1990 PLP 999 (SCMR)

Muhammad Akhtar, Additional Advocate‑General Punjab and Rao Muhammad Yousaf Khan, Advocate‑on‑Record for Respondents. Date of hearing: 30th July, 1989. SHAFIUR RAHMAN, J.‑‑The petitioner, civil servant, instituted a Constitution Petition in the High Court with the following prayer:‑‑ ".. it is most respectfully prayed that actions of respondent No.1 to abolish the post of the petitioner, his transfer outside the Board of Revenue, treating him as a surplus official and withholding his salary from 1‑2‑1985 may kindly be declared as without lawful authority and of no legal effect with a consequential direction to the respondents to post the petitioner as Audit Officer (Colonies) against a substantive vacancy." The High Court refused to entertain the petition by observing as hereunder:‑‑ "If the petitioner feels aggrieved about the action of the respondents in not giving him benefit of the length of service on abolished post in fixing his seniority for promotion and according to him it is in violation of any law and rules governing his terms and conditions, the remedy of the petitioner is to approach the Service Tribunal to establish that right."

2. Mr. K.M.A. Samdani, Advocate, the learned counsel for the petitioner contended that the abolition of the post was within the exclusive competence of the Governor and the Governor had ordered the abolition of the post. The Authority was competent to pass that Order. In the matter of abolition of a post or its continuance, no terms and conditions of the petitioner, as such were involved. What was alleged was that it was done mala fide with a view to deprive the petitioner of his post and emoluments and his status, and it had a background with regard to the honest discharge of duties by the petitioner which was not liked by certain other functionaries which ultimately led to these orders which were impugned. According to the learned counsel, it was more appropriately a case entertainable by the High Court in Constitutional jurisdiction and not one which could be taken to the Service Tribunal.

3. The relief sought for by the petitioner has been reproduced in order to highlight the nature of the grievance and its extent. These all relate to the terms and conditions of employment. The question of abolition of the post may be within the exclusive competence of a particular authority but if it is used as a device for achieving an object not permitted by law, then it is a violation of the terms and conditions of employment. All actions taken against civil servants with regard to the employment can be challenged on the ground of mala fide of law or mala fide of fact. Mala fide of law is involved where authority not competent has taken an action or the mandatory procedural requirements for taking the action or the jurisdictional requirements for it remain unsatisfied. Mala fide in fact relates to those cases where personal bias, grudge or vindictiveness is the prompting force for action ostensibly in proper form and content. The latter category of actions is as much violation of terms and conditions of employment as is the first category because public power is never entrusted or reposed in functionary to be exercised for achieving personal ends like unjust enrichment, vindictiveness or revenge. Terms and conditions of service embrace bona fide discharge of public duties by the repository of public power.

4. As under Article 212(3) of the Constitution the Service Tribunal has exclusive jurisdiction to deal with the terms and conditions and the reliefs claimed by the petitioner also form the terms and conditions of service, the High Court has appropriately held that the matter was a fit one for examination by the Service Tribunal. No case for leave to appeal is made out, hence leave is refused. A.A./M‑1095/S Leave granted.