1984Q23 (PLP)

The applicant, Muhammad Hashim Khan, filed a case before the Services Tribunal, Baluchistan which yeas pending when for some reason, he felt dis satisfied with the constitution of the Tribunal and decided to challenge the same in the next higher forum. Upon this, the Tribunal passed the following order "The applicant wants to challenge the constitution of this Tribunal in the superior Courts. He will submit his contention on the basis of objec tion in the written form to the Tribunal for final decision. The next hearing will be fixed on the receipt of points."

2. The applicant then filed an application before this Court invoking its jurisdiction under Article 203 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called the Constitution) read with Article 2 of the Provisional Constitution Order, 1981 to challenge the above‑mentioned orders. Since the question whether supervisory jurisdiction of this Court extended to the Services Tribunal or not, was of prime importance, therefore, before admitting that application, I also heard the learned Advocate‑General. However, I need not go into the details as to why the order of the Tribunal was sought to be challenged as Mr. Hashim's application was disposed of on the consideration of the question of jurisdiction alone.

3. In that application, the applicant's argument was that the supervisory jurisdiction of tile High Court under Article 203 of the Constitution extended to the Services Tribunal so as to control, supervise and regulate proceedings before it, hence, as and‑when necessary, suitable orders could be passed under the said Article. This argument was built upon the main premises that, as the Tribunal enjoyed the powers of a civil Court as enjoined by the Code of Civil Procedure, therefore, for all purposes, it deserved to be treated a forum subordinate to the High Court. He tried the proping up of this argument by his own case against the Province of Baluchistan, reported in P L D 1976 Quetta 59, to the decision of which, I was a party alongwith Mr. Justice Fakhruddin G. Ibrahim (as he then was). In fact, in this judgment, while interpreting section 5 of the Services Tribunal Act (Act V of 1974), it was held as follows :‑ "We are unable to see any such limitation in the powers of the Tribunal while hearing the appeals. On the other hand, the Tribunal under section 5 of the said Act is deemed to be civil Court for the purposes 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." It is quite obvious that the crux of this finding was that the Services Tribunal by virtue of section 5 enjoyed all the powers of a civil Court and, in the same way, as any other civil Court to which the Code of Civil Pro cedure applied, and that the Tribunal could decide the matters falling to its jurisdiction by making use of such powers; but it was not said anywhere in this judgment that by such incident, the Tribunal could be equated to a Court created by the Code of Civil Procedure and fell into its hierarchy so as to be treated subordinate to the High Court. On the examination of this ruling and the scope of Article 203 of the Constitution, the application of Mr. Muhammad Hashim Khan was dismissed by me in limine vide order, dated 25th October, 1983.

4. Feeling dissatisfied with the abovesaid order, he has come before me again under Article 203 of the Constitution to seek review of the afore mentioned order.

5. Since Mr. Hashim did not have the assistance of an Advocate, I requested Mr. Basharatullah to appear in the case as amicus curaie who assisted the Court. Mr. Basharatullah at first invited my attention to the language of Article 203 of the Constitution which is reproduced below :‑‑‑ "Article 203.‑Each High Court shall supervise and control all Courts subordinate to it." He submitted that Article 203 of the Constitution conferred upon the High Court jurisdiction only to the extent of control and suprervision of the Courts directly .subordinate to it, but excluded from its jurisdiction all other Courts and forums which were outside its hierarchy. Needless to reiterate that the High Court's supervisory jurisdiction extends to all the Courts of judicature except those which the Constitution and the laws made thereunder, have created for any special purpose. It may be fruitfully mentioned that the superior Courts i. e. the Supreme Court and the High Courts are creation of the Constitution. Article 176 of the Constitution deals with the establish ment of the Supreme Court, whereas Article 192 deals with the establishment of the High Courts. Services Tribunal is not a forum within the hierarchy of the High Court. On the other hand, by virtue of Article 212 of the Constitution (reproduced below) which ‑deals with the administrative Courts and Tribunals, it is created under the Services Tribunal Act, 1974, therefore, without any reference to the High Court in any capacity either in Article 212, or in the Act of 1974, its (High Court's) introduction in this field is out of question and inconceivable. It would be of interest to note for the purpose of this case that sub‑Article (2) of this Article specifically excludes the interfer ence by any other Court in the matters under consideration of the adminis trative Courts created by it : ‑ "Article 212.‑(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide fur 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 Admi nistrative 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." It is thus evident that the Services Tribunal is creation of the Constitution and owes its existence to it independently. It is just like the Supreme Court and the High Courts which are likewise the creations of the Constitution. It is, however, only the Supreme Court which has powers to interfere with the orders of the Tribunal by virtue of sub‑Article (3) of Article 212 on the grounds enumerated therein. Thus, the Supreme Court functions vis‑a‑vis this Tribunal as a Court of appeal ; the way it functions as a Court of appeal in case of the decisions of the High Courts. But this arrangement does not create subordination etc. ; of the Tribunal to the High Courts or to the Supreme Court in any administrative matter. The bar placed to the interference of all Courts except the Supreme Court by Article 212(3) is thus clear.

