JAWAD HASSAN, J.- Through this single order this Court intends to dispose of the instant petition as well as W.P.
No.6316/2014 filed by Zahid Mahmood, the Respondent No.1 against the Petitioner arising out of the same order .
2. This petition has been instituted against the impugned order dated 02.04.2012 passed by the learned District Judge Sialkot/Chairman Human Rights Commission (the "Impugned Order"). The Petitioner has made the following prayer in this petition: "It is respectfully prayed that the instant writ petition may kindly be accepted and the impugned order dated 02.04.2012 passed by the learned Distric t & Sessions Judge, Sialkot/Chairman Human Rights Commission may please be set aside in the interest of justice, equity and fair play ."
3. Brief facts of the case are that the Respondent No.1 was appointed as SESE (AT) by the District Education Officer (M-EE) Sialkot on 31.12.2009 who, later on was terminated vide order dated 01.01.2011, on the ground that he got the job by concealment of facts, as he had not passed B.A. with Arabic, as an elective subject as per Recruitment Policy of Educators 2008. The Respondent No.1 feeling aggrieved filed an appeal before the DCO, Sialkot who forwarded the same to EDO (Education). The said appeal was rejected by EDO (Education) as next authority in the case against which the Respondent No.1 filed a petition before the District Judge/Chairman Human Rights Commission Sialkot who passed the impugned order as follows:- "In view of above, I have reason to believe that the impugned termination order dated 01.01.201 1 cannot sustain in eye of law. It is a fundamental right of any citizen that his right of profession be protected from any capricious and arbitrary action and that he may not be condemned un-heard. Thus, the termination of the Petitioner does not appear in keeping with the principles of law and natural justice. Respondents are therefore directed to restore the Petitioner to its original position failing which the Petitioner may avail of any legal remedy against the Respondent.
This petition is disposed of accordingly ."
4. Whereas the Respondent No.1 in W.P. No.6316/2014 has prayed that a direction be issued to the Respondent No.4 (District Education Officer (M), Elementary Education, Sialkot) to dispose of the application filed by the Respondent No.1, enabling him to join service and receive back benefits.
5. Report and parawise comments were filed by the Respondents- Departmen t denying the claim of the Respondent No.1 and prayed for dismissal of the W .P. No.6316/2014.
6. Mr . Ashfaq Ahmad Kharral, Assistant Advocate-General, Punjab appearing on behalf of the Petitioner , submitted that the Respondent No.2-District Judge/Chairman Human Rights Commission, Sialkot had no jurisdiction to deal with service matter , as such the impugned order is without any jurisdiction and therefore, liable to be set aside on this score alone; that while passing the Impugned Order , the Respondent No.2 has not considered the fact that the Respondent No.1 did not fulfill the criteria/qualification as per advertisement dated 01.10.2008. Learned Law Officer in support of his contention has placed reliance on the case titled Muhammad Afzal W arraich and others v. Muhammad Ramzan and others (PLD 2016 Lahore 85 ) and Dr. Farrah Atta v . District and Sessions Judge/Chairman, Human Rights, Bhakkar and 3 others (2007 PLC (C.S)1303 ). Learned Law Of ficer has also argued that as the impugned order passed by the Respondent No.2 was without any jurisdiction which was expressly barred, therefore, cannot be implemented even by this Court and therefore, the W .P. No.6316/2014 is liable to be dismissed.
7. Learned counsel for the Respondent No.1 has vehemently controverted the arguments advanced by the learned Law Of ficer and prayed for acceptance of the W .P. No.6316/2014 and dismissal of the instant petition on the ground that the impugned order has rightly been passed; that the impugned order is well within reasons, therefore, liable to be implemented forthwith.
