UNDER THE DOCTRINE OF ALTERNATIVE INSTITUTIONAL MECHANISM, SHARING JUDICIAL POWERS, FORMING PART OF JUDICATURE UNDER ARTICLE 212 OF CONSTITUTION OF PAKISTAN, ARE SERVICE TRIBUNALS ENACTED AND ESTABLISHED THROUGH OUT THE COUNTRY. THE HONORABLE SUPREME COURT OF PAKISTAN IN CASE REPORTED AS 2013 PLC (CS) 1308 HAS HELD THAT THE SERVICE TRIBUNALS ARE CREATION OF CONSTITUTION AND BE TERMED AS “COURTS” UNDER ARTICLE 175 BY APPLYING THE READING DOWN THEORY.
Wednesday, April 6, 2011
ARTICLE212: JURISDICTION OF HIGH COURT IN TERMS AND CONDITIONS OF SERVICE
JURISDICTION: TERMS AND CONDITIONS OF CIVIL SERVANTS by Zohaib Imran Advocate email@example.com
INTRODUCTION: The term jurisdiction has manifold jurisprudential concepts, flowing from the statute as a power to adjudicate claimed by any court of law or tribunal. Jurisdiction has always been subject to the law, right from where it emanated, essentials enumerated or provided in particular lis must have to be read together before court/tribunal reaches to definite conclusion as to question of jurisdiction. The term jurisdiction is not alien to the existence of court/tribunal as it is for the court/tribunal to decide about the question of its own jurisdiction. The philosophy behind jurisdiction may have procedural aspects but over-all it affects the substantive right granted under a particular statute if such procedural requirement is not fulfilled.
JURISDICTION & JUDICIAL POWER: The high court under Article 199 often claimed judicial power to entertain a particular case before it notwithstanding the ouster provided in other constitutional provisions. The term “judicial power” has undergone many interpretations by superior courts of our country, in my view; it cannot exist independent of jurisdiction. The term judicial power is subject to existence of jurisdiction as provided in Article 199 itself, which starts from “Subject to the constitution” and as such, have to be interpreted along with other constitutional provisions curtailing the jurisidciton of high court. in 1997 SCMR 167 & 169 civil servants approaching high court by filing writ petitions and getting interim orders in their favour. The aggrieved party filed the petition before the honourable Supreme Court of Pakistan claiming therein that learned high failed to decide question of its own jurisdiction first before proceeding further into the matter, on this ground, Supreme Court remanded back both the cases to the high court for decision as to question of its own jurisdiction first before proceedings further into the matter.
CREATION OF SERVICE TRIBUNALS UNDER ARTICLE 212: Many researches having been conducted on the performance and functioning of service tribunals, most of the civil servants showed discontentment and lack of trust over the proceedings undertaken by the tribunals. The most important reasons behind such non-confidence perhaps is appointment of “Executive class” as members of service tribunals, statements whereof obtained from different groups of public is relied here. The civil servants or even lawyers have don’t find the action of government as reasonable while not appointing the serving Judicial Officers viz District & Sessions judges as members of tribunals. Another element of discontentment is appointment of members of service tribunal without consultation by the respective high court concerned. The speech aired by Zulfiqar Ali Bhutto, Late Prime Minister of Pakistan, even did not imply that members of tribunals would be immune from any judicial supervision. One of the members of Federal Service Tribunal (Mr Moazam Hayat) even wrote on this issue to substantiate that appointments in tribunals be made in meaningful consultation with the respective high courts. The said reasons are major contributory in the minds of litigants approaching high courts while ignoring the bar contained in Article 212 of constitution of Pakistan.(Reference to my earlier article published as PLJ 2010 MAG 56 would definitely be beneficial at this point)
DEPARTMENTAL AUTHROITY AND BAR OF ARTICLE 212: There is no cavil to the proposition that service tribunals have exclusive jurisdiction in matters falling within the terms and conditions of civil servant. Be that as it may, the essentials enumerated in Section 4 of Punjab Service Tribunal Act 1974 (hereinafter referred to as “PST ACT 1974) (read with other statute para materia) are cumbersome, rather not self explanatory or executory. In 2007 PLC CS 285 Mr Justice Syed Zahid Hussain (as his lordship then was) allowed the writ petition filed by the civil servant filed against stoppage of his pay on the legal ground that since the stoppage of pay was not directed or ordered by his departmental authority but by Accountant General, therefore bar of Article 212 is not applicable as such. Meaning thereby the term “Departmental Authority” is important and can over ride the other essentials provided in Section 4 of ACT 1974. On the other hand, an analogy is inferred from the judgment cited supra that all the essentials of Section 4 of PST ACT 1974 must have to be complied with by the civil servant before invoking jurisdiction of Service Tribunals. On the other hand, superior courts have also held that departmental authority does not necessarily mean competent authority, but it should be notified in line with the relevant statute wherefrom the power is acclaimed.
