1989 PLP (C (PLC(CS))

(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, 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 involves a substantial question of law of public importance, grants leave to appeal."

8. The words "Notwithstanding anything hereinbefore contained" occurring in clauses (1) and (2) of Article 212 of the Constitution clearly indicate that this Article stands on a higher pedestal and its provisions would not be subject to those of Article 199 of the Constitution. The intention of the Constitution-makers clearly appears to be that when the Administrative Court or Tribunal has been established, the jurisdiction of the other Courts (including that of this Court under Article 199) would be outsed. It may be pointed out in this respect that the Civil Servants Act, 1973 and the Service Tribunals Act, 1973 operate in the field relating to the servants of the Federal Government and the Sind Service Tribunals Act, 1973 and the Sind Civil Servants Act, 1973 relates to the civil servants in the service of the Government of Sind. It is also pertinent to point out here that the ouster of jurisdiction of the other Courts contemplated by Article. 212 of the Constitution would be in the same proportion as the jurisdiction vesting in the Administrative Court or Tribunal venal. In other words, if the matter falls within the sphere of the jurisdiction of tire Administrative Court or Tribunal, to that extent the jurisdiction of the other Courts would stand ousted. It is now pertinent to refer to section 4 of die; Sind Service Tribunals Act, 1973 which provides as follows: -

4. Appeals to Tribunals --Any civil Servant aggrieved by any final order whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, [prefer an appeal to the Tribunal having jurisdiction in the matter: Provided that-- (a) where an appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973, or any rules, against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred; and (b) no appeal shall lie to a 'tribunal against an order or decision of a departmental authority determining-- (i) the fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade; or (ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal, removal reduction in rank or of compulsory retirement from service. Explanation.--In this section, `departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."

9. A closer examination of section 4 above indicates that according to the proviso thereto, no appeal would lie to the Service Tribunal against an order or a decision of a departmental authority, determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher post or grade. The proviso to section 4 also refers to certain other matters in respect of which appeal cannot be preferred before the Service Tribunal, but we need not refer to the same, as they are not relevant for the purpose of this case. It consequently follows that barring matters which cannot be referred to the Service Tribunal: according to section 4 of the Service Tribunals Act, all other grievances of a civil servant against any final order, whether original or appellate passed by the departmental authority and in respect of any of tire terms and conditions of service of the civil servant are to be referred to the Service Tribunal.

10. Mr. MA. Rashid has, however, argued that since Article 212 of the Constitution and section 4 of the Sind Service Tribunals Act do not contemplate a complete ouster of the jurisdiction of other Courts, and since according to the proviso to section 4, an appeal from an order determining the fitness of a civil servant to be appointed to or to hold a particular post, would not lie to the Service Tribunal, consequently the instant petition is competent as the words "fitness or otherwise of a person" appearing in the aforesaid proviso would also include within their ambit, the question of eligibility of a person to be appointed to a particular post. Support has also been sought in this respect from the judgment of the Full Bench of the High Court of Baluchistan in the case of Mujeebullah Aijaz v. Director General Telephone and Telegraph Department P L D 1980 Quetta 58 wherein Abdul Hayee Kureshi, Acting C.J. (as he then was) who wrote the judgment of the Full Bench has observed as follows. -- "Analysing the relevant provisions it would appear that an appeal shall not lie to the Tribunal in the following cases: -- (1) When the impugned order was passed before 1-7-19699; (2) When the civil servant punished is not a `civil servant' for the reason of his exclusion from the definition of civil servant' in section 2(1)(b) of the Civil Servants Act; (3) When the order is not a final order; (4) When the punishment imposed is other than the punishment of dismissal, removal compulsory retirement or reduction to a lower post or time-scale; (5) When the impugned order relates to a person's fitness to hold a post or to be appointed to such post or to be promoted to a higher post or grade; (6) When the order is not passed by a competent departmental authority and is for such reason void." Another argument advanced on behalf of the petitioner is that, the ouster of jurisdiction of this Court is not dependent solely on the interpretation of the proviso to section 4 of the Sind Service Tribunals Act but the case must even otherwise fall within the ambit of the jurisdiction of the Service Tribunal. According to the counsel, an appeal to the Service Tribunal would only be competent, if an order passed by a departmental authority relates to the terms and conditions of a civil servant.

11. We do not find much force in the arguments advanced by the petitioner's counsel. Although there can hardly be any cavil with the proposition that the ouster contemplated by Article 212 of the Constitution or section 4 of the Sind Service Tribunals Act is not complete, as we have already pointed out above, but in our opinion, the impugned notification, first of all, does not determine the fitness of the petitioner to be appointed to the post held by him of to continue to hold such post. It may be pointed out that the question of a person's eligibility to be appointed to a certain post can be determined by the pre-conditions which may be prescribed for such post but the question of his fitness to be appointed to or to continue to hold such post would solely depend upon the opinion of the departmental authority concerned. Therefore, in our opinion, the passage under consideration, occurring in the proviso to section 4 of the Sind Services Tribunal Act is not capable of any extended meaning as proposed by Mr. MA. Rashid. Consequently, the notification, cancelling the appointment order, dated 3-9-1987, for want of eligibility (which actually meant to be the order dated 29-9-1987 according to a corrigendum issued by the Government of Sind, dated 29-10-1987) in no manner can be construed as an order of the departmental authority, determining the fitness or otherwise of the petitioner to be appointed as or to continue to hold the post of a Medical Officer. The effect of the notification appears to be, simply to terminate the services of the petitioner and consequently the same cannot be regarded as an order determining the fitness or eligibility of a person. We are further of the opinion that the question as to the propriety or legality of the action, removing the petitioner from service primarily and essentially would relate to his terms and conditions of service. We are, therefore, of a considered view that the Service Tribunal was the only forum before which the grievance of the petitioner would be determined. Reference in this respect may also be made to a decision given by the Full Bench of this Court reported as Abdul Bari v. Government of Pakistan P L D 1981 Kar.

290. It was held in this case that Article 212 of the Constitution being itself a Constitutional provision, the same necessarily curtails the jurisdiction of this Court in respect of the matters falling within the ambit of the Service Tribunal. It was further held that the field covered by the jurisdiction of the Service Tribunal would include all grounds of attack including grounds of mala fides, ultra vires or coram non-judice.

12. Finally, adverting to the arguments of M.A. Rashid on merits of the case, we find that the petitioner has no case even on merits. Admittedly, the petitioner was an ad hoc appointee and consequently his services could be terminated by the departmental authority without assigning any reasons for the same and even without a show-cause notice. It may, he pointed out that no similar safe guards are provided in the Sind Civil Servants Act, 1973 for ad hoc appointees as are available to a civil servant holding a regular appointment. (See section 11(3) of the Sind Civil Servants Act, 19731. Consequently, in our opinion, no right had been created in favour of the petitioner, which could render the action taken by the respondents as illegal and void. In Pakistan v. Muhammad Himayatullah Farukhr P L D 1969 S C 407, it was held by the Supreme Court as follows: -- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, s. locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights." Since, as we have already pointed out, that, no right had been created in favour of the petitioner, which could prevent the respondents from retracing their steps taken by them, consequently, in our opinion, the respondents were competent to issue the impugned notification.

13. In the result, this petition is dismissed, but the parties are left to bear their own costs in view of the points raised in this petition. A.A./M-580/K Petition dismissed.