8. This Court has heard the arguments of both the parties and examined the record. It is observed that this Constitutional petition concerns the unlawful jurisdiction of the District Judge in respect of deciding the service matter because the Petitioner has filed this petition under Article 199 (1)(a)(ii) of the Constitution to declare the proceedings taken (impugned order) within the territorial jurisdiction of this Court by a District Judge; that have been taken without lawful authority and is of no legal ef fect. From perusal of the record, it transpires that Respondent No.1 was terminated by the Department against which he had remedies available under provision of laws applicable of service and/or labour regarding his dismissal. However, without availing such remedies, the Respondent No.1 has filed a case before the District Court, which has wrongly reinstated the Respondent No. 1, while exercising its powers under the Civil Courts Ordinance, 1962 (the "Ordinance") read with the Code of Civil Procedure 1908 (the "CPC"). The District Judges are appointed under Section 5 of the Ordinance. The said Section is reproduced below for ready reference and is as follows: "5. District Judges.--- Government shall, in consultation with the High Court, appoint as many persons as it thinks necessary to be District Judges and post a District Judge to each district: "
Whereas the District Judge has original jurisdiction of the civil suits under Section 7 of the Ordinance, which reads as follows: "7. Original Jurisdiction of the Court of District Judge.--- Subject to this Ordinance or any law for the time being in force, the original jurisdiction of the Court of the District Judge in civil suits and proceedings shall be without limit of the value thereof excepting in the Karachi District where the original jurisdiction in civil suits and proceedings of the value exceeding fifteen million rupees shall be exercised by the High Court."
9. It is pertinent to note that the Honorable Supreme Court of Pakistan, High Court(s) for each Province and for the Islamabad Capital Territory and other Courts, have been established under Article 175(1) of the Constitution of Pakistan (the "Constitution") to adjudicate the issues on which their respective jurisdiction applies, and Article 175(2) clearly states 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 ."
10. It is evident from the record that the Respondent No.1 filed an application before the Respondent No.2-District Judge, Sialkot, who in his capacity as Chairman Human Rights Commission, Sialkot passed the impugned order restoring the Respondent No.1 in his previous position. Admittedly , the said power was not transformed into law by the legislature, therefore, in the absence of any such legislation, the District Judge was not vested with any authority to pass any order in that capacity . Reliance is placed on the case titled Director City Circle GEPCO Ltd. and others v . Shahid Mir and others (PLD 2013 Supreme Court 406) wherein the Hon'ble Supreme Court of Pakistan has held as follows: "...the impugned order passed by the learned Sessions Judge, Sialkot on 9-8-201 1 had not been passed by him in any legal capacity as the said order had been passed by him in the so-called capacity of a Director Human Rights ostensibly deriving inspiration from the famous Quetta Declaration. The learned Judge-in-Chamber had not appreciated that by virtue of Article 175(2) of the Constitution of the Islamic Republic of Pakistan, 1973 "No court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". The capacity of a Director Human' Rights assumed and exercised by the learned Sessions Judge, Sialkot in the matter was not conferred upon him by the Constitution or by or under any law and, thus, the petitioners were entirely justified in assailing his order before the Lahore High Court, Lahore through a Writ Petition and the issues of jurisdiction so brought by them before the Lahore High Court, Lahore were indeed justiciable."
11. As observed by the Hon'ble Supreme Court of Pakistan in the above referred judgment that the District Judge/Chairman Human Rights, Sialkot was not conferred upon by constitution or any law to interfere in the matter in hand, as such cannot step into the shoes of competent authority. It is important to note that this case also pertains to the same District i.e. Sialkot and of about same period (2011-2012).
12. Moreover , in Muhammad Afzal W arraich case Supra this Court has held that bare reading of the aforesaid provisions of law makes it abundantly clear that none else except Cane Commissioner is competent to adjudicate upon the claim of the petitioners. Punjab Sugar Factories Control Act, 1950 is a Special enactment legislated for resolution of such disputes. It is settled principle of law that a special law has overriding' effect over general law . It is thus evident on the record that the respondents instead of following the procedure laid down in the special enactment chose a wrong forum for redressal of their grievance and unfortunately the learned Sessions Judge without taking into consideration ouster clause provided in section 22(i) of the Act ibid passed the impugned order which cannot be allowed to remain intact.
