TARIQ SALEEM SHEIKH, J. The Petitioner was appointed as Elementary School Teacher (EST) vide Appointment Order No. 4625/EC dated 26.4.1993 statedly issued by the Deputy Education Officer (W), Tehsil Bhakkar. She joined the service and is presently in BS-15. Respondent No.3 received complaints that her appointment order was bogus so he directed an inquiry against her and issued show cause notice dated 15.7.2021. Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has assailed the vires of the order of inquiry and the show-cause notice.
2. The learned counsel for the Petitioner contended that the Appointment Order dated 26.4.1993 was genuine. When the Petitioner joined the service the Competent Authority not only verified her testimonials but also the said appointment order. She had served the Education Department for 28 years with honesty and devotion and during that period there had never been any complaint of misconduct. The learned counsel maintained that the proceedings against the Petitioner were mala fide.
3. The learned Assistant Advocate General contended that this constitutional petition was not maintainable as no final order had yet been passed against the Petitioner. An intermediate action or step in disciplinary proceedings could not be assailed before the High Court under Article 199 of the Constitution. Even otherwise, no exception should be taken to the order of inquiry and the show-cause notice inasmuch as Respondent No.3 had sufficient grounds to proceed against the Petitioner under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
Opinion
4. The precise allegation against the Petitioner is as follows: "MISCONDUCT She provided her appointment order as EST issued by the Deputy District Education Officer (W), Tehsil Bhakkar vide Sr.No.4625/EC dated 26.4.1993 which is illegal as per rule Deputy District Education Officer is not the appointing authority for ESTs. Moreover, the Deputy District Education Officer (W), Tehsil Bhakkar has requested the orders are not tallied with her office record particularly with Sr. No. of Dispatch Register. Hence, it seems to be a bogus one."
5. An inquiry aims at determining the truth or falsity of certain facts or allegations. Respondent No.3 has directed an inquiry against the Petitioner under section 5 read with section 9 of the Act of 2006 but instead of joining the proceedings she has assailed them before this Court in its constitutional jurisdiction. Admittedly, there is no final order against her at this point of time.
6. Judicial review is the "legal audit" of the decisions of public bodies. It is the "power of the courts of a country to examine the actions of the legislative, executive and administrative arms of the government and to determine whether such actions are consistent with the Constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void."[1] Over time several doctrines have developed which preclude a person from seeking relief. The ripeness doctrine is one of them.
7. The requirement of ripeness and that of exhaustion of administrative remedies are both concerned with the timing of judicial review of an administrative action. However, the two requirements are separate and distinct. According to Kenneth Culp Davis, "the ripeness focus is upon the nature of the judicial process - upon the types of functions that the courts should perform. The exhaustion focus is upon the relatively narrow question whether a party should be required to pursue an administrative remedy before going to court. "[2]
8. "Ripeness is a doctrine which courts use to enforce prudential limitations upon their jurisdiction".
3. It is founded on the principle that judicial machinery should be conserved.[4] It "reflects concerns that courts involve themselves only in problems that are real and present or imminent[5] and should not exhaust themselves in deciding theoretical or abstract questions that have no impact on the parties at least for the time being.[6] This doctrine postulates that the "lawsuit must be well developed and specific and appropriate for judicial resolution. Courts may not decide cases that involve uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all."[7]
9. In the United States the ripeness doctrine is said to have roots in prudential and constitutional considerations, the latter centering on the Case or Controversy Clause of Article 111.[8] It is applied to constitutional challenges to federal and state statutes and regulations to determine whether a particular issue is ripe for judicial review before a piece of legislation is enforced by the executive.
9. In Abbott Laboratories et al. v. Gardner, Secretary of Health, Education, and Welfare, et al., 387 U.S.136 (1967), the Supreme Court elucidated the rationale of the doctrine and laid down the following two-prong test to assess whether the case is ripe for judicial review: "[The] basic rationale of [the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.
10. In Toilet Goods Association, Inc. et al. v. Gardner Secretary of Health, Education and Welfare, et al., 387 U.S. 158 (1967), the US Supreme Court held: "A test for ripeness depended not only on how adequately a court can deal with the legal issue presented, but also on the degree and nature of the regulations present effect on those seeking relief. Because the primary conduct of petitioners was not affected, they needed to exhaust administrative remedies. Judicial review would have then been available to deal with the question of statutory authority."
