Attaullah Khan, J.--Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed to declare that the petitioner is/was legally entitled to hold the post of Junior Clerk in BPS-5 since the date of his appointment and his termination from the said post under the verbal orders is illegal and null and void. He has also prayed for issuance, of directions to reinstate the petitioner in service with all back benefits.
2. The brief facts are that the petitioner was appointed as Junior Clerk in BPS-5 on fixed pay for a period of less than six months vide orders dated 07.12.2007 which was extended and consequently, through verbal orders, the services of the petitioner were terminated.
3. Arguments of learned counsel for the parties heard and record perused, in the light of which, our discussion is as under:--
4. The first point raised by learned counsel for the respondent is regarding jurisdiction of this Court and maintainability of this writ petition during pendency of civil suit. We would first discuss the question of jurisdiction. The contention of learned counsel for the respondent is that this is a service matter which can be decided by Services Tribunal under Article 212(2) of the Constitution. In reply, it is contended on behalf of the petitioner that the case of the petitioner does not fall within the ambit of Article 212(2) of the Constitution as he is not a civil servant and therefore, jurisdiction of Services Tribunal was not extended.
5. We have considered the view points of both the learned counsel. According to Article 212 of the Constitution, the establishment of Administrative Courts has been given. Under this Article, the Services Tribunal has been established which deals with service matters and under Sub-Article (2) of Article 212 of the Constitution, no other Court has the jurisdiction to entertain any proceedings in any matter within the jurisdiction of such Administrative Tribunal. So, in this way, the said Article has excluded the jurisdiction of ordinary Courts relating to service. The Services Tribunal is the only forum which deals with disputes relating to service. In this case, the bar would not apply because the petitioner is not a Govt: servant in strict sense. He is/was a contingent paid employee of Board of Intermediate & Secondary Education, Bannu. To a contingent paid employee, the jurisdiction of Service Tribunal does not extend, so, the jurisdiction of this Court is not ousted. In this way, being a contingent paid servant, the petitioner has no remedy available with the Services Tribunal.
Reference in this respect may be given to 2001 M LD 396.
6. As far as pendency of a civil suit is concerned, it again would not affect this writ petition. It is a settled law that in spite of pendency of a civil suit, the constitutional petition would be entertained.
We may refer to PLD 2006 Lahore 2981 wherein it is held that, "constitutional petition would be entertained despite pendency of suit, where suit disclosed a declaratory remedy in context of the controversy". So, in view of the above case law, we are of the opinion that even if a suit is pending in the Civil Court, it would not affect this constitutional petition. It is also to be noted that in this case, civil suit was pending but the same was withdrawn and now the controversy between the parties is before this Court. So, the second objection is also of no avail.
7. As far as merits are concerned, it is on record that the petitioner was working as contingent paid employee (Junior Clerk) for a specific period. He was removed through verbal orders. During and after that period, some other persons were employed by Respondent No, 1 on fixed pay. The appointment orders dated 2.6.2008, 20.8.2008 and 04.12.2008 are on file. Vide these orders, some eleven persons were appointed as Junior Clerks for a period of less than six months. It means that the posts were available and no good-reason has been shown as to why the petitioner was not allowed to continue on the post. In this connection, the objection of learned counsel on behalf of Respondent No, 1 is that the fresh appointees had submitted applications while the petitioner has not done so, therefore, he was not appointed. This argument is not appealing to mind because no application is on file nor any proof of such applications allegedly filed by the new appointees.
Furthermore, the record reveals that the petitioner had submitted an application for extension in his service to the Chief Minister who referred the matter to Chairman, BISE, Bannu. The letters dated 13.9.2008 and 23.10.2008 are available on file. The perusal of these letters from the Chief Minister's Secretariat to Respondent No, 1 disclose that the petitioner had applied for his extension in service and in spite of these applications, he was not considered. The discussion made above leads us to the conclusion that the petitioner has been discriminated by not allowing him to continue. Instead of his continuation, some other persons were appointed which is "against the interest of the petitioner. After filling of some posts by other persons, the petitioner has got a vested right and by subsequent appointment of strangers, he has been discriminated, therefore, we are of the view that the removal of the petitioner from the post is illegal, void abinitio, therefore, we allow the petition and direct Respondent No, 1 to reinstate the petitioner on the post which he held previously, with immediate effect.