Anwaar Hussain, J. Through the present petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution"), the petitioner, who was working as EST/SVT (BS-16), has assailed order dated 15.12.2022 ("the impugned order"), passed by respondent No.3, with the following prayer: "It is therefore respectfully prayed that instant writ petition may kindly be allowed, the impugned order dated 15.12.2022 Annex-A passed by the respondent No.3, on the basis of inquiry report Annex-B may kindly be declared as illegal, unconstitutional, null and void on account of being coram non judice, hence without lawful authority and may very graciously be set aside with all consequential reliefs.
Further prayed that operation of the impugned order may kindly be suspended with direction to the respondents to let the petitioner continue in service as EST (SVT) BPS-16 up till superannuation dated 31.12.2022 and to retire with pension and other retirement benefits."
2. Learned counsel for the petitioner submits that the petitioner was working as EST/SVT in BS-16, at Government High School, Dewalian, Tehsil and District Chakwal when he was proceeded against under the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("the PEEDA Act") and an inquiry was conducted, which resulted in his compulsory retirement from the service, on the ground that there was irregularity/illegality in his appointment as EST/SVT. Learned counsel for the petitioner, while addressing the bar contained under Article 212 of the Constitution, submits that for the purposes of applicability of Article 212, the question to be examined is the scope and basis of the impugned order and in the instant case, reason for passing of the impugned order is an inquiry pertaining to some pre-induction and pre-appointment irregularity as EST/SVT and not something that relates to the terms and conditions of service of the petitioner after his appointment to the post of EST/SVT, hence, bar under Article 212 of the Constitution is not attracted. Learned counsel also draws attention of this Court to orders passed by the department pursuant to directions of this Court, in various constitutional petitions bearing W.P No.1555/2014, W.P No.1556/2014 and W.P No.2889/2014, wherein as per contention of learned counsel for the petitioner, similar irregularity came under judicial scrutiny and the matter was referred to the Chief Secretary, Punjab, who extended relief to the petitioners therein and the induction/appointment of the petitioners in above referred constitutional petitions was regularized and prays for the same relief. Places reliance on the cases reported as "Secretary to Government of N.W.F.P. Zakat/Social Welfare Department, Peshawar and another v. Sadullah Khan" (1996 SCMR 413), "Abdul Hafeez Abbasi and others v.
Managing Director, Pakistan International Airlines Corporation, Karachi and others" (2002 SCMR 1034), "Utility Stores Corporation of Pakistan through Managing Director, Islamabad v.
Sultan Mahmood and others" (2005 PLC (C.S) 750) and "Province of Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali" (2005 PLC C.S 1165) in support of his contention.
3. Conversely, learned Law Officer, alongwith departmental representative, while submitting report and para-wise comments on behalf of the respondents states that bar under Article 212 of the Constitution is fully attracted and the instant petition is not maintainable. Adds that even otherwise, alternate remedy is provided under the PEEDA Act by way of appeal, hence, the present petition is not maintainable on this ground as well. On merits, submits that the petitioner was originally appointed as Drawing Master (DM) (UT) in BPS-9 on ad hoc basis and his services were later on regularized, however, his appointment as EST/SVT, on the basis of 50 % quota reserved for in-service teachers was found to be illegal when a full-fledged inquiry was conducted and, resultantly, he was compulsorily retired through the impugned order. Concludes that the instant case is not at par with the petitioners of constitutional petitions referred hereinabove inasmuch as the present petitioner was working as a Drawing Master (DM) and the petitioners therein were in- service teachers.
4. Arguments heard. Record perused.
5. It is imperative for this Court to first decide the issue as to whether it is vested with the jurisdiction to proceed with the instant matter in terms of bar contained under Article 212 of the Constitution, keeping in view the argument of learned counsel for the petitioner that any departmental inquiry into irregularity/illegality committed at preinduction/pre-appointment stage of service of the petitioner followed by passing of the impugned order of compulsory retirement does not form part of the terms and conditions of service of the petitioner.
6. Admittedly, the petitioner is a civil servant irrespective of the fact that his appointment/induction as EST/SVT was rightly or wrongly made and through the impugned order has been compulsorily retired after being proceeded under the PEEDA Act. There is also no denial that the impugned order is appealable. The argument put-forth by learned counsel for the petitioner that bar contained under Article 212 of the Constitution is not attracted in the present case, since probe on the basis of which the petitioner has been compulsorily retired does not relate to his post-appointment period but pertains to his initial appointment/induction as EST/SVT, is misconceived inasmuch as bar contained under Article 212 of the Constitution is absolute and inflexible. The Hon'ble Supreme Court of Pakistan in case reported as "Asadullah Rashid v. Haji Muhammad Muneer and others"
(1998 SCMR 2129) held that constitutional petition under Article 199 of the Constitution by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, is not maintainable keeping in view the bar contained under Article 212 thereof. Similarly, in case reported as "Peer Muhammad v. Government of Baluchistan through Chief Secretary and others" (2007 SCMR 54), it has been clearly held that the ouster clause embodied in Article 212 is a constitutional command, which ousts the jurisdiction of the High Court as well as the Civil Court. In addition to the pronouncement in case of Peer Muhammad supra, the Hon'ble Supreme Court of Pakistan in case titled as "Ali Azhar Khan Baloch and others v. Province of Sindh and others" (2015 SCMR 456) has exhaustively defined the jurisdictional delineations of the High Court pertaining to the matters of terms and conditions of service of the civil servants. In the said judgment, the Apex Court deprecated the exercise of constitutional jurisdiction in the matters pertaining to the terms and conditions of service of civil servants and held that the said exercise is not only in defiance of constitutional contours of Article 212 of the Constitution but also confronts and defies Article 189 thereof. In a recent case reported as "Federation of Pakistan through Secretary Establishment Division, Islamabad v. Shafqat-ur- Rehman Ranjha and others" (2021 SCMR 153), the Hon'ble Supreme Court of Pakistan has held as under: "13. The next question before us is whether a Constitution Petition before the High Court was maintainable before the High Court in exercise of its extra ordinary jurisdiction under Article 199 of the Constitution. Having held that no fundamental right of the Respondent had been violated the answer to the said question has to be in the negative. Further perusal of Rule 2(a)(iii) of the Civil Servants (Appeal) Rules, 1977 (hereinafter referred to as the "Appeal Rules") provides that an order by the Prime Minister is appealable to the President. In the instant petition, no such appeal was filed. Instead the Respondent chose to file a Writ Petition before the High Court. A right of appeal being available under the rules which was admittedly not availed, the High Court should have refrained from exercising in extraordinary constitutional jurisdiction which is equitable and discretionary in nature. We have found the exercise of discretion by the High Court in this matter not in consonance with settled principles of law on the subject considering the specific facts and circumstances of this case. The issues raised clearly fell within the ambit of Federal Service Tribunal in terms of Article 212 of the Constitution of Islamic Republic of Pakistan. Consequently, we find that the impugned judgments of the High Court are unsustainable. Both the said judgments are accordingly set aside with the result that Writ Petition. No.3234 of 2017 shall stand dismissed. This appeal is accordingly allowed."
