1995 PLP (C (PLC(CS))

The petitioners are the members of the Ministerial Establishment of Electric Inspectorate, Lahore Region Lahore. They have moved this Constitutional petition and have challenged the vires of the Punjab Irrigation and Power Department (Power Wing) Service Rules, 1990 and prayed for setting aside the integrated seniority list of the Assistants, Senior Clerks, Junior Clerks etc. prepared by the Power Wing of the Irrigation and Power Department, Government of the Punjab. The report and parawise comments were called for. The order has been complied with.

2. I have heard the learned counsel for the petitioners and Rana Muhammad Arshad Khan, Additional Advocate‑General. The learned Additional Advocate‑General has raised as a preliminary objection to the effect that the petitioners are civil servants and the forum for the remedy of their grievances is the Punjab Service Tribunal. It is added that the jurisdiction of this Court is expressly barred in view of Article 212 of the Constitution of the Islamic Republic of Pakistan and that Writ Petition No. 4681 of 1990 filed by the technical staff of the Power Wing challenging vires of the service rules was dismissed in view of the provisions of Article 212 of the Constitution. In this behalf, he referred to Dr. Abdus Sattar Babar v. Pakistan through Secretary, Establishment Division and another (1984 SCMR 1178), Federation of Pakistan and another v. Hashim Shah Qureshi (1987 SCMR 156), Imdad Ali Khan v. Pakistan (PLD 1986 SC 349), M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 22), The Collector, Central Excise and Land Customs and others v. Aslam Ali Shah (PLD 1985 SC 82) Aish Muhammad and 68 others v. Pakistan and 75 others (1985 SCMR 774) and Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290). On the other hand, learned counsel for the petitioners argued that the petitioners have challenged the vires of the Rules and the same relief could be allowed only by this Court and after the requisite declaration, the petitioners have simply to inform the respondents, who would act according to the directions of this Court.

4. I have given my anxious considerations to the argument advanced on behalf of both the parties. Before proceeding any further, I would take up a preliminary objection as to the jurisdiction. The law pertaining to civil servants had undergone basic change with the introduction of Articles 212 and 240 in the Constitution of Islamic Republic of Pakistan, 1973. If the civil servants were still to be permitted to seek their remedy before the Courts of general jurisdiction or invoke Constitutional jurisdiction of this Court then it would erode the whole of new system. This directly lends support to the argument of the learned Additional Advocate‑General. The purpose of the law was to enact ' a complete code for civil servants and to provide a comprehensive forum for "redress of their grievances. In this behalf, reference can be made to the judgments in Government of the Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik and another (1991 MLD 824) and following passages of the judgment reported as Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others (PLD 1977 Lahore 549):‑‑ " No proceedings over which an Administrative Tribunal's jurisdiction extends can consequently be entertained by any other Court merely on the ground that the matter involves determination of the vires of any rule or statute. The Administrative Tribunal or Court has complete jurisdiction in respect of the proceedings within its exclusive jurisdiction. The ouster of the jurisdiction of the ordinary Courts including the High Court in respect of the matters within the exclusive jurisdiction of the Administrative Tribunal or Court, is so complete that even the order of Administrative Tribunal cannot be assailed either by a suit or by a writ petition. See Muhammad Aslam Rajwa v. Federation of Pakistan PLD 1974 Lah.

565. See also Faizullah Khan. v. Government of Pakistan PLD 1974 SC, 29,1 in which it was held that High Court or other ordinary Court have jurisdiction only in matters not amenable to the jurisdiction of the Service Tribunal or Court can be interfered with by the Supreme Court subject to the grant of Special Leave to Appeal. Such Court or Tribunal can, therefore, give a finding on the validity of the rules framed under a particular statute if the question arises in connection with any matter within its exclusive jurisdiction." In this case the appellants had challenged the vires of the rules but the appeals were dismisses relying on Article 212 of the Constitution of the Islamic Republic of Pakistan. Thereafter, the matter was agitated before the Punjab Service Tribunal and the Tribunal held that para. 13 of MLR No. 118 of 1972 was ultra vires. The judgment rendered by the Tribunal was assailed in appeals before the Supreme Court. The appeals were accepted and the findings on the point of vires of paragraph No. 13 MLR No. 118 were reversed. The next submission was that in the absence of order the petitioners could not maintain an appeal. In this behalf, reference. can be again made to a passage of the judgment reported as Fazal Elahi Ejaz and 22 others v. Government of the Punjab (PLD 1977 Lahore 549). The same reads as under:‑‑ "If an order can be treated to be. a rule I do not see any earthly reason why the converse should not be true if what is germane to an order has been in the form of a rule. If a rule or part of it is m substance an order expressed and notified in the manner required for an order, for all practical purposes including an appeal it can be treated as an order. I do not see any demonstrable distinction between an order notified in the official Gazette that all Headmasters of Nationalized Schools shall be treated as English Teachers and a rule precisely using the same language with a view to achieve the same object. The rules regarding the reduction in rank should therefore be treated to be orders within the ambit of the word `order' as used in section 4 of the Punjab Service Tribunals Act, 1974. The reduction of the rank of Headmasters to the posts of English Teachers by rule 4 of the Punjab Nationalized Schools (Men's and Women's Sections) Teaching Posts Rules, 1974, is thus appealable as an order of reduction in rank and reduction of salary under section 4 of the Punjab Administrative Tribunals Act, 1974." This part of the judgment was upheld by the Supreme Court. The proposition becomes further clear when reference is made to judgment of the Supreme Court reported as Province of Punjab v. Syed Bashir Ahmad Bukhari (PLD 1982 SC 27) wherein it was held that when the petitioners would challenge their seniority list, they would also throw challenge to the rules; regions and instructions according to which their seniority list had been prepared. 5, There is no cavil with the legal proposition that rules have to satisfy reasonableness and bona fide. I am fortified in my view by the decision of the Supreme Court in the cases of Federation of Pakistan and others v. Ch. Muhammad Aslam and others (1986 SCMR 916), Federation of Pakistan and another v. Hashim Shah Qureshi(1987 SCMR 156) and Falak Sher Khan v. Mukhtar Ahmad (PLD 1989 SC 262). The case of Falak Sher Khan pertained to a period prior promulgation of Ordinance III of 1984 with effect from 1st of July, 1983. The object of this amendment seems to be to restrict the departmental promotion to the 'cadre' instead of `host' or grade' in the department. In plain words now promotion of a civil servant belonging to one particular cadre cannot be made to a post borne on another cadre even within the same department. This will be another test which have to be applied while determining the vires of the rules. The legislature while giving discretion to the rule‑making authorities has protected the rights of civil servants within the service structure itself. This way whatever the grounds of the challenge to the, vires of the rules may be the remedy is before the Service Tribunal of course after exhausting departmental remedy. This point is concluded by the judgment of this Court in Fazal Elahi Ejaz's case (supra) wherein although rules were held ultra vires yet appeal dismissed in view of the provisions of the Article 212 of the Constitution.

6. The upshot of the above discussion is that the preliminary objection prevails and the writ petition is dismissed being incompetent. AA./L‑79/L Petition dismissed.