Full Judgment Text & Judicial Ruling

2025 P L C (C.S.) 986 [Lahore High Court] Before Ch. Muhammad Iqbal and Malik Waqar Haider Awan, J RUKHSANA YASMEEN and others Versus PROVINCE OF PUNJAB through Secretary Public Prosecution Department and others Writ Petition No.51475 of 2023 (and other connected petitions), heard on 9th April, 2025. (a) Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act (III of 2006)--- ----Ss.6, 15 & 16---Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007, Rr.4(3 & 10)---Punjab Service Tribunals Act (IX of 1974), S.22(B)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition by civil servants---Maintainability---Employees of Public Prosecution Department---Jurisdiction of Service Tribunals---Scope---For enforcing terms and conditions of service, the employees of Public Prosecution Department, being civil servants have to approach the Punjab Service Tribunal instead of invoking Constitutional jurisdiction of the High Court---Brief facts where that the petitioners, comprising of multiple public prosecutors including several female officers, challenged various transfer, deputation cancellation, and explanation call orders issued by the Secretary, Public Prosecution Department, on the grounds that such actions were beyond his jurisdiction---Petitioner contended that under the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2006 (the "Act, 2006"), and the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 (the "Rules, 2007"), the Prosecutor General, being the administrative head, was vested with the authority to supervise and issue such orders, not the Secretary---Held: It was provided in the schedule annexed with Rules, 2007 that appointing authority of Deputy District Public Prosecutor (BS-18) and Assistant District Public Prosecutor (BS-17) was the 'administrative secretary' and such position was crystal clear, however, the High Court refrained to discuss that aspect on merits---The employees of prosecution service department were governed under the Punjab Civil Servants Act, 1974 (the "Act, 1974") and Rules made thereunder---All the Constitutional petitions were not maintainable as petitioners fell within the definition of civil servants---Moreover, S. 22B of the Act, 1974 was relevant wherefrom it could easily be derived that only the Punjab Service Tribunals Act, 1973 would deal with the matters of employees who were governed under the Act 1974---Even otherwise, since the impugned orders pertained to enforcement of terms and conditions of service of the petitioners, who were civil servants, thus, for the said purpose, they after approaching the departmental authority and waiting for the statutory period, were to approach the respective Service Tribunal for redressal of their grievance, which they failed to do, thus, keeping in view the bar contained in Art. 212 of the Constitution, the jurisdiction of the High Court in interfering with the impugned orders was barred--Constitutional petitions being not maintainable, were dismissed, in circumstances. (b) Constitution of Pakistan--- ----Arts.199, 212 & 240---Constitutional petition---Maintainability---Jurisdiction of the Service Tribunals---Matters relating to terms and conditions of service---Under Article 212 of the Constitution, the remedies provided cannot be assailed while using the word "hereinbefore" and the administrative courts and tribunals are there to deal with the matters relating to the terms and conditions of service including disciplinary matters of persons who are in the Service of Pakistan---Service of Province also falls in the said purview as defined in Art. 240 of the Constitution. (c) Jurisdiction--- ----Every court prior to taking cognizance of and adjudicating upon an issue should first resort to the question of assumption of jurisdiction of the court and if it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue. Muslim Commercial Bank Limited v. Muhammad Anwar Mandokhel 2024 SCMR 298 rel. Mohammad Ahmad Qayyum and Shumail Arif for Petitioners (in Writ Petitions Nos.51475, 52907, 51652 and 64255 of 2023). Junaid Jabbar Khan, Shahzad A. Chaudhry, Sehar Ilyas and Rana Yasir for Petitioners (in W.P. No. 51440/2023). Maqbool Hussain Sheikh for Petitioner (in W.P. No. 51526/2023). Malikzada Hameed ur Rehman and Syed Bilal Ahmed Saeed for Petitioner (in W.P. No. 51715/2023). Mushtaq Ahmad Mohal for Petitioners (in W.P. No. 53198/2023). Fiaz Ahmed Ranjha for Petitioners (in W.P. No. 80331/2023). Ch. Saqib Tariq and Syed Ali Raza for Petitioners (in W.P. No. 5660/2025). Rana Shamshad Khan, Additional Advocate General, Punjab for Respondents. Khurram Khan, Law Officer, Public Prosecution Department. Date of hearing: 9th April, 2025. JUDGMENT MALIK WAQAR HAIDER AWAN, J.