Hundreds of Lecturers were appointed on ad-hoc 'basis during the period 1995-96 whose appointments were extended from time to time till 5.8.2000 when they were terminated. W.P. No, 16955/2000 was filed by them which was dismissed on 24.2.2001 by a learned Pill Bench of this Court due to the bar of jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 that they had to avail the remedy before the Punjab Service Tribunal. Their petition was dismissed by the Hon'ble Supreme Court of Pakistan also on 20.6.2001 i,e, Muhammad. Sarfaraz and 174 others v. Government of Punjab through Secrecy, Education Department, Civil Secretariat, Lahore and others (2001. C (C.S.) 1224). Eventually appeals' were filed before the Punjab Service Tribunal, which were dismissed by the learned Tribunal. The matter reached before the Supreme Court of Pakistan when petitions were disposed of vide judgment dated 25.9.2002 i,e, Dr. Naveeda Tufail and '72 others v. Government of Punjab and others (2003 SCMR 291). Finally letters of appointment were issued to them, One such specimen of appointment letter is of Mr. Jehan Zeb of dated 5.9.2003. The present petition has been filed in a representative capacity with the grievance and prayer that:--
(i) Respondent functionaries be directed to given proper effect to the judgment and Order of the Supreme Court attached above and to treat the petitioner and other persons as per attached list as having been retained in the posts on regular basis from the date of their first induction therein.
(ii) Furthermore, Respondents be directed to treat the intervening period between 30.6.2000 and the date of regularization of the petitioner and all other person's as per list attached in terms of judgment made in Ahsan Ali Shah's Case reported as 2000 CLC (CS) 643.
(iii) The petitioner as also other persons as per attached List, ibid, be treated in exactly the same manner as any regular employee and. held entitled to all service benefits including seniority and back benefits."
2. It is contended by the learned counsel that the judgment of the Supreme Court has not been implemented by the respondents in letter and spirit as they were entitled to be regularized and retained in service from the day when-their first appointment was made on ad-hoc basis.
According to the learned counsel the process undertaken for regularization treating them as fresh recruits is contrary to the judgment of the Supreme Court inasmuch as according to him their service had to be regularized with retrospective effect from the date of their induction into service, notwithstanding even the termination of their service. It is contended that in order to maintain, their continuity into service the intervening period could be treated as extraordinary leave with pay.
Reference in this context has been made to Ahsan Ali Shah v. Chief Secretary, Government of Sindh, New Sindh Secretariats Karachi and 3 others (2000 PLC (C.S.) 643), Khalil Ahmed Soomro v.
Government of Sindh and others (1994 PLC (C.S.) 201). Reference has also been made to Pakistan through General Manager, P.W.R., Lahore v. Mrs. A. V. Issacs (PLD 1970 S.C. 415) to contend that wrongful dismissal could be ignored in the circumstances of the case. Another grievance, which has been highlighted by him, is that all the ad-hoc lecturers have not been given equal treatment.
For that purpose, he has cited the example of one Nasim Asghar who has been, according to him, given the benefit of continuity which should have been extended to all others. Thus, Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, is sought to be invoked by him.
3. In W.P. No, 3794/04, the learned. counsel for the petitioners has adopted the arguments of Dr..A.
Basit, Advocate and states that the object of the said petition is the same, therefore, the said petition be also disposed of along therewith.
4. The learned. Additional Advocate General Punjab has at the very outset objected to the competency and maintainability of the petition before this Court in view of the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic .of Pakistan, 1973. According to him after that the judgment has been implemented as per interpretation and understanding of the Government and order has been passed if at all the petitioners feel aggrieved of the same their remedy lies before the Punjab Service Tribunal or that if they consider that the judgment has not been correctly implemented by the Government they could approach the Hon'ble Supreme Court of Pakistan in proper proceedings as was done by them in the past and order dated 24.4.2003 was passed by the Supreme Court of Pakistan. According to him such a matter relating to the conditions of service of the petitioners was outside the ambit of jurisdiction of this Court, which stood excluded by virtue of the above-mentioned provisions of the Constitution. It is contended that relief claimed by the petitioners cannot be granted which does not flow even, from the judgment of Supreme Court. It is contended by him that no discrimination has been made, in implementation of the judgment and the case of Nasim Asghar was different than the petitioners' who had continued in service and was paid for that period.
