SHAH ABDUL RASHID, J.-This petition, involving the question of the extent of the jurisdiction of this Court under Article 199 of the Constitution in matters ;slating to the terms and conditions of civil servants, has come up before the Full Bench on account of apparent conflict of decisions on the issue and also because the petitioner's counsel sought to challenge the correctness of the view taken by this Court in the case of Raja Mansoor Elahi v. North West Frontier Province (PLD 1980 Pesh. 81) for allegedly being at variance with some other cases where this Court has assumed jurisdiction in certain like matters.
2. Mian Amanul Mulk, the petitioner herein, was an officer in Grade-17 in the Education Department and was last posted as Principal, Government High School, Risalpur, when the Governor of the North-West Frontier Province, in exercise of the powers conferred under section 13(i) of the N: W. F.
P., Civil servants Act (XVIII of 1973), by Notification No. S. O. I. (S&GAD) 1-1/79=(B) dated the 25th November 1979, ordered his retirement in "Public interest" o the assumption that he had completed 25 years' service qualifying for )ensign and other retiring benefits. Several other persons were also retired by the same order and the petitioner's name appeared at Serial No. 5 in the list embodied in notification.
3. The petitioner has challenged the order of his retirement by invoking the extraordinary jurisdiction of this Court under Article 199 of the Constitution read with Laws (Continuance in Force)
Order, 1977. He seeks a declaration to the effect that the inclusion of his name in the list of the persons retired under the aforesaid notification is without lawful authority and is of no legal effect.
A direction is sought against the Government of North-West; Frontier Province that the petitioner be allowed to continue in service.
4. The petition inter alia contains the history of the service of the petitioner which, in substanceis that he joined as Civil Servant of the Province on 1-4-1956 and had completed a little over 23 years of service when the order of his retirement was made. His case is that since, on the date of order of retirement, he had not completed 25 years of service qualifying for pension and other retiring benefits, the order under section 13(i) of the North-West Frontier Province Civil Servants Act (XVIII of 1973) is without lawful authority. He further challenges the impugned order on the ground that it had not been made in "public interest" which is a pre-requisite of an order made under section 13(1) inasmuch as his service record does not justify the inference. The petitioner further takes exception to the order having been made without affording him reasonable opportunity of being heard and as such offending the principle of natural justice. Mala fide is also alleged and it is stated that the order, in effect, is colourable exercise of power of the authority making it, and is in violation of the "legal principles". In the concluding portion of the petition the specific relief that has been claimed is in the following terms :- " . . , this Hon'ble Court may be pleased to declare the inclusion of the petitioner's name in the impugned notifications as without jurisdic--petition, ultra vines, arbitrary, mala fide, without lawful authority and of no legal effect against the petitioner. It may further be pleased to direct the respondent to allow the petitioner to continue in service."
5. As was contemplated, Mr. Amirzada Khan, Assistant Advocate-General, appearing on behalf of the respondent-Province questioned the jurisdiction of this Court by referring to the provisions of Article 212 of the Constitution and different sections of the N.-W. F. P. Service Tribunal Act (I of 1974).
He relied upon a few decisions of the superior Courts in support of his contention that this Court cannot exercise jurisdiction under Article 199 of the Constitution, the question in dispute being within the exclusive jurisdiction of the Service Tribunal set up under section 3 of the N.-W. F. P.
Service Tribunals Act (I of 1974) under the authority of Article 212 ibid.
6. Qazi Atiqur Rehman, Advocate, who appeared on behalf of the petitioner, has contended that since the order of retirement of the petitioner has been made before he completed 25 years of service qualifying for pension and other retiring benefits and, in effect, is mala fide, without jurisdiction and in the nature of coram non judice and as such being void, this Court can, in exercise of its power under Article 199 of the Constitu--petition, strike it down. In support of his contention, he has relied on a number of cases decided by the High Courts and has also referred to certain decisions of different Service Tribunals in which according to him, adjudication in such matters had been refused. No case decided by this Court having bearing on the point was, however, brought to our notice.
7. In the case of Muhammad Sadiq v. Water and Power Development Authority (PLD 1978 Lah. 738) it was held that where an order is void, ab initio and made without lawful authority, the objection that the aggrieved civil servant should go to the Service Tribunal was not of any substance. In Saghir Ahmad v. Federation of Pakistan (PLD 1976 Lah. 288), which was also cited at the Bar by the learned counsel for the petitioner, the learned Judge has held that where a matter related to a decision that a Civil Servant should not be considered, to be fit for promotion, the jurisdiction of the Tribunal was ousted and the civil Court had jurisdiction to entertain the matter.
Fariduddin Ahmed v. Province of Punjab (PLD 1976 Lah. 1310), was the case of F, an Inspector of Police, who was removed from service on 26-2-1953 but the civil Court ordered his re-instatement with further direction to post him in a grade or rank as if the order of his removal had never been passed. F was re-instated as Inspector of Police with effect from 26-2-1953, the date on which he was removed from service but his seniority rank and grade had not been fixed in accordance with the decree of the Court in spite of several representations being made by him in that behalf.
Subsequently he learnt that a departmental advisory committee had recommended his retirement. From service on the ground of his having completed 25 years' service qualifying for pension etc. He came to know that on the basis of that recommendation an order of his premature retirement was likely to be issued and served upon him at any time. He accordingly invoked the jurisdiction of the High Court under Article 199 of the Constitution for the redress of his grievance saying that the contemplated order of retirement was being passed male fide with a view to frustrating the decree of the Court. The Lahore High Court accepted his plea and issued the declaration sought for. The objection taken by the Province of Punjab that the High Court had no jurisdiction to entertain the matter in view of the bar placed under Article 212 of the Constitution read with the Punjab Service Tribunals Act (IX of 1974) was repelled with the observation which, in substance, was that since F was seeking direction for the issuance of an order compelling the Province of Punjab to fix his grade and pay and because he was further seeking direction to be issued to decide the matter with regard to his seniority, fixation of grade and rank first which incidentally involved the question of promotion also, the relief could not be granted by the Punjab Service Tribunal and so the High Court had jurisdiction to make an order or direction under Article 199 of the Constitution. In para. No. 9 of the judgment it was observed as follows - "The above discussion would show that the petitioner is not qualified for pension or other retirement benefit under section 12(ii) of the Punjab Civil Servants Act of 1974, and his case with regard to seniority, grade and rank has not been decided as yet in accordance with the judgment and decree of the Court. In absence thereof he cannot be deemed to have been qualified for pension and other benefits, as it cannot be said at this stage how such pension and other benefits will accrue to him, after the determination of his seniority."
