AZIZ-UR-REHMAN J.--- By means of this application under Order VII, Rule 11 read with section 151, C.P.C. Along with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 bearing C.M.A.
No.20214 of 2014, the respondent No.5 viz. Muhammad Younus Khan Director Military Lands and Cantonments, Karachi Region, Karachi, seeks rejection of the present Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 filed by the petitioner viz. Mrs. Zeenat Ahmed wife of Dr. Ahmed Hussain. The prayer sought in the application [C.M.A. No.20214 of 20141 reads as follows:- "It is prayed on behalf of the applicant/respondent No.5 that this Hon'ble Court would be pleased to take up the issue of jurisdiction and maintainability of the petition as a first step before proceeding further and decide the same in accordance with law and may further reject the petition for want of jurisdiction, on the basis of facts and grounds, mentioned in accompanying supporting affidavit."
2. On 1-9-2014 when the above case came-up before the court, then the following order was passed:--- 1-9-2014 Mr. Khalid Javed Advocate for the petitioner Mr. M Arshad Khan Tanoli Advocate for respondent No.4.
Messrs M.M. Aqil Awan and Danish Rasheed Advocates for respondent No.5.
(1) Urgent .
(2) Learned Counsel for the petitioner supplied copy of this application to learned counsel for respondents Nos.4 and 5, who waives notice of the same.
3 to 8. All pending applications shall be heard on 9-9-2014 when the matter is already fixed but application listed at Sr. No.4 bearing Miscellaneous No.20214 of 2014 shall be heard first.
Interim order, passed earlier, to continue till next date of hearing.
3. Thereafter, all the learned counsel for the respective parties and learned Standing counsel, on 9- 9-2014 and 23-9-2014, advanced their arguments in length on the point+ of maintainability of the instant petition and upon conclusion of their arguments, order was reserved.
4. Mr. M.M. Aqil Awan, learned counsel for the respondent No.5 vehemently argued that the instant Petition as framed and filed is not maintainable under law and also in view of the facts and circumstances of the case. According to the learned counsel, inter alia, the same is barred under Article 212[2] of the Constitution of Islamic Republic of Pakistan, 1973.
5. Mr. M.M. Aqil Awan, while elaborating his arguments strenuously contended that the question of posting and transfer of a 'civil servant' is a question purely relatable to the 'terms' and 'conditions' of the service and the same, no doubt, falls within the exclusive jurisdiction of the Federal Services Tribunal [in short F.S.T.] established under Section 3 of the Service Tribunals Act, 1973 [Act No.LXX of 1973]. Per learned counsel, it is the Federal Service Tribunal which under law can exercise exclusive jurisdiction in respect of the matters relating to the 'terms' and 'conditions' of service of a civil servant as well as the matters connected therewith or ancillary thereto.
6. Learned counsel, while advancing his argument also focused our attention towards C.P.No.D-877 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan and others], filed by the present petitioner on 22nd February, 2014 and contended that this Court, of course, had earlier assumed the jurisdiction in respect of the transfer of the petitioner in aforesaid C.P.No.D-877 of 2014 [Mrs. Zeenat Ahmed v.
Federation of Pakistan and others] but manifestly it was merely due to the reason that at the relevant time the Federal Service Tribunal [FST] was lying vacant and dysfunctional for want of the appointment of Chairman thereof. Nevertheless, per the aforesaid judgment passed by the Hon'ble Division Bench of this Court on 12-6-2014, respondents' stand to the effect that laying a claim to a particular post by a civil servant is not a vested right as has been held/recognized by this Court from time to time including the aforesaid judgment passed by the Hon'ble Division Bench of this court. Moreover, it was also observed in para 14 of the aforesaid judgment that the present petitioner is not claiming any 'vested against any particular post rather she is seeking implementation of the 'wedlock policy'.
7. Mr. M.M. Aqil Awan, next argued that pursuant to the aforesaid judgment of 12th June, 2014 and during the pendency of the instant petition [i.e. C.P.No.D-3488 of 2014 - Mrs. Zeenat Ahmed v.
Federation of Pakistan and others], filed on 1-7-2014, the situation has now drastically undergone change. Per learned counsel, the Chairman of the F.S.T. Has already been appointed vide Notification No.F.38[1]/2014- A.11 on 7th August, 2014 issued by the Government of Pakistan, Law, Justice and Human Rights Division Islamabad. Perusal of the aforementioned Notification shows that Mr. Justice [Retd.] Shaikh Ahmed Farooq has already been appointed as a Chairman of the FST. Per learned counsel, the learned Chairman has also assumed the charge of the office i.e. As a Chairman of Federal Service Tribunal [FST]. Inter alia in view of this position, the instant petition is also incompetent in law.
8. In the background of the instant petition, learned counsel further submitted that the present petitioner viz. Mrs. Zeenat Ahmed was earlier transferred from the post of Director Military Land, Cantonment Karachi Region, Karachi to the post of Director Finance and Planning [M&P] Headquarters Rawalpindi, however, the said Transfer Order No.101/19/PS/ML&C dated 20-2-2014 issued by Director General, Ministry of Defence [ML&Deptt] Rawalpindi, was challenged by way of filing a Constitutional Petition No.D-877 of 2014 [Mr. Zeenat Ahmed v. Federation of Pakistan and others) before this Court solely on the ground of 'wedlock policy' of the Government [O.M.
No.10/30/97-R-2 dated 13-5-1998 and 17-12-1999] as claimed, the petitioner's husband was/is posted at Karachi in his capacity as a Senior Medical Officer, Health Department Government of Sindh.
9. The transfer of the petitioner as then claimed was violative of the 'Wedlock Policy' of the Government. The 'Wedlock Policy' issued by the Government, needless to say, was/is aimed to facilitate posting of husband and wives at the same station so also the posting of un-married female civil servants at the place of residence of their parents/families. Upon full-fledged hearing, the said Constitutional Petition was found maintainable ex-facie on the basis of a binding 'Wedlock Policy' and consequently the petitioner's Constitutional Petition No.D-877 of 2014 [Mr. Zeenat Ahmed v. Federation of Pakistan and others] was 'disposed of vide judgment dated 12-6-2014 in the following terms:---
16. ................................................................................................................................
(a) The impugned transfer order dated 20-2-2014 is set aside in view if the wedlock policy.
(b) The setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi.
[Underlining is ours]
(c) Pending applications are also disposed of accordingly."
10. Per Mr. M.M. Aqil Awan, the official respondents while acting in the light of the aforesaid judgment as well as in compliance thereof, having no other alternative but to pass a fresh Order No.101/19/PS/ML&C dated 13-6-2014 [Annexure 'C' to the MoP] whereby the present petitioner was posted/transferred as Director Finance and Planning [F&P] Karachi.
11. Pursuant to and in compliance with the aforesaid transfer order, the petitioner viz Mrs. Zeenat Ahmed through her joining report on 18-6-2014 [Annexure 'H' to the MoP], assumed the charge of Director of F&P at Karachi. The relevant posting/transfer Order No.101/19/PS/ML&C dated 13-6-2014 and joining report of Mrs. Zeenat Ahmed No. Nil dated 18-6-2014 are respectively reproduced herein below:---
(A) "IMMEDIATE/BY FAX No. I01/19/PS/ML&C Government of Pakistan Ministry of Defence (ML&C Deptt.)
Rawalpindi, the 13th June, 2014 To All Concerned Officers.
Subject: POSTINGS/TRANSFERS OFFICERS OF ML&C DEPTT.
1. It has been decided to cancel this HQ's even numbered letter dated 20-2-2014 on the subject and to make the following postings/transfers with effect from dates shown against each.
