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Petitioner: AHMAD SALMAN WARIS VS Respondent: NADEEM AKHTAR
1997 P L C (C
1997 P L C (C.S.) 585
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui, Muhammad Bashir Khan Jehangiri and Nasir Aslant Zahid, JJ
Dr. AHMAD SALMAN WARIS
versus
Dr. NADEEM AKHTAR and others
Civil Appeals Nos. 781 and 782 of 1994, heard on 2nd February, 1997.
(On appeal from the judgment of Lahore High Court, dated 28‑5‑1984 passed in I.‑C.A. 91 of 1991).
(a) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 212(3)‑‑‑Terms and conditions of service‑‑‑Leave to appeal was granted to examine question of first impression viz. whether in the facts of the case qualifications for appointment of Assistant Professor of Urology was a matter relating to terms and conditions of service within meaning of Art. 212 of the Constitution.
(b) Punjab Service Tribunals Act (IX of 1974)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal before Service Tribunal‑‑‑Scope.
Under section 4 of the Punjab Service Tribunals Act, 1974 appeal lies at the instance of an aggrieved civil servant before the Tribunal against the final order, whether original or appellate passed by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matters, within 30 days of the communication of such order to him. However, no appeal is competent before the Tribunal against the order of a departmental authority determining fitness or otherwise of a person to be appointed or to hold a particular post or against the order imposing penalty except where the punishment awarded is dismissal, removal, reduction in rank or compulsory retirement from service.
One of the jurisdictional requirements of such an appeal is, that it must be filed by a civil servant as, defined in the Act. Another jurisdictional requirement of such an appeal is, that the grievance of the aggrieved civil servant must relate to a final order of departmental authority whether original or appellate.
(c) Constitution of Pakistan (1973)‑‑
‑‑‑‑Art. 212‑‑‑Punjab Service Tribunals Act (IX of 1974), Ss. 2 & 4, proviso (b), (i) & (ii)‑‑‑Bar contained in Art. 212 of the Constitution when can be operative.
In order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant anti that it is not covered by the exceptions mentioned in proviso (b)(i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are non existent in a case then, the bar contained in Article 212 of the Constitution will not be operative.
Dr. Mrs. Zahida Mir v, Punjab Service Tribunal 1992 PLC (C.S.) 1010; S. Irshad Rehman v. Government of Pakistan 1993 PLC (C.S.) 39 and Muhammad Aslam Khan v. Government of Pakistan PLD 1993 Kar. 41 ref.
(d) Punjab Service Tribunals Act (IX of 1974)‑--
‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Eligibility for appointment‑‑‑If it is contended that a person could not be appointed because he did nor possess the required qualifications, the case is not one of his fitness to hold the post but it is essentially a question relating to his eligibility for appointment to the post‑‑‑Such a controversy would relate to terms and conditions of appointment and, therefore, such a dispute if raised by an aggrieved civil servant, could be raised only before the Service Tribunal and bar created by. Art. 212 of the Constitution of Pakistan would be operative in the case.
Government of Pakistan v. Muhammad Sadiq 1985 SCMR 69; Mian Abdul Malik v. ‑Dr. Sabir Zameer Siddiqui 1991 SCMR 1129 and Abid Mahmood v. Government of Pakistan 1996 PLC (C.S:) 1061 ref.
(e) Punjab Service Tribunals Act (IX of 1974)‑‑‑
‑‑‑‑Ss. 4 & 2‑‑‑Appeal to Service Tribunal‑‑‑Maintainability‑‑‑"Civil servant"‑‑‑Definition‑‑‑Person having applied for the post but not selected could not acquire the status of a civil servant within the meaning of Punjab Service Tribunals Act, 1974‑‑‑Such a person, therefore, was not entitled to file an appeal before the Service Tribunal.
(f) Constitution of Pakistan (1973)‑‑
‑‑‑‑Arts. 199 & 212‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑ Petition under Art. 199 of the Constitution‑‑‑Maintainability‑‑‑Petitioner, besides questioning the appointment of person to a post, had also challenged the selection/recommendation by the Public Service Commission‑‑‑Selection/ recommendation by Public Service Commission could not be brought under the challenge before the Service. Tribunal, for action of the Public Service Commission did not fall within the category of the "final order of a departmental authority, whether original or appellate"‑‑‑Constitutional petition filed by the petitioner before High Court under Art. 199 of the Constitution, thus, was maintainable in circumstances.
Irshad‑ur‑Rehman v. Government of Pakistan 1993 PLC (C.S.) 39; Muhammad Aslam Khan v. Government of Pakistan PLD 1993 Kar. 41 and Dr. Mrs. Zahida Mir v. Punjab Service Tribunal 1992 PLC (C.S.) 1010 ref.
