Anwaar Hussain J: This Intra-Court Appeal is directed against judgment dated 25.09.2024, whereby the constitutional petition bearing W.P No.81621/2023, filed by the respondent, was accepted and impugned orders dated 10.10.2023 and 16.10.2023, passed by the appellant-Police Department, rescinding the appointment of the respondent, as Traffic Assistant, were set aside.
2. By way of factual background, it has been noted that during the recruitment process initiated by the appellant-Police Department, the respondent had submitted two separate applications--one for the post of Constable and the other for the post of Traffic Assistant. His candidature for the post of Constable was rejected, during the interview stage, when it transpired, upon admission of the respondent that the written test had been passed through illegal means--someone impersonating the respondent. In respect of the Traffic Assistant, the respondent got through and was placed on the waiting list, for the said post, and pursuant to the direction of this Court dated 14.06.2022 passed in W.P No.29387/2022, the respondent was appointed as a Traffic Assistant. Prior to the appointment as Traffic Assistant, an FIR was registered against the respondent concerning impersonation during the recruitment process for the post of Constable. Pursuant to the direction of this Court in another constitutional petition bearing W.P. No.20335/2023, an inquiry was conducted and it came to the light that FIR was registered against the respondent. Although the respondent was ultimately acquitted in said FIR, it is the case of the appellant-Police Department that the fact of registration of FIR was not disclosed by the respondent when he along with others, on the waiting list, sought appointment, upon occurrence of vacancies. After issuance of show cause notice under Rule 12.21 of the Police Rules 1934 ("the Rules") the appointment of respondent was rescinded. Learned Judge-in-Chambers was persuaded with the fact that the concealment of registration of FIR cannot solely be attributed to the respondent as the officials of the appellant- Police Department themselves failed to update the recruitment data, which allowed the respondent's name to remain on the waiting list for appointment as Traffic Assistant, despite the earlier rejection in the recruitment for the post of Constable and the fact that he has been acquitted from the said case. However, in appeal, before us it has been argued by learned Law Officer that the constitutional petition bearing W.P No.81621/2023 was not maintainable in terms of bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ("the Constitution") as the respondent after being appointed as Traffic Assistant was a civil servant and remedy lies before the Punjab Service Tribunal ("the Tribunal").
3. Conversely, it is the case of the respondent that no appeal is provided against the order passed under Rule 12.21 of the Rules, as the Rule 12.21 itself stipulates that said order is final and no appeal lies against the same. Additionally, it has been argued that even otherwise, once appointed and serving as a probationer, the order is in the nature of discharge and hence, relates to fitness of the respondent, therefore, second proviso to Section 4 of the Punjab Service Tribunals Act, 1974 ("the Act") is applicable and the constitutional petition was maintainable.
4. Arguments heard. Record perused.
5. At the outset, it is noted that the constitutional petition, from which the present appeal has emanated, was initially heard by one of us (Anwaar Hussain. J), who issued a notice without determining the question of maintainability and the petition was subsequently decided through the impugned judgment by the learned Judge in Chambers. We, therefore, intend to proceed with the appeal and decide the merits of both the present appeal and the constitutional petition, particularly as no objection (to this Bench) in this regard has been raised by the appellant/respondent side.
6. Factual matrix of the case is admitted. The legal question involved in the present matter is to determine whether a probationer is a civil servant, and if so whether order passed under Rule 12.21 of the Rules, on the ground of having obtained employment through impersonation or fraudulent means, can be assailed through constitutional petition or the appeal lies before the Tribunal.
Section 2(b) of the Act, defines civil servant as a person who is or who has been a member of a civil service of the Province or holds or has held a civil post in connection with the affairs of the Province and the exclusion does not include a probationer. Hence, we are of the opinion that the respondent was a civil servant even during his probation and was proceeded under Rule 12.21 of the Rules, which reads as under: "12.21 Discharge of inefficient. A constable who is found unlikely to prove as efficient police officer may be discharged by the Superintendent at any time within three years of enrolment. There shall be no appeal against an order of discharge under this rule.
Whereas Section 4 of the Act reads as under: "4. Appeals to Tribunals.- (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter prefer an appeal to the Tribunal- Provided that-
(a) where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to, or hold a particular post or to be promoted to a higher grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969."
(Emphasis supplied)
At the heart of the issue lies a nuanced distinction between a departmental appeal and a service appeal. Rule 12.21 of the Rules, operates within the administrative framework of the departmental proceedings and explicitly bars an internal or departmental appeal against a discharge order made thereunder. This form of appeal constitutes administrative adjudication, wherein senior functionaries of the department exercise revisional or the appellate authority within the service hierarchy. Such appeals, though essential to the administrative discipline and internal efficiency, are not judicial in nature, and the limitation on them does not extinguish a civil servant's right to pursue a remedy before an independent judicial forum. By contrast, a service appeal before the Tribunal is a judicial proceeding under a special statutory mechanism enacted through the Act, which forum is created pursuant to the mandate of Article 212 of the Constitution. Article 212 envisages the creation of special Tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, thereby ousting the ordinary jurisdiction of civil courts and even the High Court. The Tribunal is thus a judicial forum, not merely a continuation of the departmental hierarchy. It is functionally parallel to the High Court, and its decisions are subject to appeal before the Supreme Court of Pakistan, thereby forming part of the judicial framework of the country.