11. In Williamson County Regional Planning Commission et al. v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), the US Supreme Court applied the ripeness doctrine to "regulatory taking cases" and held that a property owner must satisfy two procedural requirements before invoking the federal jurisdiction: first, he must obtain a final determination from the regulatory agency about what use it would permit on his land, and secondly, he must avail state remedies for obtaining just compensation.[10]
12. In Pakistan there is a cornucopia of cases in which the courts refused to entertain constitutional petitions assailing show-cause notices issued by the administrative authorities.[11] However, the ripeness doctrine was formally employed in Mughal-e-Azam Banquet Complex through Managing Partner v. Federation of Pakistan through Secretary and 4 others (2011 PTD 2260).
Syed Mansoor Ali Shah, J. of this Court wrote: "'Just as a case can be brought too late, ... it can be brought too early, and not yet be ripe for adjudication ... until the controversy has become concrete and focused, it is difficult for the court to evaluate the practical merits of the position of each party.' The basic rational behind the 'Ripeness' doctrine is 'to prevent the courts through avoidance of premature adjudication, from entangling themselves, in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.' 'Ripeness' requires that an issue be sufficiently found and felt to be a justifiable controversy ... As courts insist on a concrete context, that context enables them to better see the problems that they are supposed to redress. As courts insist on completed agency action, that insistence may (1) eliminate the waste of courts deciding disputes that might be mooted as an agency runs its course, (2) assure the courts of the knowledge gained from applied agency expertise, and (3) provide them with a record already developed by the agency."
13. Neither an order directing an inquiry nor a show cause notice is an adverse order. None of them mean that the case would unfailingly be decided against the official/officer. There is always a possibility of a decision in his favour. Thus, any petition for judicial review of such order or show- cause notice would be based on apprehension or speculation and hit by the ripeness doctrine. On these principles the petition before me is premature.
14. The matter does not end here. Article 212 provides for the establishment of Administrative Courts and Tribunals. Sub-Article (1)(a) thereof reads as under:
212. Administrative Courts and Tribunals.-- (1)
Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise 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."
15. It would be seen that Article 212 opens with non obstante clause. Its effect is that it ousts the jurisdiction conferred on the High Court under Article 199 of the Constitution. In Abdul Bari v.
Government of Pakistan and 2 others (PLD 1981 Karachi 290)[12] a five-member Bench of the Sindh High Court held 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 The State v.
Zia-ur-Rahman and others (PLD 1973 SC 49), 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 a 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 judicially 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." In Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54) the Hon'ble Supreme Court of Pakistan ruled that the ouster embodied in Article 212 is absolute and it excludes the jurisdiction of all courts, including the High Court.
16. Disciplinary action against a civil servant is a part of his terms and conditions of service and, in view of the law discussed above, the jurisdiction of the High Court is expressly barred in respect thereof. The order directing an inquiry, the appointment of Inquiry Officer and issuance of show cause notice are integral part of disciplinary proceedings - or at least preliminary steps towards thereto - and would also attract the ouster clause of Article 212. If this Court cannot entertain a petition challenging a final order, it cannot interfere in an interim order. In Abdul Bari's case, supra, the Sindh High Court held: "It was then contended that inasmuch as the jurisdiction of the Service Tribunal has been confined to entertain appeal from `final' orders made by the departmental authorities, the jurisdiction in respect of other orders continues to remain intact so far as the High Court is concerned. In the view that we have taken, there can be no cavil against this proposition] of law. However, it seems to us that if the impugned order, although not final so far as the departmental authority passing it is concerned, is in the nature of a step towards the final orders that may eventually be passed, apparently such interlocutory 'order will eventually merge in the final order and in any case can be brought up before the Service Tribunal in an 'appeal from the final order. Clearly, therefore, such orders which are in the nature of interlocutory steps and are germane to the final order which is appealable before the Tribunal, will also be outside the jurisdiction of the High Court, However, in all the petitions before us there is no question of an order other, than a final order."
