KARAM ELAHEE CHAUHAN, J.-The petitioner is an Ex-C. S. P. Officer who at the relevant time was serving as Joint Secretary, Agriculture Govern--ment of Pakistan when by means of a Notification dated 13th March 1972 published in the Gazette of Pakistan (Extraordinary) of that date he was compulsorily retired under the "Removal from Service (Special Provisions) Regulation, 1972"-(known as M. L. R. 114 of 1972). The petitioner has come up in writ petition against the aforesaid order and proceedings to this Court. As a matter of fact, the cases of the Jabri-retired-officers came up before us earlier as well when an objection on behalf of the Government was taken that this Court had no jurisdiction to entertain, or adjudicate upon their petitions in view of Article 281 of the Interim Constitution. We repelled that contention and held that the validity-conferring and jurisdic-- petition-ousting clause contained in Article 281 did not preclude the examination of those cases on the limited grounds of (a) corum non judice and (b) mala fides. The judgment of this Court was rendered on 3-8-1973 and is reported in Saeed Ahmad Khan v. The Federation of Pakistan (PLD 1974 Lah. 18). The Federal and the Provincial Governments went in appeal to the Supreme Court but their appeals were dismissed on 11-3-1974 and the judgment and order of this Court was maintained. See The Federation of Pakistan v. Saeed Ahmad Khan (PLD 1974 SC 151). The Supreme Court in their judgment gave certain useful and instructive guidelines as to how the point of mala fides should be attended to and what ingredients it must possess before it can be accepted by a Court of law. After laying down these guidelines the Supreme Court remanded the various cases to this Court for disposal in the light of their observations. These were, therefore, again fixed before us- (along with certain new cases which had in the meantime been filed in this Court)-but as by now the Central Government has promulgated Civil Servants Act LXXI of 1973 and Service Tribunals Act LXX of 1973 under Article 212 of 1973 Constitution whereunder Tribunals of exclusive jurisdiction with regard to matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters" have been set up, therefore, Mr. Yahya Bakhtiar the learned Attorney-General and Mr. M. B. Zaman learned Advocate-General, Punjab raised the point that in the face of that law the present writ petitions have abated. The present judgment attends to this point.
2. Mr. Yahya Bakhtiar learned Attorney-General and Mr. M. B. Zaman, learned Advocate-General (Punjab) referred to Article 212 of 1973 Constitu--petition, which reads as follows:--- "Article 212. Administrative Courts and Tribunals.-(I) 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 Adminis--trative 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 mater which may be pending before such other Court Immediately before the establishment of the Administrative Court or Tribunal 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."
The portions underlined' were added into the Article by section 12 of the Constitution (First Amendment) Act, XXXIII of 1974 which was assented to by the President on 4-5-1974 and was published in the Gazette of Pakistan, Extraordinary, Part I, dated 8-5-1974, pages 179 to 182.
According to that section these amendments were retrospective and were to be deemed always to have been so substituted or inserted. The learned State Counsel argued that the effect of the aforesaid Article 212 was that: (a) the Constitution authorised the appropriate Legislature to provide for the establishment of one or more Administrative Courts or Tribunals; (b) to exercise exclusive jurisdiction in respect of; (c) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters; (d) and when any Administrative Court or Tribunal is established 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 (e) 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 shall abate on such establishment. It was argued that the Central Govern--ment has established Tribunal/Tribunals under the Service Tribunals (Amend--ment) Act LXX of 1973-(as amended by the Service Tribunals (Amendment) Act XXXI of 1974) read with the Civil Servants Act (LXXI of 1973) which ,now have exclusive jurisdiction to deal with the cases of the present kind pertaining to the compulsory retirement of the petitioners in the form of -appeals scope whereof will be very wide and all embracing in all respects and as such the present writ petitions stand abated accordingly, and this Court can no longer grant an injunction, make an order or entertain any proceed--ings in respect of the matters involved herein to which the jurisdiction of the aforesaid Tribunal or Tribunals now extends. The contention seems to have merit.
