' RASHEED A. RAZVI, J.---All the following twelve (12) Constitutional petitions along with the present petition involve common questions of law, as such, we have heard all these petitions together and intend to dispose of the same by this common order:-
(i) C.P. No,D-584/95, (ii) C.P. No,D-585/95, (iii) C.P. No,D586/95, (iv) C.P. No, D-600/95, (v) C.P. No,D- 610/95, (vi) C.P. No,D-632/95, (vii) C.P. No,D-633/95, (viii) C.P. No,D676/95, (ix) C.P. No,D-747/95, (x)
C.P. No,D-117195, (xi) C.P. No, D-618/95 and (xii) C.P. No, D-619/95.
2. It is an admitted position that all the petitioners were appointedas Primary School Teachers in relaxation of ban imposed by Provincial Government. They had joined their respective posts and served for a period of approximately two years. They were paid salaries and had performed their duties in different schools. Some time in the month of June, 1995 the Provincial Government decided to cancel all such appointments which were made during the period of ban.
3. In C.P. No,D-584/1995 the petitioner was appointed as Primary School Teacher (hereinafter referred to as the "PST") vide letter dated 6th December, 1994, issued by the District Education Officer (Female), respondent No,3 herein above. Her appointment letter was cancelled vide letter dated 18th September 1995 on the basis of Government decision communicated through letter dated 13th June, 1995. In C.P. No,D-618/1995 there are two petitioners who were appointed PST in the month of May, 1994 and their appointment orders were cancelled on the same ground as of earlier petitioner vide letters dated 16th September, 1195. In C. P. No,D-619/1995 petitioner was appointed as PST vide letter dated 28th February, 1994 and vide letter dated 18th September, 1995 her appointment letter was cancelled on the same ground by the District Education Officer (Female). In C.P. No,D-577/1995 the petitioner was appointed as PST on 4th September, 1994 and her appointment letter was cancelled vide letter dated 20th September, 1995. All the facts of appointment and removal of the petitioners are common. In parawise comments it is admitted that all the petitioners were appointed as PST in violation of ban imposed by the Government of Sindh and by the orders of. Chief Minister all such appointments werecancelled. There is no need of repeating the facts of other cases as except dates of appointments and termination, all other facts are similar. Following is the order which, more or less, has been impugned in all the above mentioned petitions.
"In pursuance of Government decision communicated vide letter No,SO(A-III) 102 (Appt:) 1995, Karachi dated 13th June, 1995 and received through Directorate's letter No, Admn: Pry-M/95- 96/12324-25 Hyderabad, dated 15-6-1995 issued in favour of Mst: Safia Parveen D/O Ali Anwar Kalhoro PST vide this office order No,DEC(F)/pry 04 dated 29-9-1994 during the ban period is hereby cancelled on the basis of the following paragraphs: ."All the appointments may be cancelled and their cases may be reconsidered as per recruitment procedure".
(Sd.)
DISTRICT EDUCATION OFFICER PRIMARY (FEMALE) DADU."
4. As a result of above order passed by the Provincial Government, the appointments of all the petitioners were cancelled against which they have filed present petition on the grounds, inter alia, that the blanket orders passed by the Government of Sindh, are illegal, unauthorized and mala fide; that the order of termination was passed in violation of principles of natural justice; that the respondents have no jurisdiction to pass, impugned orders. The petitioners have prayed for the following reliefs:-- "(a) Declare the order of respondents cancelling the appointments of petitioners. As Primary.
Teacher and any further directions regarding relieving the petitioners from her Post and withholding her salaries to be illegal void ab initio. And of no legal effect and any super instructure built on Annex: "D" will be illegal and void orders.
(b) Direct stay/suspension of impugned order Annex: "D" and any other orders to be passed pursuant thereto and direct the respondents to refrain from acting on such orders and giving effect to the same and allow the petitioner to continue her services as Primary School Teacher as per her appointments.'
(c) Direct the respondents to refrain from filling in the vacancies likely to fall vacant on account of cancellation of appointment of petitioner and termination of her services.
(d) Award costs of the petition to the petitioner.
(e) Grant any other relief to which the petitioners may be found entitled under facts and circumstances of the case."
5. On the last date of hearing we had asked all the learned counsel for the petitioners to satisfy us as to how this petition is maintainable in view of bar contained in Article 212(2) of the Constitution, 1973 and in view of the rule laid down by a Full Bench of this Court in the case of Abdul Bari v.