The case of Muhammad Gul Kakar v. Province of Baluchistan (PLD 1979 Quetta 66), is to the effect that where the competent authority who passed orders of removal was the Head of Department and not the Governor of the Province, the order passed by the Governor was not sustainable in law.
It was further held that the order passed by the Governor being ab initio void, illegal and without jurisdiction, the High Court could interfere even though the remedy before the Service Tribunal was available and the jurisdiction of the civil Court was ousted. In Mushtaq Hussain Rizvi v. Province of Sind (PLD 1978 Kar. 703), it was observed that the promotion is not a vested right under the Sind Civil Servants Act (XIV of 1973), but a claim to be considered for promotion is a vested .Right in respect of which the aggrieved civil servant can file a civil suit or invoke the constitutional jurisdiction of the High Court; for such matter is not within the purview of Sind Service Tribunal.
8. In the case of Mujeebullah.Aijaz v. D. G., Telephone & Telegraph (PLD 1980 Quetta 58), the Full Bench held that in all matters relating to the terms and conditions of civil servants of the Federation and the Civil Servants of the Province of Baluchistan, the Service Tribunals constituted under the Service Tribunals Act (LXX of 1973) or Baluchistan Service Tribunals Act shall have exclusive jurisdiction to adjuciate on matters relating to the terms and conditions of the Government servants employed under the Federation or the Proving of Baluchistan except in the following circumstances :-
(a) In the case of Government servants of the Federation :-.
(i) When the impugned order was passed before 1-7-1969 ;
(ii) When the Civil Servant punished is not a "Civil Servant` for the reason of his exclusion from the definition of "Civil Servant" in section 2(1)(6) of the Civil Servants Act ;
(iii) When the order is not a final order ;
(iv) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time scale ;
(v) When the impugned order relates to a person's fitness' to hold a post or to be appointed to such post. Or to be promoted to a higher post of grade ; and
(vi) When the order is not passed by competent Departmental authority is for such reason void ; and
(b) In the case of Government servants of the Province of Baluchistan ;
(i) When the Civil Servant punished is excluded from the definition of civil servant by section (2)(1)
(61 of Baluchistan Civil Servants Act ;
(ii) When the order passed is not a final order ;
(iii) When the punishment imposed is not that of dismissal, removal or compulsory retirement ;
(iv) When the impugned order relates to the decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher post or grade ; and
(v) When the order is not passed by a competent Departmental authority and is for such reason void."
9. Qazi Atiqur Rehman then referred to certain decided cases wherein exercise of jurisdiction has been refused by the Service Tribunals them--selves. In the case of Ahmad Rabbani v. President of Pakistan (1976 PLC (C. S. T.) 140), the Service Tribunal (Federal) held that where a civil servant is retired after completing 25 years' service qualifying for pension etc. Under section 13(ii) of the Civil Servants Act (XVIII of 1973), no appeal lies to the Tribunal. Again, the same view was taken by the same Tribunal in the case of Mahmudur Rehman v. Secretary, Railways (1976 PLC (C. S. T.) 58). The Punjab Service Tribunal, however, in the case of Inam Hussain v. Government of the Punjab (1980 PLC (C. S.) 687), though came to the same conclusion yet qualified it by saying that the jurisdiction of the Tribunal would not be ousted to hear an appeal if the impugned order is passed mala fide or incompetently.
10. Although prior to the enactment of 1973 Constitution under the Government of India Act, 1935, the Constitution of 1956 and the Constitution of 1962, the persons serving in connection with the affairs of the Federation or of a Province held office during the pleasure of the Governor-General/ President or the Governor, as the case may be, that pleasure was abridged by certain guarantees given in the said Act and the subsequent Constitutions referred to above. These were mainly to the effect that no Government servant shall be dismissed or removed from service or reduced in rank by an authority subordinate to the appointing authority and no such order shall be passed unless a reasonable opportunity has been given to the Government servant concerned to show cause against the proposed action with respect to him. These constitutional documents also empowered the Governor-General/President and Governor, as the case may be, to make rules relating to the terms and conditions of service of the Government servants; though a restriction was placed that the existing terms and conditions in certain respects shall not be altered to the disadvantage of a person in the Service of Pakistan.
11. The 1973 Constitution made a departure and the Constitutional guarantees were taken away.
The Constitution itself did not confer any right on the President or the Governor to make rules relating to the terms and conditions of persons in the service of Pakistan, but instead the parliament and the Provincial Assemblies were to determine the terms of appointments and the conditions of service of persons in the service of Pakistan by laws to be made by these Legislatures.
Article 240 of the 1973 Constitution which makes the provisions is as follows :- "240. Subject to the Constitution, the appointments to and the condi--tions of service of persons in the service of Pakistan shall be determined-
(a) In the case of the services of the Federation posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Parliament ; and
(b) In the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly."
12. In pursuance of Article 240 ibid the Parliament and the four Provincial Assemblies have enacted laws laying down the terms and conditions of the service of persons in the service of Pakistan serving in connection with the affairs of the Federation or the Provinces, as the case may be, and all these laws authorise other functionaries of the Government to make rules consistently with these laws to carry out their purposes. Existing miles made in this behalf have also been kept alive in so far as they are not inconsistent with the relevant laws.
