2004 PLC (C (PLP)

Arts.199 & 2-12

Constitutional jurisdiction of High Court, exercise of

Civil service

Plea of the civil servant was that besides being a Court of law, High Court was a Court of equity also and where there was excess committed by Executive Authority, it must come to the 'aid of the victim

Validity

Excess -of an authority could not go unnoticed the victim

Validity

Excess of an authority could not go unnoticed without a proper relief to a victim of it provided necessary jurisdiction was possessed by the Court

For the matters relating to terms and conditions of service, no such jurisdiction existed with High Court. Khushal Khan for Petitioner. Barrister Jehanzeb Rahim, A.-G. for Respondents. Date of hearing: 20th October, 2003. Shortly narrated the facts, leading to the filing of instant writ petition are that Inspector Hassan Khan Marwat petitioner, was recruited in the Police Department as Constable in the year, 1969. He was promoted as Head Constable and on 27-5-1985 he was promoted as temporary Assistant Sub-Inspector. He was confirmed by an order dated 9-6-1987. On 5-5-1994 he was promoted as Officiating Sub-Inspector with effect from 1-4-1994. Having successfully completed and qualified the upper class course at Police Training College,, Hangu, vide a Notification dated 10-6-1996 his name was admitted to promotion list "E". On 29-1-2001 a notification was issued by the Deputy Inspector General of Police, Peshawar Range, whereby the officiating promotion of the petitioner and other Sub-Inspectors was regularized with effect from 6-10-1997 and they were also confirmed from the same date on the recommendation of Promotion/Selection Board vide its meeting held on 24-1-2001. A meeting of Department Promotion Committee was held on 16-3-2002 by virtue of its recommendation and after approval of Inspector General of Police, N.-W.F.P., Peshawar,. a notification dated 23-4-2002 was issued whereby the names of confirmed Sub-Inspectors including petitioner were admitted to promotion list "F" and as result of which petitioner and others were promoted to the post and rank of officiating Inspector in BPS-16" and a notification to this effect was issued on 18-3-2003. Consequently, respondent No.1 issued an order dated 20-3-2003 whereby the promotion order of the petitioner was held in abeyance till further order.

2. In the comments submitted on behalf of respondent No.1, allegations of the petitioner were denied and it was maintained that the promotion order was held in abeyance due to departmental enquiries pending against the petitioner.

3. Mr. Khushal Khan, Advocate for the petitioner contended, inter alia, that petitioner is senior most, eligible, qualified with excellent service record, has been discriminated and condemned unheard without any justifiable reason and that the impugned order has been passed in a most arbitrary manner without reasons and legal justification which has materially prejudiced the interest of the petitioner.

4. Barrister Jehanzeb Rahim, learned Advocate-General appearing on behalf of respondents controverted the arguments of learned counsel for the petitioner and submitted that the writ petition is not maintainable for the reason that on the one hand an interim order has been brought under challenge whereas on the other, the grievance of the petitioner relates to terms and conditions of his service which is not open to challenge in writ petition. Learned counsel for the petitioner, in reply urged that the impugned order is amenable to the jurisdiction of this Court and the writ petition merits acceptance. In support of the pleas he relied on Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others (PLD 1997 Supreme Court 382), The Chairman, Central Board of Revenue and another v. Muhammad Malook and 11 others (1999 SCMR 1540) and Maj. Ziaul Hassan,' Home Secretary and others v. Mrs. Naseem Chaudhry (2000 SCMR 645).

5. A perusal of the record would reveal that on surprise checking of Police Malkhana of Police Station Bhana Mari, Peshawar City, an unaccounted narcotics in huge quantity of 33 kgs Charas was recovered. On verification from the record of the last five years and statements of official concerned i.e. present and ex-Muharrir it transpired that the petitioner while posted as S.H.O. of the said police station had failed to examine the property throughout his period of posting and did not make any report to the above fact of the storage of surplus case property. A proper enquiry was conducted and the petitioner having been found guilty of serious misconduct, it was suggested that major punishment he awarded to him.

6. As observed earlier, an interim order has been passed whereby the promotion of the petitioner has been held in abeyance till further orders. The inquiry against the petitioner has been finalized but no final order has been made and the matter is stated pending for appropriate orders. The subject-matter of the petitioner has nexus with the terms land conditions of the civil servants. If the petitioner is aggrieved of denial or any term or condition to which he was entitled under the law, the proper remedy for him is to go to the Service Tribunal. Article 212 of the Constitution poses a serious bar for exercise of extraordinary jurisdiction under Article 199 of the Constitution. As the matter relates to terms anti conditions of service of the petitioner, who is admittedly a civil servant, we do not feel inclined to exercise our discretion in his favour and grant him the relief. The case-law cited on behalf of the petitioner is distinguishable and proceeds on different facts. It does not promote the case of the petitioner. It was urged that besides being a Court of law, High Court was Court of equity also and where it sees the excess being committed by the Executive Authority, it must rescue the victim from it. There is no doubt that the excess of an authority cannot go un-noticed without a proper relief to a victim of it provided necessary jurisdiction is found to exist for it in the Court. In the present case no such jurisdiction exists. The learned counsel for the petitioner has not been able to demonstrate the existence of circumstances justifying interference of this Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Ghulam Jilani v. Government Punjab and others (1995 PLC (C.S.), 115).

7. In the result and for the foregoing reasons finding no substance in this writ petition we dismiss the same in limine. M.H./975/P Petition dismissed