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Petitioner: SHER MUHAMMAD VS Respondent: DIRECTOR GENERAL OF PAKISTAN, TELEGRAPHS AND
Court Name: Sindh High Court Judge(s): Fakhruddin G. Ibrahim, Ajmal Mian Title:SHER MUHAMMAD vs DIRECTOR GENERAL OF PAKISTAN, TELEGRAPHS AND
JUDGMENT
Reported As: PLD 1979 Karachi 1 Result: Petitions dismissed Judgment JUDGMENT AJMAL MIAN, J.-The above petition and 11 other connected petitions, namely, Petitions -Nos. D- 931/77, D-942/77, D-954/77, D-21/78, D-92/78, D-93/78, D-94/78, D-223/78, D-224/78, D-225/78 and D-226/78 have raised a common question as to the interpretation of Article 212 of the Consti-- tution and sections 3 and 4 of the Service Tribunals Act, 1973, and therefore, we intend to dispose of the above petitions by a common judgment. Before taking up the various contentions raised by the learned counsel for the petitioners, it may be pertinent to state the brief facts giving rise to the above writ petitions, as disclosed in the above petition. The petitioners in the above writ petitions after having successfully appeared in the competitive examinations for the appointment as Engineering Supervisors Gr. 11, were appointed as such on the various dates mentioned in the petitions. According to the petitioners they had become qualified to be promoted as Assistant Engineers/Sub-Divisional Officers on the various dates during the period commencing from 13-3-72 to 3-7-76. According to the petitioners in Petitions Nos. D-942/77, D- 21/78, D-93/78 and D-94/78 they were confirmed as Assistant Engineers/ Sub-Divisional Officers by the Departmental Promotion Committee and whereas according to the petitioners in the remaining 8 petitions, they had become confirmed, on the completion of the probationary period as provided for in the rules. It has also boon asserted in 10 petitions that the Director-General of Pakistan Telegraph and Telephone, issued an order contained in the Divisional Engineer (Staff 11) letter dated 8-12-77, whereby he ordered the transfer/postings of 19 Officers in the rank of Assistant Divisional Engineer of Gr. 17. He also ordered that the above Officers were to be posted by reverting the Junior Assistant Engineers; Sub---Divisional Officers promoted in Gr. 16, and who were allowed
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to look after in Gr. 16 including those promoted out of turn or appointed on ad hoc basis. In the remaining two petitions viz. Petitions Nos. D-224/78 and D-226/78 reference to a Telegram dated 5-12-77 has been made, which also contained identical order as contained in the above letter dated 7-12-77. The petitioners in Writ Petitions Nos. D-931/77, D-954/77, D-92/78, D-93/78, D-94/78, D-223/78, D- 224/78 and D-226/73 have asserted that some of the Assistant Engineers have already been reverted back to the post of Engineering Supervisors and that they were apprehending that they would also be reverted back to the above post. Whereas the petitioners in Petitions Nos. D-912/77, D-942/77, D-21/78 and D-225/78 have averred that in pursuance of the above illegal order of the Director-General, they have already been reverted back to the post of Engineering Supervisors. The petitioners in the former petitions sought a declaration that the order of the Director-General contained in the Telegram dated 5-12-77 and the letter dated 8-12-77 and the consequential orders, if any, passed by the respondent reverting the petitioners from the post of Assistant Engineer to that of Engineering Supervisor Gr. I1 were passed without lawful authority and that the respondents be restrained from reverting the petitioners as aforesaid, and whereas in the latter petitions the petitioners have challenged not only the above order of the Director-General, but have also challenged the individual orders of reversion served on them and have also sought a writ of prohibition in the terms referred to hereinabove. 2. (a) The respondents have filed counter-affidavits to the above petitions in which they have raised inter alia a plea that the petitions are not maintainable because of Article 212 of the Constitution of Republic of Pakistan, 1973 read with section 3 (2) of the Service Tribunals Act, 1973. It has also been asserted that some petitioners were appointed on account of political pressures and out of turn and that the above order of the Director-General was issued in pursuance of a decision taken by the Review Committee constituted in pursuance of an order of the Chief Martial Law Administrator to review the cases of irregular appointments in contravention of the rules. It has also been asserted that all the petitioners were merely officiating as Assistant Engineers/Sub- Divisional Officers, and that they were never confirmed. (b) Mr. Said A. Shaikh, the learned Standing Counsel for the respondent requested that we may first hear the above preliminary objection about the maintainability of the petitions, without going into the merits of the petitions. We accordingly heard the learned counsel for the parties on the above preliminary point. The petitioners were represented by Messrs Khalid M.Ishaque, Muhammad Idris Qureshi, Said-uz-Zaman Siddiqui, Mujtaba, Ibrahim Memon and Niamatullah Qureshi. The case was argued by Messrs Khalid M. Ishaque, Idris Qureshi, Saiduz Zaman Siddiqui and Niamatullah Qureshi, Advocates only and the remaining learned counsel have adopted the arguments advanced in support of the petitions. 3. Mr. Said A. Shaikh learned counsel for the respondents had drawn our attention to Article 212 of the Constitution and the various provisions of the Civil Service Tribunals Act, 1973 and the Civil Servants Act, 1973. It has been contended by him that as the alleged illegal act on the part of the respondent amounts to reversion from the post of Assistant Engineer to the post of Engineering Supervisor, it relates to the terms and conditions of the service, and, therefore, the same is covered by sections 3 and 4 of the Service Tribunals Act, 1973 and thus counsel for the petitioners have contended that the above petitions are competent inter alts on the following grounds : - (1) That as no order of reversion has been passed against the petitioners in Writ Petitions Nos. D- 931/77, D-954/77, D-92/78, D-93/78, D-94/78, D-223/78, D-224/78 and D-226/78 the petitioners are challenging a threatened action and not an action already taken place. It has been further contended that under the Service Tribunals Act, 1973 a Service Tribunal has no power to grant relief against a threatened action and, therefore, the above writ petitions are competent as Article 199 of the Constitution covers such actions.
