1991 PLP 2214 (MLD)

(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. Postings and transfers.--Every civil servant shall be liable to serve anywhere within or outside the province in any post under the Government of the Punjab or the Federal Government or any Provincial Government or a local authority or a corporation or a body set up or established by any such Government: Provided that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service as to his pay shall not be less favourable than those to which he would have been entitled if he has not been so required to serve. Appeals to Tribunals.

(1) 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 or within six months of the establishment of the appropriate Tribunal, whichever is later prefer an appeal to the Tribunal; Provided that

(a) Where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, 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; (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or hold a particular post or to be promoted to a higher grade; and (c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969. (2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred-- (a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3; and (b) in any other case, to a Tribunal referred to in subsection (7) of section 3 and where no such Tribunal is established, to a Tribunal established under subsection (3) of that section. 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.

8. A plain reference to Article 212 of the Constitution shows that the jurisdiction of all other Courts except Service Tribunal had been taken away. The Service Tribunal had been given the exclusive jurisdiction to decide the matters relating to the terms and conditions of persons in service of Pakistan. This question came up for consideration in Muhammad Aslam Bajwa v. Federation of Pakistan (P L D 1974 Lah. 545). In this case the petitioner was an ex-C.S.P. Officer. He was compulsorily retired under the Removal from Service (Special Provisions) Regulation, 1972 known as M.L.R. 114 of 1972. The petitioner challenged this order in W.P. 647-S/74 which was dismissed by the Division Bench of the High Court by order dated 12-7-1974. After the survey of relevant law and precedents, it was held that the petition was not competent under. Article 212 of the Constitution read with section 4 of the Service Tribunals Act,

974. It will be instructive to quote the relevant passage from the judgment by his Lordship Mr. Justice Karam Ellahi Chauhan as he then was:

"If in a given case an order was passed by an incompetent authority and was of the kind of coram non judice-- or (mala fide which according to The Federation of Pakistan v. Saeed Ahmad Khan and others and the State v. Zia-ur-Rehman and others was also to be considered at the level of without jurisdiction)-- then appeal against the same was not maintainable and for these kinds of orders the proceedings pending in any other Court were not to abate because they could be set aside only--(for example)-- by superior Courts and not such Tribunals or Courts which are mentioned in section

4. In such cases where the basic order was coram non judice the provision of appeal even otherwise, it was argued, has never been considered to be an adequate remedy so as to be a bar to the exercise of writ jurisdiction. Some case-law was also quoted by the learned counsel in this respect. The argument, to say with respect; is not towards a correct direction because it is not based on complete study either of sections 4 and 6 of Service Tribunals Act of 1973 or of Article 212 of 1973 Constitution. Though the present cases are expressly covered by section 6 but dealing with the argument it is to be noticed that in section 4(2) of the Service Tribunals Act, it is laid down that "where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred--(a) in the case of a penalty of dismissal from service, removal from service compulsory retirement or reduction to a lower post or time-scale, or to a lower stage in a time-scale to a Tribunal referred to in subsection (3) of section 3, and (b) in any other case, to a Tribunal referred to in subsection (7) of that section. This will show that read in this context orders whereby penalty had been inflicted for example without jurisdiction the same also were equally appealable, just as those where penalties have been imposed with jurisdiction because, otherwise conversely arguing where the penalties have been "competently" inflicted what is the logic of providing appeals against the same if there is no defect in their "competency" in any respect. The right of appeal according to us as given in sections 4 and 6 is independent of such like niceties because daily we come across appeal cases in which pleas are being taken that orders of the subordinate Courts or authorities are without jurisdiction and the Appellate Courts or forums if so satisfied set aside such orders. Whether any particular order in fact is with jurisdiction or without jurisdiction can well be decided by an Appellate Court and this is one of the incidents of appeal. It was held in Maharaj Kumar Bindeswari Prosad Singh v. Thakur Lakpat Nath Singh and others (8 IC 26), Jwala Prasad v. Salik Ram (ILR 13 Allahabad 575) and Ranjit Missir v. Ramudar Singh (16 IC 940), that where jurisdiction is usurped by a Court in passing an order against which an appeal would lie if it had been passed with jurisdiction on an appeal cannot be defeated on the ground that the order was without jurisdiction. Also see to the same Gangadhar Karmakar and others v. Shekharbasini Dasya and others (A I R 1917 Cal. 320), Bandiram Mockerjee v. Purna Chandra Roy (ILR 45 Cal. 926), Wajudi Pramnik v. Mohammad Balai Morul (A I R 1925 Cal. 1032) and Janardhan Reddy and others v. State of Hyderabad and others (A I R 1951 SC 217). The words "competent to make an order" do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matter involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed. The defect in competency in other words will provide a good ground for appeal rather than negate it. That it is in this context that sections 4 and 6 of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject-matter of a case on which will depend the ouster of jurisdiction of other Courts. If the subject-matter of Courts or Tribunals of exclusive jurisdiction is the "terms and conditions of service" or "discipline" and relates to persons who are or have been in the service of Pakistan then the ouster of jurisdiction of other Courts is complete. As in the instant case, the petitioners are those who have been in the service of Pakistan and the impugned orders relate to their "terms and conditions of service" and "discipline" and for these matters Tribunals and Courts of exclusive jurisdiction have been established, they can now properly approach those Tribunals/Courts under Section 6 read with section 4 ibid and their cases in this Court can no longer proceed."