TRANSFER ORDER PASSED BY POLITICIANS: Philosophy behind throwing challenge to orders of Extra-departmental authorities before high court is that according to rules it is only the departmental authority whose order is impugned can be impleaded as respondent in the appeal before the tribunal. So whenever the transfer order is passed is MNA/MPA directly or indirectly high court under Article 199 entertained and allowed the writ. In 1997 PLC CS 199 single judge of Lahore high court Lahore held that transfer of civil servants being part of terms and conditions of their service, would fall within exclusive jurisdiction of appropriate Service Tribunal. Jurisdiction of High Court under Art. 199 of the Constitution stands barred by express provisions of Art. 212 of the Constitution in such matters. Further held that where transfer order was passed by Departmental Authority but same was passed on direction of extra departmental authority i.e., M.N.A./M.P.A./Minister or on any other extraneous consideration, then such order would also have to be agitated before and decided by appropriate Service Tribunal. The court further held that transfer order of civil servant could be impugned in appeal directly before service tribunal, without first assailing the same before higher departmental authorities. While concluding the judgment the honourable judge held that where, order of transfer/posting was made by incompetent extra Departmental Authority e.g. by M.N. A./M.P.A./Minister without support of any formal order of competent Departmental Authority, then such incompetent order could be assailed in Constitutional jurisdiction. The writ petitions against such orders passed by extra departmental authorities are entertained on the ground that since MPA/MNA being not departmental authority, according to rules and law, cannot be made respondents in Service Appeal before the tribunal, as such the only remedy available with the affected person/civil servant is to invoke constitutional jurisidciton of high court under Article 199.
JURISDICTION OF HIGH COURT UNDER ARTICLE 199 IN TRANSFER AND POSTING: The Honourable Division Bench of Quetta High Court Quetta has in its recent judgment given new dimensions to the concept of writ jurisdiction in transfer and posting of civil servant. In 2010 PLC CS 1046MRS. SYEDA TAHIRA SAFDAR, J while speaking for the bench held that actof transfer however was in violation of policy laid down by the Government and the impugned transfer and posting of the petitionerwere made only on wish of some Minister,whichwas neitherlegalnor proper. It was further held that departmental authorities alone had the power to order transfer and posting of civil servant. Another important arena whereupon the honourable court divulged was that posting of an officer of lower grade on the post of higher grade in the presenceof officerof similar grade was declared to be bad in eyesof law. The court further propounded that there being violationof law inrespectof transfer,Service Tribunal had no jurisdiction to entertain the matter, and also on the ground that in absence of any other adequate remedy available in the matter, the constitutional jurisdictionof High Court could be invoked by an aggrieved person and High Court had the jurisdiction to entertain constitutional petition which was ultimately allowed. In my humble view all depends upon the philosophy of a Particular judge to adjudicate in prescribed formats. In AIR 1982 SC 1325 at page (1332) the honouralbe judge while giving philosophical reasons against the imposition of death penalty upon humans held that death penalty is not a mere legalistic problem which can be answered definitely by the application of logical reasoning but it is a problem which raises profound social and moral issues and the answer must therefore necessarily depend on the judicial philosophy of the judge. The honourable judge further held that judicial conclusion emanate from the judicial philosophy of those who sit in the judgement and not from the language of the constitution. On the other hand, our Superior courts many times have held that they have unbridled, unfettered and unlimited jurisidciton and barring jurisdiction clauses were always treated to be narrower in scope.