Masood Zakariya, Advocate Supreme Court with K.M.A. Samdani, Advocate Supreme Court for Appellant (in C.As. Nos. 781 and 782 of 1994.)
Abid Hasan Minto, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1 (in C.As. Nos. 781 and 782 of 1994).
Khizar Hayat, Advocate Supreme Court for Respondent No. 4 (in both Cases).
Respondents Nos. 2, 3 and 5: Ex parte (in both Cases).
Date of hearing: 2nd February, 1997.
JUDGMENT
SAIDUZZAMAN SIDDIQUI, J.‑‑‑Punjab Public Service Commission (hereinafter to be referred as 'the Commission' only) through a consolidated advertisement published in daily 'Nation' dated 7‑10‑1988, invited applications amongst others, from eligible candidates for the four temporary posts of Assistant Professor of Urology in the Health Department, Government of Punjab. Eight candidates, including the appellant, were called for interview by the Commission for the above posts on 27‑3‑1989. According to the result announced by the Commission, after interviews, respondent No. 1 in Civil Appeal No. 781 of 1994, was at Serial No. 1, respondent No. 1 in Civil Appeal No. 782 of 1994 was at Serial No. 3 while petitioner was at Serial No. 8, of the list of recommendees prepared by the Commission. For the sake of convenience and to avoid confusion, we will hereinafter refer respondent No. I in Civil Appeal No. 'A1/94 and respondent No. 1 in Civil Appeal No. 782/94 by their respective names as Dr. Naeem and' Dr. Sahu. Names of Dr. Riaz Tasneem and Dr. Nawaz Chughtai, were shown at Serial Nos. 2 and 4 respectively of the above list prepared by the Commission. The Commission recommended the candidates whose names were shown at Serial Nos. 1 to 4 of the list of successful candidates for appointment against the four temporary posts of Assistant Professor of Urology. The Health Department, issued appointment letters to the those recommendees of the Commission whose names were at Serial Nos.2 to 4 of the list of successful candidates on 24‑4‑1989 while Dr. Naeem was given the appointment letter on 11‑7‑1989.
2. The appellant challenged the appointments of Dr. Naeem and Dr. Sahu who were cited as respondents 3 and 4 respectively, through a Writ Petition (W.P. 4240/90) filed before the Lahore High Court under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter to be referred as 'the Constitution' only) wherein he claimed the following reliefs:‑‑
"In view of the above, it is respectfully prayed that the appointment of respondents Nos. 3 and 4 as Assistant Professors, Urology by respondent No.1, may kindly be declared have been made without lawful authority` and consequently of no legal effect and as a consequence thereof the petitioner be ordered to be appointed as Assistant Professor; Urology`. It is also prayed that respondents Nos. 3 and 4, may be called upon to show under what authority they are holding the said posts.
It is further prayed that till the final decision of the present petition respondents 3 and 4, be restrained from acting Assistant Professors of Urology in the Hospital to which they are attached."
3. The appellant in his petition before the High Court alleged that the experience certificate produced before the Commission by Dr. Naeem for the period from I‑1‑1984 to 30‑6‑1984, was a fake document and, therefore,, recommendation of the Commission for his appointment on the basis of this fake document and his consequent appointment as Assistant Professor of Urology by the Health Department was illegal and without lawful authority.
4. With regard to the appointment of Dr. Sahu, as Assistant Professor Urology, the appellant alleged that he too was not qualified for appointment as according to the terms and conditions of appointment, notified by the Commission in the consolidated advertisement dated 7‑10‑1988, he belonged to the 2nd category of candidates who could only be considered if no candidate of the 1st category was available. As candidates in the 1st category were available before the Commission, Dr. Sahu could not be recommended by the Commission for the post of Assistant Professor of Urology.
5. In the parawise comments submitted by the Commission in the above writ petition before the High Court, the Commission conceded that it recommended the candidature of Dr. Sahu through inadvertence and over sight and offered its willingness to review or even withdraw its recommendations trade in his case.
6. Regarding the recommendation made by the Commission for appointment of Dr. Naeem as Assistant Professor of Urology, the stand of the Commission in the parawise comments filed before the High Court was, that, it recommended his case on the basis of the experience certificate produced before the Commission which the Commission had no reason to suspect as the same was issued by the Head of the Department, it was authenticated by the Principal and was also endorsed by P.M.D.C. Nevertheless, on receipt of a pseudonymous complaint by the Commission, that the experience certificate produced by Dr. Naeem before the Commission was false, the Commission sought telephonic confirmation of the certificate from the College authorities which stood by the certificate issued by them to Dr. Naeem.
