' MAMOON KAZI, J.--The petitioner has called in question the notification issued by the Secretary to the Government of Sind, Health Department, dated 29-9-1987, whereby the earlier order appointing the former as Medical Officer, Rural Health Centre, Adilpur, Sukkur has been withdrawn and cancelled.
2. The facts of the case, briefly are, that the petitioner who had passed his M.B.B.S. Examination held in the year 1981 had applied for a post of Medical Officer advertised under the then Prime Minister's Special Programmed for employment of unemployed through daily 'Dawn' Karachi of 1st April, 1987.
Thereafter, the petitioner appeared in interviews held on 10-6-1987 and 28-6-1987 respectively and on the basis of the interview held on 28-6-1987 he was posted as Medical Officer at Rural Health Centre, Adilpur, Sukkur. The petitioner then started drawing salary from the Government of Sind with effect from 29-7-1987. Although the petitioner was also appointed as Medical Officer on the basis of the interview given by him on 10-6-1987, but a copy of the appointment order, dated 3-9- 1987, was not delivered to the petitioner as he had already been posted as Medical Officer as pointed out above. The case of the petitioner is that while he was discharging his duties satisfactorily, all of a sudden he received a letter, dated 15-10-1987, alongwith a copy of a notification, dated 29-9-1987, de-notifying the appointment of the petitioner, dated 3-9-1987, which the petitioner had not joined at all. The reason given in the notification was that the petitioner had been found ineligible on account of non-completion of house job. Thereafter, the petitioner approached the District Health Officer with an application but to no avail. The petitioner, therefore, apprehended that he would be removed from service.
3. Although the respondents have not filed any counter-affidavit but they have submitted their parawise comments pursuant to the order passed by this Court on 3-11-1987. The case of the respondents, according to their parawise comments, is that although initially the petitioner had been appointed Medical Officer on the basis of the interview held on 28-6-1987, but in view of the large number of applications received by the concerned Department the case of the petitioner was once again subjected to a proper scrutiny and it was detected that he had failed to complete the house job for the specified period of one year and the same being a pre-requisite, the petitioner was found to be ineligible for employment as a doctor. As regards the apprehension of the petitioner that he would be removed from service, the case of the respondents is that he has already been removed from service after issuance of a corrigendum by the department whereby necessary correction was made in the Notification, dated 29-9-1987.
4. We have heard Mr. MA. Rashid, learned counsel for the petitioner and Mr. Zawar Hussain Jafferi, Assistant Advocate-General, who represented the three respondents in the case.
5. Mr. MA. Rashid has assailed the action of the Health Department firstly on the ground of mala fides as according to him, no such pre-condition of completion of any house job existed in respect of the appointment of the petitioner. The impugned action has also been assailed on the ground that no show-cause notice had been given to the petitioner before taking such action. Reliance has been placed by him on Muhammad Ishaq v. Sarhad Development Authority 1984 CLC 126. In this case the orders in respect of the petitioner's promotion had been rescinded without affording him an opportunity of being heard. It was held by the Division Bench that the order cancelling the promotion of the petitioner was without lawful authority as the same was hit by the principle of locus penitential i,e, the power of receding till a decisive step is taken, which is available to the Government or the relevant authorities. The action of the Government was also held to be opposed to the principles of natural justice.
6. The argument of the learned Assistant Advocate-General, on the other hand, is that the petitioner was an ad hoc appointee and, therefore, the respondents were within their right to terminate his services without even assigning reasons. According to him, the requirement of the completion of one year's house job was a pre-condition fixed by the Government in respect of all such appointments and consequently, the action taken against the petitioner was neither mala fide nor illegal. A preliminary objection has also been taken as to the jurisdiction of this Court as, according to the learned Assistant Advocate-General, the petitioner being a civil servant could only approach the Service Tribunal under section 4 of the Sind Service Tribunals Act, 1973 in case he has any grievance against the respondents.
7. As far as the preliminary objection taken by the learned Assistant Advocate-General is concerned, it may be pointed out in this respect that Article 212, which was inserted in the Constitution of 1973, provides as follows:- "212.--(1) Notwithstanding anything herein before 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, Parliament by law extends the provisions to such a Court or Tribunal.
(3) 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."
8. The words "Notwithstanding anything hereinbefore contained" occurring in clauses (1) and (2) of Article 212 of the Constitution clearly indicate that this Article stands on a higher pedestal and its provisions would not be subject to those of Article 199 of the Constitution. The intention of the Constitution-makers clearly appears to be that when the Administrative Court or Tribunal has been established, the jurisdiction of the other Courts (including that of this Court under Article 199) would be ousted. It may be pointed out in this respect that the Civil Servants Act, 1973 and the Service Tribunals Act, 1973 operate in the field relating to the servants of the Federal Government and the Sind Service Tribunals Act, 1973 and the Sind Civil Servants Act, 1973 relates to the civil servants in the service of the Government of Sind. It is also pertinent to point out here that the ouster of jurisdiction of the other Courts contemplated by Article 212 of the Constitution would be in the same proportion as the jurisdiction vesting in the Administrative Court or Tribunal. In other words, if the matter falls within the sphere of the jurisdiction of the Administrative Court or Tribunal, to that extent the jurisdiction of the {ether Courts would stand ousted. It is now pertinent to refer to section 4 of the Sind Service Tribunals Act, 1973 which provides as follows:- "4. Appeals to Tribunals.--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, prefer an appeal to the Tribunal having jurisdiction in the matter: ' Provided that--
(a) where an appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973, 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; and
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining--
(i) the fitness or otherwise of a person, to be appointed to or hold a particular post or to be promoted to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal, removal reduction in rank or of compulsory retirement from service. Explanation.--In this section, 'departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
9. A closer examination of section 4 above indicates that according to the proviso thereto, no appeal would lie to the Service Tribunal against an order or a decision of a departmental authority, determining the fitness or otherwise of a person to be appointed to or to hold a particular post or to be promoted to a higher post or grade. The proviso to section 4 also refers to certain other matters in respect of which appeal cannot be preferred before the Service Tribunal, but we need not refer to the same, as they are not relevant for the purpose of this case. It consequently follows that barring matters which cannot be referred to the Service Tribunal, according to section 4 of the Service Tribunals Act, all other grievances of a civil servant against any final order, whether original or appellate passed by the departmental authority and in respect of any of the terms and conditions of service of the civil servant are to be referred to the Service Tribunal.