5. In order to understand and comprehend the real issue, a brief account of chronology of important events will be of relevance. On 5.8.2000 the ad-hoc lecturers were terminated, their challenge to the same by way of petition before this Court remained unsuccessful, which was dismissed on 26.2.2001 holding the view that they should approach the Punjab Service Tribunal for redressal of their grievance, a petition before the High Court was barred due to Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. That view was upheld by the Supreme Court of Pakistan and petitions were dismissed on 20.6.2001. They then filed appeal before the Punjab Service Tribunal, which were dismissed. by the learned Tribunal on 3.5.2002, which gave rise to the petitions before the Supreme Court of Pakistan in which the judgment was rendered on 25.9.2002.
The portion of the judgment, which has been pressed into service and highlighted by the learned counsel for the petitioners reads as follows: "12. We having examined the above scheme fine that in the similar circumstances, the Federal Government while giving fair treatment to its employees appointed on ad hoc basis successively framed policies for regularization through the process of selection by the Public Service Commission. It is stated that all Provincial Governments, except Government of Punjab, following the Federal Government also. adopted the policy of regularization and gave their employees the equal treatment. The petitioners, being ad hoc employees of Provincial Government, cannot claim regularization as of right in the light of policy of Federal Government but the principle of equality as embodied in Article 25 of-the Constitution of Islamic Republic of Pakistan, 1973, would demand that they while facing the similar circumstance should be treated in the same manner. The principle of equality would. impliedly be attracted in favour of the petitioners as they being ad hoc lecturers in the Provincial Government, would stand at par to that of the ad hoc employees of the Federal Government and therefore, it would be fair, just and proper to consider their cases for regularization. We having heard the learned counsel for the petitioners and Mr. Maqbool Elahi Malik, learned Advocate-General Punjab, assisted by Mr. Tariq Mahmood Khokhar, Additional Advocate- General, are of the view that since substantial questions of public importance are involved in the present petitions, therefore, the technical objection that the 'questions not raised before the Tribunal, cannot be allowed to' be raised before this Court, is not entertained. The authorities in the Education Department, Government of Punjab, while adopting the method of ad hoc appointments as a continuous policy, created a legitimate expectancy in the mind of petitioners for their retention on regular basis and therefore, we deem it proper to direct that the respondents while seeking guidance from the scheme of regularization of ad hoc employees of Federal Government referred above, will initiate the process of regularization of the petitioners through Punjab Public Service Commission giving the concession as, mentioned in the reply filed by the respondents in the Punjab Service Tribunal within a period of one month. and meanwhile without prejudice to the right of the selectees of the Public Service Commission for appointment an regular basis, the posts which were being held by the petitioners shall not be filled. It is clarified that the cases of the petitioners shall be sent separately to the Public Service Commission and shall not be tagged with the direct recruits. Incase any of petitioners is not found suitable, by the Public Service Commission, he shall not be entitled to be retained in service."
Review filed there against by the Government of Punjab was dismissed by the Hon'ble Supreme Court on 9.1.2003. The matter was referred by the Government of Punjab, Education Department to the Punjab Public Service Commission for necessary steps to comply with the directions of the Hon'ble Supreme Court of Pakistan. While it was under process contempt and other petitions were filed before the Hon'ble Supreme Court, which were disposed of on 24.4.2003 with a direction to the Education Department and the Punjab Public Service Commission to expedite the process of regularization in the light of the judgment dated 25.9.2002. On completion of the process by the Punjab Public. Service Commission appointment letters were issued to the petitioners, which has given rise to the present petition with the prayer mentioned above.
6. It may be mentioned that the contention of the learned Additional Advocate General Punjab as to the incompetency and non-maintainability of this petition has engaged my attention. I have given serious though to the same in view of the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
7. Before examining the implications of the said provisions it may be observed that the present petition has been filed under. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the relevant clause whereof reads as follows: "199. Jurisdiction of High Court.--(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) On the application of any aggrieved party, make an order--
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or"
(underlined by me due to its relevance).
Most probably the petitioners seek a direction to the respondents as envisaged by clause (i) above by way of command in the nature of mandamus, which may fall in the later part of the clause i,e, "to do anything he is required by law to do". In the context of the present case the petitioners seek the implementation and enforcement of the judgment of Hon'ble Supreme Court of Pakistan according to their own understanding of the same. Whereas the stance of the respondents and the contention of the learned Additional Advocate General Punjab is that judgment of the Hon'ble Supreme Court of Pakistan has been implemented and in case the petitioners consider that it has not been done correctly petition before this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not the remedy for that purpose. It has been pointed out by him that in the past as well the matter was agitated before the Hon'ble Supreme Court of Pakistan alleging non-compliance of the judgment dated 25.9.2002. His further contention that on completion of the process by the Punjab Service Tribunal, the departmental authority having passed the order which if is considered to affect their conditions of service they could assail the same before the Punjab Service Tribunal and the bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 is thus fully operative.