---Through this common judgment, we intend to decide the Writ Petitions detailed in Schedule "A" attached with this judgment. 2. Through the writ petitions mentioned at Sr. Nos. 1 to 7 and 9 in Schedule "A", petitioners are aggrieved of transfer orders dated 07.08.2023 and 24.11.2023 issued by the Secretary, Public Prosecution Department, Civil Secretariat, Lahore (respondent No.1) from one district to another whereas in the writ petition mentioned at Sr. No.8, petitioners have called in question the explanation letter/report dated 14.09.2023 regarding special instructions of the office of the District Public Prosecutor, Lahore dated 12th to 16th August, 2023. By way of writ petition at Sr. No.10, petitioner has thrown challenge upon order dated 20.09.2021 passed by respondent No.1 whereby he has been directed to continue serving in the office of District Public Prosecutor, Bahawalpur while cancelling order dated 08.09.2021 issued by the Prosecutor General, Punjab. 3. The main ground of attack by the petitioners' side is that the Prosecutor General, Punjab is the administrative head, hence the Secretary, Public Prosecution Department, has got no jurisdiction to transfer the petitioners, call explanation or to cancel deputation orders. Reliance has been placed upon the judgment reported as Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat and another v. Prosecutor-General Sindh, Criminal Prosecution Department and others (2012 SCMR 307). Apart from this, it has been alleged that most of the petitioners are females who have been transferred to far flung areas, causing great inconvenience to them, which is against their fundamental rights i.e. right to life and family and most particularly in violation of Article 25(3) of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter called "Constitution") which mandates protection of women particularly as a class. Learned counsel have referred Sections 5(2)(3) and 6(1) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers), Act 2006 (hereinafter referred as "Act, 2006") to score a point that the Prosecutor General is the head of Service and a Public Prosecutor, an Additional Prosecutor General and a Deputy Prosecutor General shall perform functions under the directions of the Prosecutor General, thus in the scheme of administration, respondent No.1 lacks power to transfer the petitioners, call explanation or to cancel deputation orders. 4. Conversely, learned Law Officer has vehemently opposed the contentions raised by learned counsel for the petitioners and prays for dismissal of all the petitions. 5. Heard. Record perused. 6. The Supreme Court of Pakistan in its judgment reported as Muslim Commercial Bank Limited v. Muhammad Anwar Mandokhel (2024 SCMR 298) has held that every court prior to taking cognizance of and adjudicating upon an issue should first resort to the question of assumption of jurisdiction of the Court and if it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue. Therefore, before going into the merits of the case, we deem it expedient to firstly decide the question of maintainability of the writ petitions. 7. Under Section 6 of the Act 2006, the post of Prosecutor General is a tenure post and he has to be appointed by the Government for a term of 03 years which is further extendable for a period of 02 years whereas rest of the employees of Prosecution Service are governed under the Punjab Civil Servants Act, 1974 (hereinafter called "Act, 1974") and Rules made thereunder. 8. Section 16 of the Act, 2006 deals with the terms and conditions of service which is reproduced below:- Subject to the provisions of this Act and the rules, members of the Service, including the staff, shall be appointed and governed under the Punjab Civil Servants Act, 1974 (VIII of 1974) and rules made thereunder. 9. Section 15 of the Act, 2006 relates to power of making rules and regulations which is reproduced hereunder:- The Government may, by notification, make rules for carrying out the purposes of this Act. 10. Rules have been framed by the Government with nomenclature "Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 (hereinafter called "Rules, 2007"). Under Rule 4(3) of the Rules, manner of appointment is provided which is reproduced below for ready reference:- No person shall be appointed through initial recruitment on regular basis except on the recommendation of the Punjab Public Service Commission. 