2017 PLP (C (PLC(CS))

YAHYA AFRIDI, J.

Irfan Aman Yousafzai along with three others, the petitioners, have sought the Constitutional jurisdiction of this Court praying for: "It is therefore humbly prayed that this Honourable Court may be pleased to accept the instant Writ petition and may graciously be pleased to:

1. Declare the impugned SROs 88 and 89 dated 10th of February, 2014, to the extent of its effect on the incumbents of Secretariat Group and Office Management Group as unconstitutional, illegal, mala fide, arbitrary, capricious, whimsical, coram-non-judice, without jurisdiction and of no legal effect and the same may be set aside.

2. Declare the proceedings of the meeting held on 11th to 13th February 2014 of the Central Selection Board as unlawful to the extent of promotion of officers of DMG/PAS and other occupational groups against BS-20 and 21 posts of the Secretariat Group.

3. Any Central Selection Board (CSB) if conducted should not be under SROs 88 and 89 and should not affect the KOMG and Secretariat Group.

4. Suspend the operation of the impugned Notification SRO 88 and 89 till the decision of the main writ petition and the respondents may also be restrained from finalizing the proceeding of the meeting dated 11th to 13th February 2014 of the Central Selection Board and from notifying the promotion of the officers of DMG/PAS and other occupational groups against the posts of Secretariat Group as Interim Relief, and

5. Any other relief which this Honourable Court deem appropriate may also graciously be granted."

2. In essence, the grievance of the petitioners relates to their prospects of promotion, which have been adversely affected by issuance of Notification No.SRO 88(I)/2004 dated 10.2.2014 ("Notification"). The assertion of the petitioners is that the Notification is in violation of section 3(2) of the Civil Servant Act, 1973 ("Act"), whereby major portion of the posts of the Secretariat Group have been allocated to a specific service group in violation of section 9 of the Act.

3. At the very outset of the proceedings, the worthy Additional Attorney General raised a preliminary objection, regarding the jurisdiction of this Court to entertain the present petition, as it related to matters relating to terms and conditions of service of civil servants. In support of his contention, the worthy Additional Attorney General referred to the following judgments; I.A. Sharwani's case (1991 SCMR 1041), Iqan Ahmed Khurram's case (PLD 1980 SC 153), Khalid Mahmood Watto's case (1998 SCMR 2280), Pervaiz Aslam's case (1999 SCMR 784), Peer Muhammad's case (2007 SCMR 54), Muhammad Asghar's case (2012 PLC (C.S.) 142), Ms. Ayesha Bashir Wani's case (2012 PLC (C.S.) 31), Muhammad Azam's case (2012 PLC (C.S.) 1104), Khalid Mahmood's case (2013 PLC (C.S.) 1286), Government of the Punjab's case (PLD 2004 SC 317), National Assembly Secretariat's case (2015 SCMR 253) and Engineer Musharaf Shah's case (2015 PLC (C.S.) 215).

4. In response, the worthy counsel for the petitioners contended that the matter did not purely relates to terms and conditions of service of Civil Servants, as in fact, a challenge had been made to the vires of the Notification, being against, the Fundamental Rights of the petitioners and based on personal malice, bias and prejudice developed against the petitioners. In support thereof, the worthy counsel sought reliance upon the judgment of the superior Courts in Samina Mehsood's case PLD 2005 SC 831=2005 PLC (C.S.) 1335, Javed Iqbal's case (PLD 1993 SC 375), Syed Mehmood Akhtar Naqvi's case (PLD 2013 SC 195), Contempt proceedings against Chief Secretary Sindh, (2013 SCMR 1752), and Ali Azhar Khan Baloch's case.

5. Valuable arguments of learned counsel for the parties heard and available record perused.

6. This Court is adjudicating the present petition, exercising its jurisdiction vested under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 ("Constitution"). The jurisdiction so vested in this Court, empowers it with vast authority, including the power to check excesses of the Executive, jealously guard the Fundamental Rights of persons under the Constitution, and to ensure that all are treated fairly, equitably and in accordance with law. With such wide powers vested in the High Court, are certain checks on its jurisdiction, including the express bar imposed on entertaining any matter relating to terms and conditions of service of a civil servant. This express bar provided under Article 212 of the Constitution, does not only commence with a non-obstinate clause, but also positioned at latter than Article 199 of the Constitution, carries immense weight, and would surely eclipses over the jurisdiction of this Court to entertain matter under Article 199 of the Constitution.

7. In view of the objection raised, the precise issue before this Court is to consider and decide; "whether the relief sought by the petitioners in the instant petition, falls within the purview of the terms and conditions provided under Article 212 of the Constitution."