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(2) That the reversion of the petitioners from the post of Assistant Engineer to the post of Engineering Supervisor involves the determina--tion of the fitness of the petitioners to hold the above post which question is excluded from the jurisdiction of a Service Tribunal under section 4 (1) (b) of the Act. (3) That section 4 of the Service Tribunals Act, 1973 contemplates an appeal against a final order, but as the impugned order contained in the above letter dated 8-12-77 has not been addressed to the petitioners and has not been served on them, the petitioners cannot file an appeal under the above Act. (4) That section 4 contemplates an appeal to a Service Tribunal against an order passed by a competent Departmental Authority as defined in the explanation to the above section and that whereas the impugned order of the Director-General was in pursuance of a decision taken by the Review Committee which was not a departmental authority in terms of the above section 4, and, therefore, no appeal lies to the Tribunal. (5) That, an appeal can only be filed before a Service Tribunal in respect of an order for which an appeal, review or representation is provided for under the departmental rules and that as no appeal, review or representation can be filed in respect of the impugned order of the Director- General, the petitioners cannot file an appeal before a service Tribunal, and, therefore, proper remedy is a writ petition. (6) That the petitioners, even otherwise cannot approach a service Tribunal without first exhausting the relief of appeal, review or representation and, therefore, a Constitutional Petition is a proper remedy. (7) That the terms and conditions referred to in section 3 (2) of the Service Tribunals Act are those terms and conditions which are specified under the Civil Servants Act, 1973 and the rules framed thereunder and not the terms and conditions contained in any other rules and, therefore, the jurisdiction of this Court is not barred. (8) That the impugned action on the part of the respondents amounts to changing of cadre. (9) That the respondents can revert, the petitioners to the post of Engineering Supervisor only if they, would have been appointed on ad hoc or on temporary or officiating basis and not when in fact they were promoted on the permanent basis. 4. In order to appreciate the above contentions it will be advantageous to reproduce below the relevant provisions of the law relied upon by the learned counsel for the parties, namely, Article 212 of the Constitution and sections 3 (1) (2), 4 and 5 (1) of the Service Tribunals Act, 1973, which read as follows :- "Article 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 exclusive Jurisdiction in respect 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 claims arising from tortious 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 cess and any servant of such authority acting in the discharge of his duties as such servant ; or (c) matters relating to the acquisition, administration and disposal of 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 in respect of any such matter which may be pending before
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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 any Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in then form of resolution, Parliament by law extends the provisions of such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court of 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. Section 3.-----(1) The President may, by notification in the official Gazette, establish one or more Service Tribunal and, where there are the notification the class or classes of Civil Servant in respect of whom, or the territorial limits within which, or the class or the classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this act. (2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servant, including disciplinary matters. S. 4-(1)Any civil servant aggrieved by any final Order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the Communication of such Order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later prefer an appeal to the Tribunal; Provided that------ (a) where an appeal review or representation to a Departmental Authority is provided under the Civil Servants Ordinance, 1973, or any rules against any such Order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such Departmental Authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred ; and (b) no appeal shall lie to a Tribunal "against an order or decision of a departmental authority determining the fitness on otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade ; and (c) no appeal shall lie to a Tribunal against order or decision of a Departmental Authority made at any time before the 1st July, 1969. (2) Where the appeal is against an order or decision. Of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred- (a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time--scale, or to a lower stage in a time-scale to a Tribunal referred to in subsection (3) of section 3 ; and (b) in any other case, to a Tribunal referred to in subsection (7) of that section. Explanation.