2002 PLP (C (PLC(CS))

(iii) the existence of an Administrative Court or Tribunal to entertain the dispute with regard to the terms and conditions of service of persons in the service of Pakistan; (iv) the competence and the exclusiveness of the jurisdiction of the Administrative Court or Tribunal to entertain the dispute.

6. So far as the conditions mentioned at serial Nos.3 and 4 are concerned, there is no difficulty in appreciating their meaning, scope and connotation. However; the conditions mentioned at serial Nos. l and 2 need to be attended to and. explained because these have not to be understood according to one's own thinking but the definition given in the Statute and the Constitution has to be kept in mind in understanding them. I shall, therefore, first attempt to explain as to what are the meanings, import and the connotation of term "terms and conditions of service". In ordinary Urdu parlance, y the term "terms and conditions of service" means ("ﺖﻣﺯﻼﻤ ﻁﺌﺍﺭﺸ").However, the Legislature has not left this phrase to the imagination of a person and has taken care to define the phrase in the Statute .itself. The Statute is the Civil Servants Act, 1973 and the relevant sections are sections 3 to 22 of the Act. While sections 4 to 22 enumerate the terms and conditions of service of civil servant, section 3 says that the terms and conditions of service of a civil servant shall be as defined in this Act (Civil Servants Act, 1973) and the rules made thereunder. Condition No.2 referred to above was that the terms and conditions of service must be of persons in the service of Pakistan. It is, therefore, necessary to understand the meaning and the connotation of the words "service of Pakistan". This too has not been left to the imagination of a person but has been defined in Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 as under:‑‑ 'Service of Pakistan' means by service, post or office in connection with the affairs of the Federation or of a Province, and includes an All‑Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Majlis‑e‑Shoora (Parliament) or of a Provincial Assembly." To explain as to who is a civil servant, the words used in Article 260 of the Constitution to define service of Pakistan have been bodily lifted and incorporated in section 2(1)(b) of the Civil Servants Act, 1973. Civil servant has, therefore, been defined as a person who is a member of an All‑Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence.

