S.M.ATTIQUE SHAH, J.- By way of this single judgment, we intend to dispose of this and; connected Writ Petition Nos.3145, 3328, 3329, 3331, 4286, 4867-P/2022, 163, 3437 and; 5655-P/2023 as common questions of law and; facts are involved therein.
2. In essence, petitioners in all these cases are aggrieved from the judgments / orders passed by worthy Khyber Pakhtunkhwa Medical Teaching Institutions Appellate Tribunal Peshawar 'Tribunal' established under section 16 (A) of the Khyber Pakhtunkhwa Medical Teaching Institutions Reforms Act, 2015 in their respective cases, except WP No.4286-P/2022, wherein, petitioners are aggrieved from the decision of the respondents by not treating them at par with their other colleagues, who have been granted BPS-12.3. Keeping in view the fact that appeal against the Administrative Tribunal lies to the Honourable Supreme Court of Pakistan in terms of Article 212 (3) of the Constitution of the Islamic Republic of Pakistan, 1973 together with the latest judgment of the august Apex Court on the subject rendered in Kaleem Arshad's case, this court had directed the learned counsel for the petitioners to assist us on the point of maintainability of these petitions and; also issued notice to the worthy Advocate General, Khyber Pakhtunkhwa in terms of Order XXVII-A CPC, besides, appointing M/S Shumail Ahmad Butt and; Qazi Jawad Ehsanullah, Advocates Supreme Court as Amicus Curiae for getting their valuable assistance in the matter vide order dated 15.02.2024. That is how, these cases are fixed for hearing today to address the question of their maintainability.
4. The moment, the case was taken up for hearing, it has been brought into our notice by learned counsel for the parties that they are in agreement that the controversy relating to the jurisdiction against the judgments/orders of the Tribunal has been settled by the Honourable Supreme Court of Pakistan in case titled "Syed Asghar Ali Shah and another Versus Kaleem Arshad & others", reported as 2024 SCMR 563, and; in view of the same, these petitions are not maintainable before this Court. Qazi Jawad Ehsanullah, Advocate Supreme Court (Amicus Curiae) in the matter on his turn also agreed with such proposition of law. At this stage, it is more apt to reproduce the relevant portion of the ibid judgment of the august Apex Court, which reads as under:- "8. In order to better understand Gomal, we have gone through Article 212 of the Constitution, which is reproduced hereunder, for ready reference:- Administrative Courts and Tribunals 212(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 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.
(2) 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.
Article 212, starts with a non-obstante clause and has three parts: (i) clause (1) empowers the appropriate legislature to establish Administrative Tribunals with exclusive jurisdiction over specific subject matters provided in clauses (a), (b) and (c); (ii) clause (2) does two things, it provides for an "ouster clause", excluding the jurisdiction of other courts in matters falling under the jurisdiction of the Administrative Tribunals under clause (1), and an "abatement clause", abating any proceedings in respect of any such matter pending before any other court except the Supreme Court. The proviso to clause (2) extends the "ouster clause" in clause (2) to the Provincial Administrative Tribunals established under clause (1) only if on the request of the Provincial Assembly through a resolution, clause (2) is extended to a Provincial Tribunal through an Act of Parliament; and (iii) under clause (3) an appeal by leave is provided to the Supreme Court against the decisions of these Administrative Tribunals, if they involve a substantial question of law of public importance.
9. Article 212(1) has a non-obstante clause, i.e., "Notwithstanding hereinbefore contained", that overrides other provisions of the Constitution, in particular, Article 142,10 which vests exclusive power in the federal legislature to make laws with respect to any matter in the Federal Legislative List and concurrent power in the federal and provincial legislatures to make laws only with respect to criminal law, criminal procedure and evidence. Article 212(1) authorizes and allows the appropriate legislatures, both federal and provincial, to establish Administrative Tribunals with exclusive jurisdiction for dealing with specific subject matters as provided in clauses (a), (b) and
(c) thereof Federal legislature might not otherwise possess legislative competence under the Federal Legislative List, or under the concurrent power mentioned in Article 142, to establish these Administrative Tribunals regarding subject matters enumerated under clauses (a), (b) and (c) of Article 212(1); however, Article 212(1) of the Constitution empowers both the federal and provincial legislatures to establish such Administrative Tribunals over and above the permissible legislative competence under Article 142 and the Federal Legislative List. This unique legislative power of the provincial and federal legislatures to establish Administrative Tribunals under Article 212 with specialized subject matter and a dedicated forum of appeal, i.e., the Supreme Court, is the significance of the non-obstante clause that enables Article 212 to override the regular constitutional regime.