(1) Mr. Muhammad Younus Khan Director (F&P) is transferred/posted as DML&C Karachi Region vice Ms. Zeenat Ahmed transferred. He will join his new assignment on 17-6-2014.
(ii) Ms. Zeenat Ahmed DML&C Karachi Region is posted/transferred as Director (F&P) Karachi. She will join her new assignment on 17-6-2014. The office of the Director (F&P) has been shifted to Karachi in view of her compassion to stay at Karachi.
2.. The charge shall transfer to the assigned officers on the dates mentioned against each above.
Proper handing/taking over will be carried out. The dates (forenoon/afternoon) of relinquishment/assumption of duties by the officers concerned may please be reported to this HQ strictly in accordance with the dates given.
Sd/- Maj Gen Director General (Mazhar Saleem Khan)
Copy to:---
1. All DsML&C
2. DS(Army-B) Min of Def
3. S.O.D-6(A-VI) Min of Def"
(B) "No. Nil, Dated: 18th June, 2014 To, The Director-General Military Lands and Cantonments. Rawalpindi Sub:- POSTING/TRANSFERS OFFICERS OF ML&C DEPTT.
Ref: Order No.101/19/PS/ML&C dated 13-6-2014 HQ ML&C Deptt. Rawalpindi.
Under protest and without prejudice to my legal right, I submit my joining report on 18-6-2014 in the forenoon from my house as there is no setup/office of Director F&P and other paraphernalia/staff for Director F&P at Karachi, in compliance of order referred to above which was first time disclosed to me on 17-6-2014 at 3.55 p.m. By Mr. Muhammad Younis Khan on his arrival at RHQ Karachi.
Sd/- Zeenat Ahmed Director F&P House # 61/2, Khayaban-e-Ittehad Phase 6 DHA, Karachi"
12. Likewise, Muhammad Younis Khan [respondent No.5] also assumed the charge of the office of Director Military Lands and Cantonments, Karachi, through his joining report of 17-6-2014. The joining report of Mr. Muhammad Younis Khan dated 17-6-2014 is also reproduced herein below:--- "MOST immediate/By Fax By Email Government of Pakistan Ministry of Defence, (ML&C Deptt.)
Office of the Director Military Lands and Cantonments Karachi Region, Karachi No. 2/44/DK/Vol : 1/Estt/ Dated the 17th June, 2014 To, The Director-General, Military Lands and Cantonments Deptt. Ministry of Defence, Pak Sectt-II, Rawalpindi Subject: POSTING/TRANSFER OFFICERS OF ML&C DEPTT.
In pursuance of the order issued vide Govt. Of Pakistan, Ministry of Defence ML&C Department Rawalpindi letter No.101/19/PS/ML&C, dated 13-6-2014. The undersigned has assumed the charge of the office of the Director, Military Lands and Cantonments, Karachi Region Karachi as DML&C Karachi on 17-6-2014 A/N. [Underlining is ours]\ Sd/- (MUHAMMAD YOUNUIS KHAN)
Director Military Lands and Contoments Karachi Region, Karachi Copy to :-
1. All DML&Cs
2. All MEOs/CEOs in Karachi Region
3. The Controller of Accounts (ISO's) Rwp
4. The Manager, National Bank of Pakistan (Public Fund A/C No.38-4)
5. Master File"
13. Mr. M.M. Aqil Awan, learned counsel for the petitioner further contended that despite submission of joining report by the petitioner on 18-6-2014 as Director [F&P] at Karachi, the present petitioner has not only filed this 2nd Petition but has also got 'ad-interim order' on 6-8-2014 [i.e. After about a period of two months of the Judgment, passed by the Hon'ble Division Bench of this Court, on 12-6-2014 in C.P.No.D-877/2014 - Mrs. Zeenat Ahmed v. Federation of Pakistan and others]. Per Mr. M.M. Aqil Awan, the present petitioner in fact had again tried to restore 'status-quo ante' though the same was/is not possible under the law. The 'ad-interim order' passed on 6-8-2014 in the present Petition reads as follows:--- 6-8-2014 Mr. Khalid Javed, Advocate for petitioner
(1) Urgency .
(2) Exemption granted subject to all just exceptions.
(3-4). Learned counsel for petitioner states that the petitioner was working as Director Military Lands and Cantonment, Karachi Region was illegally transferred vide letter dated 20-2-2014 by respondent No.4. The petitioner challenged the said transfer order by filing a C.P. Bearing No.D-877 of 2014 in this court and by a detailed judgment passed on 12-6-2014 the petition was admitted and disposed of in the following terms:--- "16. .............................................................................................................
(a) The impugned transfer order dated 20-2-2014 is set aside in view of the wedlock policy.
(b) The setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi.
(c) Pending applications are also disposed of accordingly.
Subsequent thereof respondent No.4 issued a back-dated letter in order to flout the judgment of this court. The said letter was received from respondent No.4 by regional headquarters, Karachi region on 17-6-2014 as is apparent from Annexure 'C' with the memo. Of petition [Available at page 67 of the court file] which shows that the respondent No.4 posted and transferred the petitioner as Director [F&P] Karachi which post, per learned counsel, does not exist at regional headquarters, Karachi at the time of passing of judgment referred to above.
Learned counsel for petitioner further contends that as per the provisions of Civil Servants (Appointments, Promotions and Transfer) Rules, 1973 the respondent No.4 is not competent to pass order for transfer and posting of an officer of Grade-20 and above. As per learned counsel, Prime Minister of Pakistan, on the recommendations of the Central Selection Board, can only transfer an officer of Grade-20 and above. Per learned counsel the impugned letter dated 13th June 2014 [Annexure 'C' with the memo. Of Petition] is absolutely unlawful, illegal and mala fide on the face of record.
Issue notice to the respondents as well as DA for 25-8-2014. Till then operation of the impugned letter dated 13th June, 2014 transferring the petitioner as Director [F&P] issued by respondent No.4 is suspended." [Underlining is ours].
14. From perusal of Order dated 06th August, 2014, it is evident that the impugned letter/order dated 13th June, 2014 issued by respondent No.4 was suspended only to the extent of transfer of the petitioner.
15. Not only this, against the impugned order dated 13-6-2014 [Annexure 'C' to MoP.], the present petitioner has already availed the remedy of 'Departmental Representation' i.e. On 19-6-2014, which remedy, per learned counsel is knowingly an efficacious and suitable 'alternate remedy' before the Hon'ble Prime Minister of Pakistan. Being so, the instant petition besides afterthought, misconceived is not maintainable inter alia in view of the legal position that under law no one can be 'vexed twice'. The impugned order passed on 13-6-2014 [Annexure 'C' to MoP] has not only been acted upon by the petitioner on 18-6-2014 but the same has also been assailed by the petitioner through filing of a 'Departmental Representation' before the Hon'ble Prime Minister of Pakistan on 19-6-2014.
According to Mr. M.M. Aqil Awan, the drill of filing of the present petition is nothing but a calculated afterthought attempt for re-opening the 'past' and 'closed' issue of transfer of the petitioner. Per learned counsel, the line of action of the petitioner is not only zigzag but also based on pseudo pleas.
16. The petitioner, instead of allowing the 'Departmental Authority' reasonable time for deciding her 'Departmental Representation', has evidently approached this Court with un-cleaned hands, plus malafidely through the instant Constitutional Petition. Per learned counsel, if, some delay suppose for the sake of arguments occurs in deciding the 'Departmental Representation' of the petitioner, then also in such eventuality, the maximum relief permissible under law is the relief 'of 'mandamus' to the 'Departmental Authority' for deciding the 'Departmental Representation' of the petitioner swiftly and in accordance with law only.
