ZAFFAR HUSSAIN MIRZA, J.-The following questions were referred to the Full Bench by a Division Bench comprising of the learned Chief Justice and Justice Ajmal Mian :-
(i) Whether the petitions are barred by Article 212 of the Constitution?
(ii) Whether the competent authority can retire a civil servant at any time after his completing 25 years' service or alternatively the said power to retire a Civil Servant can be exercised at or about the time when the Civil Servant is due to complete 25 years of service?
(iii) Whether the power to retire under section 13(ii) of the Civil Servants Act (1973) is absolute or is regulated by rules ?
2. These questions have arison out of several petitions under Article 199 of the Constitution filed by Civil Servants who have been retired by orders passed in purported exercise of power conferred upon the competent authority in each case under section 13(ii) of the Civil Servants Act, 1973, which reads as under :- "Retirement from service.-A civil servant shall retire from service-
(i) in the case of a person holding the post of Additional Secretary to the Federal Government or any equivalent or higher post, on such date as the competent authority may, in the public interest, direct;
(ii) in any other case, on such date after he has completed twenty-five years of service qualifying for pension or other retirement benefits as the competent authority may, in the public interest, direct; or
(iii) where no direction is given under clause (i) or, as the case may be, under clause (ii), on the completion of the sixtieth year of his age.
Explanation.-In this section, `competent authority' means the appointing authority or a person duly authorised by the appointing authority in that behalf, not being the person lower in rank than the civil servant concerned."
3. On the petitioner's side we have heard Messrs Khalid Ishaque, Nasim Farooqui, Wajihuddin Ahmed, Raja Haq Nawaz and Raja Qureshi. For the respondents the learned Deputy Attorney- General and Miss Rashida Masud addressed arguments. The learned Advocate-General, Mr. Muhammad A.I Sayeed and Mr. Manzoor A.I Khan have also addressed us as Amicus Curiae. The argument on the petitioners' side was opened by Mr. Kbalid Ishaque. It was suggested on behalf of the petitioners that the first question as framed by the Referring Bench may be recast as in its present form it will be difficult to answer the question, for, many other petitions have not been admitted to regular hearing and according to the counsel for the petitioners the petitions cannot be finally disposed of without taking into consideration all the grounds urged in the respective petitions specially in absence of the material upon consideration of which the competent authority passed the impugned orders. After hearing the counsel for the parties we unanimously felt that the intention behind the referring order did not seem to be to refer all the petitions for final disposal to the Full Bench, but specified questions of law formulated by the Bench were referred for the opinion of the Full Bench. Accordingly we have re-framed the first question so as to read as under :- "(i) Whether petitions under Article 199 of the Constitution seeking to challenge orders of retirement under section 13(ii) of the Civil Servants Act, 1973 are barred under Article 212 of the Constitution?"
4. We will first take up the aforesaid question as reframed above. At this stage it will be convenient to reproduce the provisions of Article 212 of the Constitution which read as under :- "212.-(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide 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;
(b) matters relating to claims arising from tortious 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
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(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 and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administra--tive Court or Tribunal, other than an appeal pending before the Supreme Court, shall abate on such establishment Provided that the provisions of this clause shall not apply 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, Parliament by law extend the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
The Parliament provided for the establishment of Administrative Tribunal, to be called the Service Tribunal by the Service Tribunals Act, 1973, to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of service of Civil Servants and for matters connected therewith or ancillary thereto. It is, therefore, contended on behalf of the respondents that this Court has no jurisdiction to entertain any proceedings in respect of the impugned orders as an appeal is competent before the Service Tribunal against an order passed for retirement of a Civil Servant under section 13 (ii) of the Civil Servants Act before the Tribunal. The relevant section dealing with the jurisdiction of the Service Tribunals is section 4 of the Service Tribunals Act, 1973 which reads as under "4. Appeals to Tribunals.-(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 his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, which ever is later, prefer an appeal to the Tribunal.
Provided that-
(a) where an appeal, review or representation to a Departmental Authority is provided under the Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved Civil Servant has preferred an appeal or application for review or representation to such Departmental Authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred ; and
(b) no appeal shall lie to a Tribunal against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a Departmental Authority made at any time before the Ist July, 1969.
(2) ---------------------------------------.
Explanation.-In this section, 'Departmental Authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
On the provisions of clause (b) of subsection (1) above it was contended by Mr. Khalid Ishaque that since the decision to retire a person in the public interest under section 13(ii) involves the determination of the fitness or otherwise of a civil servant to hold a particular post, the case squarely falls within the said provisions and no appeal is, therefore, competent before the Tribunal.
As a consequence, it was urged, that since the jurisdiction of the Tribunal does not extend to a case of retirement of the nature contemplated under section 13(ii), the power of this Court to entertain proceedings in regard to such an order remains intact. Alternatively it was submitted that the ouster of jurisdiction under clause (2) of Article 212 becomes operative only on the establishment of a Tribunal of exclusive jurisdiction and since certain matters pertaining to terms and conditions of civil servants have been. Taken out of the jurisdiction of the Tribunal, it can by no means be said to be a Tribunal having exclusive jurisdiction.
5. It will be convenient to take up for consideration first the alternate argument advanced by Mr. Khalid Ishaque. His submission is that in order to make a total ouster of jurisdiction of the High Court, the Tribunal must be one as contemplated by clause (I) of Article 212, i.e. On which was invested with jurisdiction extending over the entire field covering the whole gamut of the terms and conditions of service, so that if a Tribunal with jurisdiction limited to some of the terms and conditions of service is established, then the jurisdiction of the High Court under Article 199 would remain intact as in respect of other inferior Tribunals even in regard to matters which may be within the ambit of the Tribunal's jurisdiction. We are however, able to agree with the contention raised. The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all sue matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words "in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends" clearly make the ouster of the High Court to correspond with the matters placed within the ambit of the jurisdiction conferred on the Tribunal. If the intention of the maker of the Constitution was as is canvassed by Mr. Khalid Ishaque, then instead of the words referred to, the provision would have been to the effect that upon establishment of an Administrative Court or Tribunal of exclusive jurisdiction no other Court shall be competent to entertain any proceeding in respect of any matter relating to terms and conditions of service. But the words pointed out clearly provide for the degree of the ouster of the jurisdiction of the Courts in direct proportion to the scope of the jurisdiction of the Tribunal.