7. Having explained the meaning and the connotation of the words "terms and conditions of service" as used in the Civil Servants Act, 1973 and Article 212 of the Constitution of Islamic Republic of Pakistan, .1973 and having examined the connotation of the words "service of Pakistan" and having seen the definition of a civil servant in section 2(1)(b) of the Civil Servants Act, 1973, it is now easy to imagine of the nature and character of the dispute which is entertainable by an Administrative Court or Tribunal as referred to in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 arid the Service Tribunals Act, 1973. With a view, therefore, to excluding the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the dispute must relate to:‑‑ (i) the terms and conditions of service; (ii) the terms and conditions of service must be of a civil servant; (iii) there should be a Service Tribunal to entertain the dispute relating to the terms and conditions of the civil servants; (iv) the dispute should be such as the Service Tribunal should be competent to entertain. If these four conditions are met, the jurisdiction of the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to entertain any such dispute which relates to the terms and conditions of service, of civil servants, for entertaining which there is an Administrative Tribunal and the said Tribunal is competent to entertain the dispute, is completely ousted by virtue of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. 8'. The above examination of the law was only theoretical so as to show as to when and in what circumstances the jurisdiction of the High Court to entertain any dispute under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with respect to any service matter was ousted. I shall now attempt to apply the above theory to the facts of the case in hand so as to .see as to whether the dispute brought before this Court in the above Constitution petitions by the petitioners is such as is the one with respect whereto the Service Tribunal alone has the jurisdiction. It is an admitted position that the only order challenged by the petitioners in all these petitions is the order of suspension passed by the respondent CBR/Government under section 4 of the Special Powers Ordinance, 2000 as amended. To oust the jurisdiction of the High Court uncle: Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 to entertain the dispute with respect to the order of suspension, what needs to be shown is:‑‑ (i) that the petitioners are civil servants; (ii) that the order of suspension as passed against the petitioners is an order which relates to the terms and conditions of service of the petitioners; (iii) that the order of suspension is an order which is appealable before the Service Tribunal; (iv) that there exists a Service Tribunal of exclusive jurisdiction to entertain the appeal of the aggrieved civil servants with respect to the order of suspension. It is been shown hereinabove in the body of this judgment with reference to Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 read with the definition of a civil servant as contained in section 2(1)(b) of the Civil Servants Act, 1973 that all the petitioners are civil servants. Thus, the first condition is met that the dispute must relate to a civil servant. The second condition as hereinabove discussed was that the dispute must relate to the terms and conditions of service. What, therefore, needs to be shown is that the order of suspension is an order which relates to the terms and conditions of service of the petitioners/civil servants. In this connection, a reference is made to section 16 of the Civil Servants Act, 1973 which reads as under:‑‑ "Efficiency and discipline.‑‑A civil servant shall be liable to prescribed, action and penalties in accordance with the prescribed procedure." This section 16 of the Civil Servants Act, 1973 reproduced hereinabove is amongst the sections of the said Act of 1973 which define the terms and conditions of service. As per this section 16, efficiency and discipline is a terms and conditions of service. Applying this definition as given in section 16 of the Civil Servants Act, 1973. to the impugned order of suspension, it shall be seen that the order of suspension has been passed under section 4 of the Special Powers Ordinance in connection the disciplinary proceedings set afoot against the petitioners/civil servants. The order of suspension, therefore, qualifies to be an order which relates to the terms and conditions of service, of the petitioners who are civil servants. The phraselogy used in Article 212(1)(a) also lends support to the argument that the order relating to suspension having been passed during the course of the disciplinary proceedings is an order which relates to die terms and conditions of service. For facility of reference Article 2121 1)(a) is reproduced hereunder: "matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters. " Having examined the nature and character of the order of suspension as passed against the petitioners with reference to section 16 of the Civil Servants Act, 1973 and Article 212(1)(a) of the Constitution of Islamic Republic of Pakistan, 1973 and having shown that the order of suspension having been passed against the petitioners during the course of disciplinary proceedings initiated against them is an order which relates to their terms and conditions of service, I shall now refer to the case‑law wherein the order of suspension has been held to be an order relating to the terms and conditions of service. Reference in this behalf can be made to: Muhammad Sadiq Khokhar v. Engineer‑in‑Chief Pakistan Army, G.H.Q. and another (1985 SCMR 63), in which it has been held that grievance of a civil servant arising out of the order of his suspension was germane to the terms and conditions of service and the dispute with regard thereto fell within the exclusive jurisdiction of the Service Tribunal under Article 212(2);

2. Akhtar Ali v. Province of Punjab (PLD 1992 Lahore 127), where the Constitution petition instituted by the petitioner assailing his suspension from service as also initiation of disciplinary action against him as held to be incompetent as the matter relating to the suspension of the petitioner and the initiation of disciplinary proceedings against him was held to be relating to the terms and conditions of service;