9. In Iqan Ahmad Khurram v. Government of Pakistan (P L D 1980 SC 153), the petitioner was appointed as an Engineering Supervisor, was promoted to the post of Assistant Engineer in 1969. The rules pertaining to appointment of Assistant Engineers were amended adversely affecting the rights of the petitioner. The petitioner challenged these amendments in rules by invoking Constitutional jurisdiction of High Court of Sindh. The Division Bench of High Court of Karachi dismissed the petition by holding that the matters related to the terms and conditions of service and so the High Court had no jurisdiction in view of bar contained in Article 212 of the Constitution. The petitioner filed special leave to appeal against this order which was dismissed by the Supreme Court upholding the aforesaid view taken by the Division Bench.

10. In M.Yamin Oureshi v. Islamic Republic of Pakistan and another (P L D 1980 SC 22), the appellant Yamin Qureshi was serving as Joint Secretary to the Government of Punjab, attained the age of superannuation on 19-10-1967, was granted one year's extension in service followed by another year. He proceeded on leave preparatory to retirement w.e.f. 18-10-1969. On 5-12-1969, the Chief Martial Law Administrator, General Agha Muhammad Yahya Khan suspended him under M.L.R. 58 and cancelled the leave. The appellant was charge-sheeted and his case was heard by a Tribunal presided by Military Officer. On 25-5-1970 he was dismissed from service w.e.f. 19-5-1970 by means of a Gazette notification on the establishment of Service Tribunal. Muhammad Yamin filed appeal which was dismissed for want of jurisdiction by taking the view that the tribunal had no jurisdiction to entertain appeal. The appellant filed appeal under Article 212 which was accepted by the Supreme Court. It was held that the Service Tribunal had the jurisdiction to examine the grievance of the appellant. The relevant passage from the judgment of the Supreme Court delivered by his Lordship Mr. Justice Anwar-ul-Haq, C.J. as he then was may be quoted in extenso:

"It goes without saying that it lies within the jurisdiction of the Tribunal, and indeed, it is its obligation, to decide all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proposed punishment. The appellant would be entitled not only to a full opportunity to present his case before the Tribunal, but also to inspect all relevant records, which might have been taken into consideration by the competent authority for the purpose of passing the impugned order. As we see the legal position, the Tribunal has wide powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against. Under subsection (2) of the same section, the Tribunal, for the purpose of deciding any appeal, is to be deemed to be a Civil Court, and do have all the powers as are vested in such Courts under the Code of Civil Procedure, 1908, including the power of enforcing the attendance of any person and examining him on oath; compelling the production of documents; and issuing Commission for the examination of witnesses and documents. We have no doubt that the Service Tribunal, presided over generally by a serving or a retired Judge of the High Court, would be able to do full justice to the appellant."

11. This view was reiterated in Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 27 others (P L D 1981 SC 137), The Collector Central Excise and Land Customs and others, v. Aslam Ali Shah (P L D 1985 SC 82), Azizur Rehman v. FATA Development Corporation (1988 S C M R 1944) and Muhammad Asif v. Secretary, Government of the Punjab C and W Department, Lahore and 4 others (1990 P L C (C.S.) 257).

12. This view was followed in Dr. Raja Manzoor Elahi v. North-Western Frontier Province through Chief Secretary, Government of N.-W.F.P. Peshawar (P L D 1980 Pesh. 81), Abdul Bari v. Government of Pakistan and 2 others (P L D 1981 Kar. 290) and Begum Ismat Azhar v. Punjab Government through Secretary, Education and another (P L D 1987 Lah. 256).

