This is a constitutional petition filed by Ch. Ghulam Rasul, petitioner, for quashment of the Provincial Government's order dated 16-10-1976 compulsorily retiring him on his completing twenty-five years of service.
2. The brief facts of the case are that Ch. Ghulam Rasul, petitioner, was posted and serving as Conservator of Forests in the Provincial Forest Department, Punjab, when on 16-10-1976 be was retired by the Provincial Government in view of his having completed twenty-five years of service qualifying him for full pension. The said order, a copy of which is filed as Annexure `A' to the petition, was passed by the Governor of the Punjab under section 12 (ii) of the Punjab Civil Servants Act, 1974.
The petitioner did not prefer any appeal against his compulsory retirement to the. Punjab Service Tribunal constituted under the Punjab Administrative Tribunals Act, 1974, which was then functioning. However, on the coming into force of C. M. L. A's. Martial Law Order No. 23 on 22-10-1977, the petitioner prefer--red a review petition before the Review Board constituted under the said Order. On 27-12-1977 the petitioner was heard by the members of the Review Board and on 14-1- 1978 the petitioner's review petition was rejected by the Martial Law Administrator Zone `A', who was the competent authority to pass the final order on the said review petition. Though the law does not provide a second review, the petitioner preferred a review petition before the Martial Law Administrator, Zone `A' Punjab, against his order dated 14-1-1978 which second review was rejected on 19-7-1978. Though no further remedy is provided, the petitioner then filed a representation, on the strength of the C. M. L. A's Martial Law Order No. 10, against the order dated 19-7-1978, which was rejected by the Chief Martial Law Administrator on 3-4-1980. On 19-6-1980 the petitioner filed a writ petition in the High Court challenging the order of his compulsory retirement passed by the Provincial Government on 16-10-1976, which is now before me for disposal.
3. The learned counsel for the petitioner submits that the impugned order of the Provincial Government dated 16-10-1976, compulsorily retiring the petitioner, was passed by the Provincial Government under compulsion brought to bear on it by the Central Government and that the Provincial Government was not given the choice of exercising its own judicial discretion and that since the action of the Government was mala fide, the impugned order was void and of no legal effect. In this connection, it was submitted that the Government of Pakistan deputed Mr. Abdul Aziz, Joint Secretary, Establishment Division, to personally carry their Letter No. 1661/JSF/76 dated 13-10- 1976 to the Provincial Government compelling the Provincial Government to compulsory retire certain Provincial Government Servants and to take disciplinary action against certain others. It was also submitted that the Provincial Government was not given the normal time to look into the cases independently and to exercise its independent discretion in the matter, but that it was taken for granted that compulsory retirement would be ordered and disciplinary action would be taken against the Officers named in the list who had or had not completed twenty-five years' service and that the whole operation, both of compulsorily retiring Government Servants who had completed twenty-five years' service and of taking disciplinary action against the rest, who were named in the list, were all rushed through in a mala fide manner within a matter of days, in some of which proceedings Mr. Abdul Aziz, Joint Secretary, Establishment Division, participated and he did not leave Lahore until the task was accomplished in its entirety. It was also submitted that so hurriedly was the operation performed that the orders of the Chief Minister with regard to th8 retirement and termination of services of Senior Gazetted Officers of and above the status of N. P. S. 19. Was not taken till 21-10-1976, though so many officers (including the petitioner) were compulsorily retired or disciplinary action taken against them before that date by the Chief Secretary. Since post facto approval was given by the Chief Minister on 21-10-1976 to the compulsory retirement of the p- titioner it was urged that the same was void in the eye of law. In these circumstances, it was submitted that the action against the petitioner was mala fide, that the Provincial Government did not exercise its own discretion when compulsorily retiring the petitioner, but acted under command and pressure from the Pakistan Government and that, therefore, the order was basically mala fide and void and without lawful authority. In support of his submissions, the learned counsel for the petitioner cited Mubarik Ahmad Malik and four others v. Federation of Pakistan (1), Ch. Habib Ullah v. Punjab Province (2) White Paper on the Conduct of General Elections in March, 1977, issued by the Pakistan Government, 1978 Edition, page 75, The State v. Zia-ur---Rahman (4) and Khan Muhammad Nisar v. National Industrial Relations Commission etc. (4)