3. Province of Punjab and another v. Ch. Muhammad Ashraf and another (2000 PLC (C.S.) 118), in which the Honourable Supreme Court held that the matters relating to the terms and conditions of civil servants" would include suspension from service of a civil servant and Service Tribunal alone had the jurisdiction to adjudicate upon such matters. Having dealt with the question that the petitioner are civil servants and the order of suspension as passed against them relates to the terms and conditions of their service, I now proceed to examine the question that the order `of suspension as passed against the petitioners is an appealable order before the Service Tribunal. The case of the petitioners before this Court is that the order of suspension has been passed against them under the Special Powers Ordinance, 2000 as amended, which is a complete code in itself and has an overriding effect on all other law holding the field and that the Special Powers Ordinance, 2000 as amended makes no provision for an appeal against the order of suspension and as such their Constitution petitions to call in question the same are competent before this Court. In order, therefore, to attend to the question as to whether` the order of suspension is appealable before the Service Tribunal, it is necessary to reproduce sections 3, 4, 9, 10 and 11 of the Special Powers Ordinance, 2000 as amended and section 4 of the Service Tribunal Act, 1973 as unamended: Section 3 of the Special Powers Ordinance 2000 as amended. "Dismissal, removal and compulsory retirement etc.‑‑(1) Where, .in the opinion of the competent authority, a person in Government or corporation service, is‑‑ (a) inefficient, or has ceased to be efficient for any reason; or is guilty of being habitually absent from duty without prior approval of leave; or (b) guilty of misconduct; or (c) corrupt, or may reasonably be considered as corrupt, because‑‑‑ (i) he, or any of his dependents or any other person, through him or his behalf, is in possession of pecuniary sources or property, for which he cannot reasonably account for, and which are disproportionate to his know sources of income; or (ii) he has assumed a style of living beyond his known sources of income; or (iii) he has a persistent reputation of being corrupt; or (iv) he has entered into plea bargaining under any law for the time being in force and has returned the assets or gains acquired through corruption or corrupt practices voluntarily; or (d) engaged, or is reasonably believed to be engaged in subversive activities, and his retention in service in prejudicial to national security or he is guilty of disclosure of official secrets to any unauthorised person: or (e) found to have been appointed or promoted on extraneous grounds in violation of law and the relevant rules." Section 4: "Suspension.‑‑A person against whom action is proposed to be taken under subsection (1) of section. 3 may be placed under suspension with immediate effect if, in the opinion of the competent authority, suspension is necessary or expedient: Provided that the competent authority may, in an appropriate case, for reasons to be recorded in writing, instead of placing such person under suspension, require him to proceed on such leave as may be admissible to him from such date as may be specified by the competent authority." Section 9. "Representation and review.‑‑(1) A person who has been dismissed or removed or compulsorily retired from service or reduced to lower host or pay scale or against whom any order has been made under section 3 by the competent authority, may within fifteen days from the date of communication of the order prefer a representation to the Chief Executive or such officer or authority as the Chief Executive may designate: Provided that where the order has been made by the Chief Executive such person ray, within the aforesaid period, submit a review petition to the Chief Executive. (2) The Chief Executive, or an officer or authority, as may be designated for the purpose by the Chief Executive, may, on consideration of the representation, review petition and any other relevant material, confirm, set aside, vary or modify the order in respect of which such representation or review petition is made within sixty days thereof." . Section 10. "Appeal.‑‑Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under section 9 may, within thirty days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973 (LXX of 1973)." Section 11. "Ordinance to override other law.‑‑The provisions of this ordinance shall have effect notwithstanding, anything to the contrary contained in the Civil Servants Act, 1973 (LXXI of ‑1973) and the rules made thereunder and any other law for time being in, force." Section 4 of Service Tribunals Act. 1973. "Appeal to Tribunals.‑‑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." Section 3 of the Special Powers Ordinance, 2000 as amended as reproduced hereinabove prescribes various penalties which can be imposed on the accused civil servant. Section 4 provides for the suspension of a civil servant against whom disciplinary action is initiated. Section 9 provides that if the order of dismissal removal, reduction to lower rank or pay scale has been passed against a civil servant by an authority designated by the Chief Executive, the said civil servant shall have a right to file a representation to the Chief Executive or such officer or authority as designated by him and in case any such order has been passed by the Chief Executive himself, an aggrieved civil servant shall file a review petition before the Chief Executive under section

9. The order passed on the representation of aggrieved civil servant by the designated authority or order passed on the review petition of the aggrieved civil servant by the Chief Executive shall be the final order where against appeal is provided for in section

10. Section 10 enjoins that if a civil servant feels himself aggrieved of a final order within the meaning of section 9, he shall have a right of appeal before the Service Tribunal. Section 11 gives the Special Powers Ordinance, 2000 as amended overriding effect so as to say that the said Ordinance shall have effect notwithstanding anything to the contrary contained in the Civil Servants Act, 1973 and the rules made thereunder and any other law for the time being is force.

