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Petitioner: Syed Asghar Ali Shah, Muhammad Younas Khan VS Respondent: Kaleem Arshad and others
Court Name: Supreme Court of Pakistan Judge(s):Amin-Ud-Din Khan, Ayesha A. Malik, Syed Mansoor Ali Shah, Jamal Khan
Mandokhail, Athar Minallah Title:Syed Asghar Ali Shah, Muhammad Younas Khan vs Kaleem Arshad and others Case No.: Civil Petitions No.167-P and 391/2022 Date of Judgment:2024-01-15 Reported As: 2024 SCP 33, 2024 PLC (C.S.) 463, 2024 SCMR 563 Result: Appeal Allowed Judgment
ORDER Syed Mansoor Ali Shah, J. Petitioners seek leave to appeal under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution") against the judgment of the Khyber Pakhtunkhwa Subordinate Judiciary Tribunal ("Tribunal"), dated 18.12.2021, whereby the issue of seniority of respondent No.1 appointed as Additional District and Sessions Judge from the selection process of the year 2001 was considered and decided in terms of Rule 10(a) of the Khyber Pakhtunkhwa Judicial Service Rules 2001[1] read with Section 8(3) of the Khyber Pakhtunkhwa Civil Servants Act 1973, and his seniority was fixed along with his batchmates above the petitioners who were appointed from the selection process of the years 2002 and 2003. 2. Learned counsel for respondent No.1, in the course of hearing of the petitions before a regular Bench of this Court, raised a preliminary objection regarding the maintainability of these petitions for leave to appeal under Article 212(3) of the Constitution on the basis of the law declared by this Court in Gomal,[2] which held that "no appeal lies to this Court in terms of Article 212(3) against the decision of a Tribunal created by a Provincial law to which the proviso to clause (2) has not been applied."[3] Admittedly, there is no federal law that extends clause (2) to the Tribunal in terms of the said proviso. The question of maintainability, raised by the learned counsel, entailed the interpretation of Article 212 of the Constitution. Under Section 4 of the Supreme Court (Practice and Procedure) Act, 2023 ("Act of 2023") if any matter involves interpretation of a constitutional provision, the Committee[4] is to constitute a Bench comprising not less than five Judges of the
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Supreme Court to hear the matter. The regular Bench of this Court, therefore, referred the matter to the Committee for constitution of the larger Bench in accordance with Section 4 of the Act of 2023, on 09.01.2024. Hence, this Bench. On the last date of hearing, this Bench issued fresh notices under Order XXVII-A, CPC to the Attorney-General for Pakistan and Advocate-General, Khyber Pakhtunkhwa, as well as Advocates-General of other provinces. Reconsideration of Gomal and the maintainability of the petitions for leave to appeal under Article 212(3) of the Constitution. 3. First, we take up the question of maintainability of the instant petitions for leave to appeal. The question raised in Gomal was whether an appeal lies to the Supreme Court under Article 212(3) against an order of a Tribunal created by a Provincial law to which the proviso to Clause (2) of the Article 212 has not been made applicable. Gomal answered this in the negative by holding that no appeal lies to this Court in terms of Article 212(3) against the decision of a Tribunal created by a Provincial law to which the proviso to Clause (2) has not been applied. Gomal went ahead to direct that all the pending petitions or appeals, being not maintainable, were to be returned forthwith by the Office and that no such leave petitions were to be entertained in future except matters regarded as past and closed or reserved or part heard, subject to the direction of the Bench concerned, and matters heard under the direction of the Hon'ble Chief Justice.[5] 4. In Gomal, the facts were that an employee of Gomal Medical College ("College") upon being terminated from service filed an appeal before the Appellate Tribunal established under the Khyber Pakhtunkhwa Medical Teaching Institution Reforms Act, 2015[6] ("Reforms Act"). The said appeal was allowed, and the employee was directed to be reinstated in service with back benefits. Against this order of reinstatement, the College preferred a petition for leave to appeal under Article 212(3) of the Constitution before this Court. In this background, the above question regarding the maintainability of the petition for leave to appeal before this Court under Article 212(3) arose. 