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Petitioner: THE ACCOUNTANT-GENERAL and others VS Respondent: ZAMAN HUSSAIN KHAN
Court Name: Supreme Court of Azad Jammu and Kashmir Judge(s): Basharat Ahmed Sheikh, Sardar Said Muhammad Khan Title: THE ACCOUNTANT-GENERAL and others vs ZAMAN HUSSAIN KHAN Case No.: Civil Appeal No,, 8 of 1992 Writ Petition No,,15 of 1990 Date of Judgment:1992-11-02 Reported As: 1998 PLC (C.S.) 431 Result: Petition dismissed
JUDGMENT
JUDGMENT ' BASHARAT AHMAD SHAIKH, J.---Respondent Zaman Hussain Khan was a senior teacher in the Education Department and was placed in B-15. It is stated that he held a degree in M.A. Political Science but in 3rd Division. He re-appeared in the said examination and improved his division on 3rd April, 1984. After some time he became a lecturer in the same department but during his tenure as senior teacher he was given selection grade B-17 with effect from 1-9-1984. He also drew three advance increments in pursuance of Government order which, inter alia, provided that a teacher who possessed or acquired Master's degree would be allowed three increments. In 1988 a Central Audit Party conducted the Audit of the Government offices at Kotli and raised an objection that the respondent should have drawn three advance increments in B-15 and not in B-17 and that an amount of Rs,15,585 had been overpaid. In pursuance of this objection the District Accounts Officer wrote a letter on 9th of January, 1989 to the District Accounts Officer, Bagh where the respondent was posted at the relevant time forwarding the letter of Central Audit Party and asked the latter to recover an amount of Rs,15,585 from the respondent. This action of the Accounts Officers was challenged by respondent by filing a Writ Petition in the High Court on 25-3-1990. The Writ Petition has been accepted. Hence this appeal by leave of the Court. ' The acceptance of the Writ Petition has been based on the following two points:-- (a) Under Article 65-A of the Audit Code if a supposed over-payment is to be deducted after two years from the date of payment that matter has to be submitted to the Finance Minister who has to decide whether any recovery should be made or not; (b) recovery of any amount is a major penalty under the Civil Servants (Efficiency and Discipline) Rules 1977 and if any decision for the recovery of amount allegedly drawn by the petitioner in
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excess of his entitlement was given by the Finance Minister even then the order should have been implemented through the competent authority after giving show-cause notice. ' The Accountant-General, District Accounts Officers of Kotli and Bagh, Azad Government of the State of Jammu and Kashmir and the Azad Jammu and Kashmir Council jointly filed a petition for leave to appeal to challenge the judgment of the High Court. Apart from challenging the views formed by the High Court it was also urged at the leave stage that the judgment under appeal had been passed without jurisdiction as the order impugned before the High Court could be challenged in the Service Tribunal by filing an appeal. This objection had not been taken before the High Court and was raised for the first time in this Court, but it has become a consistent practice of this Court to allow the parties to raise law points of public importance or points relating to jurisdiction even if they have not been raised in the High Court or any other Court or Tribunal. ' There are no two views that disputes arising out of the final orders relating to the terms and conditions of civil servants fall within the jurisdiction of the Service Tribunal and jurisdiction of the High Court stands ousted in those matters. It is also not disputed that 'pay' is one of the terms and conditions of service. It is clear that the amount involved in the case was paid as increments which are a necessary part of a civil servant's pay. However, it has been contended before us by Syed Nazir Hussain Shah, the learned counsel for the respondent, that the principles reflected above are not applicable to the present case. His contention was that the order of recovery was not passed by an authority competent to pass that order and such an order was not appealable before the Service Tribunal. The learned counsel contended that according to section 4 of the Service Tribunal Act an appeal lies against a final order made by a "departmental authority" as defined in explanation appended to the aforesaid section in the following words:- 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 servant.' ' The learned counsel submitted that if an order is passed by an authority not competent to pass that order, no appeal would lie under section 4 of the Service Tribunal Act and in such a situation a Writ Petition would lie. Applying this principle to the present case, the