17. Mr. M.M. Aqil Awan, learned counsel for respondent No.5 in support of his contention placed reliance in the following case-laws:---
(i) Messrs Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another [2001 PLC (C.S.) 907].
(ii) Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others [2003 SCMR 1241].
(iii) Amanullah Khan (A. Khan) v. Chotey Khan [1978 SCMR 14].
(iv) Managing Director (Power), WAPDA and others v. Muhammad Luqman [2003 PLC (C.S.) 526].
(v) Syed Najmul Hassan Wasti v. Province of Sindh Through Secretary Excise and Taxation and 2 others [2010 PLC (C. S.) 224].
(vi) Dr. Younis Asad Sheikh v. Province of Sindh Through Secretary, Health Department Government of Sindh [2009 PLC (C. S.) 735].
(vii) Gulbat Khan v. Water and Power Development Authority [1992 SCMR 1789].
(viii) Mst. Riaz Anjum and others v. Mrs. S. Maqool and others [1999 SCMR 912].
(ix) Government of Punjab Through Secretary, Labour and Manpower, Civil Secretariat and others v. Shahid Mehmood Butt [2006 SCMR 443].
(x) Punjab Small Industries Corporation (PSIC) v. Sh. Abdus Salam and others [2008 SCMR 583].
(xi) Miss Rukhsana Ijaz v. Secretary Education, Punjab and others [1997 SCMR 167].
(xii) Water and Power Development Authority and others v. Commissioner Hazara Division and others [1992 SCMR 2102].
(xiii) Contempt Proceedings Against Chief Secretary, Sindh and others [2013 SCMR 1752 (1867).
18. Mr. M. Arshad Khan Tanoli , learned counsel for respondent No.4, Mr. Abdul Sadiq Tanoli, learned Standing counsel while, adopting the arguments of Mr. M.M. Aqil Awan, learned counsel for the respondent No.5 also prayed for the dismissal of the Petition with 'cost'. According to the learned counsel, the instant Petition beside misconceived, misleading is in-competent in law as the same has been filed by the petitioner much after taking charge of the post of Director F&P at Karachi [i.e. On 18-6-2014] and filing of the 'Departmental Representation' before Hon'ble Prime Minister of Pakistan filed sometime in June, 2014.
19. In view of this position as well, the impugned transfer order of 13th June, 2014 [Annexure 'C' to the MoP] passed in the light and pursuant to passing of judgment of 12th June, 2014 in C.P. No.D-877 of 2014 by the Division Bench of this court, is neither liable to be disturbed nor otherwise, could be declared illegal and/or of no legal effect. Per learned counsel, layving a claim to a particular post by any 'civil servant' under law is not his/her vested right. Lastly, all the learned counsel urged that impugned transfer/posting order dated 13-6-2014 [Annexure 'C' to the MoP] is absolutely valid and proper as such, under the facts and circumstances of the present case, the same is not opened to be questioned muchless under the discretionary Constitutional Jurisdiction of this court under Article 199 of the Constitution of Pakistan, 1973. In the end of arguments they all prayed for dismissal of the Petition as being frivolous and incompetent in law.
20. Conversely, Mr. Khalid Javed, learned counsel for the petitioner vehemently argued that the application under Order VII, Rule 11 read with section 151, C.P.C. Along with Article 199 of Constitution of Islamic Republic of Pakistan, 1973 bearing C.M.A. No.20214 of 2014 filed by the respondent No.5 besides, misconceived, misleading, meritless is not maintainable in law. According to the learned counsel, the provisions of Order VII, Rule, C.P.C. Are not applicable to the proceedings filed under Article 199 of the Constitution. Per learned counsel, Article 212[2] of the Constitution is not applicable under the given facts and circumstances of the instant Petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, as such the same is quite maintainable and also deserves to be granted as prayed.
21. Mr. Khalid Javed, learned counsel for the petitioner also argued that the shifting/transfer of Office/Post of Director [F&P] to Karachi, by the Director-General Military Lands and Cantonments Department, Ministry of Defence [ML&C Deptt.] i.e. Respondent No.4 is not valid and proper. Be that as it may, the impugned order dated 13-6-2014 [Annexure 'C' to the MoP] is nothing but a crystal clear case of mala fide thus liable to be declared as illegal, coram non-judice and without any bona fide authority. The transfer of the petitioner even to the post of Director [F&P] Karachi, is illegal and tainted with mala fides.
22. Mr. Khalid Javid, further urged that by mere appointment of a Chairman of Federal Service Tribunal, the Tribunal does not become complete functional. Elaborating his arguments, learned counsel further submitted that in terms of section 3 of the Service Tribunals Act, 1973 [Act No.LXX of 1973], the Tribunal ought to consist of a Chairman and such other number of Members not less than three. Accordingly, per learned counsel for the petitioner, despite the appointment of the Chairman of FST, in fact till date, there exists no Federal Service Tribunal [FST] much-less, in the eyes of law.
23 The only proper, adequate, efficacious and effective remedy per Mr. Khalid Javid, is available to the petitioner was/is the remedy by way of filing of the instant Constitution Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The 'Departmental remedy' though available and has also been availed by the petitioner, however, does not bar jurisdiction of this court under Article 199 of the Constitution, 1973. Even the observation of Hon'ble Division Bench of this court in the judgment of 12th June, 2014 passed in C.P. No.D-877 of 2014 filed by the present petitioner viz. Mrs. Zeenat Ahmed, to the effect that 'the setting aside of impugned transfer order will not restrict or prevent the competent authority to transfer the petitioner to any other post commensurate to her grade in Karachi', per Mr. Khalid Javid, does not absolutely entitle the official respondents to transfer the petitioner.
24. The averments of the petitioner in the present Memo. Of Petition [in short MoP] as well as in the early round of litigation to the effect that matter in dispute involves/involved the questions that are relating to the 'terms' and 'conditions' of service and do fall within the jurisdiction of Federal Service Tribunal [FST], in any event, per learned counsel, do not make applicable the principle of 'estopple' or bar the jurisdiction of this court and/or otherwise renders the instant petition as in-competent in law. Lastly, Mr. Khalid Javid prayed for the dismissal of the Application bearing C.M.A. No.20214 of 2014 for rejection/dismissal of the instant Petition.
25. Mr. Khalid Javid, learned counsel for petitioner in support of his contentions placed reliance on the following case-laws:---
(i) Jewan and 7 others v. Federation of Pakistan through Secretary, Revenue, Islamabad and 2 others [1994 SCMR 826].
(ii) Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi [PLD 1965 SC 698].
(iii) Suo Motu and Human Rights Cases [PLD 2011 SC 277].
(iv) Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others [PLD 2013 SC 195].
(v) Zahid Akhtar v. Government of Punjab Through Secretary, Local Government and Rural Development, Lahore and 2 others [PLD 1995 SC 530].
(vi) Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department Lahore and another [2004 PLC (C.S.) 622]
(vii) Muhammad Zia-ul-Haq v. Secretary to Government of The Punjab, Livestock and Dairy Development Department, Lahore and 4 others [2003 PLC (C.S.) 1322].
26. The case-laws cited by Mr. Khalid Javid in support of his contentions are as follows:---
(a) Muhammad Zia-ul-Haq v. Secretary to Government of The Punjab, Livestock and Dairy, Development Department, Lahore and 4 others [2003 PLC (C.S.) 1322] wherein regarding 'wedlock policy' it was held as under:--- "7. It is true section 9 ibid has an overriding effect on all circulars notifications and policies.