6. This, therefore, brings me to the first contention advanced by the learned counsel, for, on the aforesaid discussion we are clearly of the view that in the context of the submissions by Mr. Khalid Ishaque, once it is shown that an appeal is competent before the Service Tribunal, the matte will lie outside the pale of the jurisdiction of this Court. Our attention was invited to the view taken by the Service Tribunal itself in appeal No. 37-(x)/1980 whereby the Tribunal held that it had no jurisdiction to adiudicate in the matter of retirement of civil servants under section 13(ii) of the Civil Servants Act. Unfortunately, however, no reasons have been assigned for reaching such a conclusion. A closer examination of sec--petition 4(1)(b), Service Tribunals Act, however, shows that no appeal has been provided before the Tribunal against an order or a decision of a departmental authority in the following cases.
(i) Where the question of fitness or otherwise of a person to be appointed to a particular post has been determined;
(ii) Where the question of fitness or otherwise of a person to hold a particular post has been determined;
(iii) Where the fitness or otherwise of a person to be promoted to a higher post or grade has been determined.
The argument advanced before us was that when a person is retired under section 12(ii) in substance the competent authority determines the fitness of the incumbent to hold any post in Government service and, therefore, such an order falls within the ambit of the restrictive provisions of clause (b) of section 4(1). We find no substance in this submission for more than one reason. In the first place the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post is a matter which in the very nature of things is not liable to be regulated by any rules or regulations, but depends upon the individual judgment and opinion of the competent authority required to determine the same. Often such opinion is dependant upon impondrables not capable of objective examination or review by another authority. Such opinion may be based on a variety of considerations. It was, therefore, rational for the law maker to clarify that no appeal shall lie - against a decision of such nature. It is not difficult to see why no right of appeal has been provided against a decision- determining the question of fitness or otherwise of a person to be appointed to a particular post or to be promoted to a higher post or grade. In this country it is well settled that no person has a vested right to an initial appointment to a particular post or to be promoted to a higher post. These matters lie within the domain of prerogative right of the Government to select persons found suitable to their satisfaction for appointment or promotion.. It is the absolute discretion of the competent authority in the Government whether to appoint or to promote to higher post any person because once the appointment or promotion is made, the incumbent may acquire vested service rights vis-a-vis the Government. The fitness of a person to "hold" a post has been bracketed with appointment or . Promotion. No person in Government service has ordinarily been recognized to have a right to hold a "particular" post. The word "parti--cular" is very significantly used, in this clause and in our opinion limits the scope of the clause so far as the-decision 'relevant to the fitness or otherwise of a person to hold a post is concerned. Section- 10 of the Civil Servants Act stipulates as one of the conditions of service of a civil servant that he shall be liable to serve anywhere or outside Pakistan, in any post under the Federal Government, or any Provincial Government or Local Authority, or a Corporation or a Body set up or established by any such Government. It, therefore, follows that if the competent authority takes a decision with regard to fitness or otherwise of an incumbent to hold a particular post, such decision itself does not infringe any of the terms and conditions of his service, as long as none of his other service rights is affected. An unjustified, or mala fide or colourable order of retirement under section 13(ii) would obviously involve the infringement of the right of a civil servant to continue to serve until the sixtieth year of his age. It cannot, therefore, be a mere matter of his fitness to hold a particular 'post. A comparison of the wording of section 13(ii) of the Civil Servants Act with clause (b) of the proviso to section 4(1) of the Service Tribunals Act, 1973 also shows that an order of retirement in public interest is not envisaged or covered by the latter provision. Thus it is clear that section 13 speaks of the retirement from "service" of a civil servant, whereas clause (b) o section 4(1) of the Service Tribunals Act speaks of the fitness of a person to hold a particular "post".
A decision as to "fitness of a person to hold a particular post" cannot be equated with a decision to "retire a person from service in public interest". The two expressions placed by us into quotes are obviously expressions of different connotation and do not seem to cover the same field. It seems to us, therefore, that the Legislature could p not have excluded an order of retirement under section 13(ii) from the purview of the Service Tribunal to examine and such an order would apparently fall within the main provisions of section 4 of the Service Tribunals Act, 1973 which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority in respect of an of the terms and conditions of his service. We are clearly, therefore, o the view that clause (b) of the proviso to subsection (1) of section 4 of the said Act does not contemplate an order of retirement under section 13(ii) of the Civil Servants Act, 1973. Such an interpretation is in accord with the well-established principle of interpretation of statutes which lay down that a proviso has to be strictly construed and a remedial provision of an enactment has to be construed so as to advance the remedy and suppress the mischief that was intended to be suppressed by the provision. There is no reason for holding that whereas all other orders in respect of any of the terms and conditions of service were made appealable, an order retiring acivil servant before he completes 60 years of his age should be excluded from the purview of appeal when such order may deprive him of the valuable right to continue in service with all its incidental privileges and prospects. We may refer to the view expressed by Z. A. Channa, J. (as he then was) in Muttaqi Hmsain Rizvi v. Province of Sind PLD 1978 Kar. 703on the interpretation of section 4(1)(b), Service Tribunals Act :- "This ground involves the question whether claim to promotion is a vested right, and if not, under what circumstances a claim in relation to it can be agitated before the Civil Courts or the superior Courts in the exercise of their Constitutional Jurisdictions. No doubt the question of "fitness" or otherwise of a person "to be appointed to or hold a particular post" is expressly excluded from the purview of the Tribunal, and, therefore, the bar under Article 21.2 of the Constitution will not apply to such an issue or question, but in my opinion the above expression, as used in section 4 of the Sind Service Tribunals Act, has to be given a narrow and limited connotation and would obviously exclude not only cases of reversion, but also cases of promotion to higher posts and grades and also to cases of reduction in rank. As such, the expression would appear to be limited in its application to cases of persons seeking appointments to posts for the first time or outside their cadre or to appointment to a particular post or office in the same or equivalent grade. This provision, in my opinion, is to be read in conjunction with the provisions of section 10 of the Civil Servants Act, 1973, which provides that every civil servant shall be liable to serve anywhere within or outside the Province in any post under Government of Sind, any other Provincial Government, the Federal Government, a Local Authority or any Corporation or Body set up by any such Government.