learned counsel, Syed Nazir Hussain Shah Kazmi, submitted that since the supposed overpayment was older than two years the District Accounts Officer could not order the recovery of the amount but could only report the matter to the Finance Minister who was the competent authority to decide whether the recovery should be made or not. He based his contention on Article 65-A of the Audit Code. This contention was vehemently opposed by the learned counsel for the appellants, Sardar Rafique Mahmood Khan, by submitting that the definition of 'departmental authority' reproduced above does not connote that the order which has to be challenged in the Service Tribunal should have been competently made. He contended that if the matter relates to terms and conditions of service an appeal would lie only before the Service Tribunal whether or not the order sought to be challenged has been passed by an authority competent to pass that order. ' The Azad Jammu and Kashmir High Court has held in some cases that no appeal lies to the Service Tribunal from orders not competently passed because about such orders it cannot be said that they are orders of departmental authority. However, it is for the first time that this Court has been called upon to decide this legal issue. ' On this issue the learned counsel for the parties Sardar Rafique Mahmood Khan and Syed Nazir Hussain Shah Kazmi cited a good number of cases in support of their respective contentions. The first in time is the case of Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545. Before analyzing this judgment it is necessary to notice the background in which this case came before the Lahore High Court. During the Martial Law period of General Yahya Khan some 303 Government servants were removed or compulsorily retired from service under Martial Law Regulation No,, 58 in December 1969. In 1972 Martial Law Regulation No,, 114 was promulgated during
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the time when Mr. Zulfiqar Ali Bhutto was the Chief Administrator of Martial Law. Under this regulation another lot of government servants was retired. The Government servants challenged their removal by filing Writ Petitions. In order to save the actions taken by Martial Law authorities from judicial scrutiny an attempt was made by enacting Article 281 in Interim Constitution which was adopted in 1972. This article came up for consideration in State v. Ziaur Rehman PLD 1973 SC 49 and it was held that the protection given under Article 281 did not extend to orders or actions of the Martial Law Authorities which were coram non judice, without jurisdiction or mala fide. Subsequently, when permanent Constitution was framed in 1973 it also contained two Articles, numbered 269 and 270, which also purported to validate and protect the actions taken during the Martial Law period. In Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151 Article 281 of the Interim Constitution and Articles 269 and 270 of the permanent Constitution of 1973 were considered and it was held that acts, orders or proceedings which were done, taken or made, coram non judice, without jurisdiction or with mala fide purpose had not been saved from the scrutiny of the Courts by the Articles referred to above. Thus the view formed in Ziaur Rehman's case was reiterated in Saeed Ahmad Khan's case and it was ordered that Writ Petitions filed in order to challenge the actions taken against the Government servants under the aforesaid Martial Law Regulations would be heard and decided by the High Court in light of the principles. After the pronouncement of the judgment in Saeed Ahmad Khan's case the Federal Government set up a Service Tribunal in 1973 after enacting the Service Tribunals Act. When the Writ Petitions filed by the Government servants removed during the Martial Law period came up for adjudication before the Lahore High Court, it was contended on behalf of the Federal Government as well as the Government of Punjab that Service Tribunal having exclusive jurisdiction with regard to the terms and conditions of service of persons who were or had been in service of Pakistan, including the disciplinary matters, had been set up, therefore, the Writ Petitions stood abated under Article 212 of the 1973 Constitution. When confronted with this situation the learned counsel for the petitioners raised many points to contend that Writ Petitions had not abated. One of the points raised was that in Saeed Ahmad Khan's case and Ziaur Rehman's case the Supreme Court had held that the High Court could set aside those orders which were found to be mala fide or without jurisdiction thus the orders falling under those categories could only be scrutinised by the High Court in its Constitutional jurisdiction. It was contended before the Court that in view of the definition of "departmental authority" in the Service Tribunals