The fact that the Central Government has established the Tribunal or Tribunals has not been doubted by the learned counsel for the writ petitioners. The jurisdiction of such Tribunal/Tribunals is deducible from certain sections of the Service Tribunals Act-(as amended). In section 2(a) it is written that a civil servant means a person who is or has been a civil servant within the meaning of the Civil Servants Act LXXI of 1973. In section 2(b) of the Civil Servants Act LXXI of 1973 a Civil Servant is defined as follows:---- "Section 2(1): Definitions.-(I) In this Act, unless there is anything repugnant in :the subject or context,-----
(a) ................------------
(b) "civil servant" means a person who is a member of an All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include----
(d) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a `worker' or `workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)."
Sections 3, 4, 5 and 6 of the Service Tribunals Act are also relevant. They read as follows:------ "Section 3: Tribunals.-(1) The President may, by notification in the official Gazette, establish one or more Service Tribunals and, where ,there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom, or the territorial limits within which, each such Tribunal shall exercise jurisdiction under this Act.
(2) A tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters.
(3) A tribunal shall consist of----
(a) a Chairman, being a person who has been, or is qualified to be, Judge of a High Court, and
(b) two members each of whom is person who possess such qualifications as may be prescribed by rules.
(4) The Chairman and members of a Tribunal shall be appointed by the President on such terms and conditions as he may determine.
(5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the President.
(6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Pakistan, if his remuneration is thereby increased.
(7) Notwithstanding anything contained in subsection (3), subsection (4), subsection (5) or subsection (6) a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more persons in the service of Pakistan to be appointed by the President."
"Section 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 later, prefer an appeal to the Tribunal: Provided that:---
(a) where an appeal, review or representation to a departmental authority is provided under the 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;
(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 post or 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.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred-----
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time--scale, or to a lower stage in a time-scale to a Tribunal referred to in. Subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to in subsection (7) of that section.
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."
"Section S : Powers of Tribunals.-A tribunal may, on appeal, confirm set aside, vary or modify the order appealed against.
(2) Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908)9 including the powers of:
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) issuing commission for the examination of witnesses and documents."
"Section 6. Abatement of suits and other proceedings.-All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith; Provided that any party to such a suit, appeal or application may, within ninety days of the establishment of the appropriate Tribunal, prefer` an appeal to it in respect of any such matter which is in issue in such suit, appeal or application."
A perusal of the aforesaid provisions will show that a Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters. Section 6 is more or less on the same lines as the later portion of Clause (2) of Article 212 of the Constitution. It states that all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith provided that any party to such a suit, appeal or application may, within the period of limitation mentioned therein prefer an appeal to the Tribunal in respect of any such matter which is in issue in such suit, appeal or application. At This provision of law deals with the cases of those civil servants who have already instituted suits or preferred appeals or fled applications etc. Regarding matters which fall within the jurisdiction of the Tribunal. A cumulative effect of all these constitutional and other legal provisions is that the present writ petitions which pertain to the terms and conditions of service of the petitioners or are concerned with a disciplinary action which was taken against them fall within the ambit of these provisions and stand abated leaving the petitioners the remedy of filing appeals in the appropriate Tribunal within the prescribed period of limitation and to avail of the provisions of sections 5 and 12 of the Limitation Act IX of 1908 in case a need to do so arises for claiming condonation of delay etc. Arguments of counsel for the writ petitioners;
3. When confronted with the above situation, learned counsel for the writ petitioners argued that Article 212 of 1973 Constitution and the enactments made thereunder are not intended to cover the present cases which had been filed under Article 201 of the Interim Constitution It was argued that Article 266 of 1973 Constitution stated that "the Interim Constitution of the Islamic Republic of Pakistan, together with the Acts and President's Orders making omissions from, additions to, modifications of, or amendments in, that Constitution is hereby repealed". Thereafter learned counsel referred to Article 264 of 1973 Constitution which reads as follows:----- "Article 264. Effect of repeal of laws.-Where a law is repealed or is deemed to have been repealed, by, under, or by virtue of the Constitu--petition, the repeal shall not, except as otherwise provided in the Constitution,----
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the law or anything duly done or suffered under the law;
(c) affect any right, privilege, obligation or liability acquired, accrued,, or incurred under the law:
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law; or
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;---- and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed."