9. The cursory glance at the provisions of sections 3, 9 10 and 11 would show that if, a civil servant feels himself aggrieved of a final order within the contemplation of section 9, he shall have a right of appeal before the Service Tribunal notwithstanding anything to the contrary contained with respect to the filing of appeal against such a final order in any other law: Section 10 which makes provision for appeal nowhere provides that a civil servant can feel aggrieved of a final order only and not of an order simplicitor.. If the intention of the law maker was to debar an aggrieved civil servant from filing an appeal against an order which was not final, the phraseology used in section 10 of the Special Powers Ordinance, 2000 as amended would have been in a different language. In that event, it should have provided that notwithstanding anything to the contrary contained in any other law for the time being in force, no aggrieved civil servant whether by a final order or by any other order shall have a right of appeal except under section

10. This, however, is not so as is clear from the bare reading of section 10 whereunder the right of appeal has been conferred only against a final order. . No other order is mentioned in this section

10. So far as the overriding effect of section 11 of the Special Powers Ordinance, 2000 as amended is concerned, a civil servant aggrieved by a final order shall have a right of appeal only under section 10 of the Special Powers Ordinance, 2000 as amended and to under section 4 of the Service Tribunals Act as unamended as the said section also makes a provision for filing of an appeal by an aggrieved civil servant against a final order. Section 4 of the Service Tribunals Act, 1973 was amended by Ordinance XVII of 1997 whereby the word "final" in section 4 of the Service Tribunals Act, 1973 was ommitted. Thus, section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of' 1997 now reads that any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within 30 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. Thus, pursuant to the amendment made in the Service Tribunals Act, 1973 by Ordinance XVII of .1997, any aggrieved civil servant can file an appeal against any order which affects the terms and conditions of his service.

10. I have already held hereinabove with reference to section 16 of the Civil Servants Act, 1973, Article 212 sub-Article (1)(a) of the Constitution of Islamic Republic of Pakistan, 1973 and 1985 SCMR 63, 2000 PLC (C.S.) 118 and PLD 1992 Lahore 127 that the impugned order of suspension in an order which relates to the terms and conditions of the petitioners and with reference to section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997:that such an order is appealable before the Service Tribunal. Now, neither the order of suspension passed against the petitioners under, section 4 of the Special Powers Ordinance, 2000 as amended is a, final order nor, is it the case of any of the petitioners that it is so. Section 10 of the Special Powers Ordinance, 2000 as amended which makes provision only for filing of an appeal against a final order is, thus, not applicable to the order of suspension. In the presence of section 4 of the Service Tribunals Act as amended by Ordinance XVII of 1997, none of the petitioners can contend that the order of suspension as passed against them under section 4 of .the Special Powers Ordinance, 2000 as amended is an order which has rendered them remediless and, therefore, they have knocked‑.at the door of this Court by invoking Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The net result of this discussion is that the third condition that in order to oust the jurisdiction of the High Court there must be an appealable order before the Service Tribunal where against an aggrieved civil servant can file appeal is also met. So far as the availabilily of the Service Tribunal to entertain an appeal against such an order is concerned, it is nobody's case that the Service Tribunal is non‑existent. In short, all the four conditions necessary for the ouster of jurisdiction of the High Court by applying Article 212 of the Constitution are present in this case in that the order of suspension relates to the petitioners' terms and conditions of service who are civil servants and it is appealable to the Service 'tribunal under section 4 of the Service Tribunals Act, 1973 as amended and the Tribunal is very much in existence to entertain the appeal filed against such an order. This being so, remedy of appeal being available to all the petitioners under section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997, ouster of jurisdiction of the High Court under Article 199 of the Constitution is complete by virtue of the express language of Article 212 of the Constitution. The net result of the foregoing discussion is that this Court has no jurisdiction to entertain the Constitution petitions filed by the petitioners under Article ‑199 of the Constitution of Islamic Republic of Pakistan, 1973 as the same are barred by the express language, of Article 212 of the Constitution. For this view, of the law which I take as to the ouster of the jurisdiction of the High Court by virtue of Article 212 of the Constitution, I am fortified by the law laid down in Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290), Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another (1990 SCMR 999), Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 2129), Khalid Muhammad Watto v. Government of Punjab and others (1998 SCMR 2280) and Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lahore,.545).