7. The learned Judge in Chambers after hearing the parties held that the experience certificate produced by Dr. Naeem before the Commission was fake and accordingly, concluded that if this certificate is excluded from consideration, Dr. Naeem did not possess the required experience for the post of Assistant Professor of Urology at the time of issue of appointment letter. Similarly, the learned Judge on the basis of the admission made by the Commission, in its parawise comments in the case that the recommendation of Dr. Sahu was the result of inadvertence and oversight on the part of Commission; came to the conclusion that his appointment too as the Assistant Professor of Urology was illegal and void. As a result of these conclusions, the learned Judge in Chambers accepted the writ petition filed by the appellant and granted the following reliefs:‑‑.
"The merit list prepared by respondent No.2, is illegal and faulty in respect of respondents Nos.3 and 4, therefore, the same is set aside to their extent. The other two persons namely Riaz Ahmad Tasneem and Muhammad Nawaz Chughtai. recommended by respondent No.2 and appointed by respondent No.1, are not effected by this judgment as in any case they were eligible for appointment while respondent No.3, has not qualified.
17. The result is that respondent No.2, is directed to formulate a fresh merit list in respect of the petitioner, respondent No.4 and remaining 4 candidates, who qualified the examination and make fresh recommendations strictly in accordance with law and rules in respect of remaining two vacancies of Assistant Professor, Urology. The writ petition is allowed in these terms, with no order as to costs. "
8. Two Intra‑Court appeals were filed against the judgment of learned Judge in Chambers, one by Dr. Naeem (I.C.A. 92/1991) and the other by Dr. Sahu (I.C.A. 157/1991). A learned Division Bench of Lahore High Court consisting of Mian Mahboob Ahmed, C.J. (as his Lordship then was) and Malik Qayyum, J allowed both the I.C.As. and set aside the judgment of the learned .Judge in Chambers leaving it open for the petitioner to approach Service Tribunal constituted under Article 212 of the Constitution for redress, if so advised. The learned Division Bench reached the conclusion that since the controversy raised by the petitioner before the learned Judge in Chambers in writ petition related to the terms and conditions of service of a civil servant, the High Court could not take cognizance of such a dispute in view of the provision of Article 212 of the Constitution. Leave was granted by this Court against the judgment of learned Division Bench to consider the following legal proposition:‑‑
2. The question requiring determination is whether in the facts of this case the qualifications for appointment as Assistant Professor of Urology was a matter relating to the terms and conditions of service within the meaning of Article 212 of the Constitution. This seems to be a question of first impression. Leave to Appeal , is granted to consider it. "
9. We have heard the learned counsel for the parties at length. The learned counsel for the appellant contended before us that the relief claimed by the appellant in the writ petition filed before the High Court related to fitness of Dr. Naeem and Dr. Sahu to hold the post of Assistant Professor of Urology, which was outside the preview of the jurisdiction of Service Tribunal as provided in section 4 of Punjab Service Tribunals Act, 1974 and as such the writ petition filed by the appellant before the High Court was fully competent. It is further contended that in any case the grievance raised by the appellant before the High Court in writ petition, related to eligibility and qualification of Dr. Naeem and Dr. Sahu prior to the period they became civil servant and as such the bar contained in section 4 did not come in their way. It is lastly contended that one of the reliefs claimed by the appellant in the writ petition against Dr. Naeem and Dr. Saint was in the nature of a writ of quo warranto which could not be granted by the. Service Tribunal and therefore, the writ petition filed by the appellant was fully competent. The learned counsel for the appellant in support of their contention relied on the cases of Dr. Mrs. Zahida Mir v. Punjab Service Tribunal (1992 PLC (C.S.) 1010), S. Irshad Rehman v. Government of Pakistan (1993 PLC (C.S.) 39) and Muhammad Aslam Khan v. Government of Pakistan (PLD 1993.Karachi 41).
10. The learned counsel for the respondents on the other hand contended that the controversy raised in the writ petition before the High Court related to the eligibility of Dr. Naeem and Dr. Sahu, which was exclusively triable by the Tribunal and as such the writ petition was rightly held not maintainable by the learned I.‑C.A. Bench of the High Court. It is also contended that the High Court in exercise of its writ jurisdiction could not hold an enquiry into disputed question of fact and decide whether a particular document relied by the party before the Tribunal/Authority below was fake or not.
Article 212 of the Constitution which provides for establishment of Administrative Courts and Tribunals reads 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 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 7relating to claims arising from tortious act of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy tax or case and any servant of such authority acting in 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 proceeding 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 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, Majlis‑e‑Shoora (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 . ...