5. In Gomal, a two-member Bench of this Court held that the appeal arising from the decision of a Provincial Tribunal constituted under Article 212(1)(a) are not maintainable before this Court under Article 212(3) unless the Federal Legislature extends the provision of clause (2) of Article 212 to the said Provincial Tribunal through a Federal Act. This Court in Gomal first identified the principle and then proceeded to interpret Article 212 in the light of the said principle. According to Gomal, the principle is that "it is only the Parliament that can (if at all) enact legislation that affects or acts upon the jurisdiction of this Court. The Provinces have no such legislative competence."[7] Taking this further, Gomal reasoned that jurisdiction can only be conferred on this Court through the federal legislature in terms of entry No. 55 of the Federal Legislative List of the Constitution and that the provincial legislature while establishing a Provincial Tribunal cannot confer jurisdiction of appeal on this Court, unless and until effect is given to proviso to Article 212(2) of the Constitution through an Act of Parliament. According to Gomal, clause (3) of Article 212 could only be 'activated' through proviso to clause (2) which formed the necessary "bridge" connecting clause (2) and (3) of Article 212 and only under the cover of an Act of Parliament could the door to this Court be opened under Article 212(3). Gomal went ahead to hold that if the Provincial Assembly does not wish to follow this route or Parliament refuses to enact the enabling legislation in terms of the proviso, then the door to this Court remains shut. And when clause (2) does not apply, the jurisdiction of the other courts, which in practical terms would mean recourse to the High Court under Article 199, would remain open, holding clause (2) and its proviso the gateway to clause (3). 6. We have heard the learned counsel for respondent No.1, the Attorney-General and the Advocates-General of all the Provinces and ICT. All[8] of them argued that Article 212(3) is a stand- alone provision and decision of the Provincial Tribunals established under Article 212(1) can be appealed before the Supreme Court. They also contended that Article 212(2) is an "ouster clause" that keeps the other courts away in matters that fall within the jurisdiction of the Tribunal and do
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not in any manner confer any additional jurisdiction on the Provincial Tribunals, hence even if clause (2) is not made applicable to the Provincial Tribunals established under Article 212(1), the Provincial Tribunals under Article 212(1) still continue to exist and function, their jurisdiction is not affected and the appellate jurisdiction conferred by the Constitution on this Court against any decision of the Provincial Tribunals under Article 212(3) remains intact. Mr. Amir Rehman, Additional-Attorney General for Pakistan explained that the object of clause (2) of Article 212 is to leave the option of invoking the ouster clause with the Provinces, respecting their provincial autonomy under our federal scheme. He added that clause (2) does not confer jurisdiction as understood in Gomal but simply provides for an ouster clause, keeping away other courts from taking up matters falling under the jurisdiction of the Provincial Administrative Tribunals. If the proviso to clause (2) is not invoked, only the ouster clause is not available in a Province, which neither affects the jurisdiction of the Provincial Administrative Tribunals nor the appellate jurisdiction of this Court against the decisions of these Administrative Tribunals under clause (3). We have noticed that the arguments of the law officers before us were similar to the ones submitted by the then law officers before the two-member Bench in Gomal. 7. During the course of hearing in Gomal, it was pointed out by the Advocate-General, KPK that the interpretation of Article 212 in this case will also apply to Khyber Pukhtunkwa Subordinate Judiciary Service Tribunal Act, 1991, as decisions from the said Tribunal are also challenged through leave to appeal before this Court under Article 212(3). This submission was acknowledged by the Bench and therefore notices were issued to Advocates-General of all the Provinces.[9] Gomal, therefore, while interpreting Article 212, had considered its impact on all the provincial laws relating to the Tribunals established in respect of the terms and conditions of service of the members of the subordinate judiciary. 8. In order to better understand Gomal, we have gone through Article 212 of the Constitution, which is reproduced hereunder, for ready reference:- Administrative Courts and Tribunals 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 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