13. In the Superintendent of Police Headquarter, Lahore and 2 others v. Muhammad Latif (P L D 1988 SC 387), the respondent was dismissed from service on the ground of having been found guilty of charge of embezzlement of Government Funds. His appeal before departmental authority failed. He lodged appeal before Punjab Service Tribunal which was dismissed on 10-8-1980. The respondent challenged these orders by filing constitution petition in the High Court. This constitution petition was accepted on the premises that mandatory provisions contained in Efficiency and Discipline Rules regarding the charge, its communication together with the statement of allegations were not complied with by the authorities and so order of dismissal was null and void. The jurisdictional objection regarding the bar contained in Article 212 was repelled on the ground that although an appeal lies to the Supreme Court only on a substantial question of law and public importance. In this case there was no such point. Feeling aggrieved, the Superintendent of Police, Headquarters, Lahore and 2 others filed C.P.S.LA. which was converted into appeal and accepted by the Supreme Court. The relevant passage from the judgment is being quoted with advantage:

"This clause (2) provides that "no Court other than the Administrative Court or Tribunal established under clause (1) of Article 212 shall ...entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends". The learned Counsel for the respondent, while admitting that the jurisdiction of the Service Tribunal in this case did extend to the subject-matter of the constitutional petition moved before the High Court; has presented a novel argument; that the bar to the jurisdiction of the other Courts, created by clause (2) referred to above; is only at the stage before an appeal is brought before the Tribunal. And further that once the Tribunal is approached and the appeal is disposed of by it, the bar remains no more effective, so as to prevent the cognizance of the matter by the High Court in its Constitutional jurisdiction. We have no hesitation in repelling the argument as untenable and misconceived. The provision does not envisage any such distinction drawn by the learned counsel. The bar would be. attracted, even if after filing an appeal before the Tribunal, the party concerned does not accept the decision rendered by the Tribunal as correct. The only remedy then left is a petition before the Supreme Court under clause (3) of Article 212."

14. The same view was taken in Muhammad Asif v. Secretary to Government of the Punjab, C and W Department, Lahore, and 4 others (1990 P L C 257) and unreported judgment of Mr. Justice Zia Mahmud Mirza in W.P. 991 of 1989.

15. This brings me to Mst. Shagufta Bibi v. Deputy Education Officer (Women), Tehsil and Distt. Sahiwal (1990 P L C (C.S.) 345). This case proceeds on distinguishable facts and is not applicable to the facts of this case. In this case Mst. Shagufta Bibi was a P.T.C. Teacher. She was appointed in Government Girls Primary School Arazi Shahmand near Harrapa. She was transferred by the District Education Officer (Women), Tehsil and District Sahiwal to Government Girls Primary School Dhudian-Di-Bahni vide order dated 17-5-1989. Feeling aggrieved by this order, she filed Constitution petition before the High Court of Lahore, Multan Bench. Her petition was dismissed. She filed I.CA. No.37 of 1990. On the date of hearing Mst: Jamila Sikandar, District Education Officer appeared in the Court, stated to the effect that she had passed the impugned order on the dictation of Minister for Revenue. On his mandate she had cancelled the aforesaid order. In the peculiar circumstances noted above the judgment was rendered.

16. In the light of foregone analysis, I have no hesitation in coming to conclusion that under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 4 of the Punjab Service Tribunals Act, 1974 and in the light of law declared by the Supreme Court, this Court had no jurisdiction to hear these cases. For the reasons stated above, 4hese petitions are dismissed.

17. Before parting with this order I note with deep anguish that the transfers of the civil servants are being made by competent authorities frequently and being done without any application of mind and without regard to the principle of administrative necessity at the behest of M.NA's/M.PA's/public representatives. I have noticed that the civil servants working in education Department are worst hit by these orders especially the female teachers are the casualty. In number of orders I have noted that the competent authority had incorporated in the order the name of the public representative at whose instance the order has been passed. Such situation is not commendable. The administrative structure and civil servant should be allowed to function within the 4 corners of law unaffected by sidewinds and shocks emanating from political fights and political bickerings. It is needless to remind that Governments in our country derive their power from the Constitution which is federal and parliamentary in nature. Under the Constitution commitment is made to run the country in consonance with the golden principles enshrined in the Holy Quran and Sunnah. Our commitment to assure the supremacy of fairness, decency and justice is irrevocable and is mandated in the Constitution. The functions of various organs of the State are enumerated in the Constitution. I am very clear in my mind that' nowhere under our constitutional dispensation .the M.NA.'s/M.PA.'s and public representatives are required to interfere with the working of the Executive. Seen from this perspective the duty is cast upon the competent authorities to resist the evil influences and conduct themselves in accordance with the dictates of the Constitution. The copy of this) order be sent to the Chief Secretary, Province of Punjab, Lahore. AA./N-488/L ????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.