(Emphasis supplied)
In another case reported as "Chief Secretary, Government of Punjab, Lahore and others v. Ms. Shamim Usman" (2021 SCMR 1390), the Hon'ble Supreme Court of Pakistan has held as under: "5. We cannot lose sight of the fact that non-obstante clauses of Articles 212(1) and (2) begin with "notwithstanding anything hereinbefore contained," thus overriding, inter alia, the constitutional jurisdiction of the High Court under Article 199, which is already "subject to the Constitution." Article 212(1)(a) provides that a Tribunal established under the law will enjoy exclusive jurisdiction in the matters relating to terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters. The term "terms and conditions" is clearly spelt out in Chapter II of the Punjab Civil Servants Act, 1974 and the rules thereunder.
Article 212(2) in unambiguous terms states that no other Court can grant injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. Scope of jurisdiction and powers of the Tribunal are provided in sections 4 and 5 of the Act. The High Court, therefore, has no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which can be adjudicated upon by the Tribunal under the Act...."
(Emphasis supplied)
The crux of the above discussion is that the orders within the departmental hierarchy, in relation to civil service, even if passed with malafide intention and/or discriminatory or otherwise corum non judice, fall within the ambit of the Service Tribunal established under the law and jurisdiction of the Courts including High Court is ipso facto ousted as result of bar envisaged in terms of Article 212 of the Constitution.
7. This Court is mindful of the jurisdictional exclusion contained under Article 212 of the Constitution that is a constitutional command and keeping the same in sight, it is imperative to note that Chapter II of the Punjab Civil Servants Act, 1974 ("the Act") deals with the terms and conditions of a civil servant and Section 4 thereof pertains to the 'appointment' of a person to a civil service or a civil post in connection with the affairs of the province. Section 4 of the Act contemplates that such appointment is to be in accordance with the prescribed rules whereas Section 15 of the Act pertains to efficiency and discipline and also forms part of Chapter II, which contemplates that a civil servant shall be liable to such disciplinary action and penalties, and in accordance with such procedure, as may be prescribed. Meaning thereby that appointment to the post is part of the larger ambit of the terms and conditions of service under the Act being the first step towards the same and must be in accordance with prescribed procedure since such appointment triggers applicability of remaining terms and conditions pertaining to the service of a civil servant, inter alia, probation, confirmation, seniority, promotion, posting, transfer, termination, removal and the disciplinary proceedings under the law including the Act or the rules made thereunder. If such an appointment is obtained as a result of any irregularity or illegality, defeating the criteria envisaged under the applicable rules, the same can always be looked into by the department. Perusal of the Act read with provisions of the PEEDA Act clearly reveals that there is no distinction under the law between the probe against a civil servant for any wrong done at the time of his induction/initial appointment or after such appointment of a civil servant inasmuch as the petitioner, like any other civil servant was appointed under the Act in general and Section 4 thereof in particular. Once appointed, the petitioner is to be treated as a civil servant for all practical purposes and his service is to be dealt with accordingly, which includes any disciplinary proceedings on account of wrongful induction. Any charge of seeking appointment on the basis of any irregularity as well as illegality, if and when probed under the law, resulting into any punishment by way of compulsory retirement, as it happened in the instant case, is to be dealt with under the provisions of the Act and the rules made thereunder. The remedy in such an eventuality lies with the next departmental hierarchy, higher in rank, in accordance with law and an appeal finally lies before the Service Tribunal. It is during such departmental or appellate proceedings before the Service Tribunal where the question of discrimination or malafide, if any, and the merits of the case can be examined. Hence, this Court is of the opinion that bar contained under Article 212 of the Constitution is fully applicable in the instant case.
8. This Court having found that the present petition is not maintainable in terms of bar contained under Article 212 of the Constitution feels appropriate not to pass any comment on the merits of the case viz. entitlement of the petitioner to seek treatment/benefits conferred upon the petitioners of constitutional petitions bearing W.P No.1555/2014, W.P No.1556/2014 and W.P No.2889/2014, lest it may prejudice the case of either side. Moreover, the reported cases cited at bar on behalf of the petitioner are no doubt settled principles of law, however, the same are not applicable in the instant case because of its distinguishing features since the said cases decided by the Hon'ble Supreme Court of Pakistan emanated from the decisions of Service Tribunals.
9. For what has been discussed above, the instant petition is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.