, when the Governor of the North-West Frontier Province, in exercise of the powers conferred under section 13(i) of the N: W. F. P., Civil servants Act (XVIII of 1973), by Notification No. S. O. I. (S&GAD) 1-1/79=(B) dated the 25th November 1979, ordered his retirement in "Public interest" o the assumption that he had completed 25 years' service qualifying for )ensign and other retiring benefits. Several other persons were also retired by the same order and the petitioner's name appeared at Serial No. 5 in the list embodied in notification. 3. The petitioner has challenged the order of his retirement by invoking the extraordinary jurisdiction of this Court under Article 199 of the Constitution read with Laws (Continuance in Force) Order, 1977. He seeks a declaration to the effect that the inclusion of his name in the list of the persons retired under the aforesaid notification is without lawful authority and is of no legal effect. A direction is sought against the Government of North-West; Frontier Province that the petitioner be allowed to continue in service.
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4. The petition inter alia contains the history of the service of the petitioner which, in substanceis that he joined as Civil Servant of the Province on 1-4-1956 and had completed a little over 23 years of service when the order of his retirement was made. His case is that since, on the date of order of retirement, he had not completed 25 years of service qualifying for pension and other retiring benefits, the order under section 13(i) of the North-West Frontier Province Civil Servants Act (XVIII of 1973) is without lawful authority. He further challenges the impugned order on the ground that it had not been made in "public interest" which is a pre-requisite of an order made under section 13(1) inasmuch as his service record does not justify the inference. The petitioner further takes exception to the order having been made without affording him reasonable opportunity of being heard and as such offending the principle of natural justice. Mala fide is also alleged and it is stated that the order, in effect, is colourable exercise of power of the authority making it, and is in violation of the "legal principles". In the concluding portion of the petition the specific relief that has been claimed is in the following terms :- " . . , this Hon'ble Court may be pleased to declare the inclusion of the petitioner's name in the impugned notifications as without jurisdic--petition, ultra vines, arbitrary, mala fide, without lawful authority and of no legal effect against the petitioner. It may further be pleased to direct the respondent to allow the petitioner to continue in service." 5. As was contemplated, Mr. Amirzada Khan, Assistant Advocate-General, appearing on behalf of the respondent-Province questioned the jurisdiction of this Court by referring to the provisions of Article 212 of the Constitution and different sections of the N.-W. F. P. Service Tribunal Act (I of 1974). He relied upon a few decisions of the superior Courts in support of his contention that this Court cannot exercise jurisdiction under Article 199 of the Constitution, the question in dispute being within the exclusive jurisdiction of the Service Tribunal set up under section 3 of the N.-W. F. P. Service Tribunals Act (I of 1974) under the authority of Article 212 ibid. 6. Qazi Atiqur Rehman, Advocate, who appeared on behalf of the petitioner, has contended that since the order of retirement of the petitioner has been made before he completed 25 years of service qualifying for pension and other retiring benefits and, in effect, is mala fide, without jurisdiction and in the nature of coram non judice and as such being void, this Court can, in exercise of its power under Article 199 of the Constitu--petition, strike it down. In support of his contention, he has relied on a number of cases decided by the High Courts and has also referred to certain decisions of different Service Tribunals in which according to him, adjudication in such matters had been refused. No case decided by this Court having bearing on the point was, however, brought to our notice. 7. In the case of Muhammad Sadiq v. Water and Power Development Authority (PLD 1978 Lah. 738) it was held that where an order is void, ab initio and made without lawful authority, the objection that the aggrieved civil servant should go to the Service Tribunal was not of any substance. In Saghir Ahmad v. Federation of Pakistan (PLD 1976 Lah. 288), which was also cited at the Bar by the learned counsel for the petitioner, the learned Judge has held that where a matter related to a decision that a Civil Servant should not be considered, to be fit for promotion, the jurisdiction of the Tribunal was ousted and the civil Court had jurisdiction to entertain the matter. Fariduddin Ahmed v. Province of Punjab (PLD 1976 Lah. 1310), was the case of F, an Inspector of Police, who was removed from service on 26-2-1953 but the civil Court ordered his re-instatement with further direction to post him in a grade or rank as if the order of his removal had never been passed. F was re-instated as Inspector of Police with effect from 26-2-1953, the date on which he was removed from service but his seniority rank and grade had not been fixed in accordance with the decree of the Court in spite of several representations being made by him in that behalf. Subsequently he learnt that a departmental advisory committee had recommended his retirement. From service on the ground of his having completed 25 years' service qualifying for