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involves a substantial question of law of public importance, grants leave to appeal. Article 212, starts with a non-obstante clause and has three parts: (i) clause (1) empowers the appropriate legislature to establish Administrative Tribunals with exclusive jurisdiction over specific subject matters provided in clauses (a), (b) and (c); (ii) clause (2) does two things, it provides for an "ouster clause", excluding the jurisdiction of other courts in matters falling under the jurisdiction of the Administrative Tribunals under clause (1), and an "abatement clause", abating any proceedings in respect of any such matter pending before any other court except the Supreme Court. The proviso to clause (2) extends the "ouster clause" in clause (2) to the Provincial Administrative Tribunals established under clause (1) only if on the request of the Provincial Assembly through a resolution, clause( 2) is extended to a Provincial Tribunal through an Act of Parliament; and (iii) under clause (3) an appeal by leave is provided to the Supreme Court against the decisions of these Administrative Tribunals, if they involve a substantial question of law of public importance. 9. Article 212(1) has a non-obstante clause, i.e., "Notwithstanding hereinbefore contained", that overrides other provisions of the Constitution, in particular, Article 142,[10] which vests exclusive power in the federal legislature to make laws with respect to any matter in the Federal Legislative List and concurrent power in the federal and provincial legislatures to make laws only with respect to criminal law, criminal procedure and evidence. Article 212(1) authorizes and allows the appropriate legislatures, both federal and provincial, to establish Administrative Tribunals with exclusive jurisdiction for dealing with specific subject matters as provided in clauses (a), (b) and (c) thereof. Federal legislature might not otherwise possess legislative competence under the Federal Legislative List, or under the concurrent power mentioned in Article 142, to establish these Administrative Tribunals regarding subject matters enumerated under clauses (a), (b) and (c) of Article 212(1); however, Article 212(1) of the Constitution empowers both the federal and provincial legislatures to establish such Administrative Tribunals over and above the permissible legislative competence under Article 142 and the Federal Legislative List. This unique legislative power of the provincial and federal legislatures to establish Administrative Tribunals under Article 212 with specialized subject matter and a dedicated forum of appeal, i.e., the Supreme Court, is the significance of the non-obstante clause that enables Article 212 to override the regular constitutional regime. 10. Clause (2) of Article 212 also contains a non-obstante clause, which does two things: first, it ousts the jurisdiction of all other courts vested in them in terms of Article 175 to deal with matters covered under the exclusive jurisdiction of the Administrative Tribunals established under Article 212(1); and second, it provides that any such matter pending before any other court shall abate, excluding matters pending before the Supreme Court. The proviso to clause (2) further provides that the said ouster clause will come into effect for the Provincial Tribunals only if on the resolution of the Provincial Assembly the Parliament passes an Act, which extends the provisions of clause (2) to such a Tribunal. Such a Federal Law was once enacted in 1974 titled, the Provincial Service Tribunals (Extension of Provisions of the Constitution) Act, 1974 and admittedly there is no such law that extends to the Provincial Tribunal in question. 11. Clause (2) of Article 212 is, in our opinion, merely an ouster clause and not a jurisdiction clause. In case of Federal Tribunals, it provides that no other court can take jurisdiction over any matter which falls under the subject matter of the Administrative Tribunal established under Article 212(1). If clause (2) has not been made applicable to a Provincial Tribunal, it at best means that there are other forums also available to redress the grievance of the officers, e.g., the High Court under Article 199 or the Civil Courts under Section 9 of the Civil of Procedure Code, 1908. In the absence of clause (2), all the judicial forums in a Province have concurrent jurisdiction along with the Provincial Administrative Tribunal. Once a civil servant invokes the jurisdiction of the Provincial Tribunal, the
