2025 PLP (C (PLC(CS))

MALIK WAQAR HAIDER AWAN, J.

Through this constitutional petition, petitioners have questioned the legality and validity of following acts/orders/amendments made by Government of the Punjab and it has been prayed that same may be declared as ultra vires, unconstitutional, illegal and void ab initio:- (i) Amendment in proviso to Section 8(3) of the Punjab Criminal Prosecution Service (Constitution, Functions and Powers), Act, 2006 (hereinafter referred as "Act, 2006") (ii) Amendment introduced through the Punjab Criminal Prosecution Service (Constitution, Functions and Powers) (Amendment) Act, 2015. (iii) Act of official respondents regarding non-awarding of promotion quota @ 75% to petitioners. (iv) Order dated 16.02.2021 passed by respondent No.1. (v) Amendment introduced through Notification No. SO(C)PPD/1-9/2017 dated 16.04.2018 in the Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007 (hereinafter called "Rules, 2007") regarding 32% quota fixed for posting against posts of Additional Prosecutor Generals (BS-19) given to District Public Prosecutors (of District Cadre). (vi) Notifications No.SO(C)PPD/1-34/2015.2563 and SO(E-I) PPD/1-34/2015.2566 dated 01.09.2020 regarding appointments of respondents Nos.6 to 12.

2. At the very inception, learned counsel for the petitioners has been confronted with the question of maintainability of this petition and he has been asked to satisfy us with this query first, he submits that petitioners do not fall in the definition of civil servants rather they are public servants. He further asserts that if this Court holds that petitioners are civil servants, even then they can approach this Court in order to challenge any law including notifications and amendments in rules introduced by the Government as Punjab Service Tribunal is not supposed to declare any law unconstitutional.

3. Conversely, learned Law Officer joining hands with learned counsel representing private respondents submits that matter in issue undoubtedly relates to terms and conditions of service and as such petitioners, being civil servants, cannot knock the doors of this Court while invoking constitutional jurisdiction vested in it under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution"). Further contends that appropriate remedy for civil servants is to approach the respective Service Tribunal which has ample power to declare any law ultra vires if found against the Constitution. Lastly submits that in the wake of availability of alternate remedy, constitutional petition cannot be entertained.

4. We have carefully gone through the record and considered the submission of learned counsel for the parties.

5. Before going into merits of the case, we feel it apt to firstly decide regarding maintainability of this petition and jurisdiction of this Court to adjudicate upon the matter. The Supreme Court of Pakistan in judgment reported as Muslim Commercial Bank Limited v. Muhammad Anwar Mandokhel (2024 SCMR 298) has held that every court prior to taking cognizance of and adjudicating upon an issue should first resort to the question of assumption of jurisdiction of the Court. If it comes to the conclusion that jurisdiction can be assumed only then it can adjudicate upon the issue.

6. It is important to note that vide judgment dated 09.04.2025 rendered by this Division Bench in Writ Petition No. 51475/2023 titled Rukhsana Yasmeen and others v. Province of Punjab through Secretary Public Prosecution Department and others, it has already been settled that except the post of Prosecutor General, rest of the employees of Prosecution Service are governed under the Punjab Civil Servants Act, 1974 (hereinafter called "Act, 1974") and Rules made thereunder and as such they fall in the definition of civil servants.

7. As regards the argument advanced by learned counsel for the petitioners that petitioners (leaving aside the point whether they are civil servants or public servants) can always invoke the constitutional jurisdiction of this Court for challenging the legality of law, notification, amendment or rules introduced by Government of the Punjab, we are afraid that this is not the correct legal position.

8. We can take light from the dictum laid down in judgment rendered by a Larger Bench of the Supreme Court of Pakistan reported as I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) wherein while interpreting Section 4 of the Service Tribunals Act, 1973, it has categorically been held that appropriate remedy for a civil servant is by way of an appeal before the Service Tribunal even where the case involves vires of a particular service rule or a notification. It was further held that if a statutory rule or notification adversely affects terms and conditions of a civil servant, the same will be treated as a final order for the purposes of jurisdiction of a Service Tribunal. It was held downrightly that a civil servant cannot bypass the jurisdiction of the Service Tribunal by adding a ground of violation of fundamental rights.

9. We are fortified with the view taken in the recent venerated judgment of the Supreme Court of Pakistan reported as Muhammad Hassanullah (OMG/B-18), Acting Additional Secretary, Health Department, Balochistan v. Chief Secretary, Government of Balochistan, Quetta and another (2025 SCMR 134) wherein the case of I.A. Sharwani and others (supra) has been discussed in detail and it has been unambiguously held that the exclusive jurisdiction of the Service Tribunal and the bar contained under Article 212 of the Constitution are of such a nature that they are attracted even if the grievance arises from an order which may involve questions of mala fide, corum non judice or having been passed without jurisdiction. The dicta laid down in I.A. Sharwani and others case has explicitly been endorsed by the Supreme Court of Pakistan in case of Muhammad Hassanullah (supra) with a further clarification that if a statutory rule or notification adversely affects terms and conditions of a civil servant, the same will be treated as a final order and for adjudicating upon the same, exclusive jurisdiction lies with an Administrative Tribunal established under the command of Article 212 of the Constitution.

