' Through this constitutional petition, the petitioner has challenged the order dated 16.4.2014 through which a major penalty of compulsory retirement has been imposed upon the petitioner under Section 4(b)(iv) of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
2. The learned counsel for the petitioner argued that major penalty of compulsory retirement cannot be imposed upon the petitioner as the petitioner had been exonerated by the Inquiry Officer. It has been further argued that after exoneration the competent authority could not have pissed the impugned order dated 16.4.2014 and, therefore, petitioner has the right to be reinstated in service. The learned counsel further argued that jurisdiction of the superior Courts is to be stretched to take into its folds all the disputes to be resolved while limitation of jurisdiction and powers are to be squeezed and kept to minimum strength and length. The learned counsel from the petitioner while placing reliance upon PLD 2009 Supreme Court 866 (Ghulam Abbas Niazi versus Federation o Pakistan and others) argued that jurisdiction of this Court cannot b taken away where authority has acted without jurisdiction, mala fid and coram non judice.
2. On the other hand, learned Law Officer has vehemently opposed the petition and argued that in view of the bar contained I Article 212 of the Constitution of the Islamic Republic of Pakistan 1973 this Court should not exercise the powers of judicial review. I has been further argued that the petitioner has not availed the adequate and efficacious remedy provided under Section 16 of the Punjab Employees Efficiency. Discipline and Accountability Act, 2006.
4. I have considered the arguments advanced by the learned counsel for the parties and perused the available record.
5. Article 199 of the Constitution of Islamic Republic o Pakistan, 1973 is "subject to the Constitution" while Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 clearly states that "no Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such administrative Court or tribunal extends." Article 212 being a non- obstante article prevails over Article 199.
6. The Honourable Supreme Court of Pakistan in a judgment reported as I. A. Sharwani and others vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) has held that even if some constitutional rights of a civi servant have been violated, this would not mean that High Court can interfere in such matters in exercise of its powers conferred unde Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
7. In Khalid Mahmood Wattoo vs. Government of Punjab an others (1998 SCMR 2280) it was held by the Honourable Suprem Court of Pakistan that even if the order passed is perverse or cora non judice, the High Court cannot extend its powers of judicial revie under Article 199 of the Constitution of Islamic Republic of Pakistan 1973 in view of the bar contained in Article 212 of the Constitution o Islamic Republic of Pakistan, 1973.
8. This view has lately been re-affirmed by the Honourabl Supreme Court of Pakistan in a judgment reported as Government o Sindh through Secretary Education and literacy Department an others vs. Nizakat Ali and others (2011 SCMR 592) wherein statement was made by the Advocate General, Sindh, that the order passed by the Division Bench of Karachi High Court had bee implemented but their lordships although dismissed the CPLA by made an observation that in the matters relating to terms and conditions of service High Court would first decide as to whether it has jurisdiction to interfere in the matters relating to terms and conditions if service.
9. Following the dictum laid down by the Hon'ble Supreme Court of Pakistan this Court in a judgment reported in 2010 PLC (C.S) 1 (Lahore High Court) {Dr. Ghazanffarullah and 2 others versus secretary Health, Government of the Punjab, Lahore and 6 others) reproduced the statement of Chief Justice Johan Marshall in following words:-- "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution."
10. Jurisdiction is, therefore, a right to adjudicate concerning a particular subject matter in a given case, as also the authority to exercise in a particular manner the judicial power vested in the Court (The State v. Zia-ur-Rehman PLD 1973 SC 49). In short, jurisdiction denotes the authority for the Courts to exercise judicial power. It is important to note that where jurisdiction cease to exist the Court cannot proceed to pronounce judgment on the merits and the only function remaining to the Court is that of announcing the fact and dismissing the case.