Learned counsel argued that Article 201 of the Interim Constitution gave a right to the writ petitioners, who are persons aggrieved from the impugned orders to approach this Court for redress, and if in exercise of the right they had filed the present writ petitions then according to Article 264 of 1973 Constitution they were to be continued as if the Interim Constitution had not been repealed. In support of this plea they also referred to the opening sentence of Article 212 of 1973 Constitution wherein it was written "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 matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters." It was submitted that the sentence italicised indicated that Article 212 was to . Override anything which may have preceded it but not (to use the same language)-"anything hereinafter contained" i.e. Any special provision which was contained in Article subsequent to Article 212, namely, Article 264 which allowed old writ petitions to continue in this Court as if the Interim Constitution had not been repealed. It was submitted that where there was a general provision dealing with matters in general and a special provision regarding a particular subject-matter, then that matter should be governed by the special provisions and not the general provisions. Article 264, it was submitted, was a special provision whereas Article 212 was a general provision. We have considered the aforesaid plea but we are unable to hold that the present writ petitions are not affected by Article 212 and the enactments made thereunder. The reason is that in Article 264 which is a permission for the old pending proceedings to continue, there is itself contained a specific rider to the effect that it is to operate "except as otherwise provided in the Constitution" which means that the continuation of the pending proceedings can be excepted by any provision providing otherwise (and we may say so) at any stage. Article 264, therefore, gave clear warning of the possibility of continuation getting interrupted at any time and one can say that that contingency was clearly contemplated in Article 21 which indicated that if at the time for example when the relevant Courts or Tribunals are established, any pending proceedings have not ended, then there was a possibility of their getting abated or falling within the exclusive jurisdiction of any other Court or Tribunal created thereunder. Examined in this light, it appears, that the phrase "notwithstanding anything herein before contained" in Article 212 has reference .To Article 199 which conferred relevant jurisdiction on this Court and also to law making power of the Central or the Provincial Legislature, because, after using the said phrase, it is stated, that the appropriate Legislature may make laws for the various subject-matters mentioned thereafter i. e. (so far as relevant for the present case)-in respect of matters relating to the terms and conditions of service of persons who are or have been in the service of Pakistan, ,including disciplinary matters. A question arises that if in ordinary course a law is always to be made by an appropriate Legislature then why was it said that it can make such and such laws "notwithstanding anything hereinbefore contained" and by using this phrase is any such now power being conferred on the appropriate Legislature which it otherwise-(but for this phrase)-did not possess. It appears that the establishment of Courts or Tribunals of exclusive jurisdiction has an implication of course of jurisdiction of other Courts come of which may be those which have been set up by the Constitution itself and vis-a-vis them ordinary legislative machinery may not be sufficient to oust their jurisdiction-the manner of ousting their jurisdiction being to amend the Constitution every time this process was to be employed. The Constitution-makers, therefore, to avoid (if we can say so) that cumbersome procedure laid down a different scheme. They stated that notwithstanding the fact that establishment of Courts and Tribunals of ex--clusive jurisdiction will result in ousting jurisdiction of other Courts-(including Courts established under the Constitution itself for example High Courts for which method of amendment of Constitution was otherwise laid down in the various other Articles and jurisdiction whereof was contained in Articles preceding Article 212 e. g., Article 199) the appropriate Legislature may of its own provide for the establishment of Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of the matters mentioned in Article 212. After so permitting the Constitution-makers in clause (2) of Article 212 then stated that "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 juris--diction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matters which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal 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. "This means that Courts and Tribunals of exclusive jurisdiction are to be set up under ordinary laws in accordance with the manner hereinbefore mentioned but when so set up their effect will be as has been laid down in the Constitution itself. This is the purpose of and explanation for the use of the sentence "notwithstand--ing anything hereinbefore contained" in clauses (1) and (2) of Article 212 and not the one which was being advanced by the learned counsel for the petitioners, namely, that it overrides or affects only the Articles prior to Article 212 and not the one occurring subsequent thereto. i.e. Article 264 which even otherwise as we have explained earlier is per its own force not attracted to the cases of the present kind if a law with regard thereto is made for establishing Courts or Tribunals of exclusive jurisdiction. (The Central Tribunal was established on 22-2-1974).