17. In Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 SC 508) the petitioner challenged the appointment of an authorized officer in the High Court through a constitutional petition which was dismissed on the ground of maintainability. He preferred Intra- Court Appeal which also met the same fate. The Hon'ble Supreme Court declined leave to appeal holding that the matter fell within the jurisdiction of the Service Tribunal. It said: "But the order impugned before the High Court vis-a-vis the stage at which it has been passed, is not appealable, the petitioner would have to wait till such an order is passed against him, which is appealable before the tribunal."
18. In Tahir Jamil Butt v. Mian Jehangir Pervez and another (1999 SCMR 2779) the Petitioner, who was facing departmental inquiry, absented on two dates. The Inquiry Officer recorded a finding that his absence was deliberate and contumacious and proceeded against him under Rule 7 of the Government Servants (Efficiency and Discipline) Rules, 1973. The petitioner filed review application but the Inquiry Officer rejected it on the ground of maintainability. He challenged both the orders in the constitutional jurisdiction of the High Court but his petition was dismissed in view of the bar contained in Article 212. The august Supreme Court declined leave to appeal holding that issue related to enforcement of terms and conditions of service and the constitutional petition was not competent.
19. In Muzaffar Hussain v. The Superintendent of Police, District Sialkot [2002 PLC (C. S.) 442] a Full Bench of this Court decided 152 constitutional petitions in which all the petitioners except three were civil servants in the Provincial or the Federal Government and assailed the proceedings initiated against them either under the E&D Rules, or Ordinance XVII of 2000 or the Punjab Civil Servants Act, 1974. However, there was no final order. The learned Full Bench dismissed the said petitions due to lack of jurisdiction. It reasoned: "According to section 15 of the Punjab Civil Servants Act, 1974 and section 16 of the Civil Servants Act, 1973 a civil servant shall be liable to disciplinary action and penalties in accordance with the prescribed procedure. Thus, disciplinary action against a civil servant is part of his terms and conditions of service as envisaged in Article 212(1)(a) of the Constitution. The issue raised in all these petitions is germane to the terms and conditions of the service of the petitioners and any grievance with regard thereto will attract the ouster clause of Article 212 of the Constitution. The contention that in the absence of a final order the respective Service Tribunals will not have any jurisdiction in the matter has not impressed us. Initiation of disciplinary proceedings is a preliminary steps towards passing of a final order. In accordance with the provisions of Ordinance No.IV of 2000 and Ordinance No.XVII of 2000 it is only a final order which is appealable. The Legislature, in its wisdom, clearly excluded challenge to an interim order before the Punjab Service Tribunal. We are of the view that if a final order cannot be interfered by this Court, interference in an interim order will manifestly frustrate the object of law. We may reiterate that while interpreting the provisions of a statute no such construction should be placed which might run counter to the object of the law or to render a provision of a statute redundant."[13]
20. The Petitioner has alleged that the impugned inquiry order and the show-cause notice are mala fide though she has not placed any material on record to substantiate her plea. It would be apposite to point out that the jurisdiction of the High Court under Article 199 of the Constitution is barred even where the inquiry order or show-cause notice is mala fide, without jurisdiction or coram non judice. These grounds should also be agitated before the Service Tribunal. Reference in this regard may be made to Abdul Bari/Khalil-ur-Rehman, supra, decided by a learned five- member Bench of the Sindh High Court. In Muzaffar Hussain, supra, a Full Bench of this Court also held: "The contention that despite similar ouster clauses in Articles 63-A(6), 225, 247 and 270-A, this Court has jurisdiction in case the orders passed are mala fide, coram non judice and without jurisdiction is equally untenable. A perusal of Articles 270-A and 247 shows that the ouster contemplated is total without providing any remedy to an aggrieved person. The cases in which ouster of the jurisdiction of the superior Courts is to have to be distinguished from the cases in which the aggrieved person has been provided a remedy. So far as Article 225 is concerned, an election could only be challenged by way of an election petition. This contemplates an implied ouster which has been given effect to by the superior Courts. However, where a person is disenfranchised and is, therefore, not in a position to challenge an election through an election petition he could competently invoke the Constitutional jurisdiction. This is the ratio of the judgment in Ghulam Mustafa Jatoi's case. The case of Wukala Mahaz (supra) was a petition directly moved before the Hon'ble Supreme Court under Article 184(3) of the Constitution to challenge the vires of Article 63-A. The challenge was repelled. It may also be observed that the constraint of Article 199 is not applicable in case of exercise of jurisdiction by the Hon'ble Supreme Court under Article 184 of the Constitution for enforcement of fundamental rights. We may also refer to the observations of the learned Full Bench of the Karachi High Court in Abdul Bari's case (supra) in which it was held that all the grounds of attack including the ground of mala fide, ultra vires and coram non judice were within the jurisdiction of the Service Tribunal. A similar plea raised before the Hon'ble Supreme Court was repelled in M. Yamin Qureshi v. Islamic Republic of Pakistan and another (PLD 1980 SC 22).