Government of Pakistan and 2 others (PLD 1981 Karachi 220). We also made them clear that unless we are satisfied on the question of maintainability for lack of jurisdiction, we would consider merits of the case for the limited purpose of jurisdiction.
6. We have heard Mr. Ghulam Rasool Qureshi, Mr. S.A. Shaukat Naqvi, Mr. Madad Ali Shah Syed and Mr. Muhammad Yousuf Leghari, for the petitioners and Mr. Ghulam Nabi Soomro, Additional Advocate-General Sindh.
7. It was contended on behalf of the petitioners that the terminationLetters do not involve the question of terms and conditions of the services and, therefore, it is outside the scope of the Sindh Service Tribunal. It was also argued that since order of termination was passed without affording opportunity of hearing to the petitioners, as such, this Court had jurisdiction to entertain and adjudicate all these Constitution petitions. In this respect Mr. Madad Ali Shah has placed reliance on the case of Saddiq Ahmed Khan v. The Secretary Housing Town Planning Government of Sindh Karachi and 2 others (1988 CLC 1877) where the question involved was whether a civil servant or an employee of a corporation or local authority under the control of the Government can be retired without issuing any show-cause notice. A Division Bench of this Court comprising of Ajmal Mian and Hyder Ali Pirzada JJ (as their Lordships then were) after referring to the case of Pakistan and others v. Public at Large and others (PLD 1987 SC 304) held that the orders of retirement passed in violation of principles of natural justice are without lawful authority and of no legal effect. Reliance was also placed by the petitioners upon the case of S.A. Rizvi v. Islamic Republic of Pakistan through Secretary Establishment Division and 2 others (1991 MLD 1834) where a Division Bench of this Court while considering order of dismissal passed by the Chief Secretary held that since the petitioner, who was admittedly Central Government Employee, was loaned on deputation to the WAPDA it was only the Central Government which was competent to terminate his services or to impose any major penalty. In view of these facts the impugned order was declared to be without jurisdiction.
Reference was also made to the case of Ghulam Mustafa Jatoi v. Additional District and Sessions Judge Nausheroferoze and others (1994 SCMR 1299) where before a Full Bench of Honourable Supreme Court question was in respect of bar contained in Article 225 ofConstitution, 1973 vis-a-vis rule laid down by the Honourable Supreme Court in the case of Election Commission of Pakistan v.
Jawaid Hashmi (PLD 1989 SC 396). It was held by the Honourable Supreme Court that since no remedy by way of an Election Petition is provided against the rejection of nomination papers and that the time for filing of appeal expired when the impugned order in that case was passed therefore, a petition under Article 199 of the Constitution was maintainable. It was also held by the Honourable Supreme Court after referring to the case of Hari Khemo Gawali v. The Deputy Commissioner of Police, Bombay and another (1957 SC India 90) that it is not safe to pronounce judgment on the provision of one Act with reference to decisions dealing with the. Other Acts which are not pari materia.
8. The cases Noor-ul-Amin Bachani and others v. Government of Sindh and others (1993 CLC 727), Pir Sabir Shah v. Federation of Pakistan and others (PLD 1994 SC 738) and the case of Leelaram v.
Ghulam Ali alias Essa and others (1993 SCMR 932) are of no help to the petitioners as the rule laid down in those .Cases arises out of different facts and secondly the prohibition contained in the Article 212(2) of the Constitution, 1973 was not discussed in the said three reported judgments.
9. Mr. Ghulam Rasool Qureshi has also referred to the case of Yousuf Ali v. Government of Punjab through Secretary Education, Civil Secretariate Lahore and other (1996 PLC (C.S.) 801) where the petitioner was appointed as P.T.C. Teacher and whose appointment letter was cancelled on the ground that the same was not covered by the merit policy as laid down by the Government. It was held by a learned Single Judge of Lahore High Court that after the petitioner had joined his duty, a right was accrued and that he cannot be removed from service except in accordance with the Efficiency and Discipline. Rules, 1975. Consequently, writ petition was accepted and the impugned order of cancellation of appointment letter was set aside. Reference was made by the learned Judge in his order to the cases of Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969SC 407), Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others (1992 SCMR 1652), State v. Muhammad Ismail and others (1980 SCMR 268), Province of West Pakistan v. Muhammad Yasin (PLD 1964 SC 438), Alnoor Textile Ltd. v. Collector of Customs and another (1990 ALD 356), Muhammad Ibrahim and others v. M.C. Chiniot (1990 ALD 655), Mumtaz Hussain v. District Magistrate (1990 PCr.LJ 1784) and Muhammad Ayub v. Custodian of Evacuee Property (PLD 1963 Karachi 551). We have gone through all these cases which arise out of different facts and circumstances. None of these cases involve interpretation of the bar contained in Article 212(2) of the Constitution, 1973. Therefore, in our humble view, ratio laid down in all these cases, in no manneradvances the case of petitioners, who, admittedly fall within the defination of "Civil Servants" as defined in the Sindh Civil Servants Act.