However, if any policy of the Government enunciated in its circular has to be deviated from good reasons have to be given. Undoubtedly, the policy of the Government is that spouses have to be allowed to work at the same station to avoid hardship. On the other hand, section 9 ordains that a Government servant can be transferred and posted anywhere in the Province on any post. There is no denying the prerogative of the Government as mandated in the provision of law quoted, however, the policy and the practice through various circulars and notifications have been made to mollify and tamper with the mandate. The authority at the helm of the affairs in order to implement the mandate as provided in section 9 ibid has to give good reasons why the beneficial construction provided in the circular has to be done away with. Regretfully respondent No. 1 has not at all given any reasons rather was swayed by factors totally divorced from the fact in issue.
Wedlock policy has been introduced and acted upon with a philosophy. If the husband in Government department is posted at one city and his wife posted, in another Government department, is working in a different city, it is definitely going to cause mental distress to both of them with the consequences which are not only injurious to them but to the public and Government exchequer. Respondent No.1 while rejecting departmental representation of the appellant did not consider these circumstances and failed to give any reasons that transfer to Kasur was essential in the administrative interest of the Government overriding the wedlock policy.
Similarly the transfer of respondent No.4 to Lahore was not indicated as to how the mutual exchange promotes the interest of tile State. A policy made is to be implemented and any departure of the seal has to be explained. Without giving good reasons the policy of the Government with respect to transfer would become redundant which is not wisdom in enacting it."
[Underlining is ours]
(b) In the case of Syeda Adeeba Anjum v. Secretary Government of Punjab Education Department Lahore and another [2004 PLC (C.S.) 622] it was held as under:--- "3. It may be observed that the Wedlock Policy of the Punjab Government is intended to ensure to the benefit of a family, it advances social good and unless there are insurmountable hurdles, requests of the husband and wife to be posted at one station are required to be considered with an element of compassion and kindness. It is a matter of regret that almost a period of five years has elapsed but the representations of the petitioner have not even been considered and decided."
(b) Regarding bar of jurisdiction, learned counsel has also placed reliance on the case of Mrs. Zeenat Ahmed v. Federation of Pakistan through Secretary Defence and 2 other [2014 PLC (C.S.)
1032], wherein the Division Bench of this court held as follows:--- "7. After the hearing the pros and cons, there is no doubt that the petitioner preferred departmental appeal on 21-2-2014, which is pending before the competent authority. It is also a fact that the Federal Service Tribunal is not functional due to non-appointment of its Chairman despite repeated directions of the Hon'ble Supreme Court. There is no F.S.T. Virtually where a civil servants may approach for the redressal of their grievances. Most of the judgments cited by the learned counsel for the respondents are based on Article 212 of the Constitution which bars the constitutional jurisdiction of this court. In order to set into motion the aforesaid bar, the existence of Tribunal is necessary. Since the Tribunal is not functional, the petitioner cannot be non-suited on this ground as she cannot be given directions to approach the non-functional F.S.T. It is well- settled that this court before exercising extra-ordinary jurisdiction must be satisfied about the non-availability or inefficacy of alternate remedy provided under law and once it is shown to the satisfaction of this court that alternate remedy is expedient, effective, then obviously courts would be reluctant to exercise writ jurisdiction. To disentitle a person from extraordinary relief the alternate remedy available must be a remedy in law i.e. Remedium juris, one which is not less convenient, beneficial and effective. To effectively bar the, jurisdiction of the High Court under Article 199 of the Constitution the remedy available under the law must be able to accomplish the same purpose which is sought to achieve through a petition under Article 199." [Underlining is ours].
27. Heard. Perused the record.
28. Before proceedings further inter alia with the question of maintainability of the instant Constitution Petition bearing C.P. No.D-3488 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan 4 others], in the light of arguments/pleas raised in the early round of litigation as well as in the present petition, it would be advantageous to reproduce some of the relevant paras from the earlier Memo. Of Petition in C.P.No.D-877 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan and others] filed by the present petitioner viz. Mrs. Zeenat Ahmed herein below:---
7. That the petitioner is Karachite by birth, having domicile of Karachi, issued in 1983. The petitioner is married to Dr. Ahmed Hussain who is also Karachite by birth having domicile of Karachi, issued in October, 1974.. Petitioner and her husband are permanent residents of Karachi. Petitioner has four minor children. The husband of the petitioner is also a Government Servant being Senior Medical Officer, Health Department, Government of Sindh at Karachi.
8. That the Government of Pakistan, Cabinet Secretariat, Establishment Division has issued an Office Memorandum dated 21st April, 2006 whereby notifying that in view of the socioeconomic problems and hardships faced by husbands and wives in Government service due to posting at different stations of duty, the Establishment Division issued instructions/guidelines vide its O.M.
No.10/30/97-R-2 dated 13th May, 1998 and 17th December, 1999 to facilitate postings of husbands and wives at the same station. It has further been notified that with a view to facilitate those female Government Servants whose spouses are not even in Government Service or employed in private sector, it has been decided to extend the facility to this class of Government Servants also to be able to serve at the place of residence of their spouses irrespective of whether such spouses are employed with the Government, private sector or even unemployed. It is submitted that the petitioner is permanent resident of Karachi, she is living with her husband and four minor children at Karachi. Her husband is also Government Servant posted at Karachi as Senior Medical Officer, Health Department, Government of Sindh. As such beside other grounds, the petitioner is entitled to remain posted at Karachi even in terms of said Office Memorandum dated 21st April, 2006.
9. That while the petitioner is living with her husband and minor school going children and working at Karachi, she came to know on 20th February, 2014, late evening, that all of sudden, she has been transferred and posted as Director (F&P) at Rawalpindi. Such posting/transfer order dated 20th February, 2014 had been issued by the respondent No.2 which is impugned in this petition. In the said impugned transfer order, Mr. Muhammad Younis Khan, Director (F&P) Rawalpindi has been directed to take over the charge of office of the petitioner by 28th February, 2014 and the petitioner has been directed to join her new assignment latest by 4th March, 2014. The petitioner however has not left her office/charge so far and is working as Director, (ML&C) Karachi Region, Karachi.Likewise, Mr. Muhammad Younis Khan has also not come to join the office holding by the petitioner so far.
However, there is every likelihood of his joining the new assignment by taking over the charge from the petitioner anytime.
11. That the petitioner has seriously prejudiced and victimized by transferring her from the station/posting at the place of her husband living together at Karachi to Rawalpindi in disregard to the policy and directives issued earlier by the Government of Pakistan which directions still hold the field. The impugned transfer is a clear example and case of victimization and mala fide treatment with the petitioner due to her honest, dedicated, diligent, meritorious services rendered by her throughout her career. The impugned transfer order tantamounts to coercion and a crude attempt of mala fide towards the petitioner which is liable to be prohibited and set aside by this Hon'ble Court. [Underlining is ours]
29. From perusal of the above, it appears that the petitioner viz. Zeenat Ahmed was only interested to be posted at Karachi on the strength of 'wedlock Policy' and nothing else. The only grievance advanced by her nonetheless, was redressed in the earlier round of litigation as now in compliance and pursuant to the judgment of 12th June, 2014 the petitioner has been transferred and posted at Karachi as Director [F&P], Karachi. [See Annexure 'C to the MOP].
30. It would also be appropriate to reproduce herein Articles 199 and 212 of the Constitution of Islamic Republic of Pakistan, 1973 so that the issue of maintainability of this 2nd Petition bearing No.3488 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan and others] is seen and judged in the light thereof. Both the aforesaid Articles, respectively read as follows:--- A. Article-199 of the Constitution: "(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,--
(a) on the application of any aggrieved party, make an order---
(i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or
(ii) declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or
(b) on the application of any person, make an order---
(i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or
(ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or
(c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II.