4. Mr. S. M. Zubair, learned Assistant Advocate-General, Punjab, who appeared for the State, firmly opposed the petition and submitted that under clause (1) of Article 13 of the Provisional Constitution Order, 1981, the present proceedings before this Court were incompetent. He also submitted that the petitioner, under clause (2) of Article 13 of the Provisional Constitution Order, 1.981, could have filed a petition before the competent authority for the review of the order of his compulsory retirement within thirty days from the commencement of the Provisional Constitution Order. He also submitted that under clause (2) of Article 15 of the Provisional Constitution Order, 1981, all orders made, proceedings taken and acts done under the C. M. L. A's. Martial Law Order No. 23 should be deemed to have been validly made, taken or done and they cannot be called in question in any Court on any ground whatsoever and that under clause (4) read with para. (a) of clause (5) and clause (6) of Article 15 of the said Provisional Constitution Order, this Court cannot make any order relating to anything done or action taken under that Martial Law Order and that since the order passed by the Review Board and by the other Officers thereafter are immune from challenge and since the said orders supersede the earlier retirement order, the present writ filed to challenge the earlier retirement order is legally incompetent. In this connection it was also submitted that as the orders of the Review Board, the Martial Law Administrator, Zone 'A', and the Chief Martial Law Administrator dated 14-1-1978, 19-7-1978 , and 3-4-1980 respectively had not been challenged in this petition, the writ was legally defective and merited instant dismissal. The learned Assistant Advocate-General also submitted that under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, which had been preserved by Article 2 of the Provisional Constitution Order, 1981, this Court could not go into a matter relating to the terms and conditions of service and that the proper remedy for the petitioner was to move the Punjab Service Tribunal constituted under the Punjab Administrative Tribunals Act, 1974. In these circumstances, the learned Assistant Advocate-General submitted that there was no merit in this petition and that., the same should be dismissed.
(1) 1980 PLC (C S) 418 (2) NLR 1978 Service 565
(3) PLD 1973 SC 49(4) PLD 1977 Lab. 449
5. Replying to some of the submissions made by the learned Assistant Advocate-General, the learned counsel for the petitioner submitted that the bar contained in clause (1) Of Article 13 of the Provisional Constitution Order, 1981, did not apply to the instant case as the order of the petitioner's com--pulsory retirement was not passed by the Chief Minister, who was the "competent authority," but by the Chief Secretary and. That the Chief Minister's ratification was not secured till 20-10-1976, which had no validity. Unless the order was passed by a "competent authority", the bar of jurisdic-- tion, as contemplated under clause (1) of Article 13 of the Provisional Constitution Order, 1981, was not available. As regards the submission of the learned Assistant Advocate-General that since the petitioner had approached the Review Board constituted under C. M. L. A's. Martial Law Order No. 23 and other authorities thereafter, which review petition and other representations had been rejected, the petitioner could not challenge the earlier order, the learned counsel for the petitioner submitted that the petitioner was not given an appropriate hearing by the Review Board constituted under para. 4 of the C. M. L. A's. Martial Law Order No. 23 and that, therefore, the said Constitutional immunity did not apply to the petitioner's case. In the said connection, the learned counsel for the peti--tioner cited Nawab Khan v. N.-W. F. P. Government (1), Mumtaz Hussain v.