13. It is further to be noted that Section 9 of CPC, it has been made clear that "the Courts shall ... have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred .".
The District Judge/Chairman Human Rights vide the impugned order has expressly assumed the jurisdiction regarding the service matter of an employee by clearly holding that he has reasons to believe that the impugned termination order dated 01.01.201 1 cannot sustain in the eye of law and it is a fundamental right of any citizen that his right of profession be protected from any capricious and arbitrary action and that he may not be condemned un - heard. He, therefore, directed the Respondents to restore the Petitioner to its original position failing which the Petitioner may avail of any legal remedy against the Respondents.
14. Further , the Constitution has recognized civil servants in Article 240 of the Constitution, which clearly states that the conditions for appointment of service of persons in the service of Pakistan shall be determined under Act of Parliament in the case of the services of the Federation, and under Act of the Provincial Assembly in the case of the services of a Province.
15. It is also to be noted that the Constitution has itself segregated the disputes to be referred to any court or forum of law under Article 212 of the Constitution, relevant portion of which is reproduced hereunder: "212. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or T ribunals 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; ... (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 "
16. Therefore, the Constitution has set an absolute bar and has given exclusive jurisdiction to administrative courts and tribunals established under the appropriate legislature to adjudicate matters relating to terms and conditions of persons, in service of Pakistan. This principle has further been explained in various cases of the Appex Court including Ali Azhar Khan Baloch and others v . Province of Sindh and others, 2015 SCMR 456 ; National Assembly Secretariat v . Manzoor Ahmed and another , 2015 SCMR 253 ; Peer Muhammad v . Government of Balochistan through Chief Secretary an others, 2007 SCMR 54 ; and Khalid Mahmood W attoo v . Government of Punjab and others, 1998 SCMR 2280 that the service Tribunals have been given "exclusive jurisdiction" under Article 212 of the Constitution, for redressal of grievance of the Petitioner , who admittedly is a civil servant, in respect of terms and conditions of civil service, including disciplinary action. The bar contained in Article 212 of the Constitution has also been suf ficiently dilated upon by the Hon'ble Supreme Court of Pakistan in various pronouncements and has held in unequivocal and clear terms that the bar is absolute.
17. It has clearly been established by the Honorable Supreme Court in the case of Ali Azhar Khan Baloch v .
Province of Sindh (2015 SCMR 456 ) that civil and constitutional jurisdictions would not lie in respect of the suits or petitions filed with regard to the terms and conditions of civil servants. Section 3(2) of the Service Tribunals Act, 1973 provided that the Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including the disciplinary matters. Jurisdiction of all other Courts was barred by the provisions of the Service Tribunals Act, 1973, read with Article 212 of the Constitution. Further , all civil courts, including a Judge (in Chambers) of High Court of Sindh, exercising jurisdiction on the original side as a Civil Court under the Civil Procedure Code, 1908, could not entertain a civil suit of a civil servant relating to the terms and conditions of his service. Article 212 of the Constitution ousted the jurisdiction of High Courts and Civil Courts in respect of the matters pertaining to terms and conditions of civil servants. Provisions of Article 212 of the Constitution did not confer a concurrent jurisdiction to Civil Courts, High Courts and Tribunals. Ouster of jurisdiction contemplated under the Article 212 of the Constitution was a constitutional command, and, therefore, of necessity restricted the jurisdiction of civil courts and High Courts on the subject, which squarely fell within the exclusive domain of service Tribunals. Therefore, it was held that exercise of jurisdiction by way of suit and constitutional petition filed by a civil servant with regard to his terms and conditions of service was violative of Arts. 175, 212 & 240 of the Constitution and the law .