10. Mr. M.A. , Rashid has, however, argued that since Article 212 of the Constitution and section 4 of the Sind Service Tribunals Act do not contemplate a complete ouster of the jurisdiction of other Courts, and since according to the proviso to section 4, an appeal from an order determining the fitness of a civil servant to be appointed to or to hold a particular post, would not he to the Service Tribunal, consequently the instant petition is competent as the words "fitness or otherwise of a person" appearing in the aforesaid proviso would also include within their ambit, the question of eligibility of a person to be appointed to a particular post. Support has also been sought in this respect from the judgment of the Full Bench of the High Court of Baluchistan in the case of Mujeebullah Aijaz v. Director General Telephone and Telegraph Department PLD 1980 Quetta 58 wherein Abdul Hayee Kureshi, Acting C.J. (as he then was) who wrote the judgment of the Full Bench has observed as follows:- "Analyzing the relevant provisions it would appear that an appeal shall not lie to the Tribunal in the following cases:--
(1) When the impugned order was passed before 1-7-1969;
(2) When the civil servant punished is not a 'civil servant' for the reason of his exclusion from the definition of 'civil servant' in section 2(1)(b) of the Civil Servants Act;
(3) When the order is not a final order;
(4) When the punishment imposed is other than the punishment of dismissal, removal compulsory retirement or reduction to a lower post or time-scale; (5)When the impugned order relates to a person's fitness to hold a post or to be appointed to such post or to be promoted to a higher post or grade; and
(6) When the order is not passed by a competent departmental authority and is for such reason void."
' Another argument advanced on behalf of the petitioner is that, the ouster of jurisdiction of this Court is not dependent solely on the interpretation of the proviso to section 4 of the Sind Service Tribunals Act but the case must even otherwise fall within the ambit of the jurisdiction of the Service Tribunal. According to the counsel, an appeal to the Service Tribunal would only be competent, if an order passed by a departmental authority relates to the terms and conditions of a civil servant.
11. We do not find much force in the arguments advanced by the petitioner's counsel. Although there can hardly be any cavil with the proposition that the ouster contemplated by Article 212 of the Constitution or section 4 of the Sind Service Tribunals Act is not complete, as we have already pointed out above, but in our opinion, the impugned notification, first of all, does not determine the fitness of the petitioner to be appointed to the post held by him or to continue to hold such post. It may be pointed out that the question of a person's eligibility to be appointed to a certain post can be determined by the pre-conditions which may be prescribed for such post but the question of his fitness to be appointed to or to continue to hold such post would solely depend upon the opinion of the departmental authority concerned. Therefore, in our opinion, the passage under consideration, occurring in the proviso to section 4 of the Sind Services Tribunal Act is not capable of any extended meaning as proposed by Mr. MA. Rashid. Consequently, the notification, cancelling the appointment order, dated 3-9-1987, for want of eligibility (which actually meant to be the order dated 29-9-1987 according to a corrigendum issued by the Government of Sind, dated 29-10-1987) in no manner can be construed as an order of the departmental authority, determining the fitness or otherwise of the petitioner to be appointed as or to continue to hold the post of a Medical Officer.
The effect of the notification appears to be, simply to terminate the services of the petitioner and consequently the same cannot be regarded as an order determining the fitness or eligibility of a person. We are further of the opinion that the question as to the propriety or legality of the action, removing the petitioner from service primarily and essentially would relate to his terms and conditions of service. We are, therefore, of a considered view that the Service Tribunal was the only forum before which the grievance of the petitioner would be determined. Reference in this respect may also be made to a decision given by the Full Bench of this Court reported as Abdul Bari v.
Government of Pakistan PLD 1981 Kar.
290. It was held in this case that Article 212 of the Constitution being itself a Constitutional provision, the same necessarily curtails the jurisdiction of this Court in respect of the matters falling within the ambit of the Service Tribunal. It was further held that the field covered by the jurisdiction of the Service Tribunal would include all grounds of attack including grounds of mala fides, ultra vires or Coram non judice.
12. Finally, adverting to the arguments of M.A. Rashid on merits of the case, we find that the petitioner has no case even on merits. Admittedly, the petitioner was an ad hoc appointee and consequently his services could be terminated by the departmental authority without assigning any reasons for the same and even without a show-cause notice. It may be pointed out that no similar safe guards are provided in the Sind Civil Servants Act, 1973 for ad hoc appointees as are available to a civil servant holding a regular appointment. (See section 11(3) of the Sind Civil Servants Act, 1973). Consequently, in our opinion, no right had been created in favor of the petitioner, which could render the action taken by the respondents as illegal and void. In Pakistan v.
Muhammad Himayatullah Farukhi PLD 1969 SC 407, it was held by the Supreme Court as follows:-- "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21 of the General Clauses Act, locus penitential, i,e,, the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
' Since, as we have already pointed out, that, no right had been created in favour of the petitioner which could prevent the respondents from retracing their steps taken by them, consequently, in our opinion, the respondents were competent to issue the impugned notification.
13. In the result, this petition is dismissed, but the parties are left to bear I their own costs in view of the points raised in this petition.