(emphasis added)
The Hon'ble Supreme Court refused leave to appeal against the above judgment vide order dated 7.12.2001 passed in C.P.L.A. No. 3397/L of 2001 titled Allah Bakhsh v. D.I.G. Police and others (and other connected matters).
21. In Peer Muhammad v. Government of Balochistan through Chief Secretary and others (2007 SCMR 54) the august Supreme Court ruled: "We have also adverted to the question of mala fides which according to the learned Advocate Supreme Court could have been dilated upon in Constitutional jurisdiction which is not correct because the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such-like matters. In this regard we are fortified by the dictum laid down in case Kh.
Abdul Wahid v. Chairman, WAPDA (1986 SCMR 1534)."
22. For all the above reasons this petition is not maintainable and is, therefore, dismissed in limine.
1. http://www.Britannica/topic/judicial-review
2. Davis, Kenneth Culp. "Ripeness of Governmental Action for Judicial Review". Harvard Law Review 68, No.7 (1955): 1122-153. doi: 10.2307/1337691.
3. Gillespie v. City of Indianapolis, 13 F. Supp. 2d 811
4. See note 2
5. Able v. U.S., 88 F.3d 1280
6. Rice v. Cayetano, 941 F.Supp. 1529
7. Valeria G. v. Wilson, 12 F.Supp 2d 1007
8. Nebraska Public Power Dist. v. MidAmerican Energy Co., 286 F.3d 1032
9. Mohammed S. Wattad, "UFO": When the American Doctrine of Ripeness Visited Israel, 9 Penn. Sr.
J.L & Int'l Aff. 1 (2021)
10. This case was in part overruled by the Supreme Court in Knick v. Township of Scott, Pennsylvania, 588 U.S. 2019
11. See for example: Muhammad Shafi and another v. Ch. Ilam-ud-Din and others (1968 SCMR 317); Virasat Ullah v. Bashir Ahmad, Settlement Commissioner (Industries) and another (1969 SCMR 154); Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance (1984 CLC 142); Mir Nabi Bakhsh Khan Khoso v. Branch Manager, National Bank of Pakistan, Jhatpat (Dera Allah Yar) Branch and 3 others (2000 SCMR 1017); Muhammad Asaf v. Small Business Finance Corporation through Branch Manager, Lahore Cantt. and 7 others (2001 YLR 1891); Muhammad Akhtar Sherani and 35 others v. The Punjab Textbook Board, Lahore and 4 others [2001 PLC (C.S.) 939]; Zulfiqar Ali v. Secretary Education (PLJ 2002 Lahore 1475); Khalid Mahmood Ch. and others v. Government of the Punjab through Secretary, Livestock and Dairy Development (2002 SCMR 805); Muhammad Naveed v. Deputy District Officer (Revenue) and 4 others [2005 PLC (C.S.) 129]; and Abdul Raheen Khan, Executive Manager (Operation) MEPCO 1ST Division, D.G. Khan v. Managing Director PEPCO, WAPDA House, Lahore and 2 others (2011 PLC (C.S) 1551).
12. This judgment is also reported Government of Pakistan and others approvingly cited by a Full Bench Members in Muzaffar Hussain v. Sialkot [2002 PLC (C.S.) 442] as Khalil-ur-Rehman and others v. (PLD 1981 Karachi 750). This case was approvingly cited by a full Bench of this Court comprising three Hon'ble Members in Muzaffar Hussain v. The Superintendent of Police, District Sialkot [ 2022 PLC (C.S.) 442].
13. The Full Bench inter alia relied on the dictum of Abdul Wahab Khan and Abdul Bari/Khalil-ur- Rehman for its decision.