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remedy of an appeal by leave against any decision of the Provincial Tribunal before this Court becomes alive. Remedy of appeal under clause (3) will not be available if the civil servant approaches the High Court or the Civil Court for the redressal of his grievance. Applicability of clause (2) to a Provincial Tribunal is totally insignificant as it has no effect on the remedy of appeal against the decision of the Provincial Tribunal before this Court which is ensured under clause (3). 12. Gomal repeatedly lays stress on clause (2) and its proviso to say that unless the provision of clause (2) is made applicable to a Provincial Tribunal, the remedy of appeal under clause (3) before this Court is not available against any decision of a Provincial Tribunal. This line of reasoning is based on the central principle formulated in Gomal; that only federal legislature can vest jurisdiction in the Supreme Court under the Constitution (entry 55 of the Federal Legislative List) and therefore unless there is an Act of Parliament extending clause (2) to a Provincial Tribunal, right to appeal is not available to this Court under clause (3). This line of reasoning is, with respect, flawed as Gomal fails to appreciate the clear and direct provision of the Constitution, i.e. clause (3) of Article 212, and instead places reliance on the legislative competence to enact a sub- constitutional law under the Constitution. While Gomal is right when it reasons that the appellate jurisdiction can only be conferred upon the Supreme Court by federal legislature under entry 55 of the Federal Legislative List and not by the provincial legislature, it utterly fails to appreciate that it is the non-obstante provision of Article 212 of the Constitution itself that is allowing appeal by leave from a Provincial Administrative Tribunal to the Supreme Court. The "principle" enunciated in Gomal, that "it is only the Parliament that can (if at all) enact legislation that acts upon or affects the jurisdiction of this Court[;] [t]he provincial assemblies cannot do so", has little significance once the Constitution itself has conferred appellate jurisdiction on the Supreme Court against matters arising from a Tribunal constituted under Article 212(1)(a). Even otherwise, the foundational premise of Gomal that only federal legislature can vest jurisdiction in this Court seems to have no nexus or co-relation with clause (2) which is simply an ouster clause. It is not as if the act of the Parliament under the proviso to clause (2) converts the Provincial Tribunal into a Federal Tribunal, or the provincial legislation into federal legislation, it simply ousts other courts from exercising jurisdiction in matters covered by a Provincial Tribunal. 13. Clause (3) is the third part of Article 212, which provides than an appeal shall lie to the Supreme Court from a judgement, decree order or sentence of the Administrative Tribunal, and the Supreme Court shall grant leave if the Supreme Court is satisfied that a substantial question of law of public importance arises in the case. Clause (3) has no co-relation whatsoever with the ouster clause of clause (2). Whether a Provincial Tribunal enjoys the ouster clause or not, does not affect the appellate jurisdiction of this Court. Clause (3) is independently connected with all the administrative Tribunals, including Provincial Tribunals, established under Article 212(1). It is once again reiterated that the appeal to the Supreme Court is available against orders of both the Federal and Provincial Administrative Tribunals by a special constitutional scheme provided under Article 212, which due to the non-obstante clause is over and above any sub-constitutional legislation under the regular constitutional scheme. Gomal, with respect, overlooks this important distinction and proceeds to assess the maintainability of appeal before the Supreme Court under Article 212(3) through a sub-constitutional lens. If there were no Article 212(3), Gomal would have been right in holding that only federal legislature can confer jurisdiction on the Supreme Court and not the provincial legislature, but the provincial legislature (or for that matter even the federal legislature) has not conferred the right of appeal on this Court; it is the Constitution itself that has done so under Article 212(3). It is therefore difficult for us to understand how Gomal holds that clause (2) is the gateway to clause (3), when we find no such co-relation between the two clauses. The view in Gomal that unless there is an Act of the Parliament in terms of the proviso to clause (2), the Supreme Court cannot sit over the decisions of the Provincial Tribunal in appeal, in our view
