Javed Iqbal, J.--This petition for leave to appeal is directed against the judgment dated 17.4.2003 passed by learned Division Bench of Peshawar High Court, Peshawar, whereby writ petition preferred on behalf of petitioner challenging his dismissal by means of notification dated 14.6.2002 passed by the Chief Secretary, Government of NWFP, has been dismissed.
2. Precisely stated the facts of the case as enumerated in the impugned judgment are to the effect that "the petitioner after obtaining postgraduate Degree in M.A. Sociology joined service in 1967 in Population Welfare Department. He was posted as Director (Admn. & Coord.) in the Office of the Directorate General of Population Welfare N.W.F.P. Peshawar on 14.5.2001. A Departmental Promotion Committee was constituted by the Establishment Division, Government of Pakistan and notified vide Ministry of Population Welfare, Islamabad letter dated 22.12.2000 for recruitment against 17 posts of Lower Division and Upper Division Clerks. The Committee consisted of the petitioner as Chairman and two others as Members. The Committee conducted test and interview in the prescribed manner. It appears that in view of the complaints received, pursuant to the order of the Governor, N.W.F.P. the Governor's Inspection Team (G.I.T.) probed into the matter and found the petitioner guilty of giving benefit to his sons and other associates and disqualifying a competent candidate securing the highest marks in written test. The petitioner was served with show-cause notice to clarify his position. He submitted his reply. Inquiry was conducted and the explanation of the petitioner was not found satisfactory. The petitioner was adjudged guilty of misconduct in terms of Section 3 of the North West Frontier Province Removal from Service (Special Powers) Ordinance, 2000 and dismissed from service" vide notification of even number dated 14.6.2002. The petitioner invoked the Constitutional jurisdiction and challenged his dismissal from service by means of Constitutional petition which has been rejected, hence this petition.
3. After having heard Mr. Fazal Ellahi Siddiqi, learned ASC on behalf of petitioner, Mr. Jehanzaib Rahim, learned Advocate General NWFP and perusing the entire record vigilantly we are of the opinion that the determination of learned Division Bench of Peshawar High Court qua the status of petitioner that he is a Provisional Civil Servant for all practical purposes being well based does not admit any interference. We have also scrutinized the provisions as contained in Sections 4, 5, 8, and 11 of the Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983, promulgated vide Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance, 2001 (hereinafter referred to as the said Ordinance) and reached the inescapable conclusion that the petitioner is Provincial Civil Servant. We are not persuaded to agree with the prime contention of learned ASC on behalf of petitioner that in view of the provisions as contained in Section 11 of the said Ordinance the petitioner had not attained the status of Provincial Civil Servant for the reason that the controversy concerning the nature of the service of such employees has been set at naught by making suitable amendment in Section 8 of the Transfer of Population Welfare Programme (Field Activities) Ordinance, 1983. It must be kept in view that Sections 8 and 11 of the said Ordinance are neither dependent on each other nor synonymous or interchangeable having their own significance, import and scope. Besides that the language in which both the sections have been couched is quite simple, plain and being free from any ambiguity hardly calls for any scholarly or farfetched interpretation on, the basis whereof it could be inferred that such employees are not Provincial Civil Servants.
4. The letter dated 13.6.2002 does not render any assistance to the case of petitioner as it mainly relates to fiscal and administrative purposes having no direct bearing on the question whether such employees are Provincial Civil Servant or otherwise. There is no denying the fact that Transfer of Population Welfare Programme (Field Activities) (Amendment) Ordinance 2001 (Ordinance No, XXXII of 2001) was made applicable with immediate effect whereby suitable amendment was made in Section 8 of Ordinance XIX of 1983 which, inter-alia, provides that such employees shall be deemed to have become the Civil Servants of the respective Provincial Governments on such commencement and shall be governed by the rules and regulations made under the Provincial Laws relating to Civil Servants. It is worth mentioning that Ordinance XXXII of 2001 was promulgated on 25:7.2001 whereas the petitioner was dismissed from service on 14.6.2002 and by no stretch of imagination it could be inferred that he was not a Provincial Civil Servant.
5. We are not persuaded to agree with Mr. Fazal Ellahi Siddiqi, learned ASC that Service Tribunal had no jurisdiction to dilate upon the controversy in hand for the reason that the Constitutional jurisdiction as conferred upon High Court under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) could not have been invoked in view of the provisions as contained in Article 212 of the Constitution by virtue of which exclusive jurisdiction in such like cases has been conferred upon the Service Tribunal. It is well settled by now that "civil servant when aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a Notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. If a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of S. 4(1) in order to file an appeal before the Service Tribunal." (M. Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22, Iqan Ahmed Khuram v. Government of Pakistan PLD 1980 SC 153, The Controller, Central Excise and Land Customs v. Aslam Ali Shah PLD 1985 SC 83, The Superintendent of Police, Headquarters, Lahore v. Muhammad Latif PLD 1988 SC 387, Abdul Wahab Khan v.
Government of the Punjab PLD 1989 SC 508, Abdul Bari v. Government of Pakistan PLD 1981 SC 290, I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041).
6. There is no cavil with the proposition that "under clause (1) of Article 212 the appropriate Legislature has been empowered to enact for the establishment of one or more Administrative Courts or Tribunals for exercising exclusive jurisdiction in respect of the matters referred to in sub- clauses (a), (b) and (c) of the above clause, which inter alia include the matters relating to the terms and conditions including disciplinary matters of persons who are or have been in the service of Pakistan. The matters in respect of which an Administrative Court or Tribunal can be established are the terms and conditions of persons in service of Pakistan; matters relating to claims arising from tortuous 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 matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law." (Ajaib Khan v.
State 1983 SCMR 22). It is also well established by now that "where under Art. 212, any Administrative Court or Tribunal is established in terms of 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. It also provides for the abatement of the pending proceedings in respect of such matters except those appeals, which were then pending in the Supreme Court. The proviso to Clause (2) contemplates that the above clause shall not be applicable 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, majlis-e-Shoora by law extends the provisions to such a Court or Tribunal. Therefore, the effect of Clause (2) of Article 212, and Section 6 of the Service Tribunals Act, 1973, was that upon the establishment of the Tribunals, no other Court had jurisdiction in the service matters covered by the Service Tribunals. The Article ousts jurisdiction of all other Courts and orders of Departmental authority, even though without jurisdiction or mala fide, can be challenged only before Tribunal and jurisdiction of civil Courts, including High Court is specifically ousted." (LA. Sharwani v. Government of Pakistan 1991 SCMR 1041, Pakistan International Airlines v. F.M. Shamsi PLD 1990 SC 943, Amanul Mulk v. NWFP PLD 1981 Pesh 1).
7. In the light of what has been discussed herein above the High Court had no jurisdiction to dilate upon and decide the controversy relating the terms and conditions of service which squarely falls within the jurisdictional domain of Service Tribunal. No question of law of public importance is involved in the matter persuading us to grant leave. The petition being merit less is dismissed and leave declined.
Petition dismissed