13. Since previously there was a Constitutional guarantee in respect of certain matters relating to the terms and conditions of. Persons in the service of Pakistan, the civil Courts and the High Courts could exercise jurisdiction to adjudicate upon the matters concerning these terms and conditions of service. When that guarantee was taken away, the Constitution makers themselves provided, in Article 212 of the Constitution, as to what forum would exercise jurisdiction in respect of dispute relating to the persons in the service of Pakistan. Before dealing with the contentions raised on behalf of the petitioner and the respondent it is convenient, at this stage, to set out the provisions of Article 212 ibid. These read as follows :- "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 jurisdiction in resp0ct 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 claim arising from tort 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 cc% and any servant of such authority acting in the discharge of his duties as sums servant; or
(c) matters relating to the acquisition, administration and disposal --f 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 is respect of any such other Court immediately before the establishment of the Administrative 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 extends 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-"
14. The Parliament and the four Provincial Assemblies have enacted laws for the establishment of the Tribunals and these Tribunals (except the Tribunals envisaged under section 3(7) of the Service Tribunal Act, 197.13 and section 3(7) of the Punjab Service Tribunals Act, 1974 about which we have not been definitely informed and which are to deal only with respect to disputes arising out o penalties other than those of dismissal from service removal from service, compulsory retirement or reduction in rank), it is not disputed, have actually bin established and are functioning.
Incidental in all these laws made by the Parliament and the Provincial Assemblies in all these it is the third section which provides for the constitution of the Tribunal and again the section which confers the appellate power on the Tribunal is the fourth section in all the five laws. The provisions of the third and fourth sections of the live laws axe broadly identical but with certain variations. All the five laws in the fourth section provide that any civil servant. Aggrieved by any final order.
Whether original or appellate, made a departmental authority, in respect any terms and condition of his service, may appeal to the tribunal there are provisos in each law to the fourth section. One of the provisos which is Practically common, is to the effect that the appeal to the Tribunal shall not be unless the aggrieved civil scant first exhausts his remedy of appeal or application for review or representation to the Departmental authority. Anther proviso which is common in each of the five laws is to the effect that no appeal shall No to the 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. With the exception of law of the Province of Baluchistan, all laws further provide that no appeal shall lie against a decision made prior to the 1st day of July 1969. Then there are certain differences in the five laws. The Federal Law and the Punjab Law provide for establishment of two types of Tribunals in respect of the disputes arising out of penalties. One type of the Tribunals is to hear appeals in respect of all terms and conditions of services and also in respect of penalties of dismissal from service removal from service, compulsory retirement or reduction to a lower post or to a lower stage in the time scale, while the other type of Tribunal have to decide matters only when any other punishment is imposed. In the case of Sind the same Tribunals are to decide the disputes arising out of the terms and conditions of service and against orders imposing penalties on a civil servant irrespective of the nature of punishment. The laws of N.-W. F. P. And the Province of Baluchistan though provide for only one type of Tribunals limit their jurisdiction in respect of quantum of punishment and penalty. The relevant provision says that when the "quantum" of departmental punishment or penalty imposed on a Civil Servant as a result of departmental enquiry is other than the penalty of dismissal from service, removal from service or compulsory retirement, no appeal shall competent before the Tribunal.
15. Reverting to Article 212 of the Constitution, it may be notice that when a Tribunal is established under the said Article no other Court is empowered to grant any injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. It also provides all proceedings in respect of the matters within the jurisdiction of the Tribunal pending before any other Court shall abate. The provisions of this Article on the very language oust the jurisdiction of all other Courts and as observed by a Division Bench of this Court in the case of Dr. Raja Mansoor Elahi v. N.-W. F. P. (PLD 1984 Pesh. 81) an order of a departmental authority even if it is without jurisdiction or is mala fide can lx challenged before the Tribunal and the jurisdiction of the civil Courts and for that matter of the High Court is specifically ousted. The words "Notwithstanding anything herein before contained" occurring in clause (2) of Article 212 definitely points to all the provisions of the Constitution including Article 199 which gives extraordinary jurisdiction to the High Court to make orders and directions. It is, therefore, logical to conclude that the jurisdiction of the Tribunal, wherever it exists, ousts, the jurisdiction of High Court under Article 199 and also of the Courts of ordinary civil jurisdiction.
16. The learned counsel for the petitioner has argued that the High Court can come to the rescue of an aggrieved person if an order is passed mala fide, without jurisdiction or when it is in the nature of coram non judice or is ab initio void. We are, however, not convinced by this argument. 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 b 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.
No doubt if the order is not of the departmental authority but is o some other entity, then of course, the jurisdiction of the Tribunal will not come into play and the High Court will have power to give discretionary relief to the aggrieved civil servant under Article 199 of the Constitution within the limits of the said Article; but if the order is of Department authority and is of the nature of which the Tribunal's jurisdiction exists under the relevant statute, then of course the High Court shall not have jurisdiction to intervene.
17. The question discussed above is not of first impression. The same view had been taken by the Lahore High Court in the case of Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lah.
545), even though in that case it had been argued that the order made without jurisdiction or mala fide could be set aside by the High Court.
Muhammad Aslam Bajwa's petition under Article 199 of the Cons--titution, which was based on various allegations, including mala fide and one of jurisdiction in retiring him under M. L. R. 114, was held not competent and not maintainable before the High Court under Article 199 of the same having abated in view of Article 212 of the Constitution read with section 6 of the Service Tribunal Act (LXX of 1973). The further argument, that the order impugned in that case having not been passed by a "competent" departmental authority and as such being coram non judice was open for adjudication by the High Court, was repelled and it was observed that :- "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 matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed. The defect in competency 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 Courts is complete. As in the instant case, the petitioners are those who have been in the service of Pakistan and the impugned orders relate to their "terms and conditions of service" and "discipline" and for those matters Tribunals and Courts of exclusive jurisdiction have been established, they can now properly approach those Tribunals Courts under section 6 read with section 4 ibid and their cases in this Court can no longer proceed."
"There is no dispute about the proposition that if an order or decision against a civil servant relating to the terms and conditions of service including disciplinary matters has been passed on or after the 1st of July 1969 the High Court. Will have no jurisdiction to make any order or entertain any proceedings under Article 199 of the Constitution and the only remedy such person will have will be before the Tribunal constituted under an Act of the appropriate Legislature as contemplated in Article 212 of the Constitution. The question which arises for determination is whether the case of the petitioner which is of a date prior to 1st of July 1969, also abates under the Punjab Administrative Tribunal Act, 1974 and can he prefer an appeal before the Tribunal."