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and with due respect, is erroneous and deconstructs the unique constitutional scheme of establishing Administrative Tribunals under Article 212, which grants an appellate remedy to the Supreme Court from the decisions of the all Administrative Tribunals-federal and provincial. 14. For the above reasons, the law declared in Gomal that unless and until the proviso to Article 212(2) of the Constitution is activated, appeal against an order of a Provincial Tribunal is not available before this Court under Article 212(3) of the Constitution, and that in the absence of such a law passed by the Parliament, the decision of a Tribunal established under the Provincial law is to be challenged under Article 199 of the Constitution, is not correct and is therefore overruled. Merits of the present case 15. Coming to the merits of the present case, briefly the facts are that vide letter dated 6th November 2000 issued by the Services & General Administration Department, Government of NWFP (as it then was), the provincial government wrote to the Registrar, Peshawar High Court for creation of 10 additional posts of Additional District and Sessions Judges to be filled on the recommendation of the Peshawar High Court under the erstwhile NWFP Senior Judicial Officers (Terms and Conditions of Service) Rules, 1979 ("Rules, 1979"). Names were solicited for the above posts by the Peshawar High Court from the District & Sessions Judges of KPK. One such letter addressed to District & Sessions Judge, D.I.Khan, is dated 09.12.2000. And in response, vide letter dated 21.02.2001 issued by the District & Sessions Judge, Dera Ismail Khan, name of respondent No.1, namely, Kaleem Arshad Khan, advocate along with one other was proposed from District D.I.Khan for the post of Additional District and Sessions Judge ("ADJ") in the selection process initiated by the High Court in the year 2001. Respondent No.1 sat through the written examination and stood first in the said examination.[11] He was called for an interview and appeared before the Selection Committee and stood at the top of the merit list.[12] In pursuance to delegation notification dated 29.08.2001 issued under Section 5 of the N.W.F.P Civil Servants Act, 1973, the Chief Justice of Peshawar High Court appointed four Additional & Sessions Judges vide Notification dated 19th September 2001; however, respondent No.1 who stood first in the said selection process was denied appointment. It is also pointed out that Khyber Pakhtunkhwa Judicial Service Rules, 2001 ("Rules, 2001") were introduced repealing Rules, 1979. 16. The respondent No.1 challenged this non-selection before the Peshawar High Court, through a writ petition which was allowed vide judgment dated 09.4.2004 [reported as Kaleem Arshad Khan v. Secretary to Government of NWFP (2004 PLC (CS) 1558)] with the direction to appoint respondent No.1 as Additional & District Sessions Judge on the available seat. Thereafter, the petitioner was appointed vide Notification dated 22.02.2005. Thereafter, respondent No.1 was granted seniority w.e.f. the date of his Notification and not from the date of Notification of the rest of his batchmates, i.e., 19.09.2001, who were appointed from the same selection process held in the year 2001. The issue of seniority became more important because through selection process in the year 2002 and 2003, several other ADJs were appointed, who were placed higher in seniority than the said respondent. After the denial of the seniority by the Administration Committee of the Peshawar High Court vide letter dated 13.03.2021, the respondent No.1 challenged the same before the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal ("Tribunal"), which through the impugned judgment dated 18.12.2021, allowed his appeal and granted him seniority along with his batchmates who were appointed from the same selection process held in 2001. The contention of the petitioners, who are admittedly appointed from the selection process of the years 2002 and 2003, is that they are senior to respondent No.1 because the date of appointment of respondent No.1 is 22.02.2005. 17. We have heard the learned counsel for the parties and have examined the case record. Section 8(3) of the Khyber Pakhtunkhwa Civil Servants Act, 1973 provides that the seniority shall be determined in accordance with the Rules prescribed under the said Act and Rule 10(a) of the Rules,
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2001 provides that persons selected for the service in the "earlier selection" shall rank senior to the persons selected in a "later selection." The date or year of selection process determines the seniority of an officer as per Rule 10(a). Implied in the selection process is a group or batch of candidates who go through the…
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