(The present writ petition was filed on 24-4-1974).
4. The next point argued by the learned counsel for the petitioners was that the cases in hand pertained to such actions or orders which were taken or passed during the period when Martial Law in the country was in force and about them there were specific Articles, namely, Articles 269 and 270 which conferred validity on them. It was submitted that if the Constitution conferred validity on such orders what will a Court or Tribunal even of exclusive jurisdiction do in the matter?
On this reasoning it was argued that in this context it was only this Court which could properly examine them. Though our view in line with the contention of the learned State Counsel is that in the new set up the scope of the appeal will be wider and all embracing but to meet the argument on its own plane to say with respect, it has not impressed us because if the Constitution has conferred validity on these acts and orders then to the extent to which validity has been conferred even this Court will not be in a position to reopen them and we have failed to understand why the petitioners insist on getting their cases proceed in a Court of limited jurisdiction i.e. High Court rather than availing of the remedy of filing appeals in Tribunals where the whole matter can have gone into both on merits as well as law-(as was contended and conceded by the learned State Counsel). Even otherwise the argument that despite the provision of appeal the scope will still be narrow is not well founded. In the Federation of Pakistan v. Saeed Ahmad Khan, there occurs an instructive passage which explains the extent of validity contained in Article 269 of 1973 Constitution. The Supreme Court at pages 167 and 169 observed that "the contention of the learned Advocate---General Punjab that the "validity" gives legal cover not only to acts done illegitimately but also to acts done improperly and, therefore covers even mala fide acts, has now to be noticed again, even though this contention too was repelled in the case of Zia-ur-Rehman. Copious references have been made by the learned Advocate-General to the dictionary meaning of the words "valid" and "validity" in order to press his contention that the grammatical meaning must be preferred, even though the same word has been used in an earlier clause of this very Article in a more limited sense. If this contention be correct, then, would the result not be, having regard to the wide words used in the earlier portions of this clause, that all conceiv--able acts done, proceedings taken or orders made by any authority or by any person on or after the twenty-fifth day of March 1969, shall, notwith--standing the provision of the President's Orders, Martial Law Regulations, Martial Law Orders, Enactments, Notifications, Rule, Order or Bye-Laws to the contrary be deemed to have been validly made and to be no longer open to challenge in any Court. Thus, even if any order or sentence had been passed by any authority or any person and such a sentence was under the measures above-mentioned open to appeal or revision, such appeal or revision would now be barred, and if any appeal or revision had been allowed after the twenty-fifth of March 1969, the decision in such appeal or revision would now be of no valid effect. Could this have been the intention? The learned Advocate-General was himself constrained to concede that this could not have been the intention. Continuing the subject in the next paragraph they held "the question, therefore, that arises is the ouster of jurisdiction as complete as it is now sought to be urged ?" The learned Attorney-General himself had conceded before the High Court and has not resiled from that position before us that acts done, proceedings taken or orders made incompetently without jurisdiction would not be conferred by the ouster clause. If in addition to this we now find that the ouster clause does not affect appeals or revisions, if any, permis--sible under those Orders, Regulations, Enactments, Notifications, Rules, Orders or By-laws then the ouster clause is not as comprehensive as is now sought to be urged. There are obviously certain limitations. What these limitations are will be apparent from what has been conceded namely, acts which have not been validated. Acts which are done without jurisdiction do not qualify for validation under these provisions. Similarly, acts which were open to challenge even under the measures under which they were taken or done or purported to be so taken or done, are not validated."