10. Clause (2) of Article 212 also contains a non obstante clause, which does two things: first, it ousts the jurisdiction of all other courts vested in them in terms of Article 175 to deal with matters covered under the exclusive jurisdiction of the Administrative Tribunals established under Article 212(1); and second, it provides that any such matter pending before any other court shall abate, excluding matters pending before the Supreme Court. The proviso to clause (2) further provides that the said ouster clause will come into effect for the Provincial Tribunals only if on the resolution of the Provincial Assembly the Parliament passes an Act, which extends the provisions of clause
(2) to such a Tribunal. Such a Federal Law was once enacted in 1974 titled, the Provincial Service Tribunals (Extension of Provisions of the Constitution) Act, 1974 and admittedly there is no such law that extends to the Provincial Tribunal in question.
11. Clause (2) of Article 212 is, in our opinion, merely an ouster clause and not a jurisdiction clause.
In case of Federal Tribunals, it provides that no other court can take jurisdiction over any matter which falls under the subject matter of the Administrative Tribunal established under Article 212(1).
If clause (2) has not been made applicable to a Provincial Tribunal, it at best means that there are other forums also available to redress the grievance of the officers, e.g., the High Court under Article 199 or the Civil Courts under Section 9 of the Civil Procedure Code, 1908. In the absence of clause (2), all the judicial forums in a Province have concurrent jurisdiction along with the Provincial Administrative Tribunal. Once a civil servant invokes the jurisdiction of the Provincial Tribunal, the remedy of an appeal by leave against any decision of the Provincial Tribunal before this Court becomes alive. Remedy of appeal under clause (3) will not be available if the civil servant approaches the High Court or the Civil Court for the redressal of his grievance.
Applicability of clause (2) to a Provincial Tribunal is totally insignificant as it has no effect on the remedy of appeal against the decision of the Provincial Tribunal before this Court which is ensured under clause (3).
12. Gomal repeatedly lays stress on clause (2) and its proviso to say that unless the provision of clause (2) is made applicable to a Provincial Tribunal, the remedy of appeal under clause (3) before this Court is not available against any decision of a Provincial Tribunal. This line of reasoning is based on the central principle formulated in Gomal; that only federal legislature can vest jurisdiction in the Supreme Court under the Constitution (entry 55 of the Federal Legislative List) and therefore unless there is an Act of Parliament extending clause (2) to a Provincial Tribunal, right to appeal is not available to this Court under clause (3). This line of reasoning is, with respect, flawed as Gomal fails to appreciate the clear and direct provision of the Constitution, i.e. clause (3) of Article 212, and instead places reliance on the legislative competence to enact a sub-constitutional law under the Constitution. While Gomal is right when it reasons that the appellate jurisdiction can only be conferred upon the Supreme Court by federal legislature under entry 55 of the Federal Legislative List and not by the provincial legislature, it utterly fails to appreciate that it is the non-obstante provision of Article 212 of the Constitution itself that is allowing appeal by leave from a Provincial Administrative Tribunal to the Supreme Court. The "principle" enunciated in Gomal, that "it is only the Parliament that can (if at all) enact legislation that acts upon or affects the jurisdiction of this Court[,] [t]he provincial assemblies cannot do so", has little significance once the Constitution itself has conferred appellate jurisdiction on the Supreme Court against matters arising from a Tribunal constituted under Article 212(1)(a). Even otherwise, the foundational premise of Gomal that only federal legislature can vest jurisdiction in this Court seems to have no nexus or co-relation with clause (2) which is simply an ouster clause.