JURISDICTION OF SERVICE TRIBUNALS:
INVOKATION OF: Theexistence of order affecting the terms and conditions of civil servant and he being aggrieved of that order is sine qua non for invoking jurisdiction of Service Tribunal. Unless there was a specific order adversely affecting the civil servant and he was found aggrieved, jurisdiction of Service Tribunal could not be invoked and in those matters jurisdiction of Civil Courts, High Court, would remain intact. The reason being so, tribunal are of limited jurisdiction and can assume jurisdiction and deal with the orders challenged before them and cannot exercise extra-ordinary jurisdiction just to counter the prospective damage to the terms and conditions of civil servant. And while examining the legality of adverse order, Service Tribunal could strike down the order or a rule, having the effect of adversely affecting the terms and conditions of the civil servant, it could issue directions of the appropriate nature to dilute the adverse effect of impugned order but when a Departmental Authority would not act under law or rule, prolong or delay the matter the jurisdiction of High Court would remain intact to issue a direction to Authority to act in accordance with law and rule. In contradistinction, where the vested rights of a civil servant are likely to be adversely effected against law or rule by any proposed or threatened action of the departmental authority, the High Court can intervene. The question of prospective declaration or direction would not arise or restrain the high court to issue writ.
In1990 P L C (C.S.) 637, civil serant was removed from service under Sindh Police (Efficiency and Discipline) Rules, 1988 and challenged his removal by filing writ petition, which was dismissed on the ground being barred under Article 212 of Constitution. The honouralbe court further held that service tribunals are quasi judicial forums and can go into the merits of the case as well as discretion exercised by the authorities. In 1990 PLC CS 185 civil servant approaching high court under Article 199 against disturbance of his seniority due to the reservation of posts and fixation of ratio in same grade for purpose of promotion. The arguments of petitioner also include that there is violation of law and tribunal had no jurisdiction for declaration as such, hence high court has the jurisdiction. But the honourable court apart from dismissing the petition held that Service Tribunal is deemed to be a Civil Court for purpose of deciding any appeal before it with all powers under Code of Civil Procedure and further held that Service Tribunal like any Civil Court would have jurisdiction to examine whether or not a law is void by reason of its conflict with Fundamental Rights or is otherwise ultra vires or that order made is mala fide. But in case reported as 2002 PLC CS 1527 service regulations were challenged but high court allowed the writ on the ground that no where the terms and conditions of service is involved.
In PLD 2004 SC 317 amendment made by the Authorities in rules regarding promotion, was assailed before High Court under Art.199 of the Constitution, by the civil servants, whereby the learned high Court declared the amendment as ultra vires of the vested right of the civil servants. Authority feeling aggrieved challenged the judgment of high court in Supreme Court and plea raised by the Authorities was that under Art. 212 of the Constitution, the jurisdiction of High Court was barred as the matter pertained to terms and conditions of service, which argument found favour of the Honourable Supreme Court of Pakistan and ultimately held that remedy for the civil servants was to file appeal before Service Tribunal and jurisdiction of High Court in such matter was barred.
DISCHARGE OF PROBATIONER UNDER RULE 12.8 OF POLICE RULES 1934: 1998 PLC CS 770: In this referred case, officiating Prosecution Sub-Inspector was discharged from service on the ground he did not know the job and as such, terminated during the probationary period. The petitioner’s counsel relied upon PLD 1974 SC 393 in order to vest jurisdiction in high court. But the learned high court developed a new law qua fitness of a person to be appointed or to hold a particular post and dismissed the petition. The court held as under”
At any event, the matter pertains to the fitness of the petitioners to hold specific posts. The competent Authority has found that the petitioners are not fit to hold such posts. In matters of this genus subjective as well as objective considerations come into play at the departmental level and it is for that reason that matters of the kind are not open to scrutiny before Courts as postulated in section 4(1), proviso (b) of the Service Tribunals Act. At the same time, even such a matter of fitness of a person to be appointed to or hold a particular post as also to be promoted to a higher post will remain within the purview of the departmental authorities to examine further and that can be done through an appeal or review, where expressly provided for, and a representation where no provision for appeal or review exists. That is the only remedy in such matters. There, if any manifest illegality is involved, an appropriate plea can be advanced. Against the final order, if violation of law is claimed, an aggrieved civil servant, and a probationer is, covered by the category, may move the Service Tribunal. Even so, in cases involving fitness to hold a post, the jurisdiction of the Tribunal should be confined only to the element of illegality, if any, and no more.”