Act an order passed by an authority which was not competent to pass that order would not be at order of a departmental authority and would not be appealable before the Service Tribunal. The Division Bench comprising Karam Elahi Chauhan, J. And Shafiur Rehman, J. Repelled the argument and held that orders passed without jurisdiction would be appealable before the Service Tribunal. It was observed that:- "This will show that read in this context orders whereby penalty had been inflicted for example without jurisdiction the same also were equally appealable; just as those where penalties have been imposed with jurisdiction because, otherwise conversely arguing where the penalties have been 'competently' inflicted what is the logic of providing appeals against the same if there is no defect in their 'competency' in any respect. The right of appeal according to us as given in sections 4 and 6 is independent of such like niceties because daily we come across appeal-cases in which pleas are being taken that orders of the subordinate Courts or authorities are without jurisdiction and the Appellate Courts or forums if so satisfied set aside such orders. Whether any particular order in fact is with jurisdiction or without jurisdiction can well be decided by an Appellate Court and this is one of the incidents of appeal. It was held in Maharaj Kumar Bindeswari Prosad Singh v. Thakur Lakpat Nath Singh and others (8 I.C. 26); Jwala Prasad v. Salik Ram (I.L.R. 13 All. 575); and Ranjit Missir v. Ramudar Singh (16 I.C. 940), that where jurisdiction is usurped by a Court in passing an order against which an appeal could lie if it had been passed with jurisdiction an appeal cannot
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be defeated on the ground that the order was without jurisdiction. Also see to the same Gangadhar Karmakar and others v. Shekharbasini Dasya and others AIR 1917 Cal. 320; Bandiram Mockerjee v. Puma Chandra Roy ILR 45 Cal. 926; Wajudi Pramanik v. Muhamed Balai Morul AIR 1925 Cal. 1032 and Janardhan Reddy and others v. State of Hyderabad and others AIR 1951 SC 217)." ' The learned Judges then proceeded to examine the true import of the words "competent to make an order" and observed as follows:- "The words 'competent to make an order' do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed. The defect in competency in other words will provide a good ground for appeal rather than negate it. That it is in this context that sections 4 and 6 of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject- matter of a case on which will depend the ouster of jurisdiction of other Courts. If the subject- matter of Courts or Tribunals of exclusive jurisdiction is the 'terms and conditions of service' or 'discipline' and relates to persons who are or have been in the service of Pakistan then the ouster of jurisdiction of other Courts is complete." ' In Muhammad Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22, the facts were that the appellant was a Joint Secretary in Government of Pakistan. He had proceeded on leave preparatory to retirement when he was suspended by the Chief Martial Law Administrator Gen. Yahya Khan under Martial Law Regulation No,, 58. He was charge-sheeted and heard by a Tribunal presided over by an Army Officer and he was consequently dismissed on 19th of May, 1970. When the Service Tribunal was set up under the Service Tribunals Act he filed an appeal before the Tribunal in 1974, but it was dismissed by the Tribunal for want of jurisdiction. The Chairman of the Tribunal, with whom one of the members concurred, formed the view that all the actions taken under Martial Law Regulations promulgated by Gen. Yahya Khan stood validated under Article 270 of the Constitution of Pakistan 1973 and it had also been provided therein that such an action shall not be called in question before any Court on any ground whatsoever, therefore, the Tribunal did not have any jurisdiction to entertain the appeal. However, the second member of the Tribunal expressed a different opinion. He held that under Article 212 of the Constitution the Service Tribunal had the exclusive jurisdiction in matters relating to the terms and conditions of service of civil servants and thus no other Court had any jurisdiction in the matter, but in the cases relating to the Martial Law 'period this jurisdiction could be exercised by the Service Tribunal within the limitations spelt out by the Supreme Court in Saeed Ahmad Khan's case, namely, that the Tribunal could only interfere with the acts, orders or proceedings which were without jurisdiction, mala fide or coram non judice. After an elaborate analysis of the case law the learned Judges of the Supreme Court of Pakistan formed the view that both the majority and minority views, mentioned above, were not sustainable. It was held that:-- "The appeal being one within the ambit