University of Sind (2) and Mussarrat Sultana v. B. A. Khan (3). As regards the submission of the learned Assistant Advocate-General that the present matter related to the terms and conditions of service of the petitioner and therefore, petitioner should approach the Punjab Service Tribunal, the learned counsel for the petitioner submitted that under sub-para. (2) of para. 3 of the C. M. L. A's. Martial Law Order No. 23, the petitioner, even if he had preferred an appeal before the Service Tribunal, would have had to withdraw the same when filing his review petition before the Review Board and that even in cases where civil servants had preferred such appeals and withdrawn the same when filing their review petitions and, after the dismissal of their review petitions, had petitioned the Service Tribunals to resuscitate and hear their appeals, they had failed, as the Tribunals had held that the appellants, having withdrawn their appeals, had legally waived their rights to this remedy. In this connection he referred to Muhammad Yousaf v. Chief Engineer, Irrigation (4) and Sh. Abdul Qayyum v. Federation of Pakistan (5).
(1) N L 8.1980 Service Pesh. 100 (2) PLD 1966 Kar. 429
(3) PLD 1981 SC 483(4) 1982 SCMR 476
(5) 1982 SCMR 474
6. I have given my anxious consideration to this case. The preliminary objections raised by the learned Assistant Advocate-General first call for determination. The most important preliminary objection that calls for determination first is whether this petition has abated in view of Article 212 of the Constitution of Pakistan, 1973. Articles 175 and 212 of the Constitu--tion of Pakistan, 1973, are now, by virtue of Article 2 of the Provisional Constitution Order, 1981, a part of the said Provisional Constitution Order and have effect subject to the said Provisional Constitution Order and any Order made by the President or the Chief Martial Law Administrator in that behalf. Under Article 175 of the Constitution, no Court in Pakistan has any jurisdiction "except that which is or may be conferred on it by the Constitu--tion or by or under any law". Under Article 9 of the Provisional Constitu--tion Order, the High Court has, subject to the other provisions of the Provisional Constitution Order, the power to issue writs if amongst other things, it is satisfied that no other adequate remedy is provided by law. Under clause (1) of Article 2(2 of the Constitution, the appropriate Legislature has, notwithstanding anything contained in the earlier Articles of the Constitution, which include Articles 175 and 199, the power by Act to provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction inter alia in respect of matters relating to the terms and conditions of service of persons who are or have been in the service of Pakistan, including disciplinary matters, and under clause (2) of the same Article, where an Administrative Court or Tribunal has been established under the earlier clause, then, notwithstanding anything hereinbefore contained, no other Court can inter alia 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 in respect of any such matter which are pending before such other Court immediately before the establishment of the Administrative Court or Tribunal, other than an appeal pending before the Supreme Court, abate on such establishment, provided that the provisions of the said clause (2) have been applied by Parliament to the Administrative Court or Tribunal concerned on the request of appropriate Legislature that has established by enactment the said.
Administrative Court or Tribunal. As Article 199 of the Constitution stands replaced by Article 9 of the Provisional Constitution Order, the appropriate Legislature can, under Article 212 of the Constitution, notwith--standing anything contained in Article 175 of the Constitution and Article 9 of the Provisional Constitution Order, constitute the Administrative Courts and Tribunals having exclusive jurisdiction. Since Article 9 of the Provisional Constitution Order places fetters on the powers of the High Court to issue writs, as may be provided in the other Articles of or those forming a part: of the Provisional Constitution Order, and one of them is Article 212, the High Court is constitutionally bound by the limitations placed on it by this Article. If any support is required for this view, Majeeb Ullah Hajazi v. Director General, Telephone & Telegraph and two others (1), M.