11. Having attended. to and disposed of the preliminary objection of the learned Deputy Attorney‑General for Pakistan as to the petitioners' Constitution petitions being barred by Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, 1 now proceed to attend to the questions of law raised by and on behalf of all the petitioners by their learned counsel which have been reproduced in para. 2 of this judgment. The first such proposition put forth by learned counsel for the petitioners with reference to preamble of the Special Powers Ordinance, 2000 was that the petitioners were not civil servants. This plea of learned counsel for the petitioners was neither innocent nor raised without any object. The object was to oust the jurisdiction of the Federal Service Tribunal to entertain the dispute as convassed by the petitioners in these petitions. For, it is only the dispute of a civil servant relating to the terms and conditions of his service which can be agitated against and taken to the Service Tribunal and if, as contended by the petitioners, they are hot civil servants, there is no question of their filing an appeal before the Service Tribunal with regard to the dispute as canvassed, by them before this Court. However, I have already held with reference to Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 where service of Pakistan has been defined and with reference to section 2(1)(b) of the Civil Servants Act, 1973 that all the petitioners are civil servants. So, the first legal proposition raised by and on behalf of the petitioners that they are not civil servants is answered in the negatived it is held that they are civil servants. Coming now to the second proposition of law raised by learned counsel for the petitioners that the order of suspension not being a final order is not appealable before the Service Tribunal under section 10 of the Special Powers Ordinance, 2000 as amended, I have already held that the order of suspension not being a final order is nonetheless appealable before the Service Tribunals under section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997. The third proposition put forth by learned counsel for the petitioners that the orders of suspension does not relates to the terms and conditions of the petitioners nor is it appealable before the Service Tribunal in view of the language of section 10 of the Special Powers Ordinance, 2000 as amended which makes only a final order appealable thereunder has also been held by me while dealing with the preliminary objection of the learned Deputy Attorney‑General for Pakistan as incorrect. With reference to 1985 SCMR 63, PLD 1992 Lahore 127 and 2000 PLC (C.S.) 118, I have already held that the order of suspension as passed against the petitioners under section: 4 of the Special Powers Ordinance, 2000 as amended is an order which relates to the terms and conditions of service of the petitioners who are civil servants. Whether or not the order of suspension is appealable before the Service Tribunal, the said question too has been answered in the affirmative that it is appealable before the Service Tribunal under section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997. The next contention of learned counsel for the petitioners to the effect that the Special Powers Ordinance, 2000 as amended was a complete code in itself and had not made any provision for filing of an appeal against the order of suspension and as such the same could only be brought under challenge before this Court in its Constitutional jurisdiction is also held to be wholly fallacious while dealing with the preliminary objection raised by the learned Deputy Attorney‑General for Pakistan, I have already held that the order of suspension is appealable before the Federal Service Tribunal under section 4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997 and that at the provision of section 10 of the Special Powers Ordinance, 2000 as amended which provide for an appeal only against a final order have no application for the r purposes of the appeal against the order of suspension. The next contention of learned counsel for the petitioners was that the order of suspension was bad iii law in that they were riot confronted with any material on the basis whereof the disciplinary action was initiated against them prior to the passing of the order of suspension. The argument, to say the least, is wholly baseless, unfounded and without any merit. Mr. M. Akram Sheikh, Senioi Advocate Supreme Court, had specifically raised this objection before this Court. He was prompted to raise this objection on the basis of the language employed in section 3 of the Specials Powers Ordinance, 2000 as amended, which was to the effect that:‑‑ "Where in the opinion of the competent authority, a person in Government or Corporation service, is‑‑‑ (a) inefficient or has ceased to be efficient for any reason; or is guilty of being habitually absent from duty without prior approval of leave; or (b) guilty of misconduct; or (c) corrupt, or may reasonably be considered as corrupt, because‑‑ (i) he; or any of his dependents or any other person, through him or on his behalf, is in possession of pecuniary sources or of property, for which he cannot reasonably account for, and which are disproportionate to his known resources of income; or (ii)??????? he has assumed a style of, living beyond his known sources of income; or (iii)?????? he has a persistent reputation of being corrupt; or (iv) he has entered into plea bargaining under any law for the time being in force and has returned the assets or, gains acquired through corruption or corrupt practices voluntarily; or (d) en a ed or is reasonably believed to be engaged, in subversive activities, and his retention in service is prejudicial to national security or he is guilty of disclosure of official secrets to any unauthorized person; or (e) found to have been appointed or promoted on extraneous grounds in violation of law and relevant rules. " The contention of Mr., M. Akram Sheikh, Senior Advocate Supreme Court was that the words "is inefficient, has been found to be, is guilty of, has been found to be in possession of," have been used before the charge levelled against each civil servant. These words, according to the learned counsel, were suggestive of the fact that some inquiry had already been held against the accused civil servant on the basis whereof it was being said that he was inefficient or that he had gone corrupt or that he was found to be in possession of pecuniary resources etc., but that the said inquiry had neither been held nor the petitioners confronted with the same. The argument of the learned counsel is wholly misconceived. The words used in section .3 