8. At this stage, the worthy counsel for the petitioners, emphasized that he would not press all the reliefs sought in the petition, but would only urge the Court to consider relief at serial Nos.1 and 3 of the petition, which essentially relate to the challenge made to the vires of the Notification, on the touch stone of being against law and based on mala fide.

9. Reviewing the prayer pressed at this stage, it is noted that the same relates to the impugned Notification, which according to the petitioners has adversely affected their prospects of promotion and thus, would also adversely have an impact on their seniority.

10. No doubt, by now it is a settled principle of law that, civil servants can successfully make a challenge to the vires of any legislative or sub-ordinate instrument, which raises a question of public importance before the Apex Court under Article 184(3) of the Constitution. This issue has been discussed and settled by the Apex Court in Tariq Azizuddin's case (2010 SCMR 1301), Watan Party's case (PLD 2012 SC 292), Mahmood Akhtar Naqvi's case (PLD 2013 SC 195), and thereafter, consistently followed and more recently discussed in Ali Azhar Khan Baloch's case (Civil Review Petition No.193 of 2013).

11. As far as the jurisdiction of the High Court under Article 199 of the Constitution is concerned, it is by now settled that, in view of the express bar provided in Article 212 of the Constitution, the High Court lacks the authority to determine the challenge made to rules or notifications, which adversely affects the prospects of promotion of civil servant, even if the same are challenged on the ground of infringing the Fundamental Rights of the Civil Servants or based on mala fide of the respondent department of the Government.

12. Keeping in view the express bar of Article 212 of the Constitution, imposed upon the jurisdiction of this Court, it would be fair to state that the bar is only to the extent of those cases, to which the jurisdiction of the Services Tribunal extends, as is provided under Section 4 of the Service Tribunal Act, 1974. Matters, which are expressly excluded from the jurisdiction of Services Tribunal, such as fitness of a person to be promoted to a higher post, the jurisdiction of the High Court to entertain and decide the same would thus not be barred under Article 212 of the Constitution. However, issues such as eligibility to be considered for promotion, being expressly provided under the Civil Servant Act of 1973, the jurisdiction of Services Tribunal would be alive and that of the High Court would be barred under Article 212 of the Constitution. Thus, the ouster of jurisdiction of the High Court would only come into play and be effective, when Federal Service Tribunal has the jurisdiction to entertain the said matter.

13. The issue of jurisdiction of the High Court and its ouster has recently been elaborately discussed by the Apex Court in Manzoor Ahmad's case (2015 SCMR 253) in terms that: "

8. We have heard the learned counsel for the parties and have perused the record. Admittedly, respondent No.1 is a Civil Servant and, therefore, he could not have approached the High Court under Article 199 of the Constitution for redressal of his grievance, which pertained to the terms and conditions of his service in view of the Bar created under Article 212(2) of the Constitution. The High Court, therefore, was not competent to adjudicate the issue raised in the Writ Petition. The High Court has fallen in error while proceeding on the erroneous assumption that respondent No.1 had raised the issue of violation of the statutory Rules, therefore, it was competent to decide the issues. This was an incorrect approach of the learned High Court to entertain a Constitution Petition of a Civil Servant on the ground of the statutory violation. Such grievances of a Civil Servant fall within the domain of the Federal Service Tribunal as mandated by the Constitution."

14. Now to the challenge made to rules on the touch stone of violating the Fundamental Rights of the civil servant and question of mala fide of the department are concerned, the Apex Court has also in this regard clearly laid down in Iqan Ahmed Khurram's case (PLD 1980 SC 153). In the said case, rules relating to appointment were amended through a notification, which altered and enhanced the quota allocated to the inductees, and affected promotes challenged the same before the Apex Court, as it adversely affect their prospects of promotion to the higher post. The Apex Court addressed the issue in terms that: "As to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis- -vis Section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Government of the Punjab and others with which I agree. This is a common grievance in the other two petitions and they would also be hit by the same bar. We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal." The Apex Court has expounded on the principle laid down in the aforementioned case, in I.A. Sherwani's case (1991 SCMR 1041) in terms that: "

9. From the above quoted Article 212 of the Constitution and section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (1) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance, the jurisdiction of the Courts remains intact. It may again be pointed out that the Service Tribunal has jurisdiction against a final order, whether original or appellate, made by a departmental authority in respect of any terms and conditions of service. The question, therefore, arises, whether the relevant enactments/notifications containing the provision for payment of enhanced pension, which have been denied to the pensioners, can be treated as a final order, original or appellate, passed by a departmental authority in respect of any terms and conditions of service."