In view of the liability of the civil servants to serve in any such post, obviously the claim of a civil servant to be appointed to a particular post or to hold a particular post cannot be allowed to be agitated before the civil Courts except in cases where it can be shown that some legal right based on a specific statutory provision, has been violated."
Reference may also be made to some of the judgments of the superior Courts in which it has been held that once it is shown that a particular matter relating to terms and conditions of a civil servant lies within the jurisdiction of the Service Tribunal, the jurisdiction of the High Court and for that matter of other civil Courts will stand ousted. A D. B. Of this Court in Sher Mohammad v. Director General of Pakistan Telegraphs do Telephones Depart--ment (1) upheld `an ,objection raised before it on the basis of Article 212 of .The Constitution and dismissed the petitions seeking to challenge orders grassed 6y departmental authorities relating to the terms and conditions of civil servants which were found to be covered by sections 3 and 4 of the Service Tribunals Act; 1973. In 1qan Ahmad Khurrurn v. Government of Pakistan (2) also the same D. B. Reiterated the same view holding that the petitions were not competent under Article 199 of the Constitution as the impugned orders were appealable ' under section 4 of the Service Tribunals Act, 1973. This view was upheld by the Supreme Court in appeal in Iqan Ahmed Khurrum v. Government of Pakistan (3) and on page 159 of the report it was observed as under; "As to the ground concerning the non-maintainability of the petition, the High, Court has held, and it is also the case of the petitioner, that the effect. Of the rules is that it has altered the terms and conditions of service. .This being so, the bar on Article 212 of the Constitution would- be applicable with full force as in that exercise the question of vires of the rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Baluchistan and others and Fazal Ellahi Ejaz and others v. Government of Punjab and others with which I agree."
(1) PLD 1979 Kar. 1(2) PLD 1979 Kar. 610
(3) PLD 1980 SC 153 Muhammad flashim Khan v. Province of Baluchistan PLD 1976 Quetta 59 a D. B. Of the Sind & Baluchistan High Court held that the effect of the establishment of the Service Tribunal "is that no other Court has the jurisdiction to grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends". In the other case approved by the Supreme Court viz. Fazal Ellahi Ejaz and others v. Govt. Of Punjab and others
(1) also the same view was held that if a matter falls within the ambit of the exclusive jurisdiction of the Administrative Tribunal then no proceedings can be entertained by other Courts including the High Court in regard to such matter in view of the bar contained in Article 212. Similar view was taken by a Full Bench of the Baluchistan High Court in Mujeebullah Eijaz v. Director-General, Telephone & Telegraph Department (2). In Afzal Hussain Syed v. Govt of Punjab (3) a learned Single Judge of the Lahore High Court was required to consider the question of Constitutional Jurisdiction of the High Court in relation to an order of retirement simpliciter after compel--petition of 25 years service, as in the present case, and he reiterated the view held in the aforesaid cases holding that the ouster of jurisdiction under Article 212 in such a case was absolute for the reason that such an order is not excepted from the jurisdiction of the Administrative Tribunal established under the enabling provisions of Article 212 of the Constitution, but it was further held that the High Court can intervene if the order is void or coram non judice on the face of the record. The last- mentioned view regarding the power of intervention of High Court in the case of void or coram non judice orders will be considered at a later stage. A Full Bench of the Peshawar High Court had occasion to consider the question of the ouster of jurisdiction of the High Court under Article 212 in respect of orders of retirement of the same nature, as in the present case, in Amanul Mulk v. N.-W.
F. P. (4) and held that such an order being appealable before the Administrative Tribunal the jurisdiction of the High Court was barred under Article 212, as the Administrative Tribunal can examine the question whether retirement was ordered in public interest.
7. We may now state the reasons in support of this view. It will b observed that Article 212 of - the Constitution opens with the non obstant clause contained in the words "Notwithstanding anything hereinbefor 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 h. 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 an 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 suck 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 limitations by any other consideration. In the case of Mujeebullah Eijaz, referred to above, the Full Bench of the Quetta High Court at page 62 o the report expressed that view. In a D. B: case of the Lahore High Court
(1) PLD 1977 Lah. 549 (2) PLD 1980 Quetta 58
(3) PLD 1980 Lah. 697(4) PLD 1981 Pesh. 1
(5) PLD 1973 SC 49 Muhammad Aslam Bajwa v. Federation of Pakistan (1), the same view as taken earlier while considering the ouster clause under Article 212 and the question was whether petitions under Article 199 pending before the High Court in relation to matters within the jurisdiction of the Service Tribunal had abated or not. The Supreme Court in the case of M. Yameen Qureshi v' Islamic Republic of Pakistan (1) approved the view held by the Lahore High Court in the aforesaid case in regard to the jurisdiction of the Service Tribunal to entertain appeal under section 6 of the Service Tribunals Act, 1973 on the abatement of petitions pending before the High Court in respect of such matters. In view of all the aforesaid judicial pronouncements it seems clear to us that an order of retirement in the public interest to respect of a civil servant after completion of 25 years service qualifying for pension or other retirement benefits being appealable under section 4 of the Service Tribunals Act, 1973, the jurisdiction of this Court stands ousted by virtue of the bar contained in Article 212 of the Constitution.
