C.M.
NO. 5 OF 2009 This is an application to place documents on the record.
2. Allowed.
MAIN PETITION
3. Brief facts of the case are that the petitioners are admittedly civil servants and posted as Medical Superintendents and Dispenser at Tehsil Headquarter Hospital Bhalwal District Sargodha.
4. The petitioners are aggrieved of the order dated 19.09.2009 where under they were transferred from DHQ Hospital Bhalwal District Sargodha to report to the Health Department for further orders.
It has been alleged by the petitioners that the said transfer order is tainted with mala fide and based on political and extraneous considerations. The question that needs to be determined by this Court before going into the merits of the case is whether in a matter pertaining to TRANSFER of a Civil Servant, this Court has jurisdiction in the light of the bar contained in Article 212 of the Constitution.
5. Counsel for the petitioners vehemently argued that they have no alternate remedy because once they have filed Representation before the competent authority under the Punjab Service Tribunals Act, 1974 they have to wait for 90 days before they can file an appeal Therefore, the petitioners are left "remediless" for 90 days and it is in this period that the writ petition can be maintained.
6. Counsel for the petitioners relied upon the analogy of Section 4(1)(b) of the Punjab Service Tribunals Act, 1974 which states that no appeal shall lie to a Tribunal where there is a question of fitness The counsel states that a similar window is available to the petitioners during the period of 90 days of filing the representation till the petitioners are able to prefer an appeal under Section 4(1)(a) of the aforesaid Act, the counsel relied upon re. Muhammad Saleem Asim vs. Secretary Schools Education, Government of Punjab, Lahore and 4 others (2009 PLC (C.S) 44), re. Muhammad Saleh Asim vs. Secretary Schools Education, Govt. of Punab Lahore etc. (NLR 2009 Service 33), re. Dr. Tasnim Tahira Rehman vs. Government of the Punjab etc. (NLR 2009 Service 56) and re. Khalid Mahmood Wattoo vs. Government of Punjab and others, (1998 SCMR 2280) in support of his contentions.
7. The learned Assistant Advocate General argued that the bar in Article 212 of the Constitution is absolute. The only exception being Section 4(1)(b) of the Punjab Service Tribunals Act, 1974 where a question of fitness in matters of appointment and promotion is concerned. The counsel stated that the view of the august Supreme Court of Pakistan is clear on the issue and relied upon re. Peer Muhammad vs. Government of Balochistan through Chief Secretary and others, (2007 SCMR 54).
8. Arguments heard. Article 199 is "Subject to the Constitution", while Article 212 being a non- obstante article prevails over Article 199. Article 212 clearly states that no Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrate Court of Tribunal extends". Therefore, this Court has no jurisdiction to entertain a matter that stands barred under Article 212 of the Constitution. The arguments of the counsel that he has been left remediless after filing his representation under Section 4 of the Punjab Service Tribunals Act, 1974 is without any force. The filing of the representation before a departmental authority is itself initiation of the remedy under Section "4(1)(a) of the Service Tribunals Act, 1974. The pendency of the representation for a maximum period of 90 days is a part of the procedure/remedy prescribed for a civil servant which then culminates into right to file an appeal. In fact the pendency of the representation before the departmental authority cannot be taken to mean that the petitioners have been left remediless. In fact the petitioners have invoked the remedy and the remedial process has been set in motion. For the sake of arguments even if a writ is issued during this period of 90 days it will make a mockery of the statutory process provided under Section 4(1)(a) rendering the final right to appeal in 90 days totally meaningless.
Constitutional jurisdiction cannot be put to use to frustrate statutory remedial process as in the present case. In any case this argument is totally fallacious. Once this Court has no jurisdiction under Article 212, the same cannot be conferred on it just because after filing the representation under Section 4 of Punjab Service Tribunals Act, 1974 the petitioner has been rendered "remediless" it is not the question of alternate remedy but of bar of jurisdiction. In fact Article 199 cannot be set in motion due to the jurisdictional bar, therefore the question of alternate remedy or malafide or political consideration or the nature of grievance does not even begin to arise. This distinction between bar of jurisdiction and exercise of judicial power must be clearly understood.
9. I am reminded of the statement of Chief Justice Joha Marshall in Cohen v. Virginia [19 US (16 Wheat) 2641: We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution."
10.Jurisdiction is, therefore, a right to adjudicate concerning a particular subject-matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court (The State v. Zia-ur-Rehman, PLD 1973 S.C. 49). In short, jurisdiction denotes the authority for the Courts to exercise judicial power (Fauji Foundation v. Shamim-ur-Rehman, PLD 1983 S.C. 457). It is important to note that where jurisdiction cease to exist the Court cannot proceed to pronounce judgment (on the merits) and the only function remaining to the Court is that of announcing the fact and dismissing the case. (Judicial Review of Public Action - Justice (R) Fazal Karim quoting Ex Parte Mc Cardle 74 US (7 Wallace) 506).
11.It is often argued before this Court that either the order which pertains to the terms and conditions of a Civil Servant is mala fide, based on political consideration or against policy and prayer is made that a writ be issued setting aside such an order. The importance of the jurisdictional bar in Article 212 is conveniently ignored and therefore, the distinction between judicial power and jurisdiction is not kept in sight. If there is no jurisdiction, the question of exercise of judicial power does not arise.
12.Reference to Section 4(1)(b) of the Act and reference to the window available in the matters of fitness has no co-relationship with Section 4(1)(a) of the Act.
13.In view of the above, I am fortified by the judgment of the august Supreme Court of Pakistan in 2007 SCMR 54. Therefore, the cases cited by the counsel for the petitioner are not relevant. I quote with advantage: "It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made thereunder.
The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such mattes and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Kh.
Abdul Wahid u. Chairman, WAPDA 1986 SCMR 1534."
14.In view of the categorical pronouncement of the august Supreme Court of Pakistan and the jurisdictional bar contained in Article 212 of the Constitution, this Court has no jurisdiction to even entertain proceedings that fall within the domain of Punjab Service Tribunals Act, 1974 as per Article 212 of the Constitution.
15.For the said reasons, this petition is dismissed in limine.