' CH. IJAZ AHMAD, J.---Writ Petitions Nos.24102 of 1998 and 13371 of 1999 will be disposed of by this judgment as these involve common questions of law. In the first the petitioner, a civil servant of the Federal Government in Pakistan Railways, has assailed initiation of disciplinary proceedings against him which had reached the stage of show-cause notice. In the second petition he has challenged the order directing him to proceed on forced leave.
2. When confronted with the bar of Article 212 of the Constitution the learned counsel for the petitioner contented that the Federal Service Tribunal is not constituted in terms of Article 212 of the Constitution. His precise submission is that according to clause (a) of Article 212(1) an administrative Court or Tribunal can only be constituted in respect of matters relating to terms and conditions of persons in service of Pakistan and not in relation to the terms and conditions of the service of the persons in the service of Pakistan. Article 240 of the Constitution was also referred to.
Therefore, it is a situation in which no Tribunal as contemplated by clause (a) of Article 212(1) of the Constitution is in existence. And, in the absence of a lawfully constituted Tribunal the ouster clause of Article 212(2) of the Constitution is not attracted. He next contended that action of the respondent is mala fide, therefore, Constitutional petition is maintainable, the learned Federal Service Tribunal had accepted the appeal of one Iftikhar Hussain co-accused with the petitioner, vide judgment dated 10-4-2004 and the respondents have implemented the judgment of the Service Tribunal vide Notification dated 1-6-2004. Therefore, action of the respondents against the petitioner is discriminatory and, therefore, hit by Article 25 of the Constitution. In support of his contention he relied on Sharaf Faridi Advocate v. Islamic Republic of Pakistan (PLD 1991 Kar. 178). He next maintained that even if the ouster clause was applicable, the jurisdiction of this Court under Article 199 is not curtailed to grant appropriate relief in cases in which the impugned orders and proceedings are coram non judice, mala fide and without jurisdiction. He canvassed that the present case was one in which the jurisdiction ought to be exercised rather than excised. He also argued that Article 212(3) provides for a petition for leave to appeal before the Hon'ble Supreme Court while the jurisdiction of the Supreme Court was defined by Article 185 of the Constitution and, therefore, Article 212(3) being inconsistent with Article 185, no appeal was competent before the Hon'ble Supreme Court against a judgment rendered by a Service Tribunal with the result that it shall become final without providing any remedy to an aggrieved civil servant. Reference was also made to Chapter 3-A of the Constitution and judgment of the Honourable Supreme Court in Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324). He also maintained that the impugned proceedings are being taken by incompetent authority. Summary to the Prime Minister (Annexure-D to W.P. No.13371 of 1999) was also referred to.
3. The learned Deputy Attorney General, however, submits that the Federal Service Tribunal is lawfully constituted and since the dispute brought before this Court pertains to terms and conditions of the service of the petitioner, the ouster clause of Article 212 is fully attracted. Reliance was placed on Fauzia Siddique Qureshi v. Secretary Ministry of Education, Islamabad (2004 SCMR 521) and The State v. Zia-ur-Rehman (PLD 1973 SC 49). He next contended that the writ petition is directed against a show-cause notice and is, therefore, premature. He next urged that even in the case in which the order or proceedings brought before this Court in Constitutional jurisdiction in respect of terms and conditions of service of a civil servant to which the jurisdiction of a Service Tribunal extends are coram non judice or mala tide the bar of Article 212 of the Constitution has been held to be applicable. Reliance was placed on Khalid Mahmood Watoo v. Government of Punjab (1998 SCMR 2280)..
4. Mr. Irfan Masood Sheikh, Advocate represents the Pakistan Railways. He reiterated the submission as to the ouster of jurisdiction of this Court and relied on Superintending Engineer, Highways Circle Multan and others v. Muhammad Khurshid and others (2003 SCMR 1241). He also referred to the decision dated 14-9-1999 of a learned Single Judge of this Court in W.P. No.9926 of 1999 and other connected matters which petition was dismissed. He relied on Mohtarma Benazir Bhutto v. The State (1999 SCMR 1447).
5. The learned counsel for the petitioner, in rebuttal, relied on Muhammad Aslam v. Government of the Punjab (2003 PLC (C.S.) 433) and Muhammad Ashraf Chatha v. Department of Education (2003 PLC (C.S.) 985).
6. The submissions made by the learned counsel for the parties have been considered. We are not persuaded to accept that the Federal Service Tribunal has not been constituted in accordance with the mandate of Article 212(1) of the Constitution. Clause(a) of Article 212(1) specifically provides for not only the terms and conditions of the persons who are or have been in Service of Pakistan but it also includes disciplinary matters. Service of Pakistan has been defined in Article 260 of the Constitution. It will be appropriate to reproduce the aforesaid definition:-- "Service of Pakistan means any 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, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to a Chief Minister, Advisor to a Chief Minister or member of a House or a Provincial Assembly."
"Service of Pakistan" referred to by Article 212 of the Constitution includes any post, office or service in connection with the affairs of the Federation Therefore, contemplation of Article 212 clearly was to provide for the terms and conditions of the service of such persons including disciplinary matters. Chapter 2 of the Civil Servants Act, 1973 provides for the terms and conditions of the service of a civil servant which includes efficiency and discipline under section 16, thereof.
Reference to Article 240 was, in our view, wholly inapt because according to said provision in case of Federation, a Federal law and in case of a Province, a law framed by a Provincial Legislature has to regulate appointment to and conditions of service of persons in the service of Federation or the Province respectively. In fact the said provision of the Constitution is not relevant to determine the controversy. As far as the next submission is concerned, a Full Bench of this Court in Muzaffar Hussain and others v. The Superintendent of Police (2002 PLC (C.S.) 442), after surveying the case- law, came to the conclusion that in matters relating to terms and conditions of service to which the jurisdiction of a Service Tribunal extends, Article 212 operates as a bar to the exercise of the Constitutional jurisdiction even though a final order may not have been passed. The merits of the impugned action could only be examined provided this Court had the jurisdiction and as held by the Honourable Supreme Court in Khalid Mahmood Wattoo v. Government of the Punjab (1998 SCMR 2280) and Rana Muhammad Sarwar v. Govt. Of Punjab (1990 SCMR 999) even in case of an order which is mala fide, jurisdiction of this Court is ousted if it pertains to the terms and conditions of service of a person and to which the jurisdiction of a Service Tribunal extends.
7. The other contention that the provision for leave to appeal under Article 212(3) is inconsistent with Article 185, is not worthy of any serious consideration. In cases relating to the terms and conditions of the civil servants decided by the Federal or the Provincial Service Tribunal, jurisdiction has been conferred by the Constitution although by a separate provision.
8. The contention based on the judgment of the learned Federal Service Tribunal in the case of Iftikhar. Ahmad is also inapt because it pertains to the merits of the controversy and unless this Court assumes jurisdiction, its effect cannot be examined.
9. The contention based on the summary for the Prime Minister dated 8-2-1999 has been considered. The order dated 17-6-1999 placed on record of W.P. No.13371 of 1999 directing the petitioner to proceed on forced leave was, prima facie, passed by the competent authority.
However, examination of this question is left to the determination of the appropriate forum.
' We, therefore, hold that these petitions are not maintainable on account of bar of Article 212 of the Constitution and, accordingly, dismiss both these writ petitions.