of the Special Powers Ordinance, 2000 as amended denote only the charges against the accused civil servants. The question of confronting them with these charges or, of holding inquiry is a question which, shall come later after the Inquiry Office of the Inquiry Committee is appointed under section 5 of the Special Powers Ordinance, 2000 as amended. There was nothing new in the, phraseology used in section 3 of the Special Powers Ordinance 2000 as amended about which Mr. M. Akram Sheikh, Senior Advocate Supreme Court raised a lot of hue and cry. A reference to rule 3 of Efficiency and Discipline Rules, 1973 would (sic) that exactly the same phraseology has been used in the said rule, caption whereof is, ground for penalty. Every one knows that when a civil servant is proceeded against under the Efficiency and Discipline Rules, 1973, the first step is to frame charges against the accused civil servant and at the time of framing the charges, no inquiry has ever been held. The inquiry is held only when the charges have been communicated to the accused civil servant and the Inquiry Officer or the Inquiry Committee is appointed for the purposes of inquiry, where evidence is led before the Inquiry Officer or the Inquiry Committee in support of the charges. The question is, has any civil servant who is‑ proceeded against under the Efficiency and Discipline Rules, ever contended that the inquiry should be held before the framing of charges against him. The answer is, neither has any accused civil servant ever demanded the holding of an inquiry prior to the framing of charges nor has he ever alleged to have been condemned unheard on account of such an inquiry not having been held. The reason is very simple and it is this, that there cannot be an inquiry before inquiry or a trial before trial and this is what Mr. M. Akram Sheikh, Senior Advocate Supreme Court is asking for. During the course of the arguments, the learned Deputy Attorney‑General as also Mr. Vakeel Ahmad Khan, Member Administration C.B.R. submitted in the open Court that charge‑sheets/lists of allegations have already been served on most of the petitioners and the rest of the charge‑sheets/list of allegations are in the process of being served on the remaining petitioners and that no inquiry shall be held without first putting the accused civil servant on notice as to the charges/allegations against him and that every accused civil servant shall be confronted with the charges/allegations against him during the course of inquiry and that no civil servant shall be punished unless a finding has been recorded against him after confronting him with the allegations/charges, as formed the basis of the disciplinary action against him. I have no reason to disbelieve or to entertain any doubt about the assurance given by the learned Deputy Attorney‑General for Pakistan as also by Mr. Vakeel Ahmad Khan, Member Administration C.B.R. Islamabad and feel satisfied that no accused civil servant shall be condemned unheard. The next two propositions put forth by learned counsel for the petitioners relates to the impugned order of suspension. The first ground of attack against the order of suspension is that the Special Powers Ordinance, 2000 as 'amended does not make any provision for suspending accused civil servant for six months. However, in the case in hand, what to speak of suspension for .a period of six months, the same was extended for another period of six months. Secondly that the order of suspension was stigmatic and had the effect of condemning the petitioners unheard. Taking the last contention first as to the order of suspension being stigmatic, the same is without any basis for the reason that no allegation whatsoever has been levelled while passing the order of suspension against the petitioner. As to there being no provision in the, said Ordinance, 2000 as amended for passing an order of suspension for a period of six months and then extending it for another six months, suffice it to say, that in the absence of any provision in the Special Powers Ordinance, 2000, as amended for this sort of suspension, the worst which can be said against the respondent C. B. R. /Government is that the action of the respondent is wholly illegal and violative of the Ordinance itself. Now, if it is so, remedy of the aggrieved civil servants/petitioners was to challenge this order of suspension in appeal before the Service. Tribunal and have .it struck down on the aforestated grounds of being illegal and violative of the Special Powers Ordinance, 2000 as amended. However, the illegality of the action of the C.B.R./Government shall not have the effect of conferring jurisdiction on , this Court to entertain their petitions with respect to a dispute which falls squarely within the jurisdiction of the Service Tribunal in view of the express bar contained in Article. 212 of the Constitution of Islamic Republic of Pakistan, 1973. 12: The other proposition of the petitioners for justifying the maintainability of their Constitution petitions before this Court was that the Special Powers Ordinance, 2000 as amended was violative of the petitioners' fundamental rights conferred on them by Chapter No.1 Part II of the Constitution of Islamic Republic of Pakistan, 1973 and as such was ultra vires the Constitution. It was contended that the infringement of fundamental E rights was a question which could not be gone into by the Tribunal and the appropriate forum for entertaining the dispute relating thereto was the High Court in this Constitutional jurisdiction. This contention of the petitioners like the ones already raised is also misconceived. In the very judgment on which learned counsel for the petitioners heavily relied i.e. I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), it has been held that a civil servant cannot bypass Service Tribunal by adding a ground of violation of the Fundamental Rights and that the Service Tribunal will .have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights. In Fazal Elahi Ejaz and 22 others v: Government of the Punjab and 13 others (PLD 1977 Lahore 549 (D.B.). It has been held that the question of vires of the State or the statutory rules can also be gone into by the Service Tribunal. The vires of the Special Powers Ordinance, 2000 as amended can, therefore, be brought under challenge before the Service Tribunal. No ground exists to maintain a petition before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 on the ground of vires of the Special Powers Ordinance, 2000. In Iqnan Ahmad Khurram v. Government of Pakistan and others (PLD 1980 SC 153), too it has been held that the Service Tribunal, competent to go into the wires of the Statute or the statutory rules.