8. It has, however, been contended, on the aforesaid premises. That the present petitions would still be competent before this Court for a number of reasons. It is first contended that even though the order of the nature in question before us may be appealable before the Tribunal nevertheless the High Court has always been held to have jurisdiction under Article 1.99 in respect of orders which are mala fide, ultra vires or coram non judice. The argument is that the availability of an alternate remedy under the Statute has never been recognized as a bar to the exercise of jurisdiction under Article 199 in respect of orders of the nature mentioned. In fact some of the decisions of the High Courts referred to above, have taken this view. I may mention the Full Bench judgment of the Baluchistan High Court in .Mujeebullah Fijaz's case already referred to earlier. In this case the Court expressed the opinion that no appeal will lie before the Tribunal, inter alia, in a case "when the order is not passed by a competent departmental authority and is for such reason void". In Afzal Hussain Syed v. Government of Punjab (3) also it was held that an order o f retirement, as in the present case, was appealable before the Tribunal, nevertheless the "High Court may also intervene if the order is void, or coram non judice on the face of the record". The reasoning in these cases proceeds on the basis that orders which are mala fide, ultra vires of the authority passing them or coram non judice are null and void in law and, therefore, any Court before which they are brought is not only entitled, but bound to are ignore them. With all due respect for the learned Judges we are unable to agree with the proposition. In the first place before a Court could examine whether an order is really of the nature mentioned above it must have jurisdiction to undertake the examination and determine the question. As soon as it is shown that a particular order of the departmental authority lies within the ambit of the Tribunal, the jurisdiction of the civil Courts including the High Court is ipso facto ousted as a result of the barring provisions of Article 212. The High Court would, therefore, not be competent on any ground to examine the validity of an order which falls within the jurisdiction of the Tribunal. The decisions on which reliance seems to have been placed for the view canvassed in support of the argument related to the ouster of jurisdiction under sub---constitutional legislation and in relation to finality clauses in Statutes. Apparently in such cases the power of judicial review available to the High Court under Article 199 is not affected and, therefore, recourse can be had t to the extraordinary supervisory jurisdiction of the High Court to challenge
(1) PLD 1974 Lab. 545 (2) PLD 1980 SC 22
(3) PLD 1980 Lab. 697 such orders on the ground of nullity. But the situation under Article 212 is entirely different. The ouster contemplated under that Article is of the constitutional nature and, therefore, of necessity curtails the jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunals. The second important reason is that the plain reading of the provisions of clause
(2) of Article 212 leaves no manner of doubt that these provisions did not envisage concurrent jurisdiction of the civil Courts and the Tribunal in regard to any matter on any ground in respect of the terms and conditions of service. The situation contemplated in the said provisions is that the jurisdiction conferred on the Service Tribunals and the jurisdiction vested in the civil Courts in respect of the terms and condition of service of civil servants is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the civil Courts including the High Court. That orders which are mala fide, ultra vires or coram non judice are within the ambit of the Service Tribunal has been held in several cases. In Iyan Ahmed Khurrum v. Govt. Of Pakistan l l) a D. B. Of this Court held that orders which are ultra vires or violative of rule of natural justice or void were within the competency of the Service Tribunal to determine.In Muhammad Hashim Khan's case (2) already referred to, also it was held that the Service Tribunal's exclusive jurisdiction extends to ultra vires and mala fide orders. Similarly a Division Bench of the Peshawar High Court in the case of Dr. Raja Mansoor Elahi v. N.-W. F. P. (3) held that an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the civil Courts including the High Cour would be ousted. Similar view was taken in the case of Muhammad Aslam Bajwa by the Lahore High Court as already referred to. All these cases have been extensively reviewed in an exhaustive judgment if we may say so with respect by Shah Abdul Rasheed, J. In the Full Bench case of Amanul Mulk v. N. W. F. P.
(4) in which the following reasons were given in support of the view that the High Court's jurisdiction stands ousted even in regard to such orders "In our opinion all that is necessary is that the order to be impugned should be an order of the departmental authority and if it is an order of such authority and the Tribunal has been conferred jurisdiction by the law under which it is established, the jurisdiction of the High Court is totally ousted. As a consequence, wherever the jurisdiction of the Tribunal exists, it is not open to the aggrieved civil servant to invoke the jurisdiction of the High Court under Article 199 of the Constitution by saying that the order of the departmental authority is without jurisdiction or it is void or it is mala fide or it is in the nature of coram non judice. "
This question, in our opinion, stands finally settled by the clear and unambi--guous pronouncement of the Supreme Court as regards the vide amplitude of the powers of the Tribunal in regard to the orders challenged before it. In Yameen Qureeshi's case (5) already referred to, an order dismissing a civil servant under M. L. R. 58 during the regime of General Agha Muhammad Yahya Khan was subsequently appealed against before the Service Tribunal established under the Service Tribunals Act, 1973. The majority of the
(1) PLD 1979 Kar. 610 (2) PLD 1976 Quetta 59
(3) PLD 1980 Pesh. 81 (4) PLD 1961; Pesh. 11
(5) PLD 1980 SC 22 Members of the Service Tribunal took the view that all . Actions taken or orders made under Martial Law Regulations promulgated during the same regime had been validated under Article 270 of the Constitution and were, therefore, not liable to be challenged before the Service Tribunal. The minority view, however ,.Was that the Service Tribunal having been vested with exclusive jurisdiction, under Article 212 of the Constitution, in respect of matters relating to the terms and conditions of service of persons who were or had been in the service of Pakistan, including the disciplinary matters, it was clear that no other authority could excise jurisdiction in these matters, and, therefore, the appeal was competent under Article 212 of the Constitution read with section 4 of the Service Tribunals Act, 1973, but the scope of the appeal would be subject to the limitations spelt out by the Supreme Court in the case of Federation of Pakistan v. Saeed Ahmed Khan and others PLD1974SC151 namely. That the Tribunal could interfere only with the acts, orders or proceedings which had been done, made or taken without jurisdiction, or were mala fide, or were in the nature of coram non judce. The Honourable Judges of the Supreme Court held both the majority and the minority view of the Service Tribunal as untenable. His Lordship the Chief Justice, who wrote the judgment for the Court made the following observations :- "As a result, we are of the view that both the majority and the minority views expressed by the learned Chairman and the Members of the Service Tribunal as to the maintainability and the scope of the appeal filed by the appellant before the Tribunal are not sustainable on a proper interpretation of the law. The appeal being one within the ambit of section 4 of the Service Tribunals Act, 1973, was fully competent, and it was the duty of the Service Tribunal to examine on merits all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal made under the M. L. R. 58, in May 1970."