The above law expounded by honourable high court was impliedly followed by Federal Service Tribunal in case cited as 2007 PLC CS 1246, relevant portion is reproduced as under:- “Matter of fitness of promotion. Jurisdiction of Service Tribunal to look into such matter. Authorities contended that Service Tribunal had no jurisdiction under the law to look, into the matter of fitness for promotion. Ordinarily, that argument would be valid and the Tribunal would not look into the matter of fitness for promotion, but the Tribunal could examine the: question of fitness for promotion, if it was claimed before it on the strength of arguments that an eligible officer had been bypassed for promotion in violation of the. Promotion policy etc. Service Tribunal was fully competent to examine the question of fitness for promotion, if it was alleged that appellant had been bypassed/superseded in violation of the promotion policy in question
In Muhammad Iqbal and others v. The Government of the Punjab and others (1995 SCMR 1047) somewhat identical matters arose before their lordships of the Supreme Court wherein large sale termination of school teachers had been ordered. The petitioners whose services had been terminated firstly approached the High Court in writ jurisdiction and then the matter went up to the Supreme Court wherein it was observed as follows:-
"If the petitioners' appointments were in accordance with law as contended by them, termination of their services without any justifiable reason would entitle them to maintain appeals before the Service Tribunal and not a writ petition or Intra-Court Appeal or the present petitions for leave to appeal. The Service Tribunal is competent to go into the question, whether their appointments were made in accordance with law and whether termination of their services was warranted by law in view of clear, provision of Article 212 of the Constitution. In this behalf, reference may be made to a recent judgment of this Court in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539). We are, therefore, of the view that the present petitions for leave to appeal are misconceived. The petitioners should approach Services Tribunal. It was pointed out by the learned counsel for the petitioners that if the petitioners will now file appeals before the Tribunal, the same may be treated time-barred. It was suffice to observe that the petitioners may file applications for condonation of delay and the learned Service Tribunal will consider the above applications keeping in view the peculiar facts of the present case and the factum that a large number of people are involved therein."
MALA FIDE ORDER: JURISDICTION OF HIGH COURT UNDER ARTICLE 199: The Lahore high court Lahore in case cited as 2010 PLC (CS) 51 held that Provisions of Art. 212 of the Constitution having a non obstante clause would have an overriding effect over the constitution. So far plea of order being mala fide is concerned, suffice would be to refer the judgment of Supreme court in case cited as 1998 SCMR 2280, which also reiterates the view taken by the superior Courts in such matters. Paragraph No. 7 of the judgment at page 69 is instructive on the point: ‑
"It has also been argued by the learned counsel that the writ petition under Article 199 was competent as the impugned order was mala fide inasmuch as it had been passed to deprive the petitioner, who is from Punjab, from a foreign posting and accommodating a candidate from Balochistan. Even in cases where the order is mala fide, the bar of Article 212 of the Constitution is attracted. Judgment in Muhammad Sarwar v Government of Punjab (supra) is an authority for the principle. Reference can also be made with approval to a Full Bench judgment of the Sindh High Court in Khalil ‑ur-Rehman v. Government of Pakistan (PLD 1981 Karachi 750) where the High Court was examining the validity of order which fall within the jurisdiction of the Services Tribunal and it was held that orders even if mala fide ultra vires or coram non iudice fell within the ambit of Services Tribunal and jurisdiction of Civil Courts including High Court was ipso facto ousted as a result of barring provisions of Article 212 of the Constitution.". Reference to 1999 PLC CS 1340 is also beneficial at this point.