of section 4 of the Service Tribunal Act, 1973 was fully competent and it was the duty of the Service Tribunal to examine on merits all the questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal made under Martial Law Regulation No,, 58 in May 1970 . " ' It follows that the view was that all orders, whether they had been passed with jurisdiction or without it, were appealable before the Service Tribunal. ' Waqar Ali Shaikh v. Islamic Republic of Pakistan PLD 1980 SC 42. The appellant in the case was dismissed from service under Martial Law Regulation No,, 58 and filed a writ petition to challenge the order of dismissal. The Lahore High Court held that the writ petition had abated on the establishment of Service Tribunal. He thereafter filed an appeal before the Service Tribunal. On
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majority view the Tribunal dismissed his appeal on the ground that it had no jurisdiction in view of the validation provisions contained in Article 270 of 1973 Constitution. The Supreme Court accepted the appeal filed by Waqar Ali Sheikh by referring to its view expressed in Muhammad Yamin Qureshi's case that in spite of the validation provision contained in Article 270 of the Constitution the Service Tribunal was fully competent to decide the question of law and fact as may be raised before it. ' Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department PLD 1980 Quetta 58. It is a Full Bench judgment in which it was laid down that if an order has not been passed by a competent departmental authority and is therefore, void no appeal should lie before the Service Tribunal. The circumstances in which the Full Bench was constituted were that quite a few petitions had been filed by persons who were either employees of the Federal Government or the Provincial Government of Baluchistan. The Writ Petitions related to different terms and conditions of their service. A Full Bench was constituted and the following two points were referred to it for decision:-- "(i) Whether Article 212 of the Constitution of Pakistan is a complete bar in respect of cases in which a Government servant seeks relief under Article 199 of the Constitution in relation in his terms and conditions of service; (ii) If the first question is answered in the negative what are the governing principles and the scope of relief in such cases." ' The question that a particular order had not been passed by a competent departmental authority and was for that reason not appealable before the Service Tribunal was not before the Full Bench in a concrete shape. It was in these general terms that the Bench returned the verdict in para 16 that an appeal shall not lie to the Tribunal in six situations. The relevant portion is as follows:- "16. Analyzing the relevant provisions it would appear that an appeal shall not lie to the Tribunal in the following cases:- (1) When the impugned order was passed before 1-7-1969; (2) 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)(B) of the Civil Servants Act; (3) When the order is not a final order; (4) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time-scale; (5) 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 or grade; and (6) When the order is not passed by a competent departmental authority and is for such reason void." ' Cases falling in category (6) are relevant in the present case. The Full Bench view was that an appeal shall not lie if the order is void because it was not passed by a competent departmental authority. It may be noted that the Full Bench was not called upon to decide the issue under reference in a dispute but expressed the view in an abstract form. It is noteworthy that Lahore High Court's judgment in Muhammad Aslam. Bajwa's case was not brought to the notice of the Full Bench. ' Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290. Some civil servants who had been retired by orders passed in exercise of power conferred upon the competent authority under section 13(ii) of the Civil Servants Act 1973 filed writ petitions before the Sindh High Court to challenge the retirement orders. When the cases came before a Division Bench of that Court following three questions were referred to a Full Bench:- "(i) Whether the petitions are barred by Article 212 of the Constitution? (ii) Whether the competent Authority can retire a civil servant at any time after his completing 25 years' service or alternatively the said power to retire and civil servant can be exercised at or about
