1998 PLP (C (PLC(CS))

MRS. KHALIDA RASHID, J.

The service cadre of the petitioners, namely, paramedical employees of Hayat Shaheed Teaching Hospital, Peshawar were previously under the administrative control of University of Peshawar. On promulgation of N.-W.F.P. Khyber Medical College and Hayat Shaheed Teaching Hospital (Taking Over) Act, 1975 (as amended by Ordinance VIII of 1977), the petitioners opted for service under the Government of N.-W.F.P. In order to regulate their absorption and determine terms and conditions of their service, Khyber Medical College and Hayat Shaheed Teaching Hospital (Absorption of Employees) Rules, 1976 were framed. However, the Government vide Notification dated 20-2-1994 Amended Rule 3, clause (b) of the aforesaid Rules regarding absorption of the posts of the petitioners in the respective cadre of Health Services of the Province aggrieved of which the petitioners through this petition under Article 199 of the Constitution have- sought for declaration of the said amendment to be illegal, without lawful authority and utter contravention of provision of section 5 of Khyber Medical College and Hayat Shaheed Teaching Hospital (Taking Over) Act, 1975.

2. Mr. Sardar Khan, Advocate appearing on behalf of Administrator, Hayat Shaheed Teaching Hospital, Peshawar, respondent, at the very outset attacked the competency of the writ petition. The learned counsel insisted that the impugned notification and amendment made thereby, have the effect of altering terms and conditions of the service of the petitioners who admittedly are 'civil servants' the matter, therefore, falls within the exclusive jurisdiction of Services Tribunal and the jurisdiction of this Court is barred under Article 212 of the Constitution read with section 4 of Services Tribunal Act. In this context, reference is made to PLD 1977 Lahore 549, PLD 1980 SC 153, PLD 1981 Karachi 290 and 750, PLD 1983 SC 100 and 1991 SCMR 1041.

3. Mr. Riaz Ahmad Khan, learned Assistant Advocate-General, appearing on behalf of respondents Nos. 1 to 3, adopted the arguments of Mr. Sardar Khan. He, however, submitted that the petitioners have admitted in para. No. 6 of their writ petition to be the civil servants, have themselves opted and accepted the new set up therefore, any question of terms and conditions of their service would fall within the exclusive jurisdiction of Services Tribunal. He placed reliance on PLD 1994 SC 539 and PLD 1997 SC 351.

4. In reply, Mr. Muzammul Khan learned counsel for the petitioner argued that no doubt the petitioners are civil servants, but they have challenged the impugned amendment, being violative of parent statute, mala fide and coram non judice. In support of his contention, the learned counsel argued to PLD 1994 SC 738.

5. Admittedly the vires of Khyber Medical College and Hayat Shaheed Teaching Hospital (Absorption of Employees) Rules, 1976 vis-a-vis clause (b) of rule (3) have been challenged which have altered the terms and conditions of service of the petitioners. By virtue of section 5 of N.-W.F.P. Khyber Medical College and Hayat Shaheed Teaching Hospital (Taking Over) Act, 1975, the services of the petitioners were transferred to the Government on such terms and conditions as may be prescribed by law, however, "provided that where the changed circumstances so permit, such terms and conditions shall not be less favourable than those admissible to them under the University immediately before the coming into force of this Act."

6. The terms and conditions of service of the employees were prescribed by the Government vide Notification No. S.O.(H) IV-5-1/75, dated 22-1-1977. However, on the basis of Notification No. S.O.(H) (III)/6-63/93, dated 20-2-1994, the terms and conditions of service of the petitioners were altered by amending clause,(b) of rule of the aforesaid Rule to the following effect, "The paramedical staff, the ministerial staff, the maintenance staff and other subordinate staff of the college including Hayat Shaheed Teaching Hospital' shall be absorbed against the post in the respective cadre of Health, Services of the Province."

7. The stance of the petitioners is that the said amendment directly affects the seniority with apprehension of transfer and promotion of aliens in both the institutions which being in contravention of the principal law vis. N.-W.F.P. Act VI of 1975 the impugned amendment, is without jurisdiction. coram non judice and based on mala fides. Relying on Pir Sabir Shah s case (PLD 1994 SC 738), the learned counsel for the petitioners insisted that where the impugned action is without jurisdiction, coram non judice and mala fide, the Superior Courts have got the jurisdiction not withstanding the ouster clause contained in the Constitution or the Statute. The authority referred to by the-learned counsel does not apply to the instant case as facts and circumstances of this case are distinguishable from the referred case. In the said precedent case, a petition under Article 184(31 of the Constitution was filed by Pir Sabir Shah, Ex-Chief Minister, challenging a proclamation issued by the President of Pakistan on 25-2-1994 under Article 234 of the Constitution and it was inter alia, contended that the petitioner enjoyed commanding majority in the house as elected representative of the people and that his Province was being governed peacefully when through conspiracy hatched by Pakistan People's Party, a mala fide attempt was made to dissolve the petitioners Government in violation of the Constitution through a Presidential Proclamation. The Hon'ble Supreme Court while relying on its previous decisions delivered in numerous authorities held that the Supreme Court can interfere with the categories of cases, namely without jurisdiction, coram non judice and mala fides notwithstanding the bar as contained in Article 236of the Constitution. The august Supreme Court, no doubt, took cognisance of the matter despite the bar but we may point out that in the said case no alternate remedy was a article to the petitioner for the redressal of his grievance while in the instant case a special forum in the shape of Service Tribunal is provided which is equally competent to look into the matter even on the grounds of mala fides etc. as debated before us. By agitating grounds of mala fide, violation of fundamental rights etc, the petitioners cannot bypass the Service Tribunal, having full authority even to examine the case involving the wires of particular service rule or notification.

8. In view of the above discussion, and the case-law produced by the learned counsel for respondents, we hold that the jurisdiction of this Court is ousted under Article 212 of the Constitution read with section 4 of N.-W.F.P. Service Tribunal Act, 1974, therefore, we do not deem it necessary to go into the merits of the case. The writ petition is dismissed accordingly. Parties are left to bear their own costs. H.B.T./101/P Petition dismissed.