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pension etc. He came to know that on the basis of that recommendation an order of his premature retirement was likely to be issued and served upon him at any time. He accordingly invoked the jurisdiction of the High Court under Article 199 of the Constitution for the redress of his grievance saying that the contemplated order of retirement was being passed male fide with a view to frustrating the decree of the Court. The Lahore High Court accepted his plea and issued the declaration sought for. The objection taken by the Province of Punjab that the High Court had no jurisdiction to entertain the matter in view of the bar placed under Article 212 of the Constitution read with the Punjab Service Tribunals Act (IX of 1974) was repelled with the observation which, in substance, was that since F was seeking direction for the issuance of an order compelling the Province of Punjab to fix his grade and pay and because he was further seeking direction to be issued to decide the matter with regard to his seniority, fixation of grade and rank first which incidentally involved the question of promotion also, the relief could not be granted by the Punjab Service Tribunal and so the High Court had jurisdiction to make an order or direction under Article 199 of the Constitution. In para. No. 9 of the judgment it was observed as follows - "The above discussion would show that the petitioner is not qualified for pension or other retirement benefit under section 12(ii) of the Punjab Civil Servants Act of 1974, and his case with regard to seniority, grade and rank has not been decided as yet in accordance with the judgment and decree of the Court. In absence thereof he cannot be deemed to have been qualified for pension and other benefits, as it cannot be said at this stage how such pension and other benefits will accrue to him, after the determination of his seniority." The case of Muhammad Gul Kakar v. Province of Baluchistan (PLD 1979 Quetta 66), is to the effect that where the competent authority who passed orders of removal was the Head of Department and not the Governor of the Province, the order passed by the Governor was not sustainable in law. It was further held that the order passed by the Governor being ab initio void, illegal and without jurisdiction, the High Court could interfere even though the remedy before the Service Tribunal was available and the jurisdiction of the civil Court was ousted. In Mushtaq Hussain Rizvi v. Province of Sind (PLD 1978 Kar. 703), it was observed that the promotion is not a vested right under the Sind Civil Servants Act (XIV of 1973), but a claim to be considered for promotion is a vested .Right in respect of which the aggrieved civil servant can file a civil suit or invoke the constitutional jurisdiction of the High Court; for such matter is not within the purview of Sind Service Tribunal. 8. In the case of Mujeebullah.Aijaz v. D. G., Telephone & Telegraph (PLD 1980 Quetta 58), the Full Bench held that in all matters relating to the terms and conditions of civil servants of the Federation and the Civil Servants of the Province of Baluchistan, the Service Tribunals constituted under the Service Tribunals Act (LXX of 1973) or Baluchistan Service Tribunals Act shall have exclusive jurisdiction to adjuciate on matters relating to the terms and conditions of the Government servants employed under the Federation or the Proving of Baluchistan except in the following circumstances :- (a) In the case of Government servants of the Federation :-. (i) When the impugned order was passed before 1-7-1969 ; (ii) When the Civil Servant punished is not a "Civil Servant` for the reason of his exclusion from the definition of "Civil Servant" in section 2(1)(6) of the Civil Servants Act ; (iii) When the order is not a final order ; (iv) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time scale ; (v) When the impugned order relates to a person's fitness' to hold a post or to be appointed to such post. Or to be promoted to a higher post of grade ; and (vi) When the order is not passed by competent Departmental authority is for such reason void ; and
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(b) In the case of Government servants of the Province of Baluchistan ; (i) When the Civil Servant punished is excluded from the definition of civil servant by section (2)(1) (61 of Baluchistan Civil Servants Act ; (ii) When the order passed is not a final order ; (iii) When the punishment imposed is not that of dismissal, removal or compulsory retirement ; (iv) When the impugned order relates to the decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher post or grade ; and (v) When the order is not passed by a competent Departmental authority and is for such reason void." 9. Qazi Atiqur Rehman then referred to certain decided cases wherein exercise of jurisdiction has been refused by the Service Tribunals them--selves. In the case of Ahmad Rabbani v. President of Pakistan (1976 PLC (C. S. T.) 140), the Service Tribunal (Federal) held that where a civil servant is retired after completing 25 years' service qualifying for pension etc. Under section 13(ii) of the Civil Servants Act (XVIII of 1973), no appeal lies to the Tribunal. Again, the same view was taken by the same Tribunal in the case of Mahmudur Rehman v. Secretary, Railways (1976 PLC (C. S. T.) 58). The Punjab Service Tribunal, however, in the case of Inam Hussain v. Government of the Punjab (1980 PLC (C. S.) 687), though came to the same conclusion yet qualified it by saying that the jurisdiction of the Tribunal would not be ousted to hear an appeal if the impugned order is passed mala fide or incompetently. 