Yamin Qureshi v. Islamic Republic of Pakistan (2), Khalilur Rehman and others v. Government of Pakistan (3) and Muhammad Aslam Baiwa v. Federation of Pakistan (4) may be referred to with advantage. I now turn to clause (1) of Article 212 of the Constitution, which provides for the establishment of Administrative Courts or Tribunals to exercise "exclusive jurisdiction" inter alia in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters, and clause (2) of the same Article which provides that where any Administrative Court or Tribunal is established under clause (1), no other Court can 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. On 20-6-1974 the Provincial Legislature enacted the Punjab Administrative Tribunals Act, IX of 1974, and on 2-5-1974, Parliament assented to the Provincial Service Tribunals (Extension of Provisions of the Constitution)
Act, XXXI of 1974, extending the provisions of clause (2) of Article 212 of the Constitution to the Service Tribunals inter alia established under the Act of the Punjab Assembly. Under section 3 of the Punjab Administrative Tribunals Act, 1974, the Provincial Government constituted Tribunals to exercise "exclusive jurisdiction in respect of matters relating to the terms and conditions of service" of civil servants, "including disciplinary matters". The condition under clause (1) of Article 212 of the Constitution being fulfilled, namely the Service Tribunals having been set up by the Punjab Government to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of Punjab Civil Servants, including disciplinary matters, the ouster provided under clause
(2) of the said Article came into effect. Under section 4 of the Administrative Tribunals Act, 1974, the petitioner has the right of preferring an appeal against the order' of his retirement on completion of twenty-five years' service passed under section 12 (ii) of the Punjab Civil Servants Act, 1974. He should, E therefore, seek his remedy in the proper forum. Even otherwise, Article 9 o the Provisional Constitution Order bars the High Court from granting an, relief where another adequate remedy is provided by law. This Court, therefore, has no jurisdiction to deal with the petitioner's case. The petitioner may move the Punjab Service Tribunal, if so advised.
(1) PLD 1980 Quetta 51(2) PLD 1980 SC 22
7. Whilst dealing with the above objection raised on behalf of the State a novel argument was presented on behalf of the petitioner, namely, that initially the petitioner was not in the knowledge of facts constituting mala fide and, therefore, he did not prefer any appeal before the Punjab Service Tribunal, but that when he became aware of the facts constituting mala fide, trough the decision of the Punjab Service Tribunal in Mubarik Ahmad Malik's case, which decision was announced in September, 1978, he filed the present petition, as this Court could interfere in a matter if the order was mala fide, void or coram non judice. The learned counsel for the petitioner explained the delay in the filing of the petition by urging that when the Tribunal's decision was announced, the petitioner was then awaiting the decision of the Chief Martial Law Administrator on the representation he had made to him against the rejection of his review by the Martial Law Administrator, Zone `A', Punjab, against the dismissal of his review petition by the Review Board and as he bad to wait for that decision and it was not until 3-4-1980 when he received the final order from the Chief Martial Law Administrator rejecting his representation, that the petitioner filed the present writ petition on 19-6-1980. The petitioner has detailed grounds of mala fide in his petition, as reproduced in paras. 3 and 5 above, which have been pressed in argument. In view of the constitutional ouster contained in Article 212 of the Constitution, I doubt whether the plea of mala fide gives this Court liberty to act under Article of the Provisional Constitution Order. There are rulings of this and other High Courts both for and against the proposition, but, as already submitted above, as the Service Tribunal has jurisdiction to decide this matter, the petitioner can raise all the facts proving mala fide therein. In Muhammad Yamin Qureshi's case the Supreme Court has held that a Service Tribunal is fully competent to examine on merits all questions of law and facts which may be raised by the appellant to challenge the order passed against him. Khalilur Rahman's case follows the same view. In these circumstances, J would not like to go into the question of mala fide, etc. These being proper matters for the competent Tribunal to decide.
8. The learned counsel, in support of this Court's right to interfere in writ jurisdiction, also contended that such of the Government Servants who had filed their review petitions under C. M. L. A's. Martial Law Order No. 23 against their retirement or dismissal were not able to have their cases decided in appeal by the Service Tribunals, in view of the provision contained in sub-para. (2) of para. 3 of the said Martial Law Order which had compelled them to withdraw their appeals or petitions pending before Courts and Service Tribunals. It was submitted that such civil servants who had preferred their appeals before the Service Tribunals and had withdrawn the same to facilitate disposal of their review petitions and had, after the rejection of their review petitions, requested the Service Tribunals to re--suscitate their appeals, had failed in that respect as the Tribunals had held that by withdrawing their appeals they had waived their rights of appeal. In this connection it was submitted that some of the Government servants affected by such decisions of the Service Tribunals had filed petitions for special leave to appeal before the Supreme Court, which leave had been granted in a number of cases, including Muhammad Yousaf's case and Sh. Abdul Qayyum's case and that as the said matter had not yet been decided by a superior Court of Record, the same should be considered and decided in favour of the petitioner.