To this we may respectfully add still another category and that is of those cases, which under laws made under Article 212 are brought within the jurisdiction of Courts or Tribunals of exclusive jurisdiction with regard to the matters mentioned therein. If now, therefore, the State is conceding that the impugned orders have become appealable under sections 4 and 6 of the Service Tribunals Act, 1973-(where scope of appeal according to the Central Government's own contention before us is obviously is very wide) -which will have the effect of taking these cases out of the pale C of Articles 269 and 270 according to the aforesaid pronouncement of the Supreme Court, the petitioners should welcome this opportunity rather than insist upon getting these cases examined in this Court where the proceedings are not of the nature of an appeal but only of a supervisory character. For difference in these two jurisdictions see Muhammad Hussain Munir and others v.
Sikandar and others (PLD 1974 SC 139). Moreover the bar of jurisdiction contained in Articles 269 and 270 is only against Courts as distinct from Tribunals or other executive authorities. Qua those Tribunals, therefore, which are set up under Article 212 there will be no "jurisdiction-barrier" nor any "validity-barrier", as the standpoint of the Central Government itself is, which we hereby endorse.
The cases will get reopened and the petitioners will achieve their long cherished demand that they should be provided an opportunity of defending themselves somewhere in some Tribunal or forum.
5. Learned counsel for the petitioners then submitted that the mandate in Article 212 that "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 shall abate on such establishment" has reference to only such suits, appeals or applications etc. Which were instituted after the commencing day i.e. 14-8-1973 up to the date of the establishment of Courts or Tribunals of exclusive jurisdiction and not those which had been instituted for example under the Interim Constitution up to 14-8-1973 and which, as laid down in Article 264 should rather ,continue in the forum in which they were instituted and are now pending. We have already attended to the scope of Article 264 and have held that if a law is made under Article 212 then old cases instituted even under the Interim Constitution will also be hit. We need not go into this subject over again and as regards the point which now presently is being examined we may simply say that the word 'pending' in clause (2) of Article 212 has obvious reference to cases pending on the date of the establishment of the Courts or Tribunals of exclusive jurisdiction. It is self-evident that the present cases are still pending in this Court when Courts or Tribunal of exclusive jurisdiction have been set up and, therefore, must abate as laid down in Article 212 and the mere fact that they were also pending on 14-8-73 does not detract anything from this result. Learned counsel referred to Malik Mar Hassan and another v. The State (PLD 1969 Lah. 786) in support of his interpretation of the word `pending' but we must say that the facts of that case as also the wording and language of the law involved there was different and has no application in the present context.
6. Learned counsel for the petitioners referred to Article 216 of the interim Constitution which reads as follows :-- "Article 216. Administrative Courts and Tribunals.-(1) Notwithstanding anything hereinbefore contained, the Federal Legislature may by Act establish one or more Administrative Courts-or Tribunals to exercise exclusive jurisdiction in respect of----
(a) matters relating to the terms and conditions of service of persons in the service of Pakistan, including the award of penalties and punishments ;
(b) matters relating to the imposition, levy and collection of any tax, duty, cess or impost ;
(c) matters relating to claims arising from tortious action of Government, any person in the service of Pakistan, 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;
(d) matters relating to industrial and labour disputes; and
(e) matters relating to the acquisition, administration and disposal of any property which is deemed to be evacuee property or enemy property under any law.
(2) Where any administrative Court or Tribunal is established under clause (1) no other Court, including the Supreme Court and the High Courts, 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."