-In this section, "departmental authority means any authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of civil servants." 5. A perusal of Article 212 of the Constitution shows that it was contemplated that an appropriate Legislature may by an Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of the matters relating to the terms and conditions of persons, who are or have been in service of Pakistan including disciplinary matters and that on establishment of such Administrative Courts or Tribunals no other Court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. It was, however, contemplated that an aggrieved civil servant could file an appeal to the' Supreme Court from the judgment or order or sentence of an Administrative Court or Tribunal on the question of law of public importance. In pursuance of the above constitutional provision the Federal Legislature has enacted Service
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Tribunals Act, 1973, whereby the framework for establishing Tribunals and their power has been provided for. It is noteworthy that in section 3 of the Act, it has been provided that a Service Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of the service of a civil servant including the disciplinary matters. In other words, the language employed in Article 212 of the Constitution has been borrowed for the purpose of enactment of the above section. But, section 4 (I) (b) of the Act excludes Service Tribunal's jurisdiction against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed to or holding a particular post or to be promoted to a higher grade, and whereas section 4 (1) of the Act excludes from the jurisdiction of Service Tribunals the orders or decisions of a Departmental Authority made at any time prior to 1-7-1969. 6. Reverting to the first contention advanced by Mr. Khalid M. Ishaque the learned counsel for one of the petitioners, it may be observed that the jurisdiction of a Service Tribunal will not depend on the fact, as to whether the impugned act is an act already carried out or it is merely a threatened act but will depend on the fact as td whether the impugned ac relates to the terms and conditions of the service of a civil servant. If the impugned' act relates to the terms and conditions of service, in that even it does not make any difference in our view that impugned act is a threatened act. According to the petitioners themselves they have been adversely affected by the above order of the Director-General contained in the telegram dated 5-12-77 and letter dated 8-12-77, and that in some cases it has already resulted into reversion of some of the petitioners, and that in the other cases it would have resulted into reversion if the writ petitions would not have been filed in time. In this regard it may be pertinent to refer to the case of Jamal Parwez v. Sardar Hussain Naqvi (PLD 1956 Sind 755) in which it was contended by the plaintiff that no notice was required under section 80, C. P. C. In respect of a threatened act. Inamullah, J. (as his Lordship then was) while negating the above contention was pleased to observe that a notice under the above section was necessary even in respect of threatened acts. In the above case reliance a as placed on a Full Bench case of Lahore High Court viz. Subedar Singhara Singh and another v. Brig. C. H. D. O., Callaghan and others (AIR 1946 Lah. 247). The ratio decidendi of the above case was that if a notice under section 80, C. P. C. Was required for challenging an act one by a public officer in his official capacity, it would also be required for a threatened act. Similarly in the instant case the act complained of would include an act already carried out or an act to be carried out. The sole question is as to whether the act or threatened act complained of B relates to the terms and conditions of service. If it does relate to the terms and conditions of service, it would be within the exclusive jurisdiction of Service Tribunals. We may observe that we cannot place any premium on the fact that 8 petitioners out of 12 petitioners have rushed to this Court without receiving personal order of reversion. We cannot be unmindful of the object, which promoted the incorporation of Article 212 of the Constitution and enactment of the Service Tribunals Act, 1973. That object of the above enactment was to provide a forum of exclusive jurisdiction in the form of service Tribunals more equipped and suited for adjudication upon service disputes. The jurisdiction of Service Tribunals cannot be defeated in respect of matters, which fall within their domain on the plea that the act complained of is merely a threatened act. In this regard, it may be pertinent to refer to the case of Muhammad Hashim Khan and others v. Province of Baluchistan and others (PLD 1976 Quetta 59). The facts of the above case were that numerous constitutional petitions were filed challenging the orders of dismissal, removal and compulsory retirement. The respondent in the above petitions, the Province of Baluchistan raised a preliminary objection about the maintainability of the petitions. A Division Bench (comprising of Fakhruddin G. Ebrahim and Zakaullah Lodhi, JJ. Was pleased to dismiss the above petitions on the above preliminary point. The judgment was delivered by my learned brother Fakhruddin, J. His Lordship was pleased to observe as follows on the question of jurisdiction in para. 7, at page 61;
