' M. SOHAIL IQBAL BHATTI, J. Through this Constitutional petition the petitioner has challenged live order dated 16.4.2014 through which a major penalty of compulsory retirement has been imposed upon the petitioner under Section 4(b)(iV) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
2. The learned counsel for the petitioner. Argued that major penalty of compulsory retirement cannot be imposed upon the petitioner as the petitioner had been exonerated-by the Inquiry officer. It has been further argued that after exoneration the competent-authority could not have - passed the impugned order dated 16.4.2014,and, therefore, petitioner has the right to be reinstated in service. The learned counsel further argued that jurisdiction of the superior Courts is to be stretched to take into its folds all the disputes to be resolved while limitation of jurisdiction and powers are to be squeezed and kept to minimum strength and length. The learned counsel for the petitioner while placing reliance upon PLD 2009 Supreme Court 866 (Ghulam Abbas Niazi v.
Federation of Pakistan and others) argued that jurisdiction of this Court cannot be taken away where authority has acted without jurisdiction, mala fide and coram non judice.
3. On the other hand, learned Law Officer has vehemently opposed the petition and argued that in view of the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 this Court should not exercise the powers of judicial review. It has been further argued that the petitioner has not availed the adequate and efficacious remedy provided under Section 16 of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
4 I have considered the arguments advanced by the learned counsel for the parties and perused the available record.
5. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is "subject to the Constitution" while Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 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 administrative Court or Tribunal extends." Article 212 being a non- obstante Article prevails over Article 199.
6. The Honourable Supreme Court of Pakistan in a judgement reported as 1.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041) has held that even if some constitutional rights of a civil servant have been violated, this would not mean that High Court can interfere in such matters in exercise of its.Powers conferred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
7. In Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCM R 2280) it was held by the Honourable Supreme Court of Pakistan that even if the order passed is perverse or coram non judice, the High Court cannot extend its powers of judicial review under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
8 This view has lately been re-affirmed by the Honourable Supreme Court of Pakistan in a judgment reported as Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCM R 592) wherein a statement was made by the Advocate General, Sindh, that the order passed by the Division Bench of Karachi High Court had been implemented but their lordships although dismissed the CPLA but made an observation that in the matters relating to terms and conditions of service High Court would first decide as to whether it has jurisdiction to interfere in the matters relating to terms and conditions of service..
9. Following the dictum laid down by the Hon'ble Supreme Court of Pakistan this Court in a judgment reported in 2010 PLC, (C S) 51 (Lahore High Court) Dr. Ghazanffarullah and 2 others v.
Secretary Health, Government of the Punjab, Lahore and 6 others} reproduced the statement of Chief Justice Johan Marshall in following 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-urRehman PLD 1973 SC 49). In short, jurisdiction denotes the authority for the Courts to exercise judicial power. 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.
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 distinction between judicial power and jurisdiction is not kept in mind. If there is no jurisdiction, the question of exercise of judicial power does not arise. I am fortified by the judgment of august Supreme Court of Pakistan reported in 2007 SCM R 54 (Peer Muhammad v. Government of Balochistan through Chief Secretary and others). The relevant part is reproduced below:- 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 matters and Constitution 91 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 cannot 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 v. Chairrnan, WAPDA 1986 SCMR 1534."
12. 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 Tribunal under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 I must observe here that the power of judicial review can only be exercised if this Court has jurisdiction to adjudicate upon the matter. In the present case, even if the order is coram non judice or amount to colourable exercise of powers.
The only remedy available to the petitioner is to have recourse of filing a departmental appeal.
13. For what has been discussed above, this petition is dismissed in limine.