18. In the case of Muhammad Ismail v. Province of Punjab (1979 SCMR. 498), the claim of the petitioner pertaining to promotion was held to be within the exclusive jurisdiction of the Punjab Service Tribunals as the claim to promotion depended upon fixation of seniority which question was considered outside the jurisdiction of the civil Court. Paras. 5 and 7 of the judgment which deal with the question may be reproduced with advantage. These are as follows :- "5. Respondent, the Province of Punjab, went up in appeal against the judgment and decree. On the 6th of February 1978, the Additional District Judge, Lahore accepted the appeal. He observed that the plaintiff had filed his suit mainly to establish his seniority which was a matter falling within the exclusive jurisdiction of the Punjab Service Tribunal established under the Punjab Service Tribunal Act VIII of 1974. His claim to promotion was dependent upon and flows from establishing his seniority. Moreover, the promotion could not be claimed by him as a matter of .Right and the civil Court has no jurisdiction to entertain the suit which was dismissed on these short grounds alone.
(7) We have heard the learned counsel for the petitioner. Chapter 1I of the Punjab Civil Servants Act VIII of 1974 is headed as and deals with the terms and conditions of service of civil servants. Section 7 included in this Chapter deals with the matter of seniority of the civil servants amt section 8 with their promotion. This would show that the seniority and promotion of the civil servants are included in and pertain to the terms and conditions- of their service. Under section 3 of the Punjab Administrative Tribunals Act of 1974, an Administrative Tribunal bias been set ,up having exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants including disciplinary matters. According to section 4 of the Punjab Administrative Tribunals Act IX of 1974, any Civil Servant aggrieved by any final order, whether original or appellate, trade by a departmental authority its respect of any of the terms and conditions of his service including disciplinary matter 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 then Tribunal. In this connection, inter alia the proviso (b) to this section further lays down that 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 At the same time Article 212(2) of the Constitution lays down that where any Administrative Court of Tribunal is established, 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 Tribunal extends. It is, therefore, evident that an Administrative Tribunal has the exclusive jurisdiction to hear disputes in these matters. In this view of the matter the High Court was justified in holding that the suit of the plaintiff-petitioner was incompetent. The petition has no force and is accordingly dismissed."
The Lahore High Court, in the case of Mohibullah v. Federation of Pakistan (PLD 1975 Lah. 813), held that the order of the departmental authority reverting M from Grade-20 on account of his having failed to pass a departmental examination could not be questioned before the High Court under Article 199 of the Constitution as it was an order of reversion, the vires of which could be challenged only before the Tribunal established by law made under Article 212 of the Constitution. The contention that the order of reversion in fact amounted to deciding that M was not fit to hold a post in Grade-20 was not accepted and it was observed that the ouster of jurisdiction under proviso (b) to section 4(1) of the Services Tribunals Act, 1973, had no application as it was a case of reversion and not a case of determining the fitness or otherwise of M to hold the post in Grade-20.
19. The matter now stands clinched by the recent pronouncement of the Supreme Court in the case of M. Yamin Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22). Although the background of this case was the validity of M. L. R. 58 promulgated by General Muhammad Yahya Khan and the orders made thereunder, the Supreme Court dealt with the extent of the jurisdiction of the Service Tribunal in matters relating to the terms and conditions of persons in the Service of Pakistan. This was a case of, Y a civil servant, against whom action had been taken under M. L. R. 58 and who was dismissed from service with effect from 19th May 1978. On the establishment of Service Tribunal under the Service Tribunals Act (LXX of 1973) Y filed an appeal before the Tribunal but the same was dismissed on the basis of majority view that the said Tribunal had no jurisdiction in the matter for the reason that the actions taken under M. L. R. 58 had been validated by the 1973 Constitution itself. The third Member however, gave a different decision, relying on the case of Federation of Pakistan v. Saeed Ahmad Khan and others (PLD1974SC151), and opined that the Tribunal can interfere but, only with the acts, orders or proceedings which had been done, made or taken without jurisdiction, or were male fide, or were in the nature of coram non judice. The Supreme Court, after examine the different validating provisions of the Constitution, held that the majority view as well as the view of dissenting Member was erroneous and that the Tribunal bad full jurisdiction to entertain the appeal on questions of fact as well as of law. The decision, in substance, is that the Tribunal has exclusive jurisdiction in respect of the terms and conditions of service of a civil servant not only to interfere with the orders which are wrong on facts but also when the orders are void, male fide, without jurisdiction or are in the nature of coram non judice.
The Court accepted the stand taken by a Y that the scope of interference by the Tribunal was not subject to the limitation spelt out by the Supreme Court in the case of Federation of Pakistan v.
Saeed Ahmed Khan and that the Limitation spelt out in that case pertained only to the judicial review of administrative action by the High Court under Article 199 of the Constitution. In the judgment, the case of Muhammad Aslam Bajwa v. Federation of Pakistan was also referred to with approval and it was observed as follows :- " .... ... A similar view was taken by a Division Bench of the Lahore High Court in the case of Muhammad Aslam Bajwa v. Federation of Pakistan. After alluding to the observations of the Supreme Court reproduced above, the learned Judges proceeded to state that it had been conceded before them by the learned Attorney-General for Pakistan that the impugned orders had become appealable under sections 4 and 6 of the Service Tribunals Act, 1973 where the scope of appeal according to the Central Government's own contention before them, was obviously very wide ; and that this will have effect of taking these cases out of the purview of Article 269 and 269
(sic) of the Constitution. It was further observed that the bar of Jurisdiction contained by these two Articles was only against Courts as distinct from Tribunals or other executive authorities. The learned Judges concluded their discussion on this point by saying that they endorsed this standpoint of the Central Government, and the cases will get reopened and the petitioners before them would be provided an opportunity of defending themselves before the Tribunal."