They tried to compare clause (2) of that Article with Clause (2) of Article 212 of 1973 Constitution and submitted that in Article 216 of Interim Constitution while mentioning the Courts which will not have jurisdiction after establishment of Administrative Courts or Tribunals of exclusive jurisdiction, the names of the Supreme Court and the High Courts were expressly mentioned after the words "no other Court" by saying "including the Supreme Court and the High Courts". Learned counsel argued that in Article 212 (2) the draftsman stopped short at the words "no other Court" and omitted the words "including the Supreme Court and the High Courts." This according to the learned counsel was a conscious omission as was the case in The State v. Zia-ur-Rehman and others (PLD1973SC49) where at page 83 with regard to the jurisdiction-- ouster clause contained in sub-Article (1) of Article 281 of the Interim Constitution, the Supreme Court held that a conscious omission of a similar type of clause in sub-Article (2) of the same Article indicated that there was no ouster with regard to the matters contained in Article 281 (2) though such an ouster had been expressly mentioned in earlier preceding clause with regard to the matters involved therein. The principle on which the argument is being advanced is sound but it has no application to the facts and circumstances of the present case. In Article 212 of 1973 Constitution now a scheme different from the one contained in old Article 216 has been adopted. Here the Supreme Court has been given jurisdiction to hear appeals in such cases which are within the exclusive jurisdiction of the Administrative Courts or Tribunals by way of special leave which also indicates that the High Court's jurisdiction remains ousted in line with the ouster of jurisdiction of other Courts. Learned counsel argued that in 1973 Constitution wherever High Court was intended to be covered the word.
"Court" was written with a capital `C' and not a small 'c'. The argument cannot be taken serious note of because we did not notice any such difference and no specific Article of the Constitution in this respect was referred to which by itself might be pointer to hold so. Articles 24(4), 41(6), 66(1), 233(3),. 268(6), 269(1), 269(2), 269(3), 270 (3), 270 (4) are, however, examples to the contrary where the word `Court' though used with small `c' covers superior Courts as well. Even otherwise the words `no other Court' in Article 212 are such which appears to exclude eliminations or qualifications. We hold: accordingly.
7. Learned counsel for the petitioners referred to `Removal from Service (Special Provisions)
Regulation, 1972' i.e. Martial Law Regulation No. 114 of 1972, which was issued on 10th March 1972. It reads as follows :---- "M. L. R. 114.-Gazette of Pakistan, Extraordinary, 10th March 1972. (11) This Regulation shall come into force at once and shall have effect notwithstanding anything contained in the Provisional Constitu--petition Order, 1969, or in any Martial Law Regulation or order (including Martial Law Regulation No. 58) or in any other' law for the time' being in force.
(2) In this Regulation, unless there is anything repugnant in the subject or context :-----
(a) `Competent authority' means the President and where, in relation to any person or class of persons the President authorises the Governor'. Of a Province or any officer or authority, not being inferior in rank to the person against whom action is proposed to be taken to exercise the powers of competent authority under this Regulation, includes such.' Governor or officer or authority.
(b) `Misconduct' includes conduct prejudicial to good order or service discipline or conduct unbecoming an officer and a gentleman or, involvement in industry, trade or speculative transactions or employ--ment of the influence of official position to gain undue advantage, or assumption of financial or other obligations to private institutions or persons such as may cause embarrassm ent in the performance of' official duties or functions.
(c) `Person in corporation service' means every person in the employment of a corporation or other institution set up or established by the Central Government or a Provincial Government or by any law for the time being in force and includes the Chairman and the Managing Director of, and includes the Chairman and the Managing Director, of and the holder of any other office, in such-- corporation or' institution.
(d) `Person in Government service' includes every person who is a -member of an all-Pakistan Service or a Civil Service of the Centre or who holds a civil post in connection with the affairs of the Centre and every person who holds a civil post in connection with the' affairs of a province, but does not include a Judge of the Supreme Court or a High Court.
(3) (1) Where in the opinion of the competent authority, a person in Government service or a person in corporation service is---
(a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or
(b) guilty of misconduct, or
(c) inefficient or has for any reason ceased to be efficient, or
(d) engaged or is reasonably suspected of being engaged in subversive activities..
The competent authority may, notwithstanding anything contained in the terms and conditions of service of such person, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall prematurely retire from service.
(2) The dismissal or removal from service, or reduction in rank or premature retirement of a person under sub-paragraph (1) shall not absolve such person from liability to any punishment to which he may be liable for an offence under any law committed by him while in service.