DISTINCTION BETWEEN DEPARTMENTAL APPEAL AND SERVICE APPEAL: The both terminologies have undergone dramatic changes; often the tribunal converts the service appeal into departmental appeal and direct the departmental authorities to decide the same notwithstanding the fact that authority had earlier expressed its view either legally right or otherwise. Once jurisdiction of tribunal is attracted under the law, it should adopt every possible measure to decide the lis itself instead of remanding the matter by encouraging multiplicity of litigation. The service and departmental appeal are more common than different, departmental appeal only being condition precedent towards maintainability of appeal before the tribunal (which in my humble view is not the intention of the legislature). And departmental appeal gives the servant his right to agitate matter administratively and if he fails then can come to the judicial side by filing appeal before the tribunal. The appeal before the tribunal is continuation of proceedings under Section 107CPC 1908 and arises from the order of appellate authority, if any, but by no stretch of imagination it can be laid down that service tribunals and administrative tribunals and perform administrative work. The service tribunals are judicial forums, perform judicial work, their judgments are binding and there being no escape route, although while hearing the appeal can pass any order, direction which appellate authority is empowered by law do so, but again that does not mean that powers of tribunal are limited, while hearing appeals, in my view, tribunals can pass any order or direction being fit in the facts and circumstances of particular case, as blessed on Supreme Court Under Article 187 to do complete justice. See 1990 PLC CS 637. I respectfully interpret the provisions of departmental appeal being remedial, procedural and beneficial in nature and in no manner evade or destroy the right of service appeal before the tribunal if the same having not been filed. No where either in Section 4 or else it is laid down or enacted that failure of civil servant in filing departmental appeal shall render his service appeal invalid. Departmental appeal is an instrument or device communicating or bringing into knowledge of concerned authorities the grievance meted out to the employee and nothing else. In my humble view, there is no expressed procedure prescribed about filing of departmental appeal/representation/review, the only concern is to approach the higher departmental authorities and again in my humble view which may opt verbal/oral form as well. Even otherwise the higher departmental authorities supervises the over-all affairs of the department must know the grievances meted out to the civil servants at behest of his own lower authorities. Perhaps I am much influenced and guided by the principle laid down by Supreme Court in PLD 1963 SC 382, goes by holding “.......the proper place of procedure in any system of administration of Justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy.......any system which by giving effect to the form and not the substance defeats substantive rights..........is defective to that extent” The honourable Supreme Court in case 2009 SCMR 339 has to some extent condoned the failure to file departmental appeal by civil servant and ultimately granted relief. The recent observation of honourable Supreme Court is also important at this juncture. The court lays down that basic object behind filing of departmental appeal is to provide administrative forum for redressal of grievance of civil servant before approaches the service tribunal for adjudication of his claim. The court further observed that the requirement of filing a departmental appeal never intended by legislature to create a hurdle in the way of a bona fide litigant but to facilitate him to avoid unnecessary expense in shape of filing appeal before tribunals. The court also condemned the action of department in following words: “while much furore is raised for filing of departmental appeal, a vest majority of government departments do not take the departmental appeal with any seriousness. More often than not the departmental appeals remain unactioned. It can never be the intention of the legislature to make the filing of departmental appeal as a hurdle in the way of an appellant. Invariably the requirement of the departmental appeal is used as stumbling block for the appellant rather than facilitating him in the pursuit of his relief”. Refer to 2009 scmr 194= 2009 plc cs 539. And even in this cited case also departmental appeal was not filed by the appellant. Also in my humble view, from the close analysis of cases before the tribunal, the provision of departmental appeal/representation has become a mere formality or bypass to approach the tribunal created to exercise judicial hierarchy. One must not lost sight of the provisions of Section 79 to 82 CPC 1908, which in my humble are more akin to provisions of departmental appeal, intimating the government about the prospective action being brought against it. The final adjudicatory body is tribunal and thereaginst Supreme Court under Article 212(3). Otherwise from the Speech of Zulfiqar Ali Bhutto (Late Prime Minister of Pakistan) it can be inferred what he suggested was the creation of tribunals for quick and speedy decision of grievances of civil servant, otherwise the preamble of PST ACT 1974 is silent on the legislative history, but being student of law, i must refer to the legislative intent in enacting the Punjab Service Tribunal Act 1974. Having referred so, if the Provision of Section 4 is rigidly interpreted or understood, it clearly creates hurdle in way of civil servant to approach tribunal, in as much as, the arrival of civil servant is made conditional on passing of final order by the appellate authority or after waiting for 90 days of filing appeal before the departmental appellate authority. This was not the intent of legislature, in my view, i.e the prospective assumption of jurisdiction by the tribunal stood ruled out by Section 4 of PST ACT 1974 and on this analogy also the provisions of departmental appeal/representation has become scuttle clause in way of civil servant and must not be taken as condition precedent for assumption of jurisdiction by the tribunal. It is also important to mention here that legislature intended to decrease the work load from the high courts and civil courts, but again the non-presence of orders affecting the terms and conditions of service let the aggrieved approach high courts.
POWERS AND PROCEDURE DISTINGUISHED: In my humble view certain unnecessary restrictions and technicalities are attached to the exercise of power by the service tribunal, but the tribunal is possessed with powers which are much wider than those exercisable by a high court under writ jurisdiction. The role of the High Court under the writ jurisdiction is limited and relief can be granted only if the order passed in respect of a civil servant suffers from such patent illegality that it can be called an order without lawful authority and of no legal effect. On the other hand the Service Tribunal can set aside has exclusive power under section 5 to vary the order passed by any departmental authority on entirely different grounds which admittedly cover wide range. Similarly question of fact can rarely be gone into by the High Court which are open to adjudication by a Service Tribunal. The high court under writ jurisdiction cannot assume the appellate jurisdiction of service tribunal provided by the constitution. Otherwise it was never the intention of legislature that high court keep scuttle the jurisdictional domain of the service tribunals on the ground that orders impugned before them are mala fide or otherwise.
