1999SCMR650 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.

The Agricultural Development Bank of Pakistan (the Bank) has filed the titled petition against the interlocutory orders, dated 13-4-1998 and 23-4-1998 passed by the learned Judge in Chambers of Lahore High Court, Rawalpindi Bench, in Writ Petition No.728 of 1998. By the fore-mentioned order, in C.M.A. No.1371 of 1998 petitioner No.2 was directed "not to restrain the petitioner from assuming the charge and discharging the duties in the meanwhile subject to notice for 23-4-1998" whereas by the subsequent order, dated 13-11-1998, the learned Judge in Chambers sought explanation of petitioner No.2 within ten days and submit report as to why the pay of the respondent was being Withheld.

2. Factual background of this controversy in brief is that on introduction of Golden Handshake Scheme (the Scheme) in the year 1997 the respondent, who was serving in the Bank as Assistant Director (Sports), opted for his voluntary retirement under the Scheme and got partial financial benefits in cash. The Chairman of the Bank is alleged to have allowed the respondent to withdraw his option without any lawful authority and without approval of the Board of Directors. In the meantime, the then Managing Director was retired and the respondent was not allowed to withdraw his irrevocable option as contained in the Scheme itself. The respondent filed Writ Petition No.728 of 1998 in the Lahore High Court, Rawalpindi Bench, seeking the direction to the petitioners "to allow him to resume his service as Assistant Director (Sports) in the Bank" and further "to pay salary to the respondent together with all the attendant benefits of the post".,

3. In the parawise comments, submitted in the High Court, the assertions made by the respondent were repudiated and it was, inter alia, pleaded that the petition was not maintainable and that the jurisdiction of the High Court was barred under Article 212 of the Constitution. Nonetheless, the learned High Court, as stated earlier, also ordered petitioner No.2 to explain his position within ten days as to why the pay of the respondent had been withheld.

4. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court, in support of this petition, had taken exception to the impugned order pleading that the withdrawal of the option of voluntary retirement under the Scheme and the consequential plea of reinstatement was one of the terms and conditions of service which fell squarely outside the domain of authority of the High Court and that under Article 212 of the Constitution, the Federal Service Tribunal was exclusively competent to assume jurisdiction in the matter. According to the learned counsel for the Bank, the learned Single Judge in the High Court was required to have determined first the jurisdiction of the High Court and then after parawise comments ought to have proceeded to grant or refuse the interim relief. In support of his contention, the learned counsel placed reliance on the cases of: (i) Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others (1997 SCMR 170), (ii) Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCMR 169), (iii) United Bank Limited and others v. Ahsan Akhtar and others (1998 SCMR 68).

5. As against this, Raja Muhammad Bashir, learned Advocate Supreme Court representing the respondent, urged that the Supreme Court generally does not interfere with an interim order of a High Court. He had conceded that in exceptional cases, the apex Court would do so in case the orders are arbitrary, capricious and against the well-settled proposition of law, in order to obviate miscarriage of justice. According to him, in the instant case, these eventualities were not made discernible on record and, therefore, this Court would not interfere in the impugned order. He further submitted that the withdrawal of option of voluntary retirement under the Scheme was not one of the terms and conditions of service and, therefore, the writ petition in the High Court was maintainable.

6. We tend to agree with the contentions of Hafiz S.A. Rehman, learned Senior Advocate Supreme Court representing the Bank, that the withdrawal of the option was in essence an order of recall of voluntary retirement order of the respondent which did not fall within the Constitutional domain of the High Court. The objection raised by the learned counsel for the respondent that it did not fall within the terms and conditions of the service appear to be a mere technicality. Substantially the order of withdrawal of option and consequential reinstatement of the respondent was one of the terms and conditions of the service and obviously the dispute about such matters would fall within the exclusive jurisdiction of the appropriate Service Tribunal. In consequence, the jurisdiction of the High Court was barred in such matters under Article 212(2) of the Constitution of Islamic Republic of Pakistan (1973). The case-law cited by the learned counsel for the petitioner-Bank fully supports the stance of the Bank.

7. In any case, since we have held that the matter covered by the petition pertains to the reinstatement of the respondent which is related to the terms and conditions of his service. It may be pointed out that, inter alia, the Bank's' employees by virtue of newly-added section 2-A in the Federal Service Tribunal (No.XVII of 1997) have been declared to be civil servants for the purpose of section 4 of the Federal Service Tribunals Act, 1973 and, therefore, as we have held earlier, the Federal Service Tribunal had exclusive jurisdiction in the matter.

8. We are not inclined to accept the contention of Raja Muhammad Bashir, learned Advocate Supreme Court, for the respondent, that the Supreme Court generally does not interfere with an interim order of a High Court, but in exceptional circumstances, it does interfere with the same but the case in hand was not one of exceptional circumstances. While conceding that the Supreme Court being the apex Court, generally does not interfere with interlocutory order passed by the competent Courts but if the same are arbitrary, capricious and against the well-settled principles of law, it is bound to interfere with the same in order to obviate miscarriage of justice. We reiterate the law laid down in the case of United Bank Ltd. (supra) that the non-interference in the interlocutory order of the Courts below by the Supreme Court is a matter of rule and interference is an exception. We find that the interference in the impugned interlocutory order would be an exception inasmuch as it has violated the law laid down by this Court inter alia, in the case of Ayyaz Anjum (supra).

9. Clearly the matter relating to the reinstatement of a civil servant is one of the terms and conditions of his service. Dispute about these matters fall within the exclusive jurisdiction of the appropriate Service Tribunal. The jurisdiction of the High Court is, therefore, barred in these matters by express I provisions of Article 212(2) of the Constitution.

10. In the circumstances, we convert this petition into an appeal and allow it. The impugned order is set aside and the learned High Court is directed first to determine the question of its jurisdiction before making any interim order in this case. H.B.T./A-148/S Petition allowed.