10. The argument of petitioners that under Article 199 of the Constitution this Court has unfettered power to interfere in all illegal orders passed by any authority or Tribunal, in our view, is to be considered in reference to the bar contained in Article 212(2) of the Constitution. This exercise was done by Full Bench of this Court in the case of Abdul Bari (PLD 1981 Karachi 290). We could not say anything better than what was said by Zafar Hussain Mirza. J. (as his Lordship then was) in that case, while interpreting Articles 212(2) and 199 of the Constitution, 1973. It would be advantageous if the relevant paras from the case of Abdul Bari (Supra) are reproduced, which are complete answer to the arguments of learned counsel for the petitioner.
"It will be observed that Article 212 of the Constitution opens with the non obstante clause contained in the words "Notwithstanding anything hereinbefore contained". We agree with the submission of the learned Deputy Attorney General that the effect of this clause is to curtail and oust the jurisdiction conferred on the High Court under Article 199. It goes without saying that the source of power of judicial review vesting in the High Court is not inherent in the Court as distinct from the "judicial power" as elucidated in the case of State v. Ziaur Rehman (5), but the power is conferred by Article 199 of the Constitution with all its limitations. Article 175 of the Constitution makes it abundantly clear that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". Article 199 qualifies the power conferred thereunder on a High Court with the words "subject to the Constitution". It cannot, therefore, be urged that the High Court has inherent power of judicially reviewing the action of the Executive, the Legislature, the Courts or Tribunals, but exercises such jurisdiction in the field of judicial review as has been expressly conferred upon it by Article 199. Consequently, if by any provision of the Constitution any fetters are placed upon the jurisdiction of this Court in the exercise of power under Article 199, this Court cannot overreach these limitation by any other consideration."
"It was then contended that inasmuch as the jurisdiction of the Service Tribunal has been confined to entertain appeal from "final" orders made by the departmental authorities, the jurisdiction in respect of other orders continues to remain intact so far as the High Court is concerned. In the view that we havetaken, there can be no cavil against this proposition of law. However, it seems to us that if the impugned order, although not final so far as the departmental authority passing it is concerned, is in the nature of a step towards the final orders that may eventually be passed, apparently such interlocutory order will eventually merge in the final order and in any case can be brought up before the Service Tribunal in an appeal from the final order. Clearly, therefore, such orders which are in the nature of interlocutory steps and are germane to the final order which is appealable before the Tribunal, will also be outside the jurisdiction of the High Court. However, in all the petitions before us there is no question of an order other than a final order."
11. It was further held by the Full Bench of this Court in the case of Abdul Bari that all such orders which are mala fide, ultra vires or coram non judice are within the ambit of Service Tribunal. The said view still holds the field. A Full Bench of Honourable Supreme Court in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) allowed the appeal filed a against the order of this Court allowing writ petition, on the grounds that the matter was within the ambit of Service Tribunal. In that case, through one Notification several customs officers working in different grades were upgraded under the orders of the then Chief Martial Law Administrator (late) General Ziaul-Haque, which was challenged before this Court. The Hon'ble Supreme Court after referring to the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129) set aside the judgment of this Court passed in Constitution Petition and remanded the case to the Services Tribunal on the following grounds, inter alia:-- "15. We are, therefore, inclined to hold that the controversy before the High Court was whether private respondents were eligible for consideration for promotion to Grade-18 as Assistant Collectors along with the private appellants. The above question could not have been decided without reference to the terms on which the private respondents were given higher grade, namely, Grade-17 upon the upgradation of the posts of Appraiser and the principal Appraisers pursuant to the above order of the late President Muhammad Ziaul Haq, which' in turn will involve consideration of the above various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 23 of the Civil Servants Act etc. The above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it. The judgment of the learned Singh Judge of the Sindh High Court and of the Lahore High Court relied upon by Mr. Ali Ahmed Fazeel, learned Sr. Advocate Supreme Court, do not correctly enunciate the legal position. "
12. The rule laid down in the case of Muhammad Anis was followed by another Division Bench of this Court comprising Shahnawaz Awan, J (as he then was) and one of us (Rasheed A. Razvi, J.) in the case of Muhammad Sharif Memon and 2 others v. Government of Sindh and 2 others (1996 PLC (C.S.) 1174) where a Constitution Petition challenging the Notification issued by Provincial Government through which respondents were promoted was dismissed in limine with the following observations:-- ' In the present case, the question whether the impugnedNotification appears to be just and equitable, in our view, cannot be decided in this petition as it may require recording of some evidence of which the proper forum would be the Sindh Services Tribunal. Here, we would also like to refer section 5 of the Sindh Services Tribunal Act, 1973 as well as Rules 17, 18 and 20 of the Sindh Service Tribunal (Procedure) Rules, 1974 which are complete answer to the procedure for recording evidence before the Service Tribunal."