9. In dealing with the above contention, a number of matters arise for determination. First, whether the order of review is immune from challenge, in view of clause (2) of Article 15 of the Provisional Constitution Order. Second, whether the act of a civil servant in preferring a review petition against his retirement amounts to a waiver his right of appeal. Third, whether an order passed on a review filed under C. M. L. A.'s. Martial Law Order No. 23 is an order made by the "departmental authority".
And fourth and last, which is the "original"/"final order" against which an appeal can be preferred.
10. I will now deal with the first point. The effect of clause (2) of Article 281 of the Interim Constitution of Pakistan, 1972, in respect of a Government servant's right of appeal before the Service Tribunal was first considered by the Supreme Court in the case of Federation of Pakistan v. Saeed Ahmad PLD1974SC151in which it was held that the validity and immunity granted by the said clause to orders made under Martial Law Regulations 58 of 1969, and 114 of 1972, did not bar any appeal or revision allowed to the Govern--ment servant after the 25th of March, 1969, under the Service Tribunals Act, 1973. In Muhammad Aslam Bajwa's case the Lahore. High Court was confronted with Articles 269 and 270 of the Constitution, when protection was sought for orders passed under Martial Law Regulation No. 114 and it was claimed that the same were immune from .Challenge in appeal under section 4 of the Service Tribunals Act, 1973. In that case, the State, through the learned Attorney-General, conceded that the impugned orders were appealable under sections 4 and 6 of the Service Tribunals Act, 1973, and these cases fell out of the pale of Articles 269 and 270 of the Constitution. It was observed in that case that the bar of jurisdiction contained in that Article was only against "Courts" as distinguished from "Tribunals" or other executive authorities. In Muhammad Yamin Qureshi's case the Supreme Court also held that the validity and immunity granted by clause (4) of Article 270 of the Constitution to orders passed under Martial Law Regulation No. 58 did not bar any appeal provided by section 4 of the Service Tribunals Act, 1973.
Clause (2) of Article 15 of the Provisional Constitution Order, 1981, is in pari materla with clause (2) of Article 269 and clause (4) of Article 270 of the permanent Constitution. Learned Assistant Advocate-General clearly stated that the appeal to the Administrative Tribunal was still there. In these circumstances, clause (2) of Article 15 of the Provisional Constitution Order does not bar any appeal which may preferred against the final order passed by the departmental authority, which has also, been the subject of review under C. M. L. A's. Martial Law Order NQ. 23.