8. There can be no cavil as to the binding nature of the judgments/orders of the Hon'ble Supreme Court. Constitutional provisions such as Article 189 and Article 190 themselves emphasize highlight their efficacy. All executive and judicial authorities throughout the Country at expected to act in aid of the Supreme Court. This Court could not hesitate in seeking compliance of judgments and orders of Supreme Court when there is a direction of absolute nature without more to be done for its implementation and execution. But where the matter is of interpretation A and a process is to be undertaken and the parties have a variant approach as to its true import, writ of mandamus cannot be issued by the High Court. Reference in this context may be made to Mahmudul Haque v.
The Controlling Authority, S.D.O. (North), Chittagong and another (PLD 1963 S.C. 233), which reiterates the rule that: "Mandamus is a writ of discretion, as a general rule, and is not granted as of right or issued as a matter of course. It does not necessarily issue in consequence of a decision upon the points of controversy raised in the case, but regard must be had to all the special circumstances of the case before such a direction may issue to a public authority to enjoin upon it the doing of an act which lies within its functions." Reference may also be made to Islamic Republic of Pakistan v.
Muhammad Saeed (PLD 1961 S.C. 192). Moreover this Court will have first to be satisfied as to the existence of its own jurisdiction, which in this case, according to the learned Additional Advocate-General Punjab, does not exist due to the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, which aspect of the matter is being adverted to in the succeeding paragraphs to follow.
9. At this juncture reference to the relevant part of the provisions of Article 212 of the Constitution may be appropriate, which lays down that: "Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act [provided for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters; Clause (2) of Article 212 contains a prohibition that: "where any Administrative Court or Tribunal is established under-clause (1), no other Court shall grant in injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends."
(Portions underlined by me). It. is a matter of common knowledge that Tribunal as visualized by Clause (1) of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 has been established and Punjab Service Tribunal is very much functional. The scope of the relevant clauses of Aiticle 212 of the Constitution is all pervasive and extensive. It has overriding effect. In such context of the matter I find substance and force in the contention raised by the learned Additional Advocate General Punjab that the matters relating to the terms and condition of persons like the petitioners fall to 'be determined exclusively within the jurisdiction of the Tribunal and jurisdiction of all other Courts including that of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 stand excluded. The import of Article 212 o' the. Constitution and Article l99 was considered in Khalid Mahmood Wattoo a.
Government of Punjab and others (PLJ 1999 S.C. 64) and it was laid down that a petition under Article 199 of the Constitution by a civil servant in relation to any, matter connected with the terms and conditions of his service was not maintainable in View of provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
10. It may not be out of place to mention. here that these very petitioners and others had earlier approached this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 qua their termination. Their petition was held to be hit by the bar contained in Article 212 of the Constitution; as their remedy lay before the Service Tribunal. That judgment as mentioned above was maintained by the Hon'ble Supreme Court of Pakistan. Principle stated in paragraph-13 of the judgment i,e, Muhammad Sarfaraz case (supra), may be reproduced here for advantageous perusal: "13. The learned counsel for the petitioners have made an attempt to enlarge the scope of the dispute and by pass the Service Tribunal by challenging wires of Section 4 of the Punjab Service Tribunals Act, 1974, introducing fundamental rights and elements of discrimination, regularization and fitness for promotion etc. but the dispute essentially relates to the terms and conditions of service of the petitioners. In all cases relating to terms and conditions of service remedy available to an aggrieved civil servant is by filing an appeal before the Service Tribunal and not by invoking writ jurisdiction of the High Court. The petitioners were civil servants at the time of termination of their service and their grievance is traceable to the terms and conditions of their service, therefore, they are obliged to seek redressal of their grievance from the Service Tribunal.' (Highlighted by me).
11. There is thus left no doubt as to the import of exclusionary clauses of Article 212 nor any obscurity as to the ouster of jurisdiction of this Court. It may also be mentioned that the precedents cited by the learned counsel for the petitioners i,e, Ahsan Ali Shah v. .Chief Secretary, Government of Sindh, New Sindh Secretariats Karachi and 3 others (2000 PLC (C.S.) 643) and Khalil Ahmed Soomro v.
Government of Sindh and. others (1994 PLC (C.S.) 201) were also cases decided by the, Service Tribunal Sindh. It also shows that determination of such a controversy falls Within the jurisdiction, of the Service Tribunal.
In such view of the matter -petition before this Court is not maintainable; which is dismissed accordingly.
It may be added for the purpose of clarification here that as for as possible I have refrained from touching or dilating upon the merits of the respective contentions of the parties and have attempted to confine only to the point of jurisdiction of this Court and competency of the petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The above discussion may be understood only in that context, not having any effect qua the merits of the case.