13. It was next contended on behalf of the petitioners that even if it was assumed that they had a right of appeal before the Service Tribunal in respect of their grievance arising out of the order of suspension, that said right of appeal was only illusory in that in the absence of any security of tenure of office of the Chairman and the Members of the Tribunal, they could not effectively attend to the petitioners' attack directed against the Special Powers Ordinance, 2000 as amended. This argument of the petitioners has not impressed me, either. In fact this plea was raised by learned counsel for the petitioners on the basis of a judgment of the Full Bench of the Lahore High Court i.e. Imran v. Presiding Officer, Punjab Special Court No‑VI, Multan and 2 others (PLD 1996 Lahore 542). The hard fact is that in spite of the said judgment of the Full Bench rendered in 1996, the Service Tribunal continues to exist eversince and is exercising jurisdiction in the matters falling within its ambit. Should, however, a Service Tribunal fail or falter in attending to a question of law or public importance in exercising its jurisdiction, an aggrieved civil servant can take his appeal to the Honourable Supreme Court and have the illegality, if any, found in the order of the Tribunal set aside. Yet another proposition putforth on behalf of the petitioners was that the Special Powers Ordinance as originally promulgated on 27‑5‑2000 provided for suspension as one of the penalties enumerated in section 3 thereof. However, the said section was amended through the amending Ordinance of 2001 and the penalty of suspension was deleted from it. This deletion of the penalty of suspension from section 3 was not accidental but had an object behind and the object was to make the provision of appeal provided for under section 10 of the Ordinance only to a person aggrieved of a final action taken under section 9 with respect to any of the penalties enumerated in section 3 of the Ordinance. This would, it was contended, clearly mean that the penalty of suspension having been deleted from section 3 of the Ordinance, there would be no appeal against 'the penalty of suspension, the same having been deleted from section 3 of the Ordinance, as aforesaid. The argument is altogether without force. The order of suspension has never been held to be a penal order. Suspension is not a penalty like the dismissal, removal, reduction in rank or reduction to lower pay scale etc. The word "suspension" had wrongly been mentioned section 3 of the Special Powers Ordinance, 2000 as amended as one of the penalties prescribed by the said section. On realizing that suspension is riot a penalty like removal, dismissal etc., it was deleted from section 3 by the amending Ordinance of 2001. The order of suspension is only incidental and ancillary to the disciplinary action taken against the accused civil servant and holds good for the interim period during which the disciplinary action remains under process. Suspension being not a penalty, there was no question of an appeal having been provided against it in terms of section 9 under section