(3) Notwithstanding anything contained in any law or in any decision of a Court nothing in sub- paragraph (1) shall be construed as requiring the competent authority, before making an order under that clause in respect of any person, to give such person an opportunity of showing cause against such order.
(4) No action taken, order passed, thing done or power exercised under this Regulation shall be called in question by or before any Court including the Supreme Court and a High Court or a tribunal or any other authority."
They argued that Article 212 of 1973 Constitution talked of such law which, could provide for the establishment of Administrative Courts or Tribunals of exclusive jurisdiction "in respect of matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters." It was argued that M. L. R. 114 was a law which operated in derogation to and "notwithstanding anything contained in the terms and conditions of service" of a Civil Servant. The orders passed under that Regulation which are impugned in the present writ petitions, therefore, are orders not relating to but outside their terms and conditions of service.
Cases of persons dealt with under M. L. R. 114, it was thus argued, were beyond the pale of Article 212 and cannot legitimately fall within the sphere of the Administrative Tribunals etc. And hence they do not abate. The contention has no substance. It is very well known that services of civil servants in Pakistan--(to confine ourselves to the relevant time)-under 1962 Constitution were (a) in the pleasure of (to use this word for the present)-the State and (b) were during "good behaviour". If a civil servant was guilty for example of misconduct or misbehaviour his services were terminat--ed after a show-cause notice and he could be dismissed or removed from service. The liability of a service being terminated for mis--behaviour or misconduct, therefore, was already a part and parcel of the terms and conditions of service of a civil servant. Any order which was thus passed for misbehaviour did pertain to the subject= matter of the terms and conditions of service of the employee concerned. All that M. L. R. 114 did was that it did away with the earlier formality of a show-cause notice. No doubt this was a serious alteration of the earlier terms and conditions of service to an obvious disadvantage of civil servants, but the fact that the terms and conditions could be so changed was clearly envisaged in the "Proclamation of Martial Law" dated 25th March 1969 where in para. 5(c) it was written that "all persons who, immediately before the abrogation of the Constitution, were in office . . . . . . Or were in service of Pakistan as defined in the Constitution shall, unless the Chief Martial Law Administrator otherwise directs, continue in the said office or in the said service on the terms and conditions as were applicable to them before such abroga-- petition and shall continue to exercise their powers and perform their functions".
M. L. R. 114, as is self-evident, was promulgated under supra-Constitutional dower which the Chief Martial Law Administrator had arrogated to himself and an indication of which had already been given in para. 5(c) of the pro--clamation of 25-3-1060 in the sentence above italicised. After the procla--mation of M. L. R. 114 the provisions contained therein became the new g terms and conditions of service of the civil servants. It is to be noticed that the aforesaid "Proclamation" and M.