It was further 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 record 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 had 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 powers as are vested in such Court under the Code of Civil Procedure, 1908 Such being the scope of the powers of the Service Tribunal we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala fide, ultra vires and coram non judice are within the jurisdiction of the Service Tribunal to determine and, therefore, it follow that the High Court will have no jurisdiction to grant relief on those grounds in respect of orders appealable before the Service Tribunal. Incidentally we may also refer to a contention raised before us on the law laid downs in Saeed Ahmad Khan's case that even a constitutional bar on the scrutiny of orders passed during the illegitimate rule under the Martial Law promulg--ated on 25th March, 1969 was not held to oust the jurisdiction of the High Court in respect of orders passed mala fide or in the nature of coram non judice. The real import of the rule laid down in that case has been fully explained in the cited case of Yameen Qureshi and we do not wish to burden this judgment with further discussion on the untenability of this contention. Suffice it to say that the statement of law made in Saeed Ahmad Khan's case relates to the interpretation of a validation clause in the Constitu--petition, which in our humble view is not at all pertinent to the situation and context of the present controversy which deals with the ouster of jurisdiction by a clear constitutional provision. If the entire field of controversy that could possibly arise in respect of an order passed by a departmental authority has been committed under the Constitution to the exclusive jurisdiction of the Service Tribunal, then Article 212 clearly bars the jurisdiction of this Court to entertain any part of such controversy in any proceedings. Their Lordships also emphasized in the cited case of Yameen Qureshi the distinction between the scope of jurisdiction of the High Court by way of judicial review and the wide scope of the appellate jurisdiction of the Service Tribunal.
9. 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 have taken, 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.
10. Mr. Wajihuddin Ahmed also addressed us on behalf of some of the petitioners. He contended that having regard to the provision of the Service Tribunal Act, 1973 the Tribunal established thereunder is not a Tribunal of "exclusive" jurisdiction. In this behalf he submitted the following three grounds.
(i) The Act itself provides under section 4, proviso (a) that no appeal shall lie to the Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to the competent departmental authority as permitted under the rules and a period of 90 days has elapsed from the date of such appeal, application or representation. Therefore, other departmental authorities have been made competent to adjudicate upon the same subject-matter before the matter could come up before the Tribunal.
(ii) The Tribunal has not been empowered to implement its own decision although it has power to alter or amend the orders appealed against.
(iii) Article 212 of the Constitution contemplates a Tribunal of original jurisdiction and not appellate jurisdiction as provided in the Act.
As regards the first ground urged by the counsel, it may be stated that as pointed out by their Lordships of the Supreme Court in Yameen Qureshi's case section 3 of the Service Tribunals Act, 1973 empowers the President of Pakistan to establish one or more Service Tribunals, and subsection
(2) of this section provides that; "A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters."
Then section 4 deals with the right of appeal of aggrieved civil servants in respect of final order passed by departmental authorities before the Tribunal. Proviso (a) does not limit the jurisdiction of the Service Tribunal in regard to the subject-matter which could be adjudicated upon by the Service Tribunal. The provision only seems to have the effect of allowing a time gap of 90 days so that the appellate or reviewing authorities in the Depart--ment may re-examine the order and remove any errors or defects depart--mentally before the matter is placed before the Tribunal. The effect of this proviso, upon its plain meaning, cannot be construed to restrict the exclusiveness of the jurisdiction of the Tribunal in relation to matter committed to its jurisdiction exclusively. Similar provision can found in other Statutes and a glaring example is provided by the statutory provisions requiring prior notice to certain authorities before commencement of legal proceedings, like section 80, C. P. C. And similar provisions under other Statutes. The object of such statutory provisions is to give opportunity to public authorities at the highest official level to reconsider the matters involved. The provision, therefore, is at best a procedural pre-condition for filing of proceeding before the Service Tribunal and cannot be construed in any way to whittle down the exclusiveness of the jurisdiction of the Tribunal. The learned Deputy Attorney-General argued and we agree with the submission that under section 5 of the Service Tribunals Act, the Tribunal has the power, on appeal, to confirm, set aside, vary or modify the order appealed against, from which it follows that the orders passed in appeal by the Tribunal would be effective from the date of the impugned order in appeal. Therefore, the period of 90 days provided for in proviso (a) of section 4(1) would be covered by a decision made by the Tribunal. Viewed in this prospective the jurisdiction of the Tribunal seems to extend ultimately to the time immediately following the impugned order. We therefore, find little force in the contention of the learned counsel that as a result of the abovesaid provision the High Court will have jurisdiction to entertain proceedings at least for 90 days. We are unable to place such construction as is canvassed by the petitioner's counsel on the relevant as clearly once the subject-matter pertaining to any terms and s of service of civil servants has been placed within the jurisdiction of the Tribunal, the ouster of the jurisdiction of other civil Courts is absolute in respect of such terms'! And conditions. If, therefore, the procedure-for invoking of the Tribunal provides for certain preliminary steps to be taken, it cannot be said that during the time such steps are taken the civil Courts will have jurisdiction. Such construction will clearly be unreasonable and produce unnecessary complications.