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"Now it does not require much of an argument to arrive at the conclusion that the cumulative effect of section 6 of the Provincial Act V of 1974 and clause (2) of Article 212 of the Constitution is that in matters relating to the terms and conditions of service, including disciplinary matters, except for two items mentioned in the proviso to section 4 of the said Act reproduced above, the Tribunal has the exclusive jurisdiction and all proceedings in any Court relating to these matters cannot be continued leaving the aggrieved party with the remedy by way of appeal to the Tribunal." 7. (a) Reverting to the second contention we are of the view that the reversion of the petitioners from the post of Assistant Engineer to the post p of Engineering Supervisor does not involve any determination of the fitness of the petitioners to hold or not to hold the above post. We are fortified in our view by the two decided cases, namely, the case of Mohibullah v. Federation of Pakistan (PLD 1975 Lab. 813) and the case of Mutaggi Hussain Rizvi v. Province of Sind (PLD 1978 Kar. 703). In the above Lahore case the facts were that the petitioner who was holding the post of Deputy Secretary, was promoted to Gr. 20 and was appointed to officiate as a Joint Secretary subject to his passing a written test and qualifying for the post. The petitioner did not take the required test as he was of the view that it was not required. Thereupon. He was reverted back to the post of Deputy Secretary. Aggrieved by the above order he filed a Constitutional Writ Petition challenging the above referred to order. It was contended by the petitioner that as the order of reversion involved determination of his fitness to hold the post of Joint Secretary, the above question was excluded from the jurisdiction of a Service Tribunal by virtue of section 4 (1) (b) of the Act. Nasim Hassan Shah, J. (as his Lordship then was) while rejecting the above contention was pleased to observe as follows;---- "The above submissions, despite their ingenuity and originality, cannot confer jurisdiction on this Court to entertain this petition in view of the intendment of the Constitution to the contrary. The questions relating to appointment, promotion and reversion are dealt with under Chapter 11 of the Civil Servants Act, which is headed "Terms and Conditions of Service of Civil Servants". The order of 8th November, 1973 is an order of promotion as the petitioner was promoted to grade 10 according to the terms of the said order itself, and appointed to the post of joint Secretary, whereas he was formerly holding the post of Deputy Secretary. While he was holding the said post he was asked to pass the written test in order to retain the post to which he was promoted. The petitioner on his own view of the law that the imposition of this condition in his case was unwarranted refused to take the test, whereupon the petitioner was reverted to the post of Deputy Secretary This order was nothing but an order of reversion and not an order "determining the fitness or otherwise of a person to be appointed to or hold a particular post or not be promoted to a higher grade" so as to come within the purview of proviso (b) of clause (1) of section 4 of the Service Tribunals Act. The impugned order affected the terms and conditions of service of the petitioner. It, accordingly, could be challenged by way of an appeal before the competent Service Tribunal. It may be pointed out that the petitioner himself was at one stage also of the same opinion. As is evident from the fact on receipt of the letter dated 15th December 1973 (Annexure C) asking him to take the written test, he filed a representation "under section 22 of the Civil Servants Act, 1973 against imposition of a condition of passing a written test in respect of my promotion to Grade 20 which stands already made and notified in the prescribed manner without any such condition," (b) Reverting to the Karachi case, it may be stated that the facts were that respondent Muttaqi Hussain Rizvi joined the Government of Sind as Overseer in 1963. He was promoted to the grade of Sub-Divisional Officer in 1965 and continued to work in that grade until by an order dated 31-3-75 of the Government of Sind he was reverted as Sub-Engineer. The above respondent challenged his reversion as Sub-Engineer by means of a civil suit wherein, it was contended that his reversion was illegal and contrary to the rules. In the above suit the Government of Sind raised the objection of the maintainability of the suit. The plaintiff in the suit also filed an application for an ad interim
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injunction under Order XXXIX, rule 2, C. P. C. Which was dismissed by the learned Civil Judge, without expressing any opinion about the maintainability of the suit. However, on appeal the learned Additional District Judge, was pleased to grant an ad interim injunction and allowed the appeal. Against the above order of the learned Additional District Judge the Government of Sind filed a reversion which was disposed of through the above reported judgment. In the above case Channa, J. While disposing of the above reversion was pleased to observe that the civil Court had no jurisdiction to entertain the suit and that the dispute related to the terms and conditions of service. His Lordship observed as follows :---- "Since the suit by respondent Muttaqi Hussain in respect of his reversion is not maintainable, obviously his claim for promotion cannot be agitated before the civil Courts, as adjudication of such claim necessarily would involve consideration of the legality and propriety of the orders of his reversion. The claim of respondent Muttaqi Hussain for promotion thus cannot be considered apart from the question of his…
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