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Petitioner: ZUBEDA QADUS VS Respondent: GOVERNMENT OF BALOCHISTAN
2000 P L C (C
2000 P L C (C.S.) 1353
[Quetta High Court]
Before Raja Fayyaz Ahmed, C.J. and Fazal‑ur‑Rehman, J
Miss ZUBEDA QADUS
versus
GOVERNMENT OF BALOCHISTAN through Secretary Education, Civil Secretariat, Quetta and 2 others
Constitutional Petition No.429 of 2000, decided on 11th July, 2000.
Service Tribunals Act (LXX of 1973)----
‑‑‑ S.4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑‑ Maintainability‑‑‑Termination of service‑‑‑Petitioner/civil servant had challenged her termination from service alleging same to be without jurisdiction and lawful authority‑‑‑Matter raised in the Constitutional petition fell within exclusive jurisdiction of Service Tribunal and Constitutional petition was not maintainable in view of bar contained in Art.212 of Constitution of Pakistan (1973)‑‑‑Order of termination passed by Authority, even if same was without jurisdiction or mala fide, could be challenged before Service Tribunal and jurisdiction of Civil Courts including the High Court would be barred.
1981 PLC (C.S.) 841; 1998 PLC (C.S.) 87; 1998 PLC (C.S.) 1175; 1998 PLC (C.S.) 1260 and 1998 SCMR 2280 ref.
Malik Sikandar Khan for Petitioner. Ashraf Khan Tanoli, A.‑G. for Respondents.
Date of hearing: 22nd June, 2000:
JUDGMENT FAZAL‑UR‑REHMAN, J.‑‑‑This Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has been filed by the petitioner challenging the validity and legality of the order, dated 3‑3‑2000 passed by respondent No.3, whereby services of the petitioner were terminated.
2.. Brief facts of the case are that on 11‑1‑1999, the petitioner was appointed as Drawing Mistress in BPS.9 and she was posted in Government Girls High School, Muslim Bagh. She continued in service till 3‑3‑2000. Thereafter, her services were terminated pursuant to the directive issued by the Government of Balochistan seeking review of all recruitments, which were in contravention of merits and in violation of laid down procedure.
3. It is stated that she stood first in the interview conducted by Education Department in District Killa Saifullah and accordingly she was appointed on merit. It is further stated that after issuance of directive by the Government of Balochistan regarding review of illegal appointments she was declared twice by the respondent No.2 to have been appointed on merits and in‑accordance with rules. It is stated that the termination of her services respondent No.3 on 3‑3‑2000 on the ground that drawing was not a subject in her matriculation certificate was not legally justified. It is stated that she was keen interested in drawing painting and graphic arts and obtained certificate from the Institute of Professional Studies, Karachi. It is alleger that the respondent No.2 had accepted the certificate of‑one Abdul Jalil from Idara‑e‑Saqafat Balochistan and working as Drawing Master. It is stated that she approached the respondents Nos.1 and 2 but her grievance was not redressed. The said order bearing No.257‑61/7‑EB, dated 3‑3‑2000 is the subject‑matter of present petition.
4. Comments (reply) and counter‑affidavit have been filed on behalf of respondent No.2 wherein, objection regarding maintainability of the petition has been raised by contending that Nigh Court has no jurisdiction to interfere in service matter in view of bar contained in the Constitution and without exhausting the opportunity available to her by way of departmental appeal against her termination orders by the Director of Secondary Educational Balochistan, Quetta, the present petition is not maintainable. On merit it is stated that the services of the petitioner were terminated by the respondent No.3 on the directive of respondent No.2 as she was not eligible for the post of Drawing Mistress on 3‑3‑2000 and after checking of the record her services were terminated by respondent No.2 on 8‑3‑2000. It is further state that on an appeal to respondent No.2, the petitioner produced certificate Oil Painting from the Institute of Professional Studies in Karachi but the same was rejected. It is stated that Abdul Jalil after production of his B.A . B.Ed. Certificates and Certificate in Fine Arts, he was found eligible for the post of Drawing Master. It is stated that the respondent No.2 was competent who terminated the appointment order of the petitioner on 8‑3‑2000.
5. We have heard Malik Sikandar Khan, learned counsel for the petitioner and learned Advocate‑General for the State.
6. The contentions put forth on behalf of the petitioner are that:
(i) the petitioner was appointed on merit as she stood first in the test/interview and her termination on the ground that since drawing was not her subject in the Matric Examination was with it jurisdiction and lawful authority.
(ii) before appointment she fulfilled all the formalities and did appear the test/interview and she was selected on the basis of marks obtained by her and her appointment was declared legal and props twice by respondent No.2 vide Memos., dated 18‑8‑1999 and 8‑11‑1999, therefore, respondent No.2 had no jurisdiction to terminate the services of the petitioner.
(iii) the respondent No.3 had no jurisdiction to terminate the services of the petitioner according to the prevailing service rules. The petitioner is holding certificate and proved her worth regarding drawing in the test/interview, therefore, her termination was without lawful authority.
7. Learned counsel has argued that the order has been passed without jurisdiction, notice and is mala fide, therefore, writ petition is competent. In support of his contentions learned counsel has relied upon the authorities reported in 1981 PLC (C.S.) 841, 1998 PLC (C.S.) 87, 1998 PLC (C.S.) 1175 and 1998 PLC (C.S.) 1260.
8. After hearing learned counsel for the petitioner and learned Advocate‑General for the State and having gone through the contents of the petition as well as‑comments (reply) submitted by the respondent No.2, we are of the considered view that the instant matter falls within the exclusive jurisdiction of Service Tribunal and Constitutional petition under Article 199 of the Islamic Republic of Pakistan, 1973 is not maintainable in view of the bar contained in Article 212 of the Constitution. The order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the Civil Courts including the High Court would be ousted. We are also fortified in our view by authority of the Hon'ble Supreme Court reported in 1998 SCMR 2280.
9. Consequently, the petition is dismissed in limini as the same is legally not maintainable. The petitioner would, however, be at liberty to approach the proper forum for redressal of her grievance if deemed fit. No order as to costs.
H.B.T./43/Q??????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.