It may be mentioned that in that case the matter had come before the Lahore High Court directly and at the time of hearing it had been argued that the petition had abated in view of Article 212 of the Constitution read with section 4 of the service Tribunals Act (LXX of 1973). This contention had been accepted and it was held that the Tribunal had jurisdiction to entertain the matter and that the petition before the High Court bad abated.
20. Now, in view of clear language of Article 212, where the Tribunal has jurisdiction to entertain the matter, any other Court, including the High Court, cannot examine the matter and the extraordinary jurisdiction of the High Court under Article 199 is ousted and gives way to the jurisdiction of the Tribunal created by law made under special provisions of the Constitution, namely, Article 212 ibid.
21. From the above discussion it follows that the Tribunal has jurisdic--petition to entertain all matters relating to the terms and conditions of civil servants and that jurisdiction is exclusive and no Court, including the High Court, can encroach upon that jurisdiction unless the law made under Article 212 creating the Tribunal does not clothe it with such jurisdiction or otherwise bars it expressly. It would, therefore, be futile to argue that when an order is void or is mala fide or is in the nature of coram non judice, the High Court can entertain a petition under Article 199 even though the matter is within the jurisdiction of the Service Tribunal set up under the relevant law.
22. The case of Muhammad Sadiq v. Water and Power Development Authority relied upon by the learned counsel for the petitioner is quite distinguishable. This was a case of M who was an employee of the province but was working as Project Director with the WAPDA when his services were terminated by the WAPDA. The learned Judge, after discussing the status of M, found that he was a Government servant and as such was not an employee of the WAPDA and that his services could not be terminated by the WAPDA. In this case the impugned order was passed by the WAPDA which is a distinct authority and the Court was of the opinion that it was not a departmental authority in relation to Muhammad Sadiq and consequently it was not open, to the WAPDA to invoke the provisions of section 17 (I-A) of the West Pakistan Water and Power Development Authority Act (XXXI of 1958). That section gives plenary power to the WAPDA to terminate the services of its employee. The Court held that since Muhammad Sadiq was not an employee of WAPDA, the provisions of section 17(1-A) ibid could not be invoked to terminate his service and the terms and conditions of his service as Government employee could not be changed except by means of law made in this behalf. The learned Judge observed that he failed to understand that if the Government wanted to change the status of M, and other employees of the same category why that could not be done by means of legislation. In this case obviously the jurisdiction of the High Court on facts found by the learned Judge was attracted ; for according to the Punjab Service Tribunals Act, 1974, by virtue of section 4, a civil servant, under the Government of Punjab, could challenge an order affecting (-) his terms and conditions of service before the Tribunal only when it is made by a "Depart--mental authority". In this case the order was not made by the Departmental authority but was made by the WAPDA whose orders as such could not be challenged before the Service Tribunal having not been passed by an authority which in relation to M was the departmental authority on facts found by the High Court. This case is, therefore, hardly helpful to determine the jurisdiction of Service Tribunal which can be approached only against an order made by a departmental authority. It is pertinent to note that the aforesaid section 17(1-A) ibid has since been amended and the law laid down in the precedent case may no longer be an authority in respect of the cases coming subsequent to the amendment.
23. In the case of Saghir Ahmed v. Federation of Pakistan the question involved was quite distinct. In that case the learned Judge had held that where a matter related to a decision that a Civil servant should not be considered to be fit for promotion, the jurisdiction of the Tribunal was ousted and the Civil Court had jurisdiction to entertain the matter. With regard to this proposition there is no dispute for the jurisdiction of the Tribunal set up under the Service Tribunals Act, 1973, to determine the fitness of a person for promotion is ousted by the statute itself. In other words the jurisdiction of the Tribunal in this particular case did not exist and this being the case: the civil Court did have the jurisdiction to adjudicate in the matter.
24. With profound respects we have certain doubts about the correctness of the decision made by the High Court in the case of Fariduddin Ahmed v. Province of Punjab (PLD 1977 Lah. 1310). The facts of this case are stated in para. No. 7 of this judgment. From para. No. 4 of the judgment of the Lahore High Court it appears that F filed the petition, under Article 199 of the Constitution, before a final order for his retirement had been issued. If this was the case then of course the Tribunal had no jurisdiction at that point of time because it is only when final order is made by the departmental authority that the jurisdiction of the Tribunal comes in However, in the concluding para. Of the judgment, the Lahore High Court had declared that the order of retire--ment of F passed by the provincial Government is contrary to law. The Court for that reason set aside the order. This in our humble opinion could not be done by the High Court because if the final order had been passed, then the jurisdiction of the Tribunal is attracted and it is that Tribunal alone which can adjudicate upon such matter and the High Court jurisdiction by virtue of Article 212 read with the relevant provisions of the Punjab Service Tribunals Act (IX of 1974) is excluded. We also cannot persuade ourselves to agree with the reasoning of the Lahore High Court that since the Government had not fully given effect to the decree of the civil Court which had been confirmed by the higher Courts, the order of retirement could not be passed. In fact when F was retired, he could seek his remedy from the Tribunal not only by challenging that his retirement was not in accordance with the spirit of law ; but he could also say before the Tribunal that his pension and other benefits should be worked out as if the decree of the civil Court had been honoured. The definition of "Civil servant" given in section 2(b) of the Punjab Service Tribunals Act (IX of 1974) includes a person "who has been a member of a civil service of a province or had held civil post in connection with the affairs of the province" and consequently a person who is retired from service can also knock the door of the Tribunal if his pension and retiring benefits are not worked out according to his entitlement. In this case, therefore, it the order of retirement had been passed by a departmental authority, competent to make an order in respect of any of the terms and conditions of F then under section 4 of the Punjab Service Tribunals Act (1X of 1974), an appeal did lie to the Tribunal and, in consequence, the jurisdiction of .The High Court was ousted by virtue of Article 212 of the Constitution. Even otherwise as held by the Supreme Court, in the case of National Steel Rolling Mills v. Province of Pakistan (1968 SCMR 317 (2)) mere anticipation of a penal action and on that analogy in anticipation of an adverse order affecting the terms and conditions of a Civil Servant) does not give cause of action for invoking the writ jurisdiction of the High Court. 1n case the Civil Servants are permitted to approach the High Court before any adverse order affecting their terms and conditions is finally made, that would amount to bye passing the jurisdiction of a Constitutional Tribunal which has been invested with exclusive jurisdiction in such matters.