10. However, as an order relating to the terms and conditions of the petitioners, it is appealable under section 4 of the Service Tribunals Act, 1973 as amended. Remedy of appeal being available against the order of suspension in terms of section 4 of the Service Tribunals Act, 1973 as P amended in 1997, there is no question of the suspended civil servant being rendered remediless.

14. Reliance was placed on the judgment rendered by the Sindh High Court. in the matter of the Constitution petition filed by some of the aggrieved civil servants at Karachi against the order of their suspension and it was contended by learned counsel for the petitioners Raja Muhammad Anwar, Senior Advocate Supreme Court that in the said Division Bench judgment, the. order of suspension was held to be not amenable to the jurisdiction of the Federal Service Tribunal and that the said judgment was binding on this Court sitting singly. True it was, no doubt, that a learned Division Bench of the Sindh High Court had recorded a finding to the aforesaid effect but its judgment certainly could not override the law laid down in Muhammad Sadiq Khokhar's case (1985 SCMR 63) and in 2000 PLC (C.S.) .118 wherein the Honourable Supreme Court held the order of suspension as an order relating to the terms and conditions of service and being, amenable to the jurisdiction of the Federal Service Tribunal. The other contention of learned counsel for the petitioners was based upon a Division Bench, judgment of the Sindh High Court rendered in the matter of the civil suit in which the decree: was passed against the responder C.B.R./Government and on a petition for leave to appeal being filed by the C.B.R./Government against the said decree, the Honourable Supreme Coin did not interfere and as such the order of the learned Division Bench of the Sindh High Court was upheld. In the first instance, the judgment of the learned Division Bench of the Sindh High Court in the matter of the civil suit instituted by the aggrieved civil servants in the said Court is distinguishable in that the Sindh High Court had dealt with the question of OSDs and in the decree passed by it held that making the aggrieved civil servants as OSD was a question relating to their fitness to hold the posts previously held by them and as such the said question was held to fall outside the jurisdiction of the Federal Service Tribunal in view of the provisions of section 4(l)(b) o the Service Tribunals Act, 1973. However, no question of fitness is involved in the petitions under consideration before this Court. It is the settled law that the decision rendered by a Court is a precedent for the point mooted and decided. The question of fitness has not been mooted in the present petition and, therefore, the judgment of the Division Bench of the Sindh High Court is not a precedent for the purposes of these petitions. So far as the question of non‑interference by the Honourable Supreme Court with the said judgment of the Division Bench of the Sindh High Court is concerned, suffice it to say that the Honourable Supreme Court did not attend to them merits of the judgment of the Division Bench of the Sindh High Court but simply declined to grant leave against the said judgment on the ground that the Department/CBR had itself implemented the judgment of the Division Bench and as such nothing was left for the Honourable Supreme Court to decide. This observation of the Honourable Supreme Court cannot be held to have approved the judgment of the Division Bench of the Sindh High Court with respect to its merits. It teas been contended by learned counsel for the petitioners that because of non‑interference by the Honourable Supreme Court with the said judgment of the Sindh High Court, the same continues to hold that field and being a Division Bench judgment is binding on this Court. It has already been pointed out that the said judgment of the Division Bench of the Sindh High Court stands entirely on a different footing in that, as aforesaid, it has field the order appointing the affected civil servants as OSDs as an order relating to their fitness and as such out of the purview of the Service Tribunal and to the extent, the judgment of the High Court of Sindh is correct. However, the said judgment is not a precedent as aforesaid for the purposes of the present petitions as no question of fitness is involved in these petition.

15. Having taken up the legal propositions put forth by learned counsel for the petitioners one by one anti having dealt with them in extenso, the same have been found to be without any force and repelled. The net result is that the preliminary objection raised by Mr. Mansoor Ahmad, learned Deputy Attorney‑General for Pakistan with respect to the ouster of the jurisdiction of this Court by virtue of the bar contended in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, prevails. All these petitions are, therefore, held to be incompetent because of the said bar of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 and are dismissed as such leaving the parties to bear their own costs. Q.M.H./M.A.K./M‑733/L ????????????????????????????????????????????????????????????????? Petition dismissed.