11. For further clarification, Rule 10 of the Rules 2007 provides that instructions issued and directions given under the Act 1974 would be applicable for the terms and conditions of service. The said Rule is reproduced below:- Terms and conditions of service which are not mentioned in these rules including leave, pension and retirement, the rules made, instructions issued and directions given under the Punjab Civil Servants Act, 1974 (VIII of 1974) and any other law for the time being in force shall apply to the members of the Service. 12. To further amplify the position, it is provided in the Schedule annexed with Rules 2007 that appointing authority of Deputy District Public Prosecutor (BS-18) and Assistant District Public Prosecutor (BS-17) is the Administrative Secretary. Although the position is crystal clear from the Schedule referred above but we feel it appropriate to avoid discussing the merits of the case lest it may cause prejudice the rights of the parties. 13. In the above scenario, we are clear in our mind that all the writ petitions are not maintainable as petitioners fall in the definition of civil servants. 14. We are conscious of the dictum laid down in the case of Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat and another (supra), however, the same is not applicable to the facts of present writ petitions as in the said judgment , when the question of competent authority for the purpose of transfer/posting was considered, the relevant law was the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009 whereas in the matter in hand, Act, 2006 and Rules, 2007 are applicable as already discussed in the preceding paragraphs. To our mind, this distinction draws the instant cases (detailed in Schedule "A") out of the ambit of the case of Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat and another (supra) which is distinguishable as the law dealt with in the said judgment is different and only applicable to the Province of Sindh. 15. In addition to the above, Section 22B of the Act, 1974 is relevant wherefrom it can easily be derived that only the Punjab Service Tribunals Act, 1973 (IX of 1974) will deal with the matters of employees who are governed under the Act, 1974. 16. Even otherwise, since the impugned orders pertain to enforcement of terms and conditions of service of the petitioners, who in our view are civil servants, thus, for the said purpose, they after approaching the departmental authority and waiting for the statutory period were to approach the respective Service Tribunal for redressal of their grievance, which they failed to do, thus, keeping in view the bar contained in Article 212 of the Constitution, the jurisdiction of this Court in interfering with the impugned orders is barred. 17. Under Article 212 of the Constitution, the remedies provided cannot be assailed while using the word "hereinbefore" and the Administrative Courts and Tribunals are there to deal with the matters relating to the terms and conditions of service including disciplinary matters of persons who are in the Service of Pakistan. Service of Province also falls in the said purview as defined in Article 240 of the Constitution. 18. Epitome of the above discussion is that the writ petitions detailed in Schedule "A" appended with this judgment are not maintainable and stand dismissed. Schedule "A" Details of Writ Petitions mentioned in judgment Dated 09.04.2025 passed in W.P. No. 51475/2023

Sr.No.

W.P. No.

Parties Names

1

51440/2023

Fozia Shafique and others v. Province of Punjab and others

2

51475/2023

Rukhsana Yasmeen and others v. Province of Punjab and others

3

51526/2023

Shumaila Sultan v. Government of Punjab and others

4

51652/2023

Amna Haider and others v. Secretary Public Prosecution and others

5

51715/2023

Naghmana Shabbir v. Government of Punjab and others

6

52907/2023

Syeda Oaj Fatima and others v. Secretary Public Prosecution and others

7

53198/2023

Bushra Yasmeen and others v Province of Punjab and others

8

64255/2023

Rukhsana Yasmeen and others v. Secretary Public Prosecution and others

9

80331/2023

Tahir Hussain v. Government of Punjab and others

10

5660/2025/LHC

Shahid Farid v. Government of Punjab and others

UN/R-10/L Petitioner dismissed.

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