(2) Subject to the Constitution, the right to move a High Court for the enforcement of any of the Fundamental Rights conferred by Chapter 1 of Part II shall not be abridged.
(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.
(4) Where---
(a) an application is made to a High Court for an order under paragraph (a) or paragraph (c) of clause (1), and
(b) the making of an interim order would have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to public interest or State property or of impeding the assessment or collection of public revenues, the Court shall not make an interim order unless the prescribed law officer has been given notice of the application and he or any person authorised by him in that behalf has had an opportunity of being heard and the Court, for reasons to be recorded in writing, is satisfied that the interim order---
(i) would not have such effect as aforesaid; or
(ii) would have the effect of suspending an order or proceeding which on the face of the record is without jurisdiction.
(4A) An interim order made by a High Court on an application made to it to question the validity or legal effect of any order made, proceeding taken or act done by any authority or person, which has been made, taken or done or purports to have been made, taken or done under any law which is specified in Part I of the First Schedule or relates to, or is connected with, State property or assessment or collection of public revenues shall cease to have effect on the expiration of a period of six months following the day on which it is made: Provided that the matter shall be finally decided by the High Court within six months from the date on which the interim order in made.
(5) In this Article, unless the context otherwise requires,- "Person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan; and "Prescribed law officer" means
(a) in relation to an application affecting the Federal Government or an authority of or under the control of the Federal Government, the Attorney-General, and
(b) in any other case, the Advocate-General for the Province in which the application is made."
B. Article-212 of the Constitution: "(i) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect 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 claims arising from tortious 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 cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of 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 in respect of any such matter which may be pending before 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, Majlis-e-Shoora (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."
31.Bare perusal of Article 199 of the Constitution would show that this 'extraordinary jurisdiction' for seeking relief[s] is subject to non-availability of other alternate remedy. Of course, we are conscious of the fact that this bar is not absolute and resort can be made to it where the `ordinary remedy' is not efficacious or otherwise, there is a clear violation of the fundamental rights. In some very exceptional circumstances, no doubt, courts have entertained petitions even during the pendency of other proceedings but keeping in view the bona fide and honest attitude of the Petitioner[s] therein. We, however, are not aware of any principle under which the courts are required to exercise this discretionary jurisdiction merely because time required for 'disposal of any proceedings may be a little more than that in which a constitution petition would be decided.
32. On the effect of Article 212 of Constitution of Islamic Republic of Pakistan, 1973, the relevant observations of the Hon'ble Supreme Court of Pakistan in the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar [PLD 1989 SC 226] reads as follows:--- "17. There is a presumption against the ouster of jurisdiction of the Superior Courts and any law which has the effect of denying access to them has to be narrowly construed for the reason that these are the fora created by the people for obtaining relief from oppression and redress for the infringement of their rights. But then where the ouster clause is clear and unequivocal, admitting of no other interpretation, the Courts unhesitatingly give effect to it. Thus, in State v. Zia-ur- Rahman (PLD 1973 SC 49) after reviewing the case-law on the subject Hamoodur Rahman, C.J.
Observed:--- "17. These decisions do indicate that where the jurisdiction of the Courts to judicially review any executive act has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such that it leaves no room for doubt as to the intention of the Legislature to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny. But the Courts having the right to interpret the law will in each given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Courts has been ousted, keeping in mind the principle consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster."' [Underlining is ours].
33. Significantly, Service Tribunal has been established under the Service Tribunals Act, 1973, which exercises exclusive jurisdiction in B respect of matters relating to the 'terms' and 'conditions' of service of civil servants and for matters connected therewith or ancillary thereto. The relevant section dealing with the jurisdiction of the Service Tribunals is section 4 of the Service Tribunals Act, 1973 which reads as follows:--- "4. Appeals to Tribunals.--- (1) Any civil servant aggrieved by any final order; whether original or appellate, 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 later, prefer an appeal to the Tribunal Provided that:---
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules against any such order, 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 appeal, application or representation was so preferred; and
(b) 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; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.
EXPLANATION.--- In this section, ... 'departmental authority means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
34. Before us, learned counsel for the respondents forcefully argued that the present petitioner without waiting for 90 days from the date of presentation of the 'Departmental Representation' before the Hon'ble Prime Minister of Pakistan, has approached this court pre-maturely. As such this court has no jurisdiction to entertain the same in respect of the 'impugned order' as in the event of rejection of the 'Departmental Representation' against the impugned order dated 13th June, 2014 [Annexure 'C' to MoP] an alternative remedy of appeal is available to the petitioner. On this score as well the instant petition is liable to be dismissed with cost.
35. Moreover, since Service Tribunal has already been established under the Service Tribunals Act, 1973, therefore, the jurisdiction of this court on this ground as well is barred in view of Article 212 [2] of the Constitution. On this aspect of the matter the observation of this court in the case of Khalilur Rehman and others v. Government of Pakistan and others [PLD 1981 Kar. 750] reads as follows:--- "5. ... The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words "in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends" clearly make the ouster of jurisdiction of the High Court to correspond with the matters placed within the ambit of the Jurisdiction conferred on the Tribunal" ... [Underlining is ours].
7. ...It will be observed that Article 212 of the Constitution opens with the non obstante clause contained in the words "Notwithstanding anything hereinbefore contained". We agree with the submission of the learned Deputy Attorney General that the effect of this clause is to curtail and oust the jurisdiction conferred on the High Court under Article 199. It goes without saying that the source of power of judicial review vesting in the High Court is not inherent in the Court as distinct from the "judicial power" as elucidated in the case of State v. Ziaur Rehman (1), but the power is conferred by Article 199 of the Constitution with all its limitations. Article 175 of the Constitution makes it abundantly clear that "no Court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". Article 199 qualifies the power conferred thereunder on a High Court with the words "subject to the Constitution". It cannot, therefore, be urged that the High Court has inherent power of judicial reviewing the action of the Executive, the Legislature, the Courts or Tribunals, but exercises such jurisdiction in the field of judicial review as has been expressly conferred upon it by Article 199. Consequently if by any provision of the Constitution any fetters are placed upon the jurisdiction of this Court in the exercise of power under Article 199, this Court cannot overreach these limitations by any other consideration. [Underlining is ours] .
8. That orders which are mala fide, ultra vires or coram non judice are within the ambit of the Service Tribunal has been held in several cases. In Iqan Ahmed Khurrum v. Government of Pakistan, a D.B. Of this Court held that orders which are ultra vires or violative of rule of natural justice or void were within the competency of the Service Tribunal to determine. In Muhammad Hashim Khan's case, already- referred to, also it was held that the Service Tribunal's exclusive jurisdiction extends to ultra vires and mala fide orders. Similarly a Division Bench of the Peshawar High Court in the case of Dr. Raja Alansoor Elahi v. N-W F.P. (PLD 1980 Pesh. 81), held that an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the civil Courts including the High Court would be ousted. [Underlining is ours] .
36. Likewise, in the case of Muhammad Hashim Khan v. Province of Balochistan [PLD 1976 Quetta 590] a Division Bench of the Sindh and Balochistan High Court held that the effect of the establishment of the Service Tribunal "is that no other Court has the jurisdiction to grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends".