11. It is often argued before this Court that either the order which pertains to the terms and conditions of a civil servant is mala fide, based on political consideration or against policy and prayer is made that a writ be issued setting aside such an order. The importance .f the distinction between judicial power and jurisdiction is not kept in ind. If there is no jurisdiction, the question of exercise of judicial power does not arise. I am fortified by the judgment of august Supreme Court of Pakistan reported in 2007 SCMR 54 (Peer Muhammad versus Government of Balochistan through Chief Secretary nd others). The relevant part is re-produced below: "It is well-settled by now that the question of posting of a Government servant squarely falls within the jurisdictional domain of the Competent Authority subject to law and rules made there under.
The question of posting/transfer relates to terms and conditions of a government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matters and Constitutional jurisdiction cannot be invoked to get such controversies resolved. We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution o Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide cannot be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is _specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in th matter in view of the Constitutional ouster as contained I Article 212 of the Constitution of Islamic Republic of Pakist and learned Service Tribunal has full jurisdiction to interferer in such-like matters. In this regard we are fortified by the dictum laid down in case Kh.
Abdul Wahid v. Chairman WAPDA 1986 SCMR 1534."
12. In view of the categorical pronouncement of the august Supreme Court of Pakistan and the jurisdictional bar contained in Article 212 of the Constitution, this Court has no jurisdiction to even entertain proceedings that fall within the domain of Punjab Service Tribunal under Punjab Employees Efficiency, Discipline and Accountability Act, 2006. I must observe here that the power o judicial review can only be exercised if this Court has jurisdiction to adjudicate upon the matter. In the present case, even if the order is coram non judice or amount to colourable exercise of powers, the only remedy available to the petitioner is to have recourse of filing departmental appeal.
13. For what has been discussed above, this petition dismissed in limine.
(R.A.) Petition dismigsed PIA 2015 Lahore 84 [Multan Bench Multan] Present: MAHMOOD AHMAD BHATTI, J.
GHULAM NABI (JUDICIAL-II) PUNJAB, LAHORE and 3 others--Petitioner versus MEMBER BOARD OF REVENUE (JUDICIAL-II) PUNJAB, LAHOR and 3 others--Respondents W.P. No. 12381 of 2011, decided on 24.4.2014. Land Revenue Rules, 1967 (XVII of 1967)-- ----R. 17--Constitution of Pakistan, 1973, Art. 199--Constitution petition--Appointment of lambardar--Validity of order--Orde passed by District Officer whereby he ordered appointment of petitioner as Headman/Lambardar was a speaking one--He assigned valid and cogent reasons in support of his order--While passing order, he had not only in his mind Rule 17 of W.P. Land Revenue Rules, 1967 but he also took pains to evaluate credentials and antecedents of two contestants for village Headman/Lambardar--He took into consideration each and every aspect, which could have a bearing on final outcome of exercise carried out by him--While passing such arbitrary orders, they forget that under Art. 4 of Constitution, it is inalienable right of every citizen to be treated in accordance with law--If law of land confers discretion upon an authority, same is to be exercised justly, honestly, equitably, based on sound judicial principles. [Pp. 87 & 88] A, B & C Ch. Muhammad Hussain Jehanian, Advocate for Petitioner. Mr. Muhammad Javed Saeed Pirzada, AAG for Respondents. Fir Ahmad Shah Khagga, Advocate for Respondent No.
3. Date of hearing: 24.4.2014.
' Through his petition, the petitioner has impugned the validity f the orders dated 13.4.2010 and 17.8.2011 passed by E.D.O.(R), anewal and Member, (Judl.-II), Board of Revenue, Punjab, Lahore, spectively whereby the revision petition of Muhammad Arshad, espondent No. 3 was allowed, which order in turn was upheld by the oard of Revenue, Punjab, Lahore.
2. The facts, in brief, are that upon the demise of Muhammad aqoob son of Muhammad Bakhsh, permanent Headman/Lambardar Chak No. 507/EB, Tehsil Burewala, District Vehari, this post fell cant. District Officer (R) initiated the process to fill the slot. He led for the reports from the field staff.