24. With all respects we have certain doubts about the correctness of the decision taken in the case of Muhammad Gul Kakar v. Province of Baluch--istan also on which too reliance has been placed by the learned counsel for the petitioners. As already observed this was a case where, under .The Rules the concerned Civil Servant could be removed from service by the Head of the Department but the order was passed by the Governor. The Court held that since the order was passed by Governor who had no authority so to do, the order was ab initio void, illegal and without jurisdiction and that the High Court could interfere in exercise of its extraordinary jurisdiction even though the remedy to the Service Tribunal was available and the jurisdiction of the civil Court was ousted. Neither Article 212 of the Constitution nor the Baluchistan Service Tribunals Act contemplates the concurrent jurisdiction of the High Court and the civil Court on the one hand and of the Tribunal on the other hand ; nor any such inference can be drawn from the language of any other enactment or any rule of interpretation of the Constitution and the rules of the statutory construction. In fact, Article 212 is explicit in ousting the jurisdiction of every other forum where a Tribunal has been set up and conferred jurisdiction by law. Made under that Article. The decision in this case goes 'counter to the decision given by the Lahore High Court in the case of Muhammad Adam Bajwa v. Federation of Pakistan. The learned Judges in that case discussed in detail as to what is "Departmental authority". They also took note of the fact that the Departmental authority, according to the Statute, means "an authority competent to make an order". Nevertheless they did not give limited scope to the words "Departmental authority". We have already reproduced the relevant observation of the Lahore High Court made in. The case in para. 17 of this judgment with which we are in respectful agreement and we regret that we cannot persuade ourselves to accept the decision of the Baluchistan High Court in the case of Muhammad Gul Kakar v. Province of Baluchistan. In our opinion the words "competent departmental authority" would mean an authority which falls in the hierarchy of the 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 Muhammad Gul Kakar belonged, but in that particular case relating to his removal from service the departmental authority had unlawfully exercised jurisdiction which did not vest in him.
The Tribunal could, in our opinion, give relief to Muhammad Gul Kakar which the High Court had given because the matter fell wholly in the domain of the Service Tribunal as laid down in substance, by the Lahore High Court in the case of Muhammad Aslam Rajwa. To make a distinction between an order passed by a competent authority and an order not passed by a competent authority, we may give an instance. Supposing a Sub-Inspector of the Police is removed from service by the Deputy Inspector-General of Police but the proper authority to pass an order respecting him was the Inspector-General of Police, then the order would be without jurisdiction and nullity but it would still be considered to be an order of a competent departmental authority and, therefore, the dispute arising out of such order would not be open to jurisdiction of the High Court and it is the Tribunal alone which would be competent to annul the order on the ground that the same was without jurisdiction. On the other hand if the Sub-Inspector is removed from service by a Deputy Commissioner then that order would not be an order of a competent departmental authority because the Deputy Commissioner does not fall in the hierarchy of the officers who are superior to a Sub-Inspector. In this respect it is pertinent. To note that whereas in the Civil Servant Act, 1973, in section 13, the "Departmental Authority" has been defined to be "the appointing authority or person duly authorized by the appointing authority in this behalf", the Service Tribunals Act, 1973, defines the words as "an authority which is competent to make an order in respect of any of the terms and conditions of Civil servants". This definition itself shows that the words "departmental authority" have not been used in the restricted sense in which these were interpreted in the case of Muhammad Gul Kakar v. Province of Baluchistan.
25. The observation of the learned Judges of the Sind High Court in the case of Mushtaq Hussain Rizvi v. Province of Sind also with all respects has not persuaded us to accept the view that where a Civil Servant claims to be considered for promotion, the jurisdiction of the Service Tribunal is ousted and the High Court can exercise constitutional jurisdiction to make an appropriate declaration because promotion is not a vested right. We have already observed that the jurisdiction of the High Court or for that matter of the Civil Court would extend only where the jurisdiction of the Service Tribunal does not extend under the law made in pursuance of Article 212 of the Constitution. Now the Service Tribunals Act, 1973, under proviso (b) to section 4 ousts the jurisdiction of the Tribunals to adjudicate in appeal against an order or decision of the 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 grade. This provision, in substance, relates to the jurisdiction of the tribunal where the question is of first appointment or is with regard to appointment to a particular post inside or outside the cadre; but it does not mean that the Tribunal cannot direct the departmental authorities to consider the question of the promotion of a civil servant who should, on the basis of his seniority or otherwise, be entitled for consideration alongwith other eligible persons, the fact of right of promotion not being a vested right notwithstanding. In any case this decision goes counter to the decision of the Supreme Court in the case of Muhammad Ismail v. Province of Punjab, referred to above, in which it was held that the claim of the aggrieved petitioner pertaining to promotion was within the exclusive jurisdiction of the Punjab Service Tribunals Act (IX of 1974) as the claim of promotion depends upon the fixation of seniority which question is outside the jurisdiction of the civil Court. We have already in para. 18 of this judgment reproduced the relevant observations of the Supreme Court in the case. In fact the Sind High Court had itself rightly made the distinction between the fitness of civil servant for being appointed to a particular post or for promotion and his right for being considered for appointment or promotion in the case of Mushtaq Hussain Rizvi v. Province of Sind and another (PLD 1978 Kar. 703), in the following words:- "No doubt the question of the "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 212 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 appoint-- ments to posts for the first time or outside their cadre or to appointments to a particular post or office in the same or equivalent grade. This provisions, in my opinion, is to be read in conjunction with the provisions of section 18 of the Sind 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 the 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."
Thus the ouster of jurisdiction of Tribunal is very limited and cannot .Encompass the entire field of appointment or promotion.