37. In the case of Abdul Bari v. Government of Pakistan and 2 others [PLD 1981 Kar. 290] it has been held as follows:--- "8. ...But the situation under Article 212 is entirely different. The ouster contemplated under that Article is of the constitutional nature and, therefore, of necessity curtails the jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunals. The second important reason is that the plain reading of the provisions of clause (2) of Article 212 leaves no manner of doubt that these provisions did not envisage concurrent jurisdiction of the civil Courts and the Tribunal in regard to any matter on any ground in respect of the terms and conditions of service. The situation contemplated in the said provisions is that the jurisdiction conferred on the Service Tribunals and the jurisdiction vested in the civil Courts in respect of the terms and condition of service of civil servants is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the civil Courts including the High Court. [Underlining is ours]
10. ... Then section 4 deals with the right of appeal of aggrieved civil servants in respect of final order passed by departmental authorities before the Tribunal. Proviso (a) does not limit the jurisdiction of the Service Tribunal in regard to the subject-matter which could be adjudicated upon by the Service Tribunal. The provision only seems to have the effect of allowing a time gap of 90 days so that the appellate or reviewing authorities in the Department may re-examine the order and remove any errors or defects departmentally before the matter is placed before the Tribunal. The effect of this proviso, upon its plain meaning, cannot be construed to restrict the exclusiveness of the jurisdiction of the Tribunal in relation to matter committed to its jurisdiction exclusively. Similar provision can found in other Statutes and a glaring example is provided by the statutory provisions requiring prior notice to certain authorities before commencement of legal proceedings, like section 80, C. P. C. And similar provisions under other Statutes. The object of such statutory provisions is to give opportunity to public authorities at the highest official level to reconsider the matters involved. The provision, therefore, is at best a procedural pre-condition for filing of proceeding before the Service Tribunal and cannot be construed in any way to whittle down the exclusiveness of the jurisdiction of the Tribunal. The learned Deputy Attorney-General argued and we agree with the submission that under section 5 of the Service Tribunals Act, the Tribunal has the power, on appeal, to confirm, set aside, vary or modify the order appealed against, from which it follows that the orders passed in appeal by the Tribunal would be effective from the date of the impugned order in appeal. Therefore, the period of 90 days provided for in proviso (a) of section 4(1) would be covered by a decision made by the Tribunal. Viewed in this prospective the jurisdiction of the Tribunal seems to extend ultimately to the time immediately following the impugned order. We therefore, find little force, in the contention of the learned counsel that as a result of the abovesaid provision the High Court will have jurisdiction to entertain proceedings at least for 90 days. We are unable to place such construction as is canvassed by the petitioner's counsel on the relevant as clearly once the subject-matter pertaining to any terms and conditions of service of civil servants has been placed within the jurisdiction of the Tribunal, the ouster of the jurisdiction of other civil Courts is absolute in respect of such terms and conditions. If therefore, the procedure for invoking of the Tribunal provides for certain preliminary steps to be taken, it cannot be said that during the time such steps are taken the civil Courts will have jurisdiction. Such construction will clearly be unreasonable and produce unnecessary complications." [Underlining is ours].
38. It is also worth to note that the question of interpretation of section 4[1][b] of Service Tribunals Act, 1973 [Act No.LXX of 1973] came-up before the court in the case of Muttaqi Hussain Rizvi v.
Province of Sindh PLD 1978 Kar. 703 wherein it was observed as follows:--- "... This provision, in my opinion, is to be read in conjunction with the provisions of section 10 of the 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 Government of Sindh, 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." ... [Underlining is ours]
39. Whether under the facts and circumstances of the present petition, Order VII, Rule 11, C.P.C. Is applicable or not, seems immaterial particularly when there is no dispute about the applicability of Civil Procedure Code to Constitutional Petition. The paramount consideration regarding maintainability and entertainability of a petition is to be seen in conjunction with the contents of the Petition, the 'prayer clause' sought in the Petition and/or in the application under consideration.
It is worth to note, that mentioning of 'wrong provision' makes no difference or 'cause no prejudice'.
Regarding the aforesaid aspect of the matter the observations of Hon'ble Supreme Court of I Pakistan in the cases of (1) Hasnat Ahmad Khan v. Institution Officer and (2) Syed Shabbar Raza Rizvi v. Institution Officer [2010 SCMR 354] read as follows:---
5. ..... Considering the other technical objections raised by Dr. A. Basit, about the incompetency of the Institution Officer for raising the impugned office objection; nature of office objection whether relating to maintainability of appeals or to their entertainability, and effect of reference of sections 3 and 4 of the Contempt of Court Act, 1976, in the notice of this Court dated 13-10-2009, firstly, it may be mentioned here that reference to sections 3 and 4 of the Contempt of Court Act, 1976 in the notice dated 13-10-2009, seems to be a simple mistake made by the office, which, in any case, will not confer a right of Intra-Court Appeal to the appellants, unless otherwise expressly provided by any law in force. Suffice it to observe, that two wrongs or any number of wrongs, will not make one right. This view of 'the matter also finds full support from the settled legal position that mere mistake in the citation of a relevant provision of law will not nullify or vitiate an action or proceeding. Similarly, objection as to the authority of the Institution Officer has no force, for the reason that he is duly notified Officer under the administrative arrangements of this Court, and for this purpose, Registrar, in terms of Order III, rules 4 and 5 of the Supreme Court Rules, 1980, is fully empowered to delegate and assign such work/task among the Officers of the Court. Admittedly, the Institution Officer is an Officer of this Court in BPS.18, thus, the powers so exercised by him, for this purpose, cannot be objected to on such account. Looking at this plea from another angle, on strict interpretation of Order V, rule 3, without reference to rules 4 and 5 of Order III of the Supreme Court Rules, 1980, as' argued by Dr. A. Basit, the very maintainability of these appeals becomes doubtful, as under this provision of law, an appeal to a Judge in Chambers only lies against the order of the Registrar and not otherwise. The appellants, therefore, cannot be permitted to approbate and reprobate in the same breath. .... If we look at the ordinary dictionary meaning of words "entertainability" and "maintainability" we find that word "entertainability" derives its source from the word "entertain", which according to the Concise Oxford Dictionary, Ninth Edition, means amuse, occupy agreeably, receive or treat as a guest; give attention or consideration to an idea, feeling, or proposal, and it originates its source from French word "entretenir" and ultimately from Latin "tenere" meaning thereby to "hold". On the other hand word "maintainability" derives its source from the word "maintain". As per definition of this word in the same dictionary, it means, cause to continue; keep up, preserve, support, assert opinion or statement as true, preserve or provide for preservation (building, machine, record etc.) in good repair, give aid to cause or party etc. And it originates its source from old French word "maintenir", ultimately from Latin word "manu tenere" meaning thereby to 'hold in the hand'. While in legal parlance (as noted from the, Book "Legal Terms and Phrases", by M. Ilyas Khan, 2006 Edition) at page 327 word "entertain", referring to some judgments of the Supreme Court, denotes as under:-- "The word "entertain" in legal parlance means 'adjudicate upon' or 'proceed to consider on merits'.
Div. Superintendent, P.W.R. Multan v. A. Khaliq 1984 SCMR 1311.
Expression entertain by Mitra's Legal and Commercial Dictionary (Page 270) and words Phrases by Surendra Malik (page 232) are identical i.e. Entertainment means proceed to consider on merits or adjudicate upon, whereas the expression entertain has also been defined in Hindustan Commercial Bank v. Punnu Sahu AIR 1970 SC 1384 and Pakistan Steel People Worker's Union v.
Registrar of Trade Unions, Karachi 1992 PLC 715 referred to by the learned counsel for petitioners according to which, it means not merely filing of an application or institution of proceedings but would mean adjudicated upon or proceed to consider on merits. All Pakistan Newspapers Society v. Federation of Pakistan PLD 2004 SC 600."