10. For the sake of arguments, if we borrow the idea of learned counsel for the petitioners that civil servants can approach this Court for challenging the vires of any law or notification, then there would be anomalous situation as civil servants will approach this Court for their personal/service grievances in the garb of violation of fundamental rights which cannot be encouraged. Apart from this, the language used by the legislature in Article 212 of the Constitution makes Article 199 of the Constitution subservient to it and gives Article 212 an overriding effect over the other Articles of the Constitution qua the enforcement of terms and conditions of service of a civil servant. As the jurisdiction exercised by this Court under Article 199 of the Constitution is subject to the Constitution, therefore, Article 212 of the Constitution ousts the jurisdiction of this Court in the cases pertaining to enforcement of terms and conditions of services of a civil servant. Reliance can be placed on the judgments of Ali Azhar Khan Baloch and others v. Province of Sindh and others (2015 SCMR 456) and National Assembly Secretariat v. Manzoor Ahmed and another (2015 SCMR 253). We are clear in our mind that while exercising constitutional jurisdiction under Article 199 of the Constitution, this Court has to see not only the bar contained in Article 199 of the Constitution regarding maintainability of petition but also the language contained in Article 212 of the Constitution.

11. Even otherwise, if vires of a notification or amendment in law, dealing directly or indirectly with terms and conditions of service of a civil servant, are permitted to be challenged through a constitutional petition, it will amount to violating Article 212 of the Constitution and Section 4 of Punjab Civil Servants Act, 1974 (hereinafter called "Act 1974"). In addition to above, if this dispensation is sanctioned, there would be no uniformity with regard to the constitutional jurisdiction of this Court and powers of the Punjab Service Tribunal and in this way, it can safely be said that it would not be a harmonious interpretation of law.

12. It is a settled principle that when law requires an act to be done in a particular manner, then it has to be done in that manner and not otherwise. In this respect, reliance is placed upon Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086), Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255) and Sheikh Ghulam Hussain v. Chief Settlement Commissioner and others (2016 YLR 285).

13. Learned counsel for the petitioners has placed much stress on judgment reported as Province of Sindh through Chief Secretary, Sindh, Sindh Secretariat and another v. Prosecutor-General Sindh, Criminal Prosecution Department and others (2012 SCMR 307). It is noteworthy that this judgment was comprehensively discussed in Muzaffar Ali Anjum and others v. Government of Punjab through Secretary Ministry of Law and Parliamentary Affairs, Lahore and 2 others (2015 PLC (C.S.) 986) wherein comparison of Act, 2006, Rules, 2007 and the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009 (hereinafter called "Act, 2009") has been given. It is important to note that Act, 2009 is not followed by any Rules and the aforementioned Acts and Rules are entirely different from one another. Although Section 14 of the Act, 2009 provides that members of service except the Prosecutor General including the staff shall be appointed and covered under the Sindh Civil Servants Act, 1973 and Rules made thereunder but the Act 2009 is not followed by any Rules whereas the Act, 2006 is followed by the Rules, 2007 which manifestly clarifies the provisions of the Act, 2006 that employees of the Punjab Prosecution Department are civil servants.

14. In support of his contentions, learned counsel for the petitioners has also stressed on Section 18(2) of the Act, 2006 which provides that a Prosecutor appointed under the Act, 2006 shall be deemed to be a public servant within the meaning of Section 21 of the Pakistan Penal Code, 1860. It would be important to mention here that "public servant" is a broader term which includes not only civil servants but also other government entities like armed forces, judiciary and statutory corporations, thus it could be said that every civil servant is a public servant because he serves the public and is paid salary from the public exchequer but every public servant is not a civil servant. In order to draw distinction between civil servant and public servant, it would be expedient to see how their recruitment/appointment is made. In the case in hand, employees of the Public Prosecution Department, Punjab are appointed under the Act, 2006 and regulated by the Rules, 2007. Rule 10 of the Rules, 2007 provides that instructions issued and directions given under the Act, 1974 would be applicable for the terms and conditions of service, therefore, indubitably they are civil servants which has already been settled by this Division Bench in the case of Rukhsana Yasmeen and others (supra).

15. In the light of foregoing facts and law, it is concluded that being civil servants, appropriate remedy for the petitioners to voice their grievance relating to terms and conditions of service and to challenge the vitality of any law (including notification and amendment introduced by Government of the Punjab) is to approach the Punjab Service Tribunal instead of invoking constitutional jurisdiction of this Court. Consequently, this petition is dismissed being not maintainable. UN/T-7/L Petition dismissed.