CAN HIGH COURT EXERCISE INTERFERE IN SERVICE MATTERS IN EXCEPTIONAL CIRCUMSTANCES: In 2001 PLC (CS) 367, petitioners being disabled employees after their cancellation of appointment pleaded violation of constitutional guarantees. Notwithstanding the ouster contained in Article 212, high court issued the writ, certain observations were that Petitioners who were disabled persons and were appointed under the law after observing all the codal formalities were serving at various places for the last about three years to the entire satisfaction of their superiors. There was no complaint or adverse entry against them and their services were appreciated not only, by their superiors. Despite discussing bar of Article 212 high court allowed the writ on the ground that action of Authority against petitioners which was mala fide and arbitrary and taken without' issuing show-cause notice was declared illegal, by High Court in exercise of its Constitutional jurisdiction. This may be taken as contra view.
TERMS AND CONDITIONS OF SERVICE AS PROVIDED IN SECTION 3 OF PUNJAB CIVIL SERVANTS ACT 1974. Reads as “The terms and conditions of service of a civil servant shall be as provided in this Act and the rules”. In my view this provision is not self executory or defines the particular aspects of terms and conditions of civil servant. In contra-distinction to all other grievances which do not fall within the ambit of “terms and conditions of service” it includes every aspect of employment of civil servant which relates to his/her service career. In 2001 SCMR 1320 authorities withheld the salaries of newly appointed employees on the ground of appointment having been made in violation of recruitment rules, and employees were ultimately terminated. High court allowed the writ with the direction to the authorities to pay salaries of the intervening period. Authority went in Supreme Court and failed meaning thereby judgment of high court attained finality. At later stage comes the case cited as PLD 2001 SC 1032, wherein apart from over-ruling the judgment cited as 2001 SCMR 1320, Supreme court held “Matter relating to salary of civil servants having a direct nexus with the terms and conditions of service of the employees, objection to the jurisdiction of the High Court to entertain a Constitutional petition was not technical in nature but going to the very root of the case. Service Tribunal alone was the appropriate forum having jurisdiction to deal with matters relating to the terms and conditions of civil servants in view of the bar contained in Art.212 of the Constitution”. But where the civil servant worked for eleven months after the date of his retirement and feeling aggrieved by the deductions made by the authorities, high court in constitutional jurisdiction granted him relief in case cited as 2003 PLC CS 1400. Reference to 1985 PLC CST 400, 1984 PLC CS 229 & 1984 PLC CS 444 would also be beneficial at this point involving matters of ACRs which although does not expressly find place in statute but form part of terms and conditions of civil servant.
JURISDICTION OF CIVIL COURT: Reference to Section 9 of Code of Civil Procedure is beneficial here, reads as “The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred”. This provision definitely ousts the jurisdiction of civil court in entertaining matters which relates to the terms and conditions of civil servant. But if this section if read in juxtaposition with Section 4(1)(b) of Punjab Service Tribunals Act 1974, in my view civil court can entertain the suit wherein prayer for either perpetual injunction is made. Without touching the provisions of Article 199 qua writ of certiorari and prohibition, the question as to whether special tribunal has exclusive jurisdiction over a matter can be determined by civil court (personal view). So much so, in my persona view under section 9, which gives civil court to exercise jurisdiction of general nature, civil court can even examine the order passed by the tribunal, if passed without jurisidciton or otherwise nullity in law and can be declared as such. Question is that where the competent authority determines the unfitness of a civil servant and section 4(1)(b) bars the jurisdiction of service tribunal in such matter, whether he is left with any remedy. Section 9 of CPC 1908 is answer to this proposition. Mere fact that civil servant has no remedy after he being declared unfit does not automatically attract the provisions of Article 199 as such. A very thoughtful discussion was made in case cited as 2003 PLC CS 56¸wherein the civil servant after having not been recommended for promotion filed civil suit praying therein for declaration and interim relief. Learned single judge on original jurisdiction dismissed the suit being barred under article 212 of constitution. Matter coming in high court, wherein his lordship Mr Justice SABIHUDDIN AHMED held that civil servant/plaintiff being aggrieved with decision of Selection Board for not recommending him for promotion filed suit for declaring such decision to be null and void; that his fitness for promotion be re-determined in accordance with promotion policy; and as