8. In our view, even in this instant case, the question involved could not be decided without reference to the terms of services on which the petitioners and the respondent No,3 services are involved. This also involves consideration of the above notification, rules relating to the appointment and promotion as well as interpretation of section 24 of the Sindh Civil Servants Act.
As held in the above quoted case, it falls within the exclusive jurisdiction of the Services Tribunal."
' Against the above order of this Court a petition seeking leave to appeal was filed (C.P. 177-K of 1996). The said leave petition came up for hearing before a Full Bench of Honourable Supreme Court on 10th March 1997 when leave to appeal was refused on the ground that the petitioners was unable to demonstrate that the order passed by this Court was contrary to law.
13. In Muhammad Riaz and others v. Federation of Pakistan and others (PLD 1992 SC 204) a Full Bench of Honourable Supreme Court accepted appeal against the Judgment of Federal Service Tribunal and remanded the case to be thoroughly examined and decided the issues on the grounds that the controversy between appellants and respondents were of factual nature. It was held "that the Service Tribunal was the proper forum for resolving the factual and legal controversies arising in a Service matter". In the present petitions common issues are involvedthat whether there was ban and whether the petitioners were appointed inrelaxation of such ban? This controversy cannot be resolved through these petitions. Reference was made to the cases of Muhammad Younus Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22) and Shafiuddin Deputy Director v. Soorat Khan Ansari (1991 SCMR 116).
14. In all above petitions the controversy is that whether the petitioners were appointed in presence of a ban imposed by the Provincial Government or after its relaxation and whether relaxation of ban in certain cases by the Provincial Government was justified? The respondents have admitted that these petitioners have served different schools and were paid salaries from the Government Exchequer. There are other facts which were disclosed in the parawise comments which we would not like to comment upon as it may prejudice the case of either party. However, all these questions fall within the scope of terms and conditions of the service, and therefore, the proper forum would be the Sindh Service Tribunal. There is another angle of looking at this case. Suppose, if this Court, during the course of arguments, comes to the conclusion that the petitioners are Civil Servants and were rightly appointed without violation of any rule and regulation, then in presence of bar contained in Article 212(2) we are afraid whether this Court would be competent to grant relief to the petitioners as prayed. On the other hand, if the same conclusion is drawn by the Services Tribunal then it would be competent to grant relief to the petitioners according to the merits of the case.
15. As a result of above discussion, we are of the considered view that the dispute/controversy raised through this petition falls within the jurisdiction of Service Tribunal. These petitions are not maintainable in view of the bar as envisaged in the Article 212(2) of the Constitution. In the alternate, the petitioners have also prayed, that the present petitions may be transferred to the Services Tribunal as was done in the case of Muhammad Anis (supra) by the Hon'ble Supreme Court. These petitions were filed in the year 1995 and for last more than two years they were not heard due to shortage of Judges and heavy work load. If these petitions would have been decided earlier then there would have been enough time to the petitioners to approach the Sindh Services Tribunal. But still we are of the considered view that if such request is allowed, it would negate the provisions of section 4 of the Sindh Service Tribunals Act, 1973, as admittedly no departmental appeal was filed before coming to the High Court. Reliance is placed on the case of Dr. Rashid Anwar v. Federation of Pakistan and 7 others (1996 SCMR 1572). As far as reference to the case of Muhammad Anis (supra) is concerned, we would like to observe that the order passed by the Hon'ble Supreme Court was under Article 212(3) of the Constitution, 1973 as an Appellate Court of the Service Tribunal while this Court is exercising its jurisdiction underArticle 199 which is generally meant for correcting illegality, to check niala fides and to foster cause of justice. None of these principles are attracted in all these petitions which are liable to be dismissed in limine.
' All the thirteen petitions along with listed applications stand dismissed in view of the above observations.