At the end of the day, he pointed Ghulam Nabi, the petitioner herein a Headman/Lambardar the said village vide order dated 20.1.2009. Feeling aggrieved, uhammad Arshad, Respondent No. 3 herein filed a revision petition fore E.D.O.(R), Vehari. However, due to a transfer order passed by oard of Revenue, Punjab, Lahore the same was finally heard and tided by Executive District Officer (R), Khanewal, who allowed the e vide order dated 13.4.2010. Now it was the turn of the petitioner rein to approach Member, Board of Revenue, Punjab Lahore to allenge the correctness of the aforesaid order dated 13.4.2010. Be at as it may, ROR No. 876/10 filed by the petitioner was dismissed de order dated 17.8.2011 passed by learned Meniber, Board of venue, Punjab, Lahore.
3. As stated above, the two orders-one passed by the Executive District Officer (R) Khanewal dated 13.4.2010 and the other date 17.8.2011 passed by Board of Revenue, Punjab-are the subject matte of the instant revision petition.
4. Ch. Muhammad Hussain Jehanian Advocate, learned counsel for the petitioner argues that the impugned orders have been passed in disregard of Rule 17 of W.P. Land Revenue Rules, 1967. H submits that a mere perusal thereof shows that they are arbitrary, capricious, whimsical and atrocious, to say the least. He goes on to argue that while setting aside the well-reasoned and well-argued order dated 20.1.2009 passed by District Officer (R), Vehari, Executive District Officer (R), Khanewal and Member Board of revenue did not meet the reasoning given in the order dated 20.1.2009. He elaborates that unless the reasoning of the District Officer (R), Vehari was found to be perverse or fallacious or untenable, there was no warrant to interfere with the same.
5. On the other hand, Pir Ahmad Shah Khagga Advocate, learned counsel for Respondent No. 3 has supported the impugned orders. He made the argument that Member, Board of Revenue, Punjab being sitting at the apex of the revenue hierarchy was vested with complete and absolute discretion to appoint anybody as a Headman/Lambardar of the village. He further submits that when he found the qualifications of both the Contestants-Respondent No. 3 and the petitioner- equal, he threw his weight behind Respondent No.
3. Therefore, according to him, the petitioner need not feel any heartburn.
6. It is noteworthy that Mr. Muhammad Javed Saeed Pirzada, Assistant Advocate General Punjab was critical of the approach adopted by Member, Board of Revenue, Punjab, Lahore, so he did not support the impugned orders. He put up the argument that both' the impugned orders are liable to be stuck down while the order dated 20.1.2009 classed by District Officer (R), Vehari being logical, consistent and reasonable required to be restored.
7. I have heard the learned counsel for the parties and learned Law Officer, besides perusing the record annexed to the writ petition.
8. It would be advantageous to reproduce herein Rule 17 of W.P. Land Revenue Rules, 1967 for ready reference, which has a decisive bearing on the outcome of the controversy in issue: "(a)
(b) extent of property in the estate, if there are no sub- divisions of the estate, and in case there be Sub-divisions of the estate, the extent of the property in the subdivision for which appointment is to be made, possessed by the candidate;
(c) services rendered to the Government by him or by his family;
(d) his personal influence, character, ability and freedom from indebtedness;
(e) the strength and importance of the community from which selection of a headman is to be made;
(f) his ability to undergo training in Civil Defence in the case of headmen in Tehsils situated along the Boarder."