11. As to the second ground urged by the counsel, we have already referred to the exposition of law as to the scope of the powers of the Tribunal asenunciated in the case of Yameen Oureshi in which their Lordships have referred to section 5 of the Service Tribunals Act and to the powers conferred upon the Tribunal for the purpose of deciding appeals. It seems that the Tribunal is fully empowered to exercise all the powers of a civil Court while disposing of appeals. In view of these observations of they Supreme Court we are unable to hold that the Tribunal established under the Act is not a Tribunal of exclusive jurisdiction on the ground that it ha. No express authority to implement . Its decision.' In any case the argument itself implies that upto the stage of decision of the appeal, the jurisdiction of the Tribunal is exclusive and; therefore, for the present purposes I do not consider it necessary to further pursue the matter as to the powers of the Tribunal to implement its decisions. The learned Deputy Attorney General made a categorical concession that the Service Tribunal is fully empowered to pass orders for an interim relief as such orders are ancillary to the power of final adjudication, conferred on the Tribunal as held in the case of Sind Employees' Social Security v. Adamjee Cotton Mills Ltd. (1). On the same principles, it was submitted by the learned Deputy Attorney General, the Service Tribunal will have all the powers to implement its decisions. As regards the last ground urged by the counsel, there is no warrant for holding that Article 212 contemplates the establishment of a. Tribunal of original jurisdiction. In the context of subject-matter of the legislation pertaining to the terms and conditions of civil servants it is difficult "o conceive of a Tribunal of original jurisdiction. The Tribunal as presently constituted has been empowered to give redress to aggrieved - civil servants t against any orders passed to their detriment in relation to their terms and conditions of service, which fully satisfies the requirements of Article 212.
12. It was then urged on behalf of the petitioners mainly by Mr. Raja Qureshi that this Court will have jurisdiction in respect of those petitions in which the competency of the Authority which passed the impugned order has been challenged since the Tribunal will have no jurisdiction to entertain appeals against such orders. The argument proceeds on .The basis of the language of subsection PLD1975SC32 of section 4 of the Service Tribunals Act, 1973 and the Explanation appended thereto. It will be seen that ail aggrieved civil servant has been given a right to file an appeal before the Tribunal in respect of any final order made by a departmental authority" in respect of any of the terms and conditions of his service. The expression "departmental authority" has been defined in the Explanation appended to the section to mean "any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants". It is, therefore, contended that the jurisdiction of the Tribunal extends only to entertain appeals against the final orders passed by "competent" departmental authorities. In other words, the submission is that if the order is challenged as having been passed by a departmental authority legally not competent to pass the order the Tribunal cannot exercise jurisdiction and such questions of competency are, therefore, beyond the jurisdiction of the Tribunal to determine. Mr. Wajihuddin Ahmed. Q who also urged the same contention has invited our attention to an un-report D. B.
Judgment of this Court in Constitutional Petition No. 1271 of 1978, Dhani Bux Soomro v. Province of Sind in which Fakhruddin G. Ebrahim, J. Interpreted the relevant parts of section 4 of the Service Tribunals Act, 19731 in the following manner; "The Tribunal under section 4 of the Act has power to hear appeals from any final order made by a departmental authority in respect of any terms and conditions of the aggrieved civil servants' service. Under its Explanation the departmental authority means any authority competent to make an order in respect of any of the terms and conditions of civil servants. If, therefore, a final order, though relating to the terms and conditions of service, is not passed by a conditions of service, is not passed by a competent authority, the recourse to appeal under section 4 of the Act would not be available and with that will disappear the bar to the exercise of our jurisdiction under Article 199 of the Constitution. As to the aforesaid the learned Additional Advocate-General conceded that the impugned order was not made by a competent authority. The petitioners, therefore, cannot have recourse of appeal under section 4 of the said Act. It is well-settled principle of laws ousting the jurisdiction of the superior Courts have to be strictly construed and if the bar to the exercise of our jurisdiction under Article 199 of the Constitution is limited to matters within the exclusive jurisdiction of the Tribunal, the impugned orders being outside the Tribunal's challenge, as having not been passed by competent authority, these petitions would be maintainable."
There is no doubt that upon ~a first reading of the language employed in the Explanation it appears that only an order passed by a departmental authority "competent" to pass orders in respect of terms and conditions of civil servants have been made appealable. But on a closer examination; it seems. To us that the Explanation cannot be construed strictly in that construction is to be made of all the parts of a Statute together, and not one part only by itself. Maxwell on Interpretation of Statutes (12th Edn.)"'at page 53 observed.: "It has been said that one of the safest guides to the construction of sweeping general words which are hard to apply in their full literal sense is to examine other words . Of like import in the same instrument and to. Sex what limitations must be imposed on them; and if it is found that a number of such expressions have to be subjected to limitations and qualifications, and that such limitations and qualifications are of the same nature, that circumstance forms a strong argument for subjecting the expression in dispute to a like limitation or qualification." It has also been laid down that the meaning of a section may be- controlled by the other individual sections in the same, Act or by the scheme of the Act regarded in general. Keeping these well-recognized rules of interpretation in view it seems to us that the object underlying the Service Tribunals Act, 1973 was to provide for the establishment of Service Tribunals "to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of service of civil servants." This object is clearly spelt out from sub--section (2) of section, 3 of the said Act which lays down that a Tribunal shall have exclusive jurisdiction in such .
Matters. - Then comes section 4 which deals with the right of appeal conferred on a aggrieved civil servant from 'a final order passed in respect of any. Of the terms and conditions of his service. The question that falls for consideration, therefore is, whether an intention can be attributed to the Legislature in view of the aforesaid object of the enactment to limit the right of appeal to orders passed duly by legally competent departmental authorities, so that an order passed by an incompetent departmental authority would not be appealable before the Tribunal? Plainly such intendment will not be reasonable to attribute to the Legislature as such a situation would be extremely unjust and unworkable tending to defeat the very purpose of the legislation. There can be no dispute that the Act was passed in pursuance of the enabling provisions of Article 212 of the Constitution to confer exclusive jurisdiction upon a Service Tribunal in the field referred to above. If the literal construction contended for is accepted then an important category of orders namely order. Passed without authority or power by a departmental authority will left for scrutiny by the civil Courts or the High Court. There is no reasonably basis for holding that such must be the intent underlying the provision in question. The expression "departmental authority" besides being used in subsection (1) of section 4 is also used at several other places in the section. It has been used in proviso (a) to the section in connection with the requirement of filing appeal, application for review or representation to such departmental authorities as provided under the Civil Servants Act, 1973 or any rules. Section 22 of the Civil Servants Act specifically refers to the right of appeal or representation or review and its subsection (2) provides as under :- "Where no provision for appeal or review exists under the rule in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order."
