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Writ Petition No. 9918 of 1980, decided on 9th December, 1980,

Ss. 3 & 12(ii) read with Constitution of Pakistan (1973), Art. 212(2)‑Retirement‑Jurisdiction‑Retirement of civil servants ---Arises out of terms and conditions of service‑Such order, held, challengeable in appeal before Service Tribunal and not before High Court‑Servant retired without any stigma whatsoever, such order held further, neither amounts to compulsory retirement nor a penal order.

Muhammad Yamin Qureshi v. Islamic Republic of Pakistan and another P L D 1980 S C 22 rel.

Muhammad Younas Bhatti for Petitioner.

Karamat Nazir Bhindari, A. A.‑G. for Respondents Nos. 1 to 3.

Date of hearing: 9th December, 1980.

The relevant facts in brief leading to the present petition are that the petitioner was working as Junior Clerk (Reader) of Tehsildar Shujabad in Grade 5 when on completing 25 years service qualifying for pension and other retirement benefits, he was retired by Deputy Commissioner, Multan (competent authority) vide order dated 13‑1‑1980 in the exercise of powers under section 12(ii) of the Punjab Civil Servants Act, 1974. The petitioner represented against the aforementioned order before respondent No. 2 on 3‑3‑1980 and his representation also failed on 28‑6‑1980 before the learned Commissioner, Multan. The petitioner challenged the aforementioned orders in this Constitutional Petition.

2. Learned counsel for the petitioner stated that there was no material on the record warranting his retirement. It was submitted that after completing 25 years of service, the petitioner did not deteriorate either in efficiency or in his conduct so as to attract the provisions of section 12(ii) of the Punjab Civil Servants Act, 1974. Learned counsel relied upon a letter issued by the Government on 18th October, 1979, addressed to all Administrative Secretaries in the Province, giving guideline to the competent authorities for exercising powers under the aforementioned provisions of law. It was stated that the order passed by the competent authority was not punitive and therefore could not be assailed before Service Tribunal constituted under section 3 of the Service Tribunals Act, 1974. It was also submitted that the action of respondent No. I retiring the petitioner amounted to compulsory retirement and proved a shock to the petitioner because throughout his service, his conduct was above board.

3. As regards the competency of this petition, in view of the bar under Article 212(2) of the Constitution of Islamic Republic of Pakistan, learned counsel contended that if the order of the competent authority was mala fide, in excess of jurisdiction or coram non judice, then this Court was competent to entertain this constitutional petition and decide it on merits.

4. The learned Assistant Advocate‑General on the other hand, contended that the bar as contained under Article 212(2) of the Constitution had an overriding effect and this Court had no jurisdiction to entertain this petition because the petitioner has more efficacious and appropriate remedy by way of appeal under section 4(1) of the Service Tribunal Act, 1974.

Article 212 of the Constitution provides:

(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of‑

(a) matters relating to the terms and conditions of persons in the service of Pakistan, including disciplinary matters;

(b) . . . . . . . . .

(c) . . . . . . . . .

(2) Notwithstanding anything hereinbefore contained where any Administrative 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:

Section 3(2) of the Punjab Service Tribunal Act, 1974, provides:

(2) A tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters."

Section 4(1) of the Punjab Service Tribunals Act, 1974, provides:

(1) 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 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 5(I) of the aforementioned Act enacts:

(1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against."

It is therefore clear that Article 212 of the Constitution provides for the establishment of Service Tribunal to exercise exclusive jurisdiction in respect of the matters relating to the Terms and Conditions of civil servants including disciplinary matters and ‑no Court is competent to entertain any proceeding and grant injunction in respect of any matter which was within the exclusive jurisdiction of the Service Tribunal. The Civil Servant aggrieved by any final order whether original or Appellate made by the competent authority in respect of any of the terms and conditions of the service could competently, file appeal against that order before the Tribunal. constituted under section 3 of the Service Tribunal Act, 1974. In the instant case it was not denied that the impugned order arose out of the terms and conditions of the petitioner's service and was a final order, therefore, the petitioner could challenge it before the Service Tribunal and not before this Court. I do not agree with the learned counsel for the petitioner that the order passed by respondent No. 1 amounted to compulsory retirement or was a penal order. The petitioner was retired with no stigma of any sort whatsoever.

5. With regard to the scope of jurisdiction of the Tribunal, the Supreme Court of Pakistan in Muhammad Yamin Qureshi v. Islamic Republic of Pakistan and another (P L D 1980 S C 22) at page 36 observed:

"It goes without saying, that it lies within the jurisdiction of the Tribunal and indeed, it is its obligation, to decide all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proposed punishment. The appellant would be entitled not only to a full opportunity to present his case before the Tribunal, but also to inspect all relevant records which might have been taken into consideration by the competent authority for the purpose of passing the impugned order. As we see the legal position, the Tribunal has wide powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against. Under subsection (2) of the same section, the Tribunal, for the purpose of deciding any appeal, is to be deemed to be a civil Court, and to have all the powers as are vested in such Courts under the Code of Civil Procedure, 1908, including the power of enforcing the attendance of any person and examining him on oath compelling the production of documents and issuing commission for the examination of witnesses and documents. We have no doubt that the Service Tribunal, presided over generally by a serving or a retired Judge of the High Court, would be able to do full justice to the appellant."

6. Admittedly, the petitioner is aggrieved against order, which is germane to the terms and conditions of his service. It is therefore clear that the proper remedy available to the petitioner is to file appeal against the impugned order before the Service Tribunal.

7.The result of the above discussion is that this petition is maintainable and is accordingly dismissed.

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