9. Having gone through the record, .I have no hesitation in olding that the order dated 20.1.2009 passed by District Officer (R), Vehari, whereby he ordered the appointment of the petitioner as Headman/Lambardar of Chak No. 507/EB Tehsil Burewala, District tehari was a speaking one. He assigned valid and cogent reasons in support of his order. It seems that while passing the order, he had not only in his mind Rule 17 of W.P. Land Revenue Rules, 1967 but he also took pains to evaluate the credentials and antecedents of the two contestants for village Headman/Lambardar. He took into (3 consideration each and every aspect, which could have a bearing on the anal outcome of the exercise carried out by him. Paragraph No. 7 of he order dated 20.1.2009 passed by District Officer (R), Vehari is -eproduced hereunder for ready reference: "Arguments heard. Record perused. As per report of Wasil Baqi Nawis, Burewala, both the candidates deposited the amount of Dhal Bachhis previously delivered to them, in advance, as such they are not defaulters of any government dues. However, the amount of Rs.6907/- with regard to canal water has been deposited by the candidate Muhamamd Arshad into government treasury vide Bank Challan No. 104 dated 29.09.2008 as such he remained defaulter of government dues for a period of about 20 years. Although recommendation of Revenue Field Staff is in favour of Muhamamd Arshad yet he is a litigator as he has filed suit against the Province of Punjab with regard to superdari of Larnbardar Grant. So far as the cases registered against Ghulam Nabi are concerned, the Police declared him innocent during the investigation. It clearly shows that Muhammad Arshad, insidiously got registered false cases only to beat down the opponent candidate and to get the post of Lambardar. These acts do not reflect his good character and such type of deceptive person is not suitable for the post of a Lambardar. As regards the factor of proprietary land education or is concerned, Ghulam Nabi is Matric and is owner of land measuring 161 Kanals 16 Marlas whereas Muhammad Arshad is under-Matric and is an owner of land measuring 77 Kanals 1 Marla. As such Ghulam Nabi has an edge over the opponent candidate with regard to the education and proprietary land. Comparatively, Ghulam Nabi, Retired Field Assistant, is considered a suitable person who fulfils the basic conditions of Ruld 17(e) of the Land Revenue Rules, 1968 i.e. Ability and freedom for indebtedness. Therefore, Ghulam Nabi son of Shahab Din, caste Jat is hereby appointed as a permanent Lambardar of Chak No. 507/EB, Tehsil Burewala, District Vehari."
10. In sharp contrast to the aforesaid order passed by D.O. (R) Vehari, the Member, Board of revenue, Punjab, Lahore adopted a casual, perfunctory and laid-back approach. How he dealt with the question of appointment of village Headman/Lambardar is evident from the operative part of his order dated 17.8.2011, the relevant portion whereof reads as under:
11. In this regard, the senioritylist of ESts (General), District Lodhran was prepared in which the petitioner was placed at Sr.No.
17. The meeting "After perusal of the record and impugned orders of both the lower Courts I find that both the parties are almost equal under the criteria laid down on the subject except experience and in this way, the respondent has more experience in Lambardari matter as is evident from the available record. As such, he has edge over the present petitioner. Therefore, the EDO (Revenue) Khanewal has rightly set aside the order of DO (Revenue)/Collector Vehari dated 20.1.2009 vide his impugned order dated 13.4.2010. I find no justification to interfere in the impugned order which is based on facts and good reasons. The same is upheld. The revision petition is rejected accordingly: 11I agree with the learned counsel for the petitioner that while setting aside the well-reasoned order dated 20.1,2009 passed by D.O.(R), Khanewal, both E.D.O.(R), Khanewal and Member, Board of.
Revenue, Punjab, Lahore were under an obligation to meet the reasoning given therein. But they did not advert to the same and found it convenient to pass orders at their whims, probably proceeding on the .Assumption that they have unbridled powers to pass any oder they like. It seems that while passing such arbitrary orders, they forget that the inalienable right of every citizen to be treated in accordance with law. It goes without saying that if the law of the land confers discretion upon an authority, the same is to be exercised justly, honestly, equitably, based on sound judicial principles.
And if the Courts of law arrived at the conclusion that the concerned authorities did not keep in view the objectives to be achieved by the Statute which confer discretion upon them, their arbitrary and whimsical orders would be stuck down.
12. The upshot of the above discussion is that the impugned orders dated 13.4.2010 and 17.8.2011 passed by Executive District Officer (Revenue), Khanewal and Member, (Judl.Ii), Board of Revenue, Punjab, Lahore, respectively being unsustainable are hereby set aside, while the order dated 20.1.2009 passed by District Officer (Revenue), Vehari, is restored, by which Ghulam Nabi, the petitioner was appointed as Headman/Lambardar of Chak No. 507/EB, Tehsil Burewala, District Vehari.
13. This petition is allowed in the above terms.