11. Article 212(1)(a) of the Constitution provides that the Administrative 'Courts or the Tribunals established under the Act of appropriate Legislature is to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been m the service of Pakistan including disciplinary matters. 'Service of Pakistan' as defined in Article 260(1) of the Constitution means any service, post or office in connection with the affairs of Federation or of a Province and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be Service of Pakistan by or under the Act of Parliament or of a Provincial Assembly except those services mentioned expressly in this Article not falling within the purview of Service of Pakistan. By Punjab Service Tribunals Act, 1974, (hereinafter to be referred as the Act' only), Punjab Service Tribunal was established to exercise jurisdiction regarding matters relating to the terms and conditions of service in respect of services of the Province of Punjab. Under section 4 of the Act appeal lies at the instance of an aggrieved civil servant before the Tribunal against the final order, whether original or appellate, passed by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matters, within 30 days of the communication of such order to him. However, no appeal is competent before the Tribunal against the order of a departmental authority determining fitness or otherwise of a person to be appointed or to hold a particular post or against the order imposing penalty except where the punishment awarded is dismissal, removal, reduction in rank or compulsory retirement from service. The definition of civil servant given in Punjab Civil Servants Act (VIII of 1974) is the same as given in section 2(b) of the Act. A civil servant within the meaning of the Act means a person who is or has been a member of a civil service of the Province or who holds or has held a civil post in connection with the affairs of the Province. However, a person who is or has been on deputation to the Province from the Federation, or from other Province or authority, a person employed on contract or on work charge basis or paid from contingencies and a person who is or has been a worker or workman as defined in the Factories Act, 1934 or Workmen's Compensation Act, 1923, are expressly excluded from the purview of the definition of civil servant. Therefore, in order to make a matter exclusively cognizable by a Tribunal under the Act, and to create an ouster of jurisdiction of all other Courts and Tribunals under Article 212 of the Constitution, it must be shown that the matter is agitated by a civil servant as defined under the Act, it has arisen from a final order of a departmental authority whether original or appellate, it concerns the terms and conditions of the aggrieved civil servant and that it is not covered by the exceptions mentioned in proviso b(i) and (ii) of section 4 of the Act. If any of the conditions mentioned above are non existent in a case then, the bar contained in Article 212 of the Constitution will not be operative.
12. The appellant in his writ petition before the High Court not only challenged the appointments of Dr. Naeem and Dr. Sahu but he also questioned their selection and recommendation by the Commission, on the ground that they did not possess the qualifications prescribed for the post of Assistant Professor of Urology. The controversy raised by the appellant in the writ petition, therefore, related to the eligibility of Dr. Naeem arid Dr. Sahu and not to their fitness to hold the post of Assistant Professor of Urology, as contended by the learned counsel for the appellant. The question of fitness .and suitability to hold a post arises only amongst‑the eligible and not between eligible and ineligible as held by this Court in the case of Government of Pakistan v. Muhammad Sadiq (.1985 SCMR 69). Therefore, where it is contended that a person could not be appointed because he did not possess the required qualifications, the case is not one of his fitness to hold the post but it is essentially a question relating to his eligibility for appointment to that post. In the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCMR 1129) this Court held that the question of eligibility relates primarily to the terms and conditions of service, and therefore, such a dispute is exclusively cognizable by a Service Tribunal. The following observations of the Court from Mian Abdul Malik's case supra), may be reproduced here with advantage:‑‑
"2. What is barred from the jurisdiction of the Tribunal is the question of fitness of a civil servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent. Authority is not possible by that of a Tribunal or Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively with the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification no such bar exists either on express words of section 4 of the Service Tribunals Act or even by implication. The petitioner had approached the Civil Court for determination of his eligibility and also for being declared as the only one eligible to be promoted. Such an exercise could not be undertaken by the Civil Court with the limited number of parties arrayed before it nor could it have jurisdiction as the matter related to the terms and conditions of the service."
13. In an unreported decision of this Court, Abid Mahmood v. Government of Pakistan (C.P. 292‑L of 1992) (1996 PLC (C.S.) 1061) decided on 18‑5‑1992, the petitioner challenged the promotion of private respondents in that case in a writ petition before the High Court on the ground that the petitioner and private respondents were effectively governed by the provisions of Pakistan Engineering Council Act, 1976 in matters of appointment and promotion and that Act did not permit diploma holders to hold certain engineering posts. The High Court dismissed the petition holding that the question raised in the petition related to eligibility of respondent, which is exclusively triable before Service Tribunal. The petitioner approached this Court but leave was refused as follows:‑‑
"3. Article 240 of the Constitution provides that the conditions of service of persons in the service of Pakistan shall be determined in the cases of services of the Federation by or under Act of Majlis‑e Shoora (Parliament). The Act as well as the Civil Servants Act fall in the category of the Act framed by Majlis‑e‑Shoora (Parliament). For testing the eligibility of respondents for holding the certain posts, the petitioner has necessarily to go to the Service Tribunal. What is barred under provisos to…
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