26. Two cases decided by the Federal Service Tribunal and one case decided by the Punjab Service Tribunal still need to be considered. In the case of Ahmad Rabbani v. President of Pakistan the Federal Service Tribunal made the following observation:- "We, therefore, bold that the retirement under the provisions of sec--petition 13(ii) of the Civil Servant Act is in the ordinary course and not in the nature of penalty. There is no violation of any terms and conditions of the petitioner as Civil Servant.
Since there has been no violation of any terms and conditions, the petitioner cannot be deemed to be aggrieved by any final order made by the departmental authority, within the meaning of section 4 of the Service Tribunals Act, 1973, (relating to appeals to the Tribunal). Consequently no appeal lies to the Tribunal."
"The retirement under the provisions of section 13(ii) of the Civil Servant Act being in the ordinary course and not in the nature of penalty, there was no violation of any terms and conditions of service, the petitioner cannot be deemed to be aggrieved by any final order made by the departmental authority, within the meaning of section 4 of the Service Tribunals Act, 1973.
Consequently no appeal lies to the Tribunal."
27. The Punjab Service Tribunal on the other hand, in the case of Inam Hussain v. Government of Punjab, took somewhat elastic view when it held that the jurisdiction of the Tribunal would extend if retirement after twenty-five years qualifying service is made mala fide. The Tribunal, however, on facts refused to examine the propriety of order of retirement by holding that the executive authority alone are sole Judges to determine the question whether a civil servant should be retired in. Public interest after completing twenty-five years qualifying service as no stigma is attached to the order and the order is not of dismissal.
28. It is for the Tribunal itself to decide its own jurisdiction but in the case of Muhammad Yamin Qureshi v. Islamic Republic of Pakistan the Supreme Court has held that a Tribunal established by law made under Article 212 has the exclusive jurisdiction and that jurisdiction is very wide. On the language of the relevant provisions of the Service Tribunals Act (LXX of 1973), also we are of the opinion that the Tribunal is not debarred from examining the propriety of an order of the Departmental authority because the law made in this behalf confers on the Tribunal powers to confirm, set aside, vary or modify the order appealed against' and for the purposes of deciding an appeal it shall have the powers of a civil Court that are vested in such Court under the Civil Procedure Code (Act V of 1908). The Tribunal is not a Court of extraordinary jurisdiction to make a judicial review of the administrative actions like the High Court exercising power under Article 199 of the Constitution. The powers of the High Court are very limited and it cannot go beyond the tight corners of the said Article and would not interfere .With the order of an authority unless it is made without jurisdiction or without lawful authority. The High Court cannot interfere with the discretion exercised by any Government or Local Authority unless there is involved some violations of any provisions of the Constitution or of law or of the principles- of natural justice. The Tribunal on the other hand, being a Court of Appeal, has wide power and can in appropriate cases examine the propriety of an order passed by a departmental authority, though ordinarily it would not interfere in the discretion of an authority which itself is more concerned with the questions of usefulness and competency of a civil servant. In the case of Muhammad Aslam Bajwa v. Federation of Pakistan the Lahore High Court observed as follows:- ------------..Though our view in line with the contention of the learned Sate Counsel is that in the new set up the scope of the appeal will be wider and all embracing but to meet the argument on its own plane to say with respect, it has not impressed us because if the constitution has conferred validity on these acts and orders then to the extent to which validity has been conferred even this Court will not be in a position to re-open them and we have failed to understand why the petitioners insist on getting their cases proceed in a Court of limited jurisdiction i. e. High Court rather than availing of the remedy of filing appeals in Tribunals where the whole matter can have gone into both on merits as well as law (as was contended and conceded by the learned State counsel)."
"In many cases the right of appeal by a party aggrieved is to be construed as empowering the Court to substitute its own opinion for the opinion of the authority which made the decision if it is satisfied that the decision was wrong, though due regard ought to be paid to the competence of the local authority in arriving at its original decision.
The powers of those Appellate Courts must still be exercised judicially and not on the basis of legally irrelevant considerations. But power to entertain an appeal on the merits may endow a Court with discre--tionary authority far wider than the inherent but residual supervisory jurisdiction of the High Court over questions of legality, wider also than statutory power to entertain appeals on matters of law."
We are of the opinion that the Tribunal can examine, if required so to do, if on order passed by a departmental authority retiring a person on completing 25 years service qualifying for pension is in "public interest" or not because the Tribunal in this respect has to examine the matter in them same manner in which the other departmental authorities do it cannot refuse jurisdiction by saying that it cannot interfere with the subjective satisfaction of departmental authority that the order is made in "public interest". In fact the Tribunal can examine all questions of fact as well as of law including questions of actions taken mala fide, lack of jurisdiction, and of the validity of orders. The powers of appeal by the Tribunal is far wider than the power normally exercisable in the absence of a right of appeal by the High Court in exercise of its extraordinary jurisdiction.
29. The Supreme Court in the case of Federation of Pakistan v. Saeed Ahmed Khan (PLD 1974 SC 151), has placed certain limitations on the powers of the High Court while examining the allegation of mala fide in matters coming before the Court for judicial review of administrative actions. The observa--tions of the Supreme Court are as follows: - "Mala fides is one of the most difficult things to prove and the onus is entirely upon the; person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. Mala fides must be pleaded with particularity, and one kind of mala fide is alleged no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
It may be observed that the above observations of the Supreme Court only relate to cases in which the High Court is exercising its extraordinary constitutional jurisdiction. These observations would not, in our view, apply when the matter is before a civil Court or before a Tribunal which is vested with the powers of civil Court like the Service Tribunals established under Article 212 of the Constitution by virtue of laws made thereunder. These Tribunals are more or less Courts of appeal and the guiding principles for them would be the provisions of the Code of Civil Procedure in case no other restriction is placed by law. In this respect rule 10 of Order VI, of the Code of Civil Procedure may be referred to with advantage. It reads as follows: "Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any persons, it shall be sufficient to allege the same as a fact without setting out the circumstances from, which the same is to be inferred."