Reading section 22 of the Civil Servants Act with proviso (a) to section 4 of the Service Tribunals Act, it will be clear that the expression "departmental authority" occurring in the said proviso relates to "an authority next above the authority which made the order". 'This to our mind is the key to the interpretation of the expression in question. Clearly, the scheme of the Civil Servants Act which is a sister enactment to the Service Tribunals Act shows that in the hierarchy of the departmental authorities an order passed by any officer can be challenged before the next Senior Officer in the Department in absence of specific rules to the contrary. Therefore, the expression "depart--mental authority" can mean an authority or officer senior in rank to the civil servant in respect of whom an order is passed. Even if a literal construction of the wording employed in the Explanation is adopted, the expression "departmental authority" would mean any authority, other than a Tribunal, which is competent to make an order in respect of "any of the terns and conditions of civil servants". In other words, an order passed by a particular authority incompetently would still be appealable if that authority is other--wise competent to pass an order in respect of any of the terms and conditions generally of the civil servants. There are diverse terms and conditions of civil servants as laid down by the Civil Servants Act and the rules. There--fore, even this interpretation would include almost invariably all the Senior Officers of the Department. But we are inclined to adopt, the first mentioned interpretation. The Lahore High Court in Mohammad Aslam Bajwa's case, already referred to, interpreted the words "competent to make an order" occurring in the Explanation by referring to the definition of the term in M. L. R. 114 which is pari materia with the definition given in the Explanation to section 13 of the Civil Servants Act, 1973 and observed; "If the aforesaid provision of law is read with the. "Explanation" defining the "departmental authority" in section 4 ibid it becomes -quite clear that "competent authority" within the sphere of M. L. R. 114 can well be considered as "departmental authority" for ,the purpose of taking appeals against its orders to the Tribunals/Courts of exclusive jurisdic--petition. The word. "departmental authority" if it has any reference to the word "Department", appears to us an authority different from what is known as judicial authority or Court authority just as there are departmental proceedings and judicial or Court proceedings . . . .
The words "competent to make an order" do not mean that a particular order involved in a given case was competently made. But simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matter involved therein, then his order will be appealable though in that particular case such an order according to the appel--lant could not have been passed. The defect incompetency in other words will provide a good ground for appeal rather than negate it. That it is in this context that sections 4 and 6 of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject- matter of a case on which will depend the ouster of jurisdiction of other Courts. If the subject- matter of Courts or Tribunals of exclusive jurisdiction is the "terms and conditions of service" or "discipline" and relates to persons who are or have been in the. Service of Pakistan then the ouster of jurisdiction of other Court is complete."
"In our opinion the words "competent departmental authority" would mean an authority which falls in the hierarchy of officers superior to an aggrieved civil servant. No doubt in this case technically, the competent departmental authority was the Head of the Department, nevertheless the Governor being also in the same hierarchy, the order could well be challenged before the Tribunal that the same was without jurisdiction having been passed by a departmental authority which was competent to deal with matters relating to the category of . The civil servants to which Mohammad Gul Kakar belonged, but in that particular case relating to his removal from service the depart-- mental authority had unlawfully exercised jurisdiction which did not vest in him."
(see PLD 1973 SC 368). On the same principle, therefore, the Service Tribunal will have jurisdiction to entertain'' appeals in cases in which appeal lies from an order of a subordinat departmental authority competently passing such order also where such departmental authority incompetently passes such an order. It, therefore, follows that the jurisdiction of the High Court in respect of .Such orders will stand ousted. For these reasons with all respect to the learned Judges of the D. B. Of this Court, we are unable to agree with the view expressed in unreported judgment in Dhani Box Soomro v. Province of .Sind, referred to above. .
13. We also find no force in the contention advanced on behalf of the petitioners that since the Service Tribunal can exercise its jurisdiction only in case a final order is passed and not in regard to a threatened act affecting the terms and conditions of a civil servant, it is. Not a Tribunal of exclusive jurisdiction as contemplated in Article 212. Similar contention was replied by a D. B. Of this Court. In Sher Mohammad v. Director-General of Pakistan, Telegraphs & Telephones Department (1). The test for ouster of jurisdiction is whether the particular matter relating to terms and conditions of a civil servant is within the jurisdiction of the Service Tribunal. Then if such a U matter can ultimately be brought before the Service Tribunal, the ouster of ~ jurisdiction of other Courts is absolute irrespective of the fact at what stage such a matter may be brought before the Service Tribunal. In the context of the legislation under consideration a civil servant would ordinarily' be aggrieved by an order in writing and not by a mere oral threat by a depart--mental authority. If such an order is a final order so far as it relates to the aggrieved civil servant, the matter falls within the jurisdiction of the Service Tribunal and would be covered by the ouster clause contained in Article 212, This consideration, therefore, does not in any way affect the exclusiveness of the jurisdiction of the Service Tribunal as regards such a matter. In this context we entirely agree with the submission of the learned Advocate-General that the `exclusive' character of the jurisdiction of the Tribunal is to be determined not in relation to the facts whether the entire field covered by the terms and conditions of civil servants has been placed within the ambit of the Tribunal, but whether in regard to the matters so placed within its ambit any other Court has been empowered to exercise jurisdiction. A Tribunal of limited jurisdiction pertaining to a particular subject-matter may still be vested with exclusive jurisdiction in such a limited field in so far as such subject-matter has been ousted from the jurisdiction of other Courts. Subsection (2) of section 3 of the Service Tribunals Act, as already discussed, clearly spells out such effect.