11. The second question that now falls for determination is whether the act of the petitioner in filing a review petition before the Review Board under C. M. L. A's. Martial Law Order No. 23 impliedly amounts to his having waived his right of appeal. Section 4 of the Punjab Administrative Tribunals Act provides an appeal to a civil servant against a "final order" whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service, including disciplinary matter: Provided that where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Ordinance, 1974, or any Rules made thereunder, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such application or representation was so preferred. Under the Explanation to section 4 of the said Act, "departmental authority" means any authority, other than the Tribunal, which is competent to make an order in respect of any of his terms and conditions of service. It cannot be denied that C. M. L. A's. Martial Law Order No. 23 was specifically enacted to give to persons who were in Government and corporation service and had been compulsorily removed from such service between the 1st day of January, 1972, and the 5th day of July, 1977, a right of representation, other than by way of a formal appeal, on lines similar to that generally provided by Service or Departmental Rules applicable to civil servants. This special remedy was granted in view of the Government's own finding, as reported in the White Paper on the Conduce of the General Elections in March, 1977 (issued by the Pakistan Government., 1978, Edition, page 75) that the retirement and termination of service o over a hundred persons effected during the regime of Mr. Bhutto in October, 1976, were not bona fide, but a "part of his election strategy to break the morale and spirit of the services well in time for the genera elections" and that in carrying out the operation, the said regime "was concerned not with the merits or demerits of theunfortunate individual involved, but only with a round figure of casualties". Much has been said about the strange manner in which this whole operation was conducted by the Punjab Service Tribunal in Mubarak Ahmad Malik's case and I need not dilate on this matter any further. To meet these particular cases and of such others who were compulsorily removed during the period stated above, this right of representation was granted in the form of review petition to Review Boards constituted under para. 4 of C. M. L. A's, Martial Law Order No. 23. Since the action taken against civil servants in so many cases displayed mala fide and victimisation, which admitted of no regular pattern or method, a right of review was granted by the said Martial Law Order which did not lay down any guidelines circumscribing the limits of its powers, other than grant the "competent authority" the right to give directions to the Review Boards to guide them in the performance of their functions. So complex was the field to be covered, that Review Boards, consisting of three members each, were constituted, where the review petitions could first be appraised, the aggrieved parties then heard and, after further enquiries were made, if deemed appropriate, their reports together with their recommendations could be submitted to the competent authority (which in the present case was the Martial Law Administrator, Zone 'A'), who could pass such orders thereon as he deemed appropriate. In short, the ljmits of the review jurisdiction was left wide so as to docomplete justice in cases of extreme injustice or immoral victimization, without being obstructed by technical considerations or without being unmindful of the limits within which such power is normally exercised. Since many of such persons who had filed review petitions had earlier preferred appeals or petitions against their compulsory removal before Courts or Service Tribunals, sub-para. (2) of para. 3 of the said Martial Law Order provided that such appeals or petitions should be withdrawn before such persons filed their review petitions. The object was not to compel such persons to expressly or impliedly waive their rights of formal appeal or other representation available to them before Service Tribunals specially constituted to deal with their cases under law, but to remove the confusion which would confound the minds of the members of the Review Board as to whether they had the jurisdiction to decide the review petitions before them, when formal appeals and petitions regarding the same matter were already pending before competent Courts or Tribunals also having jurisdiction to decide the same. The basic object of setting up Service Tribunals was to set up an authority manned by senior civil servants well conversant with law and procedure covering the different services and able to understand their problems, so that whatever matters relating to the services were entrusted to them, they could be dealt with at a mental level most favourable to the services. Since the law provides one statutory appeal to the Service Tribunal against a final order, whether original or appellate, after any departmental appeal, review or representation, if permis--sible is availed of, it is clear that the right of appeal granted to the civil servant at the Tribunal level, where the civil servant has the right of being heard "by his own peers", is much superior to the right of redress provided within the Department itself, even though that right by way of departmental appeal, review or representation may have been dealt with by the Governor. The object of sub-para. (2) of para. 3 .Of the Martial Law Order is, therefore, not to destroy the formal right of appeal available to the persons in Government or corporation service against their general order of compulsory removal, a granted to them by the Punjab Administrative Tribunals Act, 1974, but to grant to the said persons a right of representation in the form of review before Review Boards constituted under the said Order in the same manner as if such a review had been provided under any .Service or Departmental Rules applicable to them. In the instant case, no appeal was filed by the petitioner before the Punjab Service Tribunal. The question, therefore, that the petitioner had waived his right of appeal by withdrawing the same and filing a review petition, does not arise.