It is not as if the act of the Parliament under the proviso to clause (2) converts the Provincial Tribunal into a Federal Tribunal, or the provincial legislation into federal legislation, it simply ousts other courts from exercising jurisdiction in matters covered by a Provincial Tribunal.
13. Clause (3) is the third part of Article 212, which provides than an appeal shall lie to the Supreme Court from a judgment, decree order or sentence of the Administrative Tribunal, and the Supreme Court shall grant leave if the Supreme Court is satisfied that a substantial question of law of public importance arises in the case. Clause (3) has no co-relation whatsoever with the ouster clause of clause (2). Whether a Provincial Tribunal enjoys the ouster clause or not, does not affect the appellate jurisdiction of this Court. Clause (3) is independently connected with all the administrative Tribunals, including Provincial Tribunals, established under Article 212(1). It is once again reiterated that the appeal to the Supreme Court is available against orders of both the Federal and Provincial Administrative Tribunals by a special constitutional scheme provided under Article 212, which due to the non-obstante clause is over and above any sub-constitutional legislation under the regular constitutional scheme. Gomal, with respect, overlooks this important distinction and proceeds to assess the maintainability of appeal before the Supreme Court under Article 212(3) through a sub- constitutional lens. If there were no Article 212(3), Gomal would have been right in holding that only federal legislature can confer jurisdiction on the Supreme Court and not the provincial legislature, but the provincial legislature (or for that matter even the federal legislature) has not conferred the right of appeal on this Court; it is the Constitution itself that has done so under Article 212(3). It is therefore difficult for us to understand how Gomal holds that clause (2) is the gateway to clause (3), when we find no such co-relation between the two clauses. The view in Gomal that unless there is an Act of the Parliament in terms of the proviso to clause (2), the Supreme Court cannot sit over the decisions of the Provincial Tribunal in appeal, in our view and with due respect, is erroneous and deconstructs the unique constitutional scheme of establishing Administrative Tribunals under Article 212, which grants an appellate remedy to the Supreme Court from the decisions of the all Administrative Tribunals federal and provincial.
14. For the above reasons, the law declared in Gomal that unless and until the proviso to Article 212(2) of the Constitution is activated, appeal against an order of a Provincial Tribunal is not available before this Court under Article 212(3) of the Constitution, and that in the absence of such a law passed by the Parliament, the decision of a Tribunal established under the Provincial law is to be challenged under Article 199 of the Constitution, is not correct and is therefore overruled."
5. Gist of above dicta of august Apex Court is that the decisions/judgments of both the Federal and; Provincial Administrative Tribunals established under the Act of Parliament or Provincial Assembly are to be challenged before the Honorable Supreme Court of Pakistan by a special constitutional scheme provided under Article 212 of the Constitution. Therefore, the High Court under its Constitutional jurisdiction can't entertain such like matters.
6. Consequently, while deriving the wisdom from the judgment (Supra), we came to the irresistible conclusion that these writ petitions are not maintainable before this court. Albeit; petitioners are at liberty to challenge the judgments / orders of worthy Tribunal impugned herein before the appropriate forum, if so advised. Office is directed to return these petitions to the petitioners in original by retaining copies thereof for record.
7. Now coming to connected Writ Petition No.4286- P/2022 titled "Mr. William Jhon, Projectionist and others vs. The Government of Khyber Pakhtunkhwa through Chief Secretary, Khyber Pakhtunkhwa, Peshawar & others". Mr. Mir Zaman Safi, Advocate, representing the petitioners, stated at the bar that since the petitioners have directly approached this Court through the present writ petition against the decision of respondents, therefore, the same be treated as their appeal before the worthy Khyber Pakhtunkhwa Medical Teaching Institutions Appellate Tribunal Peshawar for its decision in accordance with law, to which Mr. Zartaj Anwar, Advocate, learned counsel representing the respondent / MTI expressed his no objection over the same. Being so, we treat the petitioners' ibid petition as an appeal before the worthy Tribunal in the larger interest of justice and; in turn direct the office to send it thereto for its decision in accordance with law by retaining a copy thereof for record.
8. All these petitions stand disposed of in the above terms.