1986 PLP 788 (PLC)

The contention of the petitioner is that the reservation of posts and fixation of ratio in the same grade for purpose of promotion is illegal and in contravention of Rules 3 and 8 of Civil Services (Change in Nomenclature of Service and Abolition of Classes) Rules 1973. In such circumstances, the petitioner has claimed the following reliefs: "(a) declare that the Memorandum No.2/1/75‑ABC, dated 3‑3‑1976 issued by respondent No.l and seniority list, dated 11‑3‑1976 prepared in pursuance thereof by respondent No.2 are illegal and without any lawful authority and quash and set aside the same. (b) restrain the respondents from implementing the said Memorandum No.2/1/75‑ABC, dated 3‑3‑1976 and Seniority List, dated 11‑3‑1976 against the petitioner. (c) direct the respondents to prepare Seniority List of Grade‑17 Officers in accordance with section 8(4) of the Civil Servants Act 1973 read with Rules 5 and 8 of Civil Servants (Change in Nomenclature and Abolition of Services) Rules 1973."

2. The petition has been contested by the respondents. A preliminary objection has been raised that the petition is not maintainable as it involves the terms and conditions of service which is within the exclusive jurisdiction of the Services Tribunal. Learned counsel for the petitioner on the other hand has stated that in view of Article 212(a) of the Constitution, which was added by P.O. No. 21 of 1979, the Services Tribunal has no jurisdiction in the matter. Articles 212 and 212‑A of the Constitution reads as under: ‑ "212 (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of: - (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (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 the 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 as established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis‑e‑Shoora (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. 212‑A. (1) Notwithstanding anything hereinbefore contained the Chief Martial Law Administrator may, by a Martial Law Order, provide for the establishment of one or more Military Courts or Tribunals for the trial of offences punishable under the Martial Law Regulations special law, for the time being in force specified in the said Martial Law Order for the transfer of cases to such Courts or Tribunals. (2) The jurisdiction and powers of a Military Court or Tribunal shall be such as may be specified in a Martial Law order issued by the Chief Martial Law Administrator. (3) Notwithstanding anything hereinbefore contained, where any Military Court or Tribunal is established, no other Court, including a High Court, shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of the Military Court or Tribunal extends and of which cognizance has been taken by, or Tribunal and all proceedings in respect of any such matter which may be pending before such other Court, other than an appeal pending before the Supreme Court, shall abate." A bare perusal of this Article (212‑A) would show that the contention has no force and this Article has no relevancy with the service matters. The learned counsel made emphasis on the words "any other Court including a High Court" and submitted that under Article 212 of the Constitution the jurisdiction of the High Court has not been excluded. We see no substance in this contention. By means of Article 212 Administrative Courts and Tribunals have been constituted having exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters. Article 212 specifically ousts the jurisdiction of the other Courts and the other Courts include High Court. Learned counsel for the petitioner has relied upon the case of Messrs. Standard Printing Press v. Sind Employees Social Security Institution P L D 1978 Kar. 945 wherein it has been observed that "it is now well established that statutory Tribunals of limited jurisdiction have to function strictly within the sphere allotted to them under the Statute and are not Courts of general jurisdiction to entertain all disputes of Civil nature." There is no cavil with this proposition but in the instant case the relief claimed by the petitioner in this petition relates to the terms and conditions of service and, therefore, the jurisdiction of the Courts is excluded in the matter. The learned counsel contended that where the vires of a law is challenged then the Service Tribunal has no jurisdiction and in the instant case the vires of the impugned notification have been challenged. We see no force in this contention. In the case of Muhammad Hashim Khan and others v. Province of Baluchistan and others P L D 1976 Quetta 59 it has been observed that the Tribunal under section 5 of Service Tribunals Act is deemed to be Civil Court for the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other civil Court the Tribunal to our mind will have the jurisdiction to examine whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide. The observations made in this authority are a complete answer to the arguments advanced by the learned counsel in this behalf. Under section 4 of the Service Tribunals Act, 1973, 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. This provision would make the position clear and the Service Tribunal has the exclusive jurisdiction in the matter relating to the terms and conditions of the civil servant. In P L D 1981 Karachi 291 Abdul Bari v. Government of Pakistan and 2 others it has been held that the jurisdiction of the High Court would be ousted in regard to all matters falling within ambit of authority of Tribunal to adjudicate even though Tribunal conferred with jurisdiction limited to some of matters relating to terms and conditions of service. Similar view has been taken in P L D 1980 S C 22 and 37, PLD 1983 SC 100 and P L D 1980 Lah.

697. In view of clear position of law as interpreted by the Supreme Court and the High Court, we are of the opinion that the present petition is not maintainable as the relief claimed by the petitioner relates to the terms and conditions and the Service Tribunal has exclusive jurisdiction in the matter. The petition is dismissed as such with no order as to costs. A. A.??? Petition dismissed.