12. I now turn to the third point for determination. The High Court has already held in Muhammad Aslam's case that the words "final order" in section 4 of the Punjab Administrative, Tribunals Act, 1974, have been used in contradistinction from preliminary or interlocutory orders and that the intention seems to be that appeals from preliminary or interlocutory orders before the Service Tribunals should not be encouraged and that parties should wait till the finalisation of their original proceedings and in cases where departmental appeals are provided, till they are filed and disposed of within a limited period. The Explanation to section 4 of the Punjab Administrative Tribunals Act, 1974, defines a "departmental authority" as "any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of service of a civil servant". The competent authority constituted under the C. M. L. A's. Martial Law Order No. 23 has the final jurisdiction, on receipt of a report of the Review Board together with its recommendations, on a civil servant's review petition, to pass such order as he may deem appropriate thereon. Since matters into .Aza relating to termination of service, retirement from service, efficiency and discipline and right of appeal and representation (such as review) fall in Chapter II under the heading "Terms and Conditions of Service of Civil Servants" in the Punjab Civil Servants Act, 1974, the competent authority constituted under C. M.. L. A's. Martial Law Order No. 23 to pass a final order on a review petition becomes an authority competent to make an order in respect of a matter relating to the terms and conditions of a civil servant. The definition of "departmental authority" contained in the Explanation to section 4 of the Punjab Administrative Tribunals Act, 1974, is not restricted to departmental authorities provided under the Punjab Civil Servants Act, 1974, or the Rules made thereunder only, but includes other authorities also, constituted under other laws, which are competent to make orders in respect of the terms and conditions of service of civil servants. Where such other authorities are constituted to hear appeals or review petitions, within the limited scope of their jurisdiction they are "departmental authorities" within the meaning of section 4 of the Punjab Administrative Tribunals Act, 1974. Thus a final order passed by a competence authority on a review petition, whether accepting, rejecting or modifying the original order, is an order passed by a "departmental authority" within the meaning of section 4 of the said Act.
13. But the above discussion leaves one question open. Which is the original "final order" against which an appeal lies ? This, therefore, brings me to the fourth point. A "final order" is one which determines or resolves a matter finally as between the parties and is conclusive so far as the Court, authority or tribunals is concerned which has determined or resolved the same. An order may be final even though a review may be provided against it. Where a review petition is not admitted for hearing or dismissed in limine, the order sought to be reviewed stands and if the same is a final order, the said final order stands. But if a review petition is admitted, bear and decided, the case would result in the affirmation or variation of the order sought to be reviewed and where such order under review is final, fresh "final order" would come into effect. Though, in one aspect, the result is the same where a review is not admitted for hearing (i.e. dismissed in limine) or after admission and hearing the order sought to be reviewed is affirmed, in law there is a material difference, for in the latter case, the matter having been reopened, there is a fresh order. In the former case the parties are relegated to, and bound by, the old order. See Abdurahiman v. Imbichunny (1), Dwijendra Nath Biswas v. Jitendra Nath Biswas (2), Pakhirl Muhammad Rawthir v. L. Swaminatha Mudalier (3), Gour Krishn Sarkar v. Nilmadheb Saha (4) and Sha Vadilal Hakainchand v. Sha Fulchand Umedram (5). . Thus a final order passed by a competent authority on a review petition filed by a civil servant challenging his retirement, whether it affirms or varies the said final order of the departmental authority, does bring into existence a fresh "final order". As stated in para. 12 above, the order of the competent authority passed in review proceedings under Martial Law `order No. 23 can be treated as the order of the departmental authority, as contemplated by section 4 of the Punjab Administrative Tribunals Act, 1974. An order passed on a review petition is an order in the same jurisdiction as that sought to be reviewed. Thus, where a review petition against compulsory retirement is heard and accepted, the order of retirement, as modified by the order passed in review, becomes the fresh "final order". But where such a review petition is heard and dismissed, the order of retirement will stand., though figuratively it will be treated as a fresh "final order". In either case, since the initial order was passed in original jurisdiction, the ultimate final order will be treated as one passed in original jurisdiction. An appeal would, therefore, lie to the Punjab Service Tribunal against the said ultimate "final order". Thus no sooner a final order is passed by the "competent authority" under C. M. L. A's. Martial Law Order No. 23, the civil servant concerned has the right of preferring an appeal before the Service Tribunal under section 4 of the Punjab Administrative Tribunals Act, 1974. Since' the final order passed under the said Martial Law Order is not one passed by a departmental authority provided under the Punjab Civil Servants Ordinance, 1974, or any Rules made thereunder, proviso (a) to section 4 of the Punjab Administrative Tribunals Act, 1974, does not apply to the instant case. The preferment of a petition for review under C. M. L.