14. It was then contended on behalf of the petitioners with reference to the principles laid down in Farzand A.I v. Province of West Pakistan (2) that the Service Tribunal will refuse to go into the merits of an order of retirement under section 13 (ii) of the Civil Servants Act as the question of public interest has been adjudicated as not justiciable and lying within the absolute discretion of the competent authority. Mr. Mohammad A.I Sayeed, Advocate forcefully contended that no public functionary can claim the exercise of public power vesting in him under the Statute without regard to reasonableness. His submission was that power vesting in statutory functionary in the public interest is subject to judicial review as there is no concept of absolute and arbitrary discretion vesting in an authority under the Statute. He referred us to several decisions from the English Jurisdiction. Finally his submission was that the jurisdiction of the Service Tribunal is not exclusive firstly because writ jurisdiction vesting in the High Court under Article 199 of the Constitution can be ousted only in clear and unambiguous terms ; secondly that Article 212 contemplates a Tribunal of original jurisdic--petition and not appellate jurisdiction as has been done. The learned Deputy Attorney-General took up a clear position as to the availability of the right of appeal from an order of retirement under section 13 (ii) and submitted that the Tribunal as laid down in Yameen Qureshi's case has jurisdiction to decide all questions of law and fact that may be raised by any appellant to challenge the order. The learned Advocate-General submitted in this behalf that the question of the extent of the jurisdiction of the Service Tribunal or the scope of its powers in such appeal need not be gone into in the present proceedings when it is conceded that an appeal lies from such an order, as it will be for the Service Tribunal to decide the question of the scope of its powers in each appeal that may come up before it. We have already held for reasons mentioned above that an appeal is competent under the law from., an order of the nature in question before us. The scope of the jurisdiction V of the Service Tribunal has been clearly laid down in the said case of Yameen Qureshi by the Supreme Court and, therefore, we need .Not dwell at length. Upon this matter. The contentions advanced. By Mr. Mohammad A.I Sayeed have already been disposed of by is in the previous part of this judgment. Miss Rashida Masud, learned Advocate appearing for the respondents in Con--stitutional Petition No. 134.180 also addressed us and contended that retirement simpliciter without stigma attached to it is within the absolute discretion of the authorities arid the decision is not reviewable by any Court or Tribunal. On the question of law that no constitutional petition would be competent in such a case, she referred to three decisions from the Indian Jurisdiction reported in AIR 1971 SC 40, AIR 1972 SC 2185 and AIR 1980 SC 1894. But in view of the rule laid down in the case of Farzand A.I and in the x view that I have taken that an appeal is competent before the Tribunal from such an order, it is not necessary to deal with this contention in these proceedings.
(1) PLD 1979 Kar. 1(2) PLD 1970 SC 98
15. We may state here that the contention of Mr. Wajihuddin Ahmad that no finality attaches to an otherwise final order passed by a departmental authority until the lapse of 90 days as required in proviso (a) of section 4 (1) of the Service Tribunals Act and, therefore, recourse can be had to Article 199 of the Constitution during such period, has not impressed us. Detailed reasons have already been given for repelling the contention on similar basis in the foregoing part of this judgment that once the subject-matter V falls within the ambit of the Tribunals irrespective of the procedural provisions as to when such matter can be brought before the Tribunal, the ouster of the jurisdiction of other Courts including the High Court is absolute.
16. The only remaining question to consider is the argument of Mr. Kasim Farooqui that in cases in which tire violation of .The fundamental rights is alleged, the jurisdiction of this Court would be available in view of the mandate contained in the clear terms of clause (2) of Article 199 of the Constitution that the right to move a High Court for the enforcement of any of the fundamental rights conferred by Chapter I of Part II shall not be abridged. The learned counsel argued that in several petitions violation of fundamental rights contained in Articles 14 and 25 of the Constitution has been alleged. In the first place clause (2) of Article 199 opens with the words subject to the Constitutions' as provided in Article 199, clause (1). There--fore, the provisions of clause (2) would be controlled by Article 212 of the Constitution and the result would be that if the Constitution provides 'for ouster of jurisdiction under Article 199 in regard to certain matters, clause (2) will not override such ouster. Be that as it May, the question really is whether the right to move this Court for the enforcement of the aforesaid fundamental rights is available in view of the provisions of paragraph 2 (3) of the Laws (Continuance in Force) Order, 1977 (C. M. L. A. Order t of 1977) which provides that fundamental rights conferred by Chapter I, Part II of 'the Constitution and all proceedings pending in any Court, in so far as they are for the enforcement of any of those rights, shall stand suspended. The validity of the aforesaid provision came up for consideration before the Supreme 'Court in Begum Nusrat Bhutto v. Chief of Army Staff etc. PLD 1977 SC 657and it was held that the Chief Martial Law Administrator was justified in suspending right to enforce fundamental rights and that the said provision of C. M. L. A. Order 1 of 1977 was not open to challenge, Mr. Nasim Farooqui endeavoured to pursuade us to re-examine the question in the light o subsequent events since the Supreme Court judgment in the aforesaid case and to hold that as a result of these events the fundamental right have automa--tically been re-activated into full face. We are; however, unable to undertake such an examination in the force of a binding decision of the Supreme Court upholding the validity of paragraph 2 (3) of C. M. L. A. Order 1 of 1977, the consequence of which is that the enforcement of the fundamental rights stands suspended. The other reason for not examining the question is that this matter cannot be raised by way of a collateral attack without offering a direct challenge to the validity of paragraph ?. (3) of the said Order.
17. For the aforesaid reasons, we have come to the conclusion that the answer to the first question referred to us as modified by this Bench is in the affirmative and the petitions which seek to challenge the orders of retirement under section 13 (ii) of the Civil Servants Act, 1973 are barred under Article 212 of the Constitution.
18. In view of the aforesaid answer to the first question, it is not necessary to decide the other two questions referred to this Bench.
19. Before parting with this case we would like to place on record our appreciations of the valuable assistance rendered to us by the learned Advocate --General, Mr. Mohammad A.I Sayeed. And Mr. Manzoor A.I Khan as amirus curiae.
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