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the time when the Civil Servant is due to complete 25 years of service? (iii) Whether the power to retire under section 13(ii) of the Civil Servants Act (1973) is absolute or is regulated by rules?" ' A Bench of five Judges was constituted to answer the reference. It was, inter alia, contended before the Court that the orders which were mala fide, ultra vires or coram non judice could in any case be challenged before the High Court. The judgment of the Full Bench of the Balochistan High Court in Mujeebullah Aijaz's case, referred to above, and Afzal Hussain Syed v. Government of Punjab PLD 1980 Lah. 697 were referred. At page 302 of the report the learned Judges disagreed with the view adopted in those cases and held that orders passed without jurisdiction could be challenged before the Service Tribunal. The conclusion is contained in the following passage:-- "Such being the scope of the powers of the Service Tribunal we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala fide, ultra vires and coram non judice are within the jurisdiction of the Service Tribunal to determine and, therefore, it follows that the High Court will have no jurisdiction to grant relief on those grounds in respect of orders appealable before the Service Tribunal. Incidentally we may also refer to a contention raised before us on the law laid down in Saeed Ahmad Khan's case that even a constitutional bar on the scrutiny of orders passed during the illegitimate rule under the Martial Law promulgated on 25th March, 1969 was not held to oust the jurisdiction of the High Court in respect of orders passed mala fide or in the nature of coram non judice. The real import of the rule laid down in that case has been fully explained in the cited case of Yameen Qureshi and we do not wish to burden this judgment with further discussion on the tenability of this contention. Suffice it to say that the statement of law made in Saeed Ahmad Khan's case relates to the interpretation of a validation clause in the Constitution, which in our humble view is not at all pertinent to the situation and context of the present controversy which deals with the ouster of jurisdiction by a clear constitutional provision. If the entire field of controversy that could possibly arise in respect of an order passed by a departmental authority has been committed under the Constitution to the Occlusive jurisdiction of the Service Tribunal, then Article 212 clearly bars the jurisdiction of this Court to entertain any part of such controversy in any proceedings. Their Lordships also emphasized in the cited case of Yameen Qureshi the distinction between the scope of jurisdiction of the High Court by way of judicial review and the wide scope of the appellate jurisdiction of the Service Tribunal." ' Shahid Ahmad Khan v. Inspector General of Police 1986 PLC (C.S.) 426 a Division Bench of the Sindh High Court dismissed a Writ Petition filed by a Police official for want of jurisdiction in view of the provisions contained in Article 212 of the Constitution of Pakistan. While doing so the learned Judges repelled the argument raised before them that the order impugned before them was void and that the bar of jurisdiction was not attracted to cases falling in that category. The learned Judges followed the Full Bench judgment of the Sindh High Court in Abdul Bari's case. Mujeebullah's case from Quetta jurisdiction and Afzal Hussain Syed v. Government of Punjab PLD 1980 Lah. 697 were cited before them but it was observed that these two cases had been expressly dissented from by the Full Bench in Abdul Bari's case. ' In Dr. Raja Manzoor Ellahi v. North-Western Frontier Province PLD 1980 Pesh. 81 a Writ Petition was filed to challenge the retirement order and it was urged that the impugned order was mala fide and without jurisdiction and for that reason a Writ Petition was competent. The petition was dismissed by holding that jurisdiction of the High Court stood ousted because an appeal lay before the Service Tribunal. It was observed that:- "Any order even if it is without jurisdiction or is mala fide can be challenged under Article 212 before the Tribunal and not before the High Court under Article 199 when it concerns the terms and
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conditions of a civil servant. In case of Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545, Lahore High Court has taken the same view." ' Mian Amanul Mulk v. N.W.F.P. PLD 1981 Pesh. 1. Amanul Mulk was Principal of a High School when the Governor of the North West Frontier Province retired him under section 13(i) of the N.W.F.P. Civil Servants Act. He challenged the order of retirement by invoking the constitutional jurisdiction of the Court. The petitioner's counsel sought to challenge the correctness of the view of a Division Bench of the Peshawar High Court in Raja Manzoor Ellahi's case, just mentioned. A Full Bench was constituted. Shah Abdur Rashid, J. Speaking for the Full Bench held that in order to totally oust jurisdiction of the High Court all that is necessary is that the order to be impugned should be an order of the departmental authority and the…
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