A's Martial Law Order No. 23 is not a condition precedent for filing an appeal under section 4 of the Punjab Administrative Tribunals Act, 1974. Even other--wise, the mere filing of such an application for review would not destroy the final nature of the original order, though where a review is heard and disposed of, the order in review affirming or varying the original order would constitute the fresh "final order", in original jurisdiction, giving the aggrieved person a right of appeal. In these circumstances, the petitioner has a right of preferring an appeal under section 4 of the Punjab Administrative Tribunals Act, 1974, to the Punjab Service Tribunal against the order of rejection of his review petition and the final order of his compulsory retirement, provided that the bar as contained in clause (1) of Article 13 of the Provisional Consti--tution Order does not apply to his case.
(1) AIR 1932 Mad. 669 (21 AIR 1928 Cal. 419
(3) AIR 1938 Mad. 573 (4) AIR 1923 Cal. 113
(5) I L R 30 Born. 56
14. Clause (1) of Article 13 of the Provisional Constitution Order reads as. Follows :- "Where a person in the service of Pakistan has been or is retired from service under the orders of the competent authority after he has completed twenty-five years of service qualifying for pension or other retirement benefits, no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceedings calling in question the validity of the orders of the competent authority on any ground whatsoever and any such proceedings pending before any such Court or Tribunal immedi--ately before the commencement of this Order shall abate forthwith."
The bar contained in clause (1) of Article 13 not only applies to the Supreme Court and the High Court, but to the Service Tribunal as well. However, where an order has been passed in respect of a person in the service of Pakistan not by a "competent authority" or by a competent authority, but before such person has completed "twenty-five years of service qualifying for pension or other retirement benefits", or where an order has been passed in respect of a person not in the service of Pakistan, the Constitutional bar would not apply and the Service Tribunal would undoubted--ly have the jurisdiction to bear the appeal. Since it is the petitioner's case that the impugned order was not passed by the Chief Minister but by the Chief Secretary, who was not the appointing authority and, therefore, was not competent to pass the impugned order, he can take up these objections before the Punjab Administrative Tribunal in an appeal which he may prefer, if he so desires. In any case, as stated earlier, since Article 212 of the Constitution. Which forms now a part of the Provisional Constitution Order, bars the jurisdiction of this Court to grant relief to the petitioner by way of an order in the nature of writ. I do not desire to go into the question whether the bar contained in clause (1) of Article 13 of the Provi--sional Constitution Order applies to the case in instance or not. The respondent may raise this plea before the competent forum, should the petitioner file an appeal before the Service Tribunal.
14. The upshot of the above discussion is that Article 212 of the Constitution prevents me from interfering in the matter as the petitioner has an adequate remedy before the Punjab Service Tribunal, which is the competent forum. As questions of mala fide and competency of the retiring authority can be raised before the competent forum. I need not go into these questions. In this view of the matter, I am not giving any finding on the question whether this Court can interfere on ground of mala fide or whether the bar contained in clause (1) of Article 13 of the Provisional Constitution Order is applicable to this case or not. As regards the immunity claimed under clause
(2) of Article 15 of the Provisional Constitution Order to the order passed in review under Martial Law Order No. 23, no such immunity can be claimed. As regards the contention that where a civil servant has filed a review under the said Martial Law Order, after withdrawing any appeal filed by him before the Service Tribunal, he should be deemed to have implied waived his legal right of appeal, no such waiver arises or can be spelt out. Whether an appeal is filed or not and, if filed, is withdrawn, to make way for the filing of the review petition, the civil servant's right of appeal under section 4 of the Punjab Tribunals Act, 1974, remains intact, after the review is heard and rejected.
15. In view of the above this petition has no merit and is dismissed. Parties are left to bear their own costs.