' Similarly, at page 573 of the same book word "maintain" carries following meanings:--- "According to the Concise Oxford Dictionary (3rd edition), the word 'maintain' means carry on keep up (war contest, action of law, condition, position, attitude, relation, correspondence); cause (person or Co.) to continue in (condition, possession of thing, and co.); support (life, one's state in life) by nourishment, expenditure and Co. Furnish (oneself children) with means of subsistence, keep (Road and Co.) in repairs; backup (cause, party; assert as time (opinion, statement, that)
40. Moreover, parties are bound by their pleadings and could not be permitted to resile therefrom according to their whims and wishes. It is settle proposition of law that one who seeks equity must do equity. For seeking a relief under Article 199 of the Constitution, of course, one has to approach the court besides clean hands, with a bona fide claim. The conduct of a litigant, needless to say, is of a paramount importance for seeking relief under Article 199 of the Constitution. So also the right of which a redressal is being sought under constitutional jurisdiction ought to be vested bona fide right. Such right may be a statutory right or otherwise, recognize by law. Besides, such right must be established one. It is significant to note, that the object of proceedings initiated under Article 199 of the Constitution is the enforcement and protection of a vested right and not the establishment thereof. To enforce such a right, the same right may not only be clear complete but the infringement thereof is also must. In the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCMR 1813] it has been held as under:--- "10. Besides that what has been discussed hereinabove there are certain disputed questions of facts which cannot be investigated while exercising Constitutional jurisdiction. "It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M. H. Abidi v. State Life Insurance Corporation 1990 MLD 563, Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344).
11. It is well-settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of, an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only be courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280).
13. There is no cavil to the proposition that "it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents as are its express statutory powers. Where, in quashing proceedings in the Additional District Magistrate's Court, the High Court, in support of its order, had set out the grounds, viz: (1) that it was not the business of the police to submit any challan for the commission of offences not disclosed in the First Information Report; (2) that the police had given a twist to the case and instead of reporting that the allegations made by the appellant were not true came to the conclusion that the accused had committed other offences; (3) if the conclusions arrived at by the police were correct then it could only mean that the allegations made by the appellant were untrue; (4) whether the police acted rightly or not it was the duty of the Court to scrutinise the cases carefully before framing charges in view of the fact that the conclusions arrived at by the police ran counter to the allegations contained in the report and this the Court framing the charges had not done; (5) that the dispute between the appellant and the company was essentially of a civil nature and as such, the accused should not have been sent up for trial on the alleged criminal charges; and (6) that in the circumstances the prosecutions started by the police were "nothing but an abuse of the process of the Court". Held, that the reasons given by the High Court were by no means, cogent. If in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceeding. (Emphasis provided) R.C.P.
Guignard v. The State and another PLD 1963 Kar. 868 considered. M.S. Khawaja v. The State PLD 1965 SC 287 and The Public Prosecutor v. Ratnavelu Chetty ILR 49 Mad. 525, Ghulam Muhammad v.
Muzammal Khan (PLD 1967 Supreme Court 317).
41. We would also like to refer to Section 3 of the Service Tribunals Act, 1973 [Act No.LXX of 1973] which reads as follows:--- "3. Tribunals.-- (1) The President may, by notification In the official Gazette, establish one or more service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom, or the territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act.
(2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. [Underlining is ours]
(3) A Tribunal shall consist of---
(a) a Chairman, being a person who has been, or is qualified to be, Judge of a High Court; and [(b) such number of members [not less than three] each of whom is a person who possesses such qualifications as may be prescribed by rules, as the President may from time to time appoint].
(4) The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine.
(5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President.
(6) The Chairman or a member of a. Tribunal shall not hold any other office of profit in the service of Pakistan if his remuneration is thereby increased,
(7) 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." [Underlining is ours]
42. From perusal of subsection (7) of section 3 of Service Tribunals Act, 1973 [Act No.LXX of 1973], it is quite evident that a Service Tribunal[s] established under the Service Tribunals Act, 1973 may consist of one or more persons. In view of this position and particularly when the subsection (7) of section 3 begins the word 'Notwithstanding' a Service Tribunal may comprise of one or more persons in terms of subsection (7) of section 3 of Service Tribunal Act, 1973. Keeping in view this position the contention of Khalid Javid that Service Tribunal despite appointment of its chairman vide Notification No.F-38(I)/12014- A.11 dated 7th August, 2014 is absolutely vacant or dis-functional is not correct. For ready reference the said notification No.F-38(1)/2014-A.II of 7th August, 2014 is reproduced as under:--- TO BE PUBLISHED IN THE GAZETTE OF PAKISTAN PART-III Government of Pakistan Law, Justice and Human Rights Division Islamabad, the 7th August, 2014 NOTIFICATION No.F.38(1)12014-A.11.--- In exercise of the powers conferred by section 3(4) of the Service Tribunals Act, 1973 (Act No.LXX of 1973), the president is pleased to appoint Mr. Justice (Retd.) Sheikh Ahmed Farooq as Chairman Federal Service Tribunal on contract for a period of three years with effect from the date he assumes the charge of the post. He shall be entitled to such pay, allowances and perquisites, as may be prescribed from time to time. [Underlining is ours I.
(Izaz ul Haq Shah)
Section Officer The Manager, Printing Corporation of Pakistan Press, Islamabad.
Copy to:-
1. The Secretary to the President, President's Secretariat (Public), Islamabad.
2 The Secretary to the Prime Minister, Prime Minister's Office, Islamabad
3. Secretary, Establishment Division, Islamabad
4. The Registrar, Supreme Court of Pakistan, Islamabad
5. Accountant General, Pakistan Revenues, Islamabad The Registrar, FST, Islamabad (with one spare copy for Mr. Justice (Retd.) Sheikh Ahmed Farooq)
7. Sr. P.S. To Secretary, Law, Justice and Human Rights Division, Islamabad
8. LIS Wing, Law, Justice and Human Rights Division, Islamabad
9. Record. Sd/- (Izaz ul Haq Shah)
Section Officer 43. As far as the dictum laid down in the case of Sarfraz Saleem v. Federation of Pakistan and others [PLD 2014 Supreme Court 232] is concerned, the observations of Hon'ble Supreme Court of Pakistan are absolutely, correct and appropriate. The relevant observation and interpretation of the word 'establishment' by the Hon'ble Supreme Court of Pakistan read as follows:--- "6. In so far as the jurisdiction of the High Court under Article 199 of the Constitution is concerned it is open ended, but subject to certain limitations prescribed therein, one of which is with reference to availability of other adequate remedy to the aggrieved party. As against it the bar of jurisdiction under Article 212(2) is dependent upon the establishment of Administrative Court/Tribunal having exclusive jurisdiction in the matter. In our opinion, key word for determining the scope of this barring provision, for the purpose of present proceedings, is "establishment" of the Administrative Court/Tribunal, as the, case may be. Keeping in view this principle, we find that interpretation of the word "establishment" of an Administrative Court or Tribunal cannot be narrowed down to mere completion of paper by way of some appropriate legislation, unless it is established in a manner that it is functional and exercising its jurisdiction in accordance with law, which, in the instant case, is admittedly lacking. In these circumstances, lack of exercise of jurisdiction by the High Court in the present case seems to be contrary to the well accepted principle "ubi jus ibi remedium" (where there is a right there is a remedy) and the spirit of Articles 4 and 10-A of the Constitution, meant to safeguard the rights of every individual/person to be dealt with in accordance with law. [Underlining is ours]
7. .....It is evident that for the establishment of the Tribunal in its terms, appointment of the Chairman by the President, with prescribed qualification is sine qua non and unless such an appointment in terms of section 3(3) (a) is made, there is no Tribunal in existence, so as to meet the situation described by Article 212(2) of the Constitution and operate as bar of jurisdiction before any other forum.