10. From the above cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. However, in the present case, the petitioners' case is founded solely on the ground of discriminatory treatment in violation of Article 25 of the Constitution and not because of any breach of any provision of the Civil Servants Act or any service rule. Furthermore, the question involved is of public importance as it affects all the present and future pensioners and, therefore, falls within the compass of clause (3) of Article 184 of the Constitution. However, we may clarify that a civil servant cannot bye-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights.". (emphasis provided) The ratio decidendi of the aforementioned judgments has been consistently followed in Khalid Mehmood Watto's case (1998 SCMR 2280), Muhammad Zafar Bhatti's case (PLD 2004 SC 317) and Pir Muhammad's case (2007 SCMR 54). This Court has also recently followed the said principle in Engineer Musharaf Shah's case (2015 PLC (C.S.) 2015 in terms that: "It would be interesting to note that the apex Court has in some cases clearly vested the Tribunal with exclusive jurisdiction on matters relating to terms and conditions of a civil servant, wherein the impugned action or inaction of the departmental authority did not have a formal "final order". Some of the leading cases are as follows:- Vires of Rules. Service Tribunal was competent to adjudicate on the question of "vires" of rules framed by the department, even if the same were challenged on the basis of violating fundamental rights of the civil servant. The very rules were deemed to be the "final order". Cases in point are Iqan Ahmed Khurram's case (PLD 1980 SC 153) and I.A. Sharwani's case (1991 SCMR 1041). (emphasis provided) In essence, the principle laid down by the Superior Courts of our jurisdiction is that the Federal Service Tribunal is fully competent to entertain and decide cases, wherein vires of the service rules or notifications have been challenged on the touch stone of being violative of Fundamental Rights of the civil servant, and the mala fide of the Executive to frame such Rules, which would adversely affect their prospects of promotion.

15. Before parting with this judgment, it would be important to point out that the judicial precedents referred to by the worthy counsel for the petitioners, are not relevant to the facts of the present case. As far as Samina Mehsood's case (PLD 2005 SC 831=2005 PLC (C.S.) 1335) the petitioner therein was not a civil servant, but an employee of Pakistan International Airlines; in Javed Iqbal's case (PLD 1993 SC 375) the matter relating to employees of the Lahore High Court, and not civil servants; Syed Mehmood Akhtar Naqvi's case (PLD 2013 SC 195) the Apex Court had exercised its jurisdiction under Article 184(3) of the Constitution; and it did not refer to the jurisdiction of the High Court under Article 199 of the Constitution. In Contempt proceedings against Chief Secretary Sindh, (2013 SCMR 1752), the matter discussed therein was finally discussed by the Apex Court in review of the cited case in Ali Azhar Khan Baloch's case (supra), wherein the august Supreme Court passed unprecedented stringent strictures for cases, which were entertained by the High Court, when the same related to terms and conditions of service of Civil Servants and that the High Court's jurisdiction was expressly ousted under Article 212 of the Constitution.

16. Reviewing the judicial pronouncements rendered by the superior Courts of our jurisdiction, as discussed herein above, it would be safe to state: (i) A Civil Servant can move the Apex Court under Article 184(3) of the Constitution, in cases where vires of service rules or notifications are challenged on the touch stone of being against their fundamental rights with the paramount condition that the matter be of public importance. (ii) Civil Servant can move the High Court in its constitutional jurisdiction under Article 199 of the Constitution only in cases where the bar of Article 212 of the Constitution cannot be invoked, as the Federal Services Tribunal lacks the jurisdiction to entertain the impugned matter. (iii) Civil Servant can challenge the Service Rules or Notification before the Federal Services Tribunal, as the same are deemed to be final orders, within the contemplation of section 4(1) of Civil Servant Tribunal Act, 1973. (iv) Civil Servant can move the Services Tribunal challenging the vires of the rules even on the touch stone of being in violation of fundamental rights or mala fide. (v) The Civil Servant cannot move the Constitutional jurisdiction of a High Court challenging the vires of a service rule or notifications, which affects the prospects of promotion of a civil servant even if the challenge is made on the touch stone of breach of fundamental rights of the civil servant or mala fide on the part of the Executive to frame the said rules or Notification.

17. Having reached the conclusion that this constitutional Court lacks the jurisdiction to entertain the petition, it would not be appropriate to pass any finding on merits and the specific challenge made to vires of the impugned Notification in the present petition. Accordingly, for the reasons stated hereinabove, the jurisdiction of this Court is barred under Article 212 of the Constitution to exercise its jurisdiction to entertain the present petition, as it relates to terms and conditions of services of the petitioners, for which the exclusive jurisdiction vests with the Federal Services Tribunal. ZC/201/P Petition dismissed.