10. Although prior to the enactment of 1973 Constitution under the Government of India Act, 1935, the Constitution of 1956 and the Constitution of 1962, the persons serving in connection with the affairs of the Federation or of a Province held office during the pleasure of the Governor-General/ President or the Governor, as the case may be, that pleasure was abridged by certain guarantees given in the said Act and the subsequent Constitutions referred to above. These were mainly to the effect that no Government servant shall be dismissed or removed from service or reduced in rank by an authority subordinate to the appointing authority and no such order shall be passed unless a reasonable opportunity has been given to the Government servant concerned to show cause against the proposed action with respect to him. These constitutional documents also empowered the Governor-General/President and Governor, as the case may be, to make rules relating to the terms and conditions of service of the Government servants; though a restriction was placed that the existing terms and conditions in certain respects shall not be altered to the disadvantage of a person in the Service of Pakistan. 11. The 1973 Constitution made a departure and the Constitutional guarantees were taken away. The Constitution itself did not confer any right on the President or the Governor to make rules relating to the terms and conditions of persons in the service of Pakistan, but instead the parliament and the Provincial Assemblies were to determine the terms of appointments and the conditions of service of persons in the service of Pakistan by laws to be made by these Legislatures. Article 240 of the 1973 Constitution which makes the provisions is as follows :- "240. Subject to the Constitution, the appointments to and the condi--tions of service of persons in the service of Pakistan shall be determined- (a) In the case of the services of the Federation posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Parliament ; and (b) In the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly." 12. In pursuance of Article 240 ibid the Parliament and the four Provincial Assemblies have enacted laws laying down the terms and conditions of the service of persons in the service of Pakistan serving in connection with the affairs of the Federation or the Provinces, as the case may be, and all
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these laws authorise other functionaries of the Government to make rules consistently with these laws to carry out their purposes. Existing miles made in this behalf have also been kept alive in so far as they are not inconsistent with the relevant laws. 13. Since previously there was a Constitutional guarantee in respect of certain matters relating to the terms and conditions of. Persons in the service of Pakistan, the civil Courts and the High Courts could exercise jurisdiction to adjudicate upon the matters concerning these terms and conditions of service. When that guarantee was taken away, the Constitution makers themselves provided, in Article 212 of the Constitution, as to what forum would exercise jurisdiction in respect of dispute relating to the persons in the service of Pakistan. Before dealing with the contentions raised on behalf of the petitioner and the respondent it is convenient, at this stage, to set out the provisions of Article 212 ibid. These read as follows :- "212.-(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise jurisdiction in resp0ct of-- (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters ' (b) matters relating to claim arising from tort acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy . Any tax or cc% and any servant of such authority acting in the discharge of his duties as sums servant; or (c) matters relating to the acquisition, administration and disposal --f any property which is deemed to be enemy property under any law,"' (2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1). 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 and all proceedings is respect of any such other Court immediately before the establishment of the Administrative Court or Tribunal, other than an appeal pending before the Supreme Court, shall abate on such establishment: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by .Law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal-" 14. The Parliament and the four Provincial Assemblies have enacted laws for the establishment of the Tribunals and these Tribunals (except the Tribunals envisaged under section 3(7) of the Service Tribunal Act, 197.13 and section 3(7) of the Punjab Service Tribunals Act, 1974 about which we have not been definitely informed and which are to deal only with respect to disputes arising out o penalties other than those of dismissal from service removal from service, compulsory retirement or reduction in rank), it is not disputed, have actually bin established and are functioning. Incidental in all these laws made by the Parliament and the Provincial Assemblies in all these it is the third section which provides for the constitution of the Tribunal and again the section which confers the appellate power on the Tribunal is the fourth section in all the five laws. The provisions of the third and fourth sections of the live laws axe broadly identical but with certain variations. All the five laws in the fourth section provide that any civil servant. Aggrieved by any final order. Whether original or appellate, made a departmental authority, in respect any terms and condition of his service, may appeal to the tribunal there are provisos in each law to the fourth section. One of the provisos which is Practically common, is to the effect that the appeal to the Tribunal shall not