8. We are, therefore, in agreement with the learned Advocate Supreme Court for the petitioner that the question of bar of jurisdiction of the High Court under Article 212(2) of the Constitution in the instant case will not come into play till the FST is established in terms of section 3(3) (a) (ibid) and it is actually functional so as to attend the grievance of a civil servant under its jurisdiction. This position is not controverted by Mr. Shah Khawar, learned Additional Attorney General."
44. The word 'notwithstanding' as used in subsection (7) of section 3 of Service Tribunals Act, 1973 [Act LXX of 1973] or elsewhere is always means 'despite' or 'inspite of'. A 'Non-obstante clause' used in a provision renders the provision as prevailing one despite of anything contained contrary to it in any other provisions thereof. Always it indicates the operation of that which follow the word 'notwithstanding' as prevailing one. In the case of Messrs E.F. U. General Insurance Company Limited v. The Federation of Pakistan and others [PLD 1997 SC 700], the apex court while, interpreting the 'nonobstante clause' has held as follows:--- "18. ...A non obstante clause is usually used in a provision to indicate that the provision should prevail despite anything to the contrary, in the provision mentioned in such non obstante clause.
In case there is any inconsistency between the non obstante clause and another provision, one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clause. (Bindra on Interpretation of Statutes, .7th Edition)."
44. Evidently, after passing of the aforesaid judgment in the case of Surfraz Saleem v. Federation of Pakistan and others [PLD 2014 SC 232], the situation now has been absolutely changed as not only the Chairman of FST has been appointed but other members of the FST have also been appointed.
The relevant Notification No.F.33(I)/2014-A.11 dated 29th September, 2014 regarding the appointment of other members of FST reads as follows:--- "Government of Pakistan Law, Justice and Human Rights Division Islamabad, the 29th September, 2014 No.F. 33 (1)/2014-A.11.- In exercise of powers conferred by section 3(4) of the Service Tribunals Act, 1973 (Act No.LXX of 1973), the President is pleased to appoint following persons as Member, Federal Service Tribunal for a period of three years with effect from the date they assumed the charge of the post. They shall be entitled to such pay, allowances and perquisites, as may be prescribed from time to time:--- S.No.Name Domicile 1 Mr. Arshad Bhatti Former Federal Secretary/PASPunjab 2 Syed Arshad Ali Former Federal Secretary/PASSindh 3 Qazi Afaz Hussain Former Additional Secretary/PASPunjab 4 Syed Rafique Hussain Shah, Retired District and Sessions JudgeKPK (BARRISTER ZAFAR ULLAH KHAN)
SECRETARY The Manager, Printing Corporation of Pakistan Press, Islamabad/Karachi.
No.F.33(I/2014-A.II. Islamabad, the 29th September, 2014 Copy to:-
1. The Secretary to the President, President's Secretariat (Public), Islamabad.
2. The Secretary to the Prime Minister, Prime Minister's Office, Islamabad.
3. Secretary, Establishment Division, Islamabad.
4. The Registrar, Supreme Court of Pakistan, Islamabad.
5. Accountant General, Pakistan Revenues, Islamabad.
6. The Registrar, FST, Islamabad (with one spare copy for each member).
7. Sr. P.S. To Secretary, Law, Justice and H.R. Division, Islamabad.
LIS Wing, Law, Justice and Human Rights Division, Islamabad. Record. Sd/- (Saadia Kanwal)
Section Officer (A-II)"
46. Needless to say that a preamble is the gateway to any statue to discover the object, scope and purpose thereof. In view of this position, let the object, scope and purpose of the Civil Servant Act, 1973 [Act No.LXXI of 1973] and the Service Tribunals Act, 1973 [Act No.LXX of 1973] be seen in the light of preambles thereof. The preambles of the aforesaid Acts respectively read as follows:---
(i) CIVIL SERVANTS ACT, 1973 [ACT NO.LXX OF 1973] "WHEREAS it is expedient to regulate the law, the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan, and to provide for matters connected therewith or ancillary thereto; [Underlining is ours]
(i) THE SERVICE TRIBUNALS ACT, 1973 [ACT NO.LXX OF 1973] "WHEREAS it is expedient to provide for the establishment of Administrative Tribunals, to be called Service. Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servant, and for matters connected therewith or ancillary thereto.
[Underlining is ours]
47. The perusal of the aforesaid preambles and the Acts would show that both the Acts not only provide a complete mechanism for the matters relating to the terms and conditions of services of a civil servant but also deal with the connected and ancillary matters thereto, indeed, exclusively.
48. Further under law, one cannot be allowed to approbation and reprobate and/or otherwise, resile from the position having already been taken/pleaded. In the instant case, the petitioner in the earlier round of litigation had only resisted her transfer on the plea of 'wedlock policy' only. As such, now she cannot be permitted to wriggle out of her stand or otherwise, resist her transfer made by the authorities much-less in view of the binding principle of 'wedlock policy' and also in compliance with the observations of this court passed in C.P. No.D-877 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan and others]. On this aspect of the matter reliance is placed on the case of Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan [PLD 1971 SC 576/300] wherein about the applicability of the 'Doctrine of ESTOPPEL' the Hon'ble Supreme Court of Pakistan observed as follows:--- "The doctrine of estoppel is not confined to the matters dealt with under section 115 of the Evidence Act, or, "estoppels in the sense in which the term is used in the English legal phraseology are matters of infinite variety and are by no means confined to the subjects dealt with in Chapter VIII of the Evidence Act" It has been defined in Halsbury's Laws of England (2nd Edition), Vol. 13, "as a disability - whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in this sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. [Underlining is ours]
49. From the averments made in the Memo of Petition i.e. C.P. No.D-877 of 2014 filed by the petitioner [Mrs. Zeenat Ahmed v. Federation of Pakistan and others] the present petitioner had resisted her transfer on the ground of 'wedlock policy' but when pursuant to the Judgment of 12th June, 2014 she was transferred and posted at Karachi as Director [F&P], now surprisingly she is resisting such transfer and posting, of course, in the same grade at Karachi on the plea of shifting of the office from Rawalpindi to Karachi. The pleas so raised are not only 'self-conflicting' but also 'self-destructive'. It is significant to note, that the judgment of 6th June, 2014 also permits the official respondents to transfer the petitioner 'to any other post 'commensurate to her grade in Karachi'.
The words 'to any other post' is of great importance in the operative part of the Judgment of 12th June, 2014 passed in C.P. No.D-877 of 2014 [Mrs. Zeenat Ahmed v. Federation of Pakistan and others].
50. The present petitioner, we are of the considered opinion, has no substantial ground for requiring the cognizance of this Court in its Constitutional jurisdiction. Neither any violation of the constitution nor of any other statutory provisions of law has been violated by the respondents which under circumstances of the case can appropriately be redressed by this court without going and/or entering into the details of the disputed facts and/or of recording the evidence. Moreover, an alternate remedy is evidently available to the petitioner. In view of this position also the intervention of this court under Constitutional jurisdiction is not warranted, We, therefore, do not feel or otherwise, inclined to exercise our discretion in favour of the petitioner particularly when the impugned order of 13th June, 2014 has already been challenged before the proper forum through filing of the 'Departmental Representation' before Hon'ble Prime Minister of Pakistan [Annexure 'E' to MoP].
51. In view of the foregoing discussion, we are of the considered opinion that the present petition under circumstances of the case, is not maintainable in law. Accordingly, C.M.A. No.20214 of 2014 is allowed and the instant Petition stands dismissed along with all pending applications, however, with no order as to cost.