7. While Rule 12.21 of the Rules bars departmental appeal, Section 4 of the Act, allows a civil servant whether regular or probationer, aggrieved by a final order--whether original or appellate--to file an appeal before the Tribunal. Order dated 10.10.2023, impugned by the respondent before the learned Judge-in-Chambers is the final order, in original, passed by the departmental authority through which the services of the respondent during his probation period were rescinded. The order dated 10.10.2023 which was impugned before the learned Single Bench reads as under: "6. In light of above mentioned legal provisions, the undersigned is of the view that if any candidate already involved in criminal case/cases having criminal bent of mind is appointed, it will have adverse impact on the discipline of the force. Therefore, it becomes imperative to recruit persons with unblemished character antecedents to maintain high standards of service delivery & merit.
While in the instant case accused Traffic Assistant Mirza Waseem Baig, No.541/TA concealed about registration of case FIR No. 137/21 u/s 420/468/471/419, dated 01.02.2021 against him and got appointment as Traffic Assistant through deceptiveness. Hence, after considering of all pros and cons of the case, departmental proceedings initiated against accused Traffic Assistant Mirza Waseem Baig, No.541/TA through instant Show Cause Notice are hereby disposed of with the direction to Assistant Director & I/C E&T Branch, CCPO/Office, Lahore withdraw/ rescind appointment order bearing No.48601-618/E&T-VI, dated 17.10.2022 issued in respect of accused Traffic Assistant Mirza Waseem Baig, No.541/TA ab-initio under the provisions of Section-21 of General Clauses Act, 1897."
(Emphasis supplied)
Pursuant to order dated 10.10.2023, through order dated 16.10.2023, the respondent's appointment was rescinded in following terms: This office modifies earlier order Number 48601 618/E&T-VI dated 17.10.2022 only to the extent of the appointment of Traffic Assistant Mirza Waseem Baig s/o Abbas Baig No.541 & Form No.4812 & which is deleted/rescinded from Serial No. 64 of above said order by exercising powers vested upon the undersigned u/s 21 of General clauses Act, 1897 on the grounds that he was involved in criminal case FIR No. 137/21 u/s 420/468/471/419, dated 01.02.2021 in Police Station Qilla Gujjar Singh District Lahore.
2. He is directed to deposit all the government articles issued to him in District Police Lines, Lahore and concerned offices.
In essence, both above quoted/referred orders brought an end to the services of the respondent and hence, were original orders against which no departmental appeal was provided, however, statutory right of appeal under Section 4 of the Act was available. The two provisos to Section 4 of the Act, restrict the right to file statutory appeal only where (a) a departmental appeal has not been availed, or (b) the matter concerns the fitness of a person to be appointed or promoted.
Neither proviso applies here; firstly, Rule 12.21 itself forecloses the departmental appeal, thereby satisfying the condition under proviso (a); and secondly, in present case, the discharge in question is not a neutral assessm ent of suitability or competence but is grounded in allegations of fraudulent entry into service, which is a matter of misconduct, falling squarely within the domain of terms and conditions of service and hence, within the jurisdiction of the Tribunal. Therefore, the prohibition contained in Rule 12.21 does not extend to the judicial remedy available under the Act.
To hold otherwise would be to allow a service Rule (i.e., 12.21) to override a statutory and constitutional mechanism of judicial redress. The Tribunal's jurisdiction, being grounded in legislation enacted under a constitutional mandate, cannot be ousted by departmental rules, which are subordinate in legal status.
8. Having held that the respondent is a civil servant and that a statutory right of appeal under Section 4 of the Act was available to him against the original order of termination before the Tribunal, we are now constrained to consider whether the present Intra-Court Appeal is itself maintainable in law in terms of the crucial jurisdictional bar contemplated under Section 3(2) of the Law Reforms Ordinance, 1972 (Ordinance), which expressly excludes the maintainability of an appeal against an order passed by a learned Single Judge in constitutional jurisdiction, where the order impugned before the learned Single Judge arises from proceedings in which a statutory remedy, such as an appeal, was available. In the present case, since the order of termination of services of the respondent under Rule 12.21 of the Rules was appealable under Section 4 of the Act and the respondent nonetheless opted to invoke Article 199 of the Constitution instead of availing the statutory remedy, the constitutional petition was not maintainable and as a direct consequence thereof, the present Intra-Court Appeal, being a continuation of a procedurally flawed proceeding, is also hit by the bar contained in Section 3(2) of the Ordinance. Accordingly, the instant Intra-Court appeal is held to be not maintainable and is dismissed on that score alone.
The appellant-Police Department may avail the alternate remedy.