This order shall dispose of W. P. Nos. 11430/80. 11431/80 and 11432/80, involving common question of the jurisdiction of this Court to entertain these petitions.
2. The petitioners are holding civil posts in Grade-20 under the Federal Government of Pakistan and are civil servants within the meaning of section 2(b) of the Civil Servants Act, 1973. The petitioners seek issuance of direction to the respondents restraining them from taking any adverse action with regard to their service including retirement . Under section 13(ii) of the Civil Servants Act, 1973 and in case they have been retired to declare that action of the respondents to be without lawful authority and of no legal effect.
3. Learned counsel for the petitioners contended that although each one of the petitioners, completed twenty-five years' service qualifying for pension or other benefits, yet there is no occasion to retire them because in case of Mr. S. G. Yazdani and Mr. M. M. Akbar, the Chairman, Central Board of Revenue Government of Pakistan issued letters on 23rd Septem--ber 1980, appreciating their individual dedication to hard work and conduct.
On a question learned counsel stated-that orders of the retirement of the petitioners ur der section 13(ii) of the Civil Servants Act, 1973, have been passed to their knowledge but the same so far were not received by them: Learned counsel contended that the action of the respondents to retire the petitioners under section 13(ii) of the Civil Servants Act, 1973, being not a penalty as envisaged under the provisions of the Efficiency and Discipline Rules, 1973, the Service Tribunal constituted under section 3(3) of the Services Tribunals Act, 1973 has no jurisdiction to entertain appeals. According to him, a Tribunal established under section (37) of Service Tribunals Act would be competent to hear appeals against orders falling under section 4(2)(b) of the aforementioned Act and petitioners' cases fall within the ambit of section 4(2)(b) of the Service Tribunals Act. Learned counsel further stated that Service Tribunal as envisaged under section 3(7) of the Act was not established, the bar contained under Article 212(2) of the Constitution would not be attracted in case of the petitioners and these petitions would be maintainable under Article 199 of the Constitution learned counsel also submitted that none of respondents was competent to pass order of the retirement of Mr. Muktada Karim, petitioner as such the order passed would be coram non judice.
4. The learned Deputy Attorney-General, on the other hand, submitted that these petitions were not maintainable, being hit by the bar of jurisdiction contemplated under Article 212(2) of the Constitution. He pointed out that subsection (1) of section 4 of the Services Tribunals Act, 1973, provided that any Civil Servant aggrieved by any fnal order, whether original or appellate, made by Departmental Authority in respect of any of the terms and conditions of his service, could competently file, appeal before the Tribunal constituted under section 3 of the aforementioned - Act. He sub--mitted that cases under section 4(2)(b) were referable to minor penalties provided under Efficiency and Discipline Rules, 1973, and appeals against those orders would lie before the Tribunal constituted under section 3(7) of the Service Tribunals Act, 1.973.
5. In order to appreciate the efficacy of the point raised by learned counsel for the petitioner certain important provisions of law contained in different Enactments relevant to the extent are reproduced hereunder Article 212 of the Constitution provides
(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-
(a) matters relating to the terms and conditions of persons in the service of Pakistan, including disciplinary matters;
(b) .
(C) . . .
(2) Notwithstanding anything hereinbefore contained where any Admi--nistrative Courts 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 Provided that the provisions of this clause shall not apply to an Admi--nistrative 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.
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:
(2) A. Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, includ--ing disciplinary matters."
Subsections (3) to (6) provide for constitution s the Tribunal, the qualifica--petition of Chairman and of its members etc. Subsection (7) provides: "Notwithstanding anything contained in subsection (3), subsection (4) subsection (5) or subsection (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes -of cases may consist of one or more persons in the Service of Pakistan to be appointed by the President."
Section 4(i) of the aforementioned Act provides:
(1) Any civil servant aggrieved by -any final order, whether original orappellate, 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, whichever is late prefer an appeal to the Tribunal."
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred-
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time scale, or to a lower stage in a time-scale to a Tribunal referred to in subsection (3) of section 3 ; and
(b) In any other case, to a Tribunal referred to in subsection (7) of that section.
6. Rule 4 of the Government Servants (Efficiency and Discipline) Rules, 1973 enumerates the list of minor and major penalties.
Sub-rule (1) specifies:
(a) Minor penalties.
(b) Major penalties:
(i) reduction to a lower post or time-scale, or to a lower stage in a time--scale ;
(ii) compulsory retirement,
(iii) removal from, service ; and
(iv) dismissal from service.