18. Similarly , it has also been decided in the case titled Provincial Police Officer (I.G.P .), Peshawar v . Farid Ullah Khan (2013 PLC(CS) 1413 [Peshawar]) that according to Article 212 of the Constitution, administrative courts and tribunals had been established having exclusive jurisdiction in respect of the matter relating to terms and conditions of persons who are in service of Pakistan. Article 212(2) of the Constitution commanded that no court or tribunal shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction to such court or tribunal extended. Khyber Pakhthunkhwa service Tribunal Act, 1974 was enforced to deal with the matters relating to the terms and conditions of service of civil servants. Provincial Government had established service Tribunal to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of civil servants. The Service Tribunal had the exclusive jurisdiction in respect of matters relating to terms and conditions of service of civil servants. Therefore, it was held that both the courts below had fallen in error by assuming jurisdiction to entertain and adjudicate upon, in circumstances, and judgment and decree passed by both the courts below were set aside.
19. In the case of Umar Khan v. Government of N.W.F.P. (1997 PLC(CS) 746 [Peshawar]), it was held that defendant having assumed charge as Chowkidar became Government servant for all practical purposes and, therefore, matter relating to terms and conditions of his service would exclusively fall within jurisdiction of service Tribunal. Plaintiff having impugned in his plaint terms and conditions of service of defendant, Courts below by decreeing such suit, in favour of plaintiff, had exceeded their jurisdiction. Civil Court, thus, had no jurisdiction in matter relating to terms and conditions of civil servant. Judgments and decrees of Court below being in excess of jurisdiction were set aside and plaintiff's suit was dismissed in circumstances.
20. Similarly , it was held in the case of Muhammad Javed v . Karachi Electric Supply Corporation Limited (1997 PLC(CS) 1220 [Karachi]) that jurisdiction of High Court and Civil Courts curtailed in matters of terms and conditions of service. Ouster contemplated under Article 212 of the Constitution was of Constitutional nature and, therefore, of necessity curtailed jurisdiction of High Court totally in respect of subject-matter committed to service Tribunals. Provision of Article 212(2) of the Constitution did not envisage concurrent jurisdiction of Civil Courts and service Tribunals in regard to any matter on any ground in respect of terms and conditions of service.
Jurisdiction conferred on service Tribunals and jurisdiction vested in Civil Courts in respect of terms and conditions of service of civil servants was mutually exclusive, so that field covered by jurisdiction of service Tribunal was totally ousted the jurisdiction of Civil Courts including High Court.
21. It is a cardinal error to support that the District Judge functioning as Chairman Human Rights Commission can assume its jurisdiction on service/labour matters, for which established Courts are already functioning.
22. In view of the above, it is apparent that general jurisdiction of Civil Courts is barred where a special law had been promulgated and a forum had been created by it. In cases where civil servants cannot seek remedy from a Services Tribunal, they had to invoke jurisdiction of the Labour Courts if the otherwise were covered by definition of workman and were employed in any industry or commercial establishment. The enactment of the Service Tribunals Act, 1973 has created Tribunals and promulgation of Industrial Relations Act, 2012 has constituted Labour Courts, therefore being special laws, general jurisdiction of civil Courts was barred.
23. Under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") every individual, including the educational institution, has the right to be dealt with in accordance with law and no person is liable to do which the law does not require him to do. In the case titled Faisal Sultan v. E.D.O.
(Education) and others (2011 PLC (C.S.) 419 [Lahore]), it has been clearly held as under: "An integral, intrinsic and incidental part of "law" under Article 4 is the right to procedural due process, right to be treated fairly at all times, right to procedural fairness and right to procedural propriety . Right to a fair procedure is, therefore, constitutionally guaranteed in Pakistan and makes the Constitution standout proudly in the Constitutions of the world. Article 4 of the Constitution is a robust and dynamic amalgam of the cardinal principle of natural justice, procedural fairness and procedural propriety of the English jurisprudence and Procedural Due Process of the American jurisprudence. Constitution of Pakistan has boldly recognized this right to be an inalienable right of every citizen or of any person for the time being in Pakistan."