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be unless the aggrieved civil scant first exhausts his remedy of appeal or application for review or representation to the Departmental authority. Anther proviso which is common in each of the five laws is to the effect that no appeal shall No to the Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted. With the exception of law of the Province of Baluchistan, all laws further provide that no appeal shall lie against a decision made prior to the 1st day of July 1969. Then there are certain differences in the five laws. The Federal Law and the Punjab Law provide for establishment of two types of Tribunals in respect of the disputes arising out of penalties. One type of the Tribunals is to hear appeals in respect of all terms and conditions of services and also in respect of penalties of dismissal from service removal from service, compulsory retirement or reduction to a lower post or to a lower stage in the time scale, while the other type of Tribunal have to decide matters only when any other punishment is imposed. In the case of Sind the same Tribunals are to decide the disputes arising out of the terms and conditions of service and against orders imposing penalties on a civil servant irrespective of the nature of punishment. The laws of N.-W. F. P. And the Province of Baluchistan though provide for only one type of Tribunals limit their jurisdiction in respect of quantum of punishment and penalty. The relevant provision says that when the "quantum" of departmental punishment or penalty imposed on a Civil Servant as a result of departmental enquiry is other than the penalty of dismissal from service, removal from service or compulsory retirement, no appeal shall competent before the Tribunal. 15. Reverting to Article 212 of the Constitution, it may be notice that when a Tribunal is established under the said Article no other Court is empowered to grant any injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. It also provides all proceedings in respect of the matters within the jurisdiction of the Tribunal pending before any other Court shall abate. The provisions of this Article on the very language oust the jurisdiction of all other Courts and as observed by a Division Bench of this Court in the case of Dr. Raja Mansoor Elahi v. N.-W. F. P. (PLD 1984 Pesh. 81) an order of a departmental authority even if it is without jurisdiction or is mala fide can lx challenged before the Tribunal and the jurisdiction of the civil Courts and for that matter of the High Court is specifically ousted. The words "Notwithstanding anything herein before contained" occurring in clause (2) of Article 212 definitely points to all the provisions of the Constitution including Article 199 which gives extraordinary jurisdiction to the High Court to make orders and directions. It is, therefore, logical to conclude that the jurisdiction of the Tribunal, wherever it exists, ousts, the jurisdiction of High Court under Article 199 and also of the Courts of ordinary civil jurisdiction. 16. The learned counsel for the petitioner has argued that the High Court can come to the rescue of an aggrieved person if an order is passed mala fide, without jurisdiction or when it is in the nature of coram non judice or is ab initio void. We are, however, not convinced by this argument. In our opinion all that is necessary is that the order to be impugned should be an order of the departmental authority and if it is an order' of such authority and the Tribunal has been conferred jurisdiction by the law under which it is established, the jurisdiction of the High Court is totally ousted. As a consequence, wherever the jurisdiction of the Tribunal exists, it is not open to the aggrieved civil servant to invoke the jurisdiction of the High Court under Article 199 of the Constitution b saying that the order of the departmental authority is without jurisdiction or it is void or it is mala fide or it is in the nature of coram non judice. No doubt if the order is not of the departmental authority but is o some other entity, then of course, the jurisdiction of the Tribunal will not come into play and the High Court will have power to give discretionary relief to the aggrieved civil servant under Article 199 of the Constitution within the limits of the said Article; but if the order is of Department authority and is of the nature of which the
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Tribunal's jurisdiction exists under the relevant statute, then of course the High Court shall not have jurisdiction to intervene. 17. The question discussed above is not of first impression. The same view had been taken by the Lahore High Court in the case of Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lah. 545), even though in that case it had been argued that the order made without jurisdiction or mala fide could be set aside by the High Court. Muhammad Aslam Bajwa's petition under Article 199 of the Cons--titution, which was based on various allegations, including mala fide and one of jurisdiction in retiring him under M. L. R. 114, was held not competent and not maintainable before the High Court under Article 199 of the same having abated in view of Article 212 of the Constitution read with section 6 of the Service Tribunal Act (LXX of 1973). The further argument, that the order impugned in that case having not been passed by a "competent" departmental authority and as such being coram non judice was…
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