Thus when the Tribunal examines the question of malice or mala fide on the part of a departmental authority, it can, in our view, allow the aggrieve civil servant to allege mala fide in accordance with the provisions of the Code of Civil Procedure and to prove it by affidavits or otherwise. There shall, in our view, be no restriction on the power of the Tribunal to examine the files of the Government; for the Tribunal has to decide the matter as a Court of Appeal and it shall have to decide the appeal after finding out the fact on which the conclusion of the departmental authority rests. The latest pronouncement of the Supreme Court in the case of M. Yamin Qureshi v. Islamic Republic of Pakistan also in substance supports the view that the jurisdiction of the Tribunal is wide to determine the question of law as well as of fact and there are no such limitations on its power as are on High Court exercising its extraordinary jurisdiction under Article 199 of the Constitution.
30. Reverting again to the extent of exercise of jurisdiction by the High Court in matters relating to the terms and conditions of persons in the Service of Pakistan, we are generally in agreement with the principles laid down by the Baluchistan High Court in the case of Majibullah Aijaz v. D. G.
Telephone & Telegraph, referred to above, in para. 8 of this judgment. These with some elucidations are discussed hereunder in the following paragraphs. However, since this Court will be concerned with the persons in the service of Pakistan who are serving in connection with the affairs of the Federation or in connection with the affairs of North-West Frontier Province our observations will obviously be restricted only to these two categories.
31. The High Court shall have jurisdiction in respect of the disputes arising out of the terms and conditions of those persons in the Service of Pakistan whose terms and conditions of service are not to be laid down by the Parliament or the Assembly of the North-West Frontier Province under Article 212 of the Constitution for the reason that their terms and conditions of service are to be determined by law to be made under any other provision of the constitution itself or rules made by some other authority. In this category shall fall the persons appointed to the secretarial staff of either house of Parliament whose terms and conditions are to be laid down by law made under clause (2) of Article 87 of the Constitution and until such law is made by rules made by the Speaker of the Assembly or the Chairman of the Senate, as the case may be, under clause (3). The same principle would apply to the secretarial staff of the Assembly of the North --West Frontier Province by virtue of Article 127 of the Constitution. Officers and servants to be employed by the Election Commissioner shall also fall under this head by virtue of Article 221 of the Constitution. The Officers and the servants of the Supreme Court and the High Court shall also fall under the same class of persons by virtue of Article 208 of the Constitution which empowers the Supreme Court and the High Court, as the case may be, to make rules in this respect with the approval of the President and the Governor.
32. Subject to other impediments such as laches etc. The High Court shall have jurisdiction to entertain the matter when the impugned order against the aggrieved civil servant is passed before the Ist day of July, 1969. This is subject to the condition that no suit, appeal or application regarding any matter within the jurisdiction of the Federal or the Provincial Tribunals was pending in any Court immediately before the commencement of the Service Tribunals Act (LXX of 1973) or the North-West Frontier Service Tribunals Act (I of 1973), as the case may be, which had abated by virtue of section 6 of the former law and section 8 of the latter law read with clause (2) of Article 212 of the Constitution. With such abatement the aggrieved civil servant had been given right to approach the respective Tribunals within the period provided for in the two laws. In this respect we are in respectful agreement with law laid down by the Lahore High Court is the case of Gulsher Khan v. The Province of West Pakistan. This was a case under the Punjab Service Tribunals Act (IX of 1974), but the provisions thereof in this respect are identical with the two laws to which we have referred to above.
33. The High Court shall have jurisdiction when the person aggrieved by the order impugned does not fall within the definition of "Civil Servant" as given in section 2(o) of the Service Tribunals Act (LXX of 1973), with reference to Civil Servants Act (LXXI of 1973), or in section 2(a) of the North-West Frontier Province Service Tribunals Act (I of 1974), as the case may be.
34. The High Court shall have jurisdiction to entertain the matter when the order to be impugned whether original or appellate, is not a final order. The High Court shall, however exercise the discretionary jurisdiction under Article 199 of the Constitution in such matters only when there are compelling reasons and the intention of the aggrieved civil servant is not to circumvent the provisions of the relevant laws or to bye-pass the respective Service Tribunals.
35. In the case of Civil Servants of the Federation the High Court shall have jurisdiction when a civil servant of the Federation is subjected to depart--mental punishment other than the punishment of dismissal, removal, compul--sory retirement or reduction to a lower post or time scale. This power, shall, however, cease to be exercisable when a tribunal contemplated under sub--section (7) of section 3 of the Service Tribunals Act (LXX of 1973), is established or such a Tribunal is. Constituted from amongst the member of the Tribunal established under subsection (1) ibid. In the case of the civil servants of the North-West Frontier Province the High court shall have the jurisdiction to decide a matter when the punishment is impose and that punishment is not of dismissal or of removal or of compulsor retirement.
36. The High Court shall have the jurisdiction to adjudicate upon whether the impugned order relating to a civil servant of the Federation or a civil servant of the Province relates to his fitness to hold a post or to be appointed to such post or to be promoted to a higher post. Or grade. In this respect we have already discussed in detail the purport and mean in of fitness to hold a post or to be appointed or to be promoted to a higher post or grade.
37. The High Court shall have the jurisdiction when the order impugned by the civil servant of the Federation or of the North-West Frontier Province is not made by a departmental authority which is competent to make an order in respect of any of they terms and conditions of service of such civil servant. In this respect also we have discussed in detail when an order can be said to be an order of a competent departmental authority.
38. Having laid down the guiding principles of the exercise of jurisdic--petition of the High Court under Article 199 of the Constitution in matters relating to the terms and conditions of civil servants, we are now left with the disposal of the present petition. In this case the claim of the petitioner is that the order of his retirement under section 13(i) of the North-West Frontier Province Civil Servants Act (XVIII of 1973), is without lawful authority inasmuch as he has not completed 25 years service qualifying for pension and other benefits as also because the impugned order has not been made in the public interest and is mala fide and is also violative of the principles of natural justice. The remedy for getting set aside the impugned order lies with the North-West Frontier Province Service Tribunal in view of the detailed discussion made by us in this judgment. This Court for the reasons stated hereinbefore has no jurisdiction to interfere. This petition is, therefore, dismissed for want of jurisdiction. In view of the fact that questions involved were mostly of law we pass no order as to costs.