24. It has been established in the case of Azizullah Memon v . Province of Sindh and another (2007 SCMR 229) that since impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law , it had vitiated entire proceedings including final order , which could not be sustained under the law. The Supreme Court converted petition into appeal and proceedings as well as impugned order of the Service Tribunal, were set aside accordingly . Furthermore, in the case of Muhammad Haleem and another v . General Manager (Operation) Pakistan Railways Headquarter , Lahore and others (2009 SCMR 339 ), it was clearly held that when initial order or act relating to initiation of proceedings was contrary to law and illegal, then all subsequent proceedings and actions taken thereon would have no basis and would fall.
25. Similarly, in the case of Sharafat v. Additional Sessions Judge/Justice of Peace (2015 PCrLJ 1758 [Lahore]), it was held that special law had provided special procedure for initiation of criminal proceedings against accused. When a thing was provided to be done in a particular manner, it was to be done in that manner and if it was not so done, it was illegal. High Court in exercise of powers under Article 199 of the Constitution, set aside order passed by Ex-officio Justice of Peace as the same was patently illegal and ultra vires. High Court advised that aggrieved persons could adopt remedy provided under the law. Petition was allowed under the circumstances.
Furthermore, in the case of Abdul Fatah Bhutto v. Election Commission Of Pakistan through Secretary (2014 CLC 639 [Karachi]) , it was held that candidate neither adopted the specified procedure nor approached the proper forum in the given time. When a thing was to be done in a particular manner , same must be done in that manner and not otherwise. Legal remedy was available to candidate, but he did not adopt the prescribed course/remedy by not approaching the specially constituted Bench.
26. Similarly , it is an established principle of law that where procedure had been provided for doing a thing in a particular manner then same should be done in that manner alone and not in any other way or it should not be done at all; otherwise it would be considered non-compliance of the legislative intent and would be deemed illegal.
(rel. Abdul Khaliq Mandokhel v . Chairman, Balochistan Public Service Commission (2016 PLC(CS) 1 184 [Quetta]); Falak Niaz v . Amal Din (2016 YLR 2047 [Peshawar]); Sabz Ali Khan v . Inspector General Of Police, KPK (2016 YLR 1279 [Peshawar]); Cantonment Board Clifton v . Sultan Ahmed Siddiqui (2016 CLC 919 [Karachi]); and Federation of Pakistan v . Asad Javed (2016 PLD 53 [Islamabad]) )
27. As discussed above and in view of the judgments of the Hon'ble Supreme Court of Pakistan, referred above, the Respondent No.1 has not acted in accordance with law by assuming the jurisdiction of which he was not bestowed. Therefore, in this case, the District & Sessions Judge/ Chairman, Human Rights Commission is specifically not empowered to take cognizance of the service matter at hand and the decision of the District Judge to reinstate the Respondent No. 1 is patently illegal and void, when it is expressly barred. It has also been observed that this Constitutional Petition concerns the unlawful jurisdiction of the District Judge in respect of deciding the service matter because the Petitioner has filed this petition under Article 199 (1)(a)(ii) of the Constitution to declare the proceedings taken (impugned order) within the territorial jurisdiction of this Court by a District Judge; that have been taken without lawful authority and is of no legal ef fect.
28. In view of above mentioned facts, circumstances, laws and case laws, this Court suffice it to hold that the entire exercise by the District Judge while passing the Impugned Order dated 02.04.2012 is illegal and without jurisdiction; consequently the instant petition is allowed and the Impugned Order dated 02.04.2012 is hereby set aside. However, the Respondent No. 1 is free to approach competent forum of law for redressal of his grievance in accordance with law. However, W.P. No.6316/2014 filed by the Respondent No.2 is hereby dismissed.