6. Mr. Hashim seems to have got confused by the use of the Code of Civil Procedure allowed to the Services Tribunal. Code of Civil Procedure is a general law governing trial of civil cases mainly by the civil Courts but it is extendable to any other forum where its need is felt. But that aspect needs no discussion here. All what I mean to say is that the Code of Civil Procedure has a wide field to cover. But it is not at all necessary that of Court which makes use of it also becomes its creation like the civil Courts, of judicature. Rather, any Court or Tribunal can make use of it unless specifically debarred (like the Civil Procedure (Special Provisions) Ordinance, 1968). In fact, the above referred decision has also taken note of this position while discussing that Article 212 of the Constitution intended to establish such special trial Tribunals which could deal with some cases relating to the Civil Servants exclusively. Besides this case, the extent and scope of the jurisdiction of the Services Tribunal was also examined by this Court in its writ jurisdiction in Muhammad Hashim Khan and others v. Province of Baluchistan and others (l) also referred by Mr. Hashim. I would like to explain for his benefit that this exercise was also not done considering the Services Tribunal as a forum subordinate to this Court, but it was done in its extraordinary constitutional jurisdiction, so as to determine the scope of the Services Tribunal Act, 1974 read with Civil Servants Act, 197 . Mr. Hashim, it appears, was confused by this exercise also and was, therefore, inclined to think (as argued by him) that if a Court could examine the question of jurisdiction of another Court then the later Court must be regarded subordinate to the Court sitting upon such examination. Suffice it to say that writ jurisdiction vis‑a‑vis supervisory appellate and revisional jurisdiction of this Court makes all the difference and one should not confuse these powers and functions.

7. Mr. Hashim also relied upon Mst. Farida Parwin v. Qadeeruddin Ahmed Siddiqi (P L D 1971 Kar. 118) and Karim Bakhsh v. Mst. Mubarik Jan (P L D 1970 Pesh. 169). These cases considered this Court's jurisdiction under Article 102 of the Constitution of Pakistan, 1962 which is in pari materia with Article 203 of the Constitution. The necessity to interpret the scope of Article 102 arose in a case emanating from the Muslim Family Laws Ordinance, 1961 read with West Pakistan Family Courts Act, 1964. It was held in these cases that the High Court was empowered to exercise judicial control over the decisions of subordinate Courts and such control was limited to correction of any mistake in the exercise of jurisdiction or non‑compliance of any statutory provision of law but it did not extend to interference on merits. Mr. Hashim submitted that Family Courts are also special Courts and as supervisory jurisdiction of this Court was exercisable in regard to those Courts ; therefore, on this analogy, it should be exercised vis‑a‑vis the Services Tribunal also. These cases are distinguishable. Firstly, they have examined the scope of Article W2 which is not a question in issue in this case. Secondly, there is no resemblance between the Services Tribunal and the Family Courts as the latter largely fall in the hierarchy of the High Courts as appeal against certain orders passed by the Family Courts under West Pakistan Family Courts Act, 1964 lies to the District Court (a Court subordinate to the High Court) and revision may also lie to the High Court by virtue of section 115 of the Code of Civil Procedure. In some matters there is direct appeal to this Court also. It will not be out of place to mention that in Mst. Khadya Bibi v. Abdul Wahid (P L D 1979 Quetta 118) (1) P L D 1976 Quetta 59 (2) (3) (4) the question with regard to High Court's supervisory jurisdiction vis‑a‑vis the Court of Rent Controller who is not a Court stricto senso and is also a creation of a special law, was examined by this Court. Following para. from the judgment may be usefully reproduced below as it will also help in appreciating the scope and purpose of Article 203 of the Constitution :‑ "We have seen from the perusal of all the above provisions that they are meant for achieving the purpose of supervising and administering control over subordinate Courts in so far as their judicial functions are concerned. It goes without saying that subordinate Courts, are those whose orders are subject to appeal or revision by this Court. Now let us examine Article 203 of the Constitution of 1973 in the light of this background. It runs thus: "Article

203. High Court to superintend subordinate Courts.‑Each High Court shall supervise and Control all Courts subordinate to it." This Article is verbatim reproduction of the Article found on the subject in Interim Constitution of 1972. Therefore looking to the scheme of the Constitutional documents predecessor to the present Constitution and also the phraseology used in it, it is clear that superintending or administrative jurisdiction of the High Court. What is meant is judicial superintendence over the subordinate Courts or say administrative control over such Courts in judicial matters. Such control does not travel beyond the scope of passing such orders which are necessary for ensuring that they are functioning in the best interest of law and justice. As far as their judgments or orders are concerned they are otherwise under appellate or revisional jurisdiction of the High Court, so they do not find any coverage from this provision. This is also not meant for day to day administrative functions which are not judicial functions in nature. It is further evident from the history of the legislations on this point that the only criterion to judge as to which are these subordinate Courts is whether the appellate or revisional jurisdiction of the High Court extends to such Courts. The other Courts or Tribunals not being in the direct hierarchy of the High Court are not covered by this phrase. 1t is a different matter that under extraordinary jurisdiction enjoyed by the High Court under Article 199 of the Constitution, interference may be made with certain acts and orders of such Tribunals but that does not bring them in the hierarchy of the Courts under the High Courts or make them sub ordinate to it as mentioned earlier."

8. For the foregoing reasons, this application has no substance and is hereby dismissed. There shall, however, be no orders as to costs. M. z. M. Appeal dismissed.