Sub-rule (2) provides :
7. The perusal of the above referred provision of --- enactments would show that Article 212 of the Constitution provides for the establishment of the Services Tribunals to exercise exclusive jurisdiction in respect of the terms and conditions of Civil Servants including disciplinary matters, and no Court shall entertain any proceedings and grant injunction in respect of any matter to which the jurisdiction of the Services Tribunals would extend.
8. It is, therefore, clear that under section 4(1) of the Services Tribunals Act, any civil servant aggrieved by any final order, whether original or appel--late made by the departmental authority in respect of any of the terms and conditions of his service could competently assail the order in appeal before the Tribunal, within the specified time.
The next point for consideration is whether the Tribunal constituted under section 3(3) of the Service Tribunals Act or established under sec--petition 3(7) of the Act would be competent to hear appeals against the orders of retirement of civil servants passed under section 13(ii) of the Civil Servants Act, 1973.
9. In my view, the Tribunal constituted under subsection (3) of section 3 of the Service Tribunals Act would be an appropriate Tribunal to entertain A appeals against the, orders of the departmental authority retiring them under section 13(ii) of the Civil Servants Act, 1973.
It will be seen that subsection (2) of section 4 of the Services Tribunals Act, 1973 provides that where the appeal is against an order or decision of a departmental authority imposing punishment or penalty on a civil servant, the appeal in case ofpenalties of dismissal from service, removal from service, compulsory retirement or reduction to lower post (same as describ--ed major penalties under clause (b) of sub-rule (1) of rule 4 of the Efficiency and Descipline Rules, 1973, would lie before Tribunal constituted under subsection (3) of section 3 of the Service Tribunals Act and in any other case to Tribunal referred under subsection (7) of section 3 of the Act.
The Tribunal constituted under subsection (7) of section 3 of the Act, thus would hear appeals in any other case where departmental authority imposed punishment or penalty on a Civil Servant other than those mention--ed under clause (a) of subsection (2) of section 4 of the Service Tribunals Act, 1973. This necessarily implies that appeals against orders of depart--mental authority imposing minor penalties as mentioned under rule 4 of the Efficiency and Discipline Rules, 1973, o against some other specified class or classes of cases would be entertainable by Tribunal established under section 3(7) of the Services Tribunals Act.
10. The learned counsel for the petitioners, pointed out, and in m view rightly so, that the orders of petitioners' retirement under section 13(ii of the Civil Servants Act, 1913, by the Departmental Authority were no penalties, as envisaged under section 4 of the Efficiency & Discipline Rules, 1973. It is, therefore, clear that, Service Tribunals established under section 3 of the Service Tribunals Act, 1973 would be an appropriate Tribunal to entertain and decide appeals against the orders of petitioners' retirement, as contemplated under section 4(l) of the Services Tribunals Act.
The distinction in clauses (a) & (b) of subsection (2) of section 4 of the aforementioned Act was only referable to appeals before the Tribunal established under section 3(3) or section 3(7) of the Act filed against orders of the Departmental Authorities imposing major or minor penalties. In any other case where orders of Departmental Authorities entail no punishment, but are covered under section 4(l) of the Services Tribunals Act, the appeals would lie before the appropriate Service Tribunals constituted under section 3 of the aforesaid Act. It is thus apparent, that the Services Tribunal already established under section 3 of the Act would be competent to enter--tain and decide the petitioners' appeals if filed, against the orders of their retirement under section 13(ii) of the Civil Servants Act, 1973.
11. As regards the contention of learned counsel that the orders of retirement of the petitioners have not been passed by competent departmental authority or there was no material before the authority to pass such orders, it is observed that the appeals being within the scope of section 4 of the Service Tribunals Act, 1973, the Tribunal shall hear the petitioners and examine on merits all questions of law and fact sought to be raised by them On the scope of jurisdiction of the. Vice Tribunals, the Supreme Court of Pakistan has repeatedly held and last in M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD1980SC2at page 36 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 records 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 Tribu-- nal has 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 the powers as are vested in such Courts under the Code of Civil Procedure, 1908, including the power of enforcing the attendance of any person and examining him on oath, compelling the production of documents ; and issuing Commission for the examination of wit--nesses and documents. We have no doubt that the Service Tribunal, presided over generally by a serving or a retired Judge of the High Court, would be able to do full justice to the appellant."
12. Undoubtedly petitioners grievance are germane to the terms and conditions of their service and the matter falls within the exclusive jurisdic--petition of the Service Tribunals to entertain appeals against the orders of their retirement. The non obstante clause in Article 212(2) of the Constitu-- petition has overriding effect and provides consistent and harmonious interpretation of Articles 199 and 212 of the Constitution of Islamic Republic of 'Pakistan.
13. The upshot of the above discussion is that these petitions are not maintainable and are accordingly dismissed.-