interim relief, respondents be restrained from issuing notification of promotion on the basis of recommendations of Selection Board. Findings of Trial Court were correct to the extent that question of following a particular promotion policy might be a matter germane to terms and conditions of service. Such fact itself would not be sufficient to attract application of Art.212 of the Constitution and there was great deal of force in contention of plaintiff. Service Tribunal was debarred by virtue of proviso (b) to SA(1) of Sindh Service Tribunals Act, 1973 (Section 4(1)(b) of Punjab Service Tribunal Act 1974) from entertaining appeals against determination of fitness to be promoted. Plaintiff under S.54 of Specific Relief Act, 1877 could always apply for a perpetual injunction to prevent breach of an obligation existing in his favour. If plaintiff was not entitled to any declaratory relief, an injunction could always be granted to prevent breach of an obligation on the part of respondents . Further held that mere fact that plaintiff had not asked for an injunction as independent relief, but had only sought the same by way of consequential relief to declaration prayed for would be of little consequence. The court went on to hold that present controversy was outside the purview of jurisdiction of service Tribunal. Mala fide order or an order in defiance of the obligations of respondents could always be questioned through a civil suit for injunction.
But Section 4(1)(b) does not in way give right to civil servant to approach Provincial Ombudsman in matters involving terms and conditions of service in view of case reported as 2002 PLC CS 606. Otherwise ombudsman being recommendatory body and its recommendations are just directory and not binding on the departments.
JURISIDCTION OF TRIBUNALS IN IMPLEMENTING THEIR OWN JUDGMENTS:
I remember the maxim that where the law authorizes the court or tribunal to adjudicate a particular type of issue, it arms that court or tribunal to have all the necessary things ancillary or connected for the execution or implementation of judgment or order. But in case where the tribunal pronounces the judgment, it feels helpless to order execution of its own judgment and orders. Perhaps the court or tribunal which does not have the power to order execution of its own judgment or order is not court or tribunal in law. Otherwise the tribunals are distinct from Ombudsman or recommendatory bodies, the judgments of tribunals are binding in nature and there is no escape route for the department. Mere fact that service tribunals don’t have the power/jurisdiction to initiate does not affect the inherent qualification or power possessed by the tribunals to order execution of their own judgment, but before me there is judgment cited as 2009 PLC CS 668, wherein my most respected Mr Justice M M Aqil Awan while writing for the Division Bench of Karachi High Court Karachi held that service tribunals have no power of ordering implementation of their own judgments and aggrieved party can approach high court under Article 199. In the last para of the judgment the honourable bench directed the concerned to amend the service laws to bless the tribunals with the power of implementation.
THE MAXIM “PER INCURIAM”: Its applicability: The quoted maxim literally means “by mistake or by omission to consider effect of law or fact”. In PLD 1997 SC 351 while authoring for the court examined the effect of judgment delivered by the high court in writ jurisdiction in clear oblivion of Article 212 ousting its own jurisdiction. Mr Justice Khalil ur Rehman Khan held that where the high court entertains the writ petition in clear oblivion of the Article 212 of Constitution and pronounces the judgment which is subsequently not honoured, the person responsible for such lapse cannot be held guilty for contempt of court as the judgment was void being without jurisidciton and incuriam and as such ought to have been ignored and department is not bound to implement the judgment which is per incuriam and binds no one
An illiterate litigant is least concerned about the jurisdictional technicalities and forum from where to get justice. Whenever any aggrieved person approaches a counsel for getting suggestion about his claim or injury qua service matters, 95% lawyers don’t bother to clear their own selves about the jurisdictional proposition and straight away file the writ petition before the high court resulting into dismissal in limine due to Article 212. Only the litigant suffers and no body else. Perhaps the poor litigants don’t claim damages against the lawyers for wrong advices, that why they suffer as their claim before the original forum (serivce tribunal) becomes time barred ultimately. But the nutshell of above discussion forces me to conclude that high court has got absolutely no jurisdiction in matters arising out of terms and conditions of service of civil serant and under no principle of law or equity either humanitarian or otherwise, high court can assume the jurisdiction or otherwise scuttle the powers and jurisdiction vested in the service tribunals, which are being held as constitutional courts.