L. R. 114 have now been validated by the Constitution makers. See The State v. Zic-ur-Rehman and others. M. L. It. 114 is also an existing law mentioned at serial number 16 of the First Schedule of 19'73 Constitution which is to continue in force subject to Constitution and is immune from attack even on grounds of fundamental rights as mentioned in Article 8(3)(h) of the said Constitution. To say, therefore, that cases of the present kind in which orders passed under M. L. R. 114 were being challenged, did not pertain to terms and condition of service of persons who have beers in the service of Pakistan within the meaning of Art. 21:2 is not correct. The provision in para. 3 of M L. R. 114 to the effect that actions could be taken thereunder "notwithstanding any--thing contained in the terms and conditions of service of such persons" simply meant that onward from the date of the enforcement of that regulation notwith--standing that the earlier terms and conditions of service were. Now the terms specified in the said regulation were to be the terms and conditions of service of the civil servants who were liable to be compulsorily retired for misconduct or misbehaviour even without a show-cause notice. In Suraj Narain Anand v. The North-West Frontier Province (AIR1942FC3) the question whether dismissal of a civil servant was a subject-matter pertaining to his terms and conditions of service came up for examination. The Federal Court on pages 5 and 6 observed that:----- "The real question therefore is whether the provision relating to "con--ditions of service" in section 243 should be understood to include a rule relating to the authority by whom the Crown's pleasure to ter--minate an officer's tenure of his office is to be signified. It may be that as matter of etymology, the expression "conditions of service" can be given a very comprehensive meaning; but, reading the four sections of the chapter together it seems to us that the Act clearly intended to draw a distinction between the tenure on which an office is held on the one hand and the incidents relating to service in the office on the other and that the duration of the office as well as the authority by which the Crown's pleasure to terminate it is to be signifi--ed were treated as fundamental matters standing on a different footing from the incidents of service. The former were, in our opinion, regarded as of such importance as to justify a declaration by the Act itself, while the latter were considered to be a proper subject for the rules. This interpretation will be consistent with the grounds of the decision in Rangachari v. Secretary of State 64 I A 40. It seems to us clear that in sections 241 and 242, the 'conditions of service' left to be provided for by rules could not have been intended to comprise the matters dealt with in subsections (1) and (2) of section 240. It seems to us reasonable to hold that the same restricted meaning should have been intended when the same expression was used in section 243."
The case went up to the Privy Council in the forth of an appeal and isreported in North-Nest Frontier Province v. Suraj Narain Anand (AIR 1949 P C 112). Their Lordships of the Privy Council did not agree with the view of the Federal Court and at pages 114 and 115 in paragraphs g and 9 held as follows:-- -- "Paragraph 8 : But the appellant relies on another section in the same Chapter (Chapter 11) of the Act of 1935 as releasing it from the obligation prescribed in subsection (2) of section 240, namely, section 243, which provides:-- `243. Notwithstanding anything in the foregoing provisions of this chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Acts relating to these forces respectively". There was no dispute that the respondent held a subordinate rank in the appellant's police force, and the issue was confined to two questions, (1) whether the right of dismissal was a "condition of service" within the meaning of sec--petition 243, and (2) whether, at the time of the respondent's dismissal, there was a valid police rule in operation which authorised dismissal of the respondent by the Deputy Inspector- General, although the latter was subordinate in rank to the officer by whom he had been appointed.'
Paragraph 9: On the first question, apart from consideration whether the context indicates a special significance to the expression "condi--tions of service", their Lordships are unable in the absence of any such special significance, to regard provisions which prescribe the circumstances under which the employer is to be entitled to terminate the service as otherwise than conditions of the service, whether these pro--visions are contractual or statutory, they are therefore of opinion that the natural meaning of the expressions would include such provisions. In the second place, it will be found, on a perusal of Chapter II, which includes sections 240 to 263, that subsections (2) and (3) of section 240 are the only provisions of Chapter II to which the introductory words of section 243 can be referable in relation to conditions of service, as every one of the other provisions of the chapter, with one exception, deals with special classes of service, just as section 243 deals with a special class. The one exception is subsection (1) of section 240, but that provides for termination by His Majesty, and there can be no question of delegation of that power by virtue of section 243. Their Lordships need only notice one of these other sections, as it was re--feered to in argument by- both parties, namely, section 241, subsec--tions (2) and (4). The opening words of subsection (2) "Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India"-relate to the very same person dealt with in the immediately preceding section 240, and this exclusion from the power of making rules conferred by subsec--petition (2) of section 241, points unmistakably, in their Lordships' opinion, to the express provisions of section 240, so as to prevent their alteration by rules. There are, of course, other provisions of the Act which will also fall under the exception provided in subsection (2) of section 241, but there can be no, doubt, in their Lordships' opinion, that the provisions of section 240 prescribe conditions of service, which are covered by the exception. Subsection (4) of section 241 contains a similar exception to the powers conferred. Their Lord ships are, accordingly, of opinion that the right of dismissal was a condition of service within the meaning of section 243."
8. Effort was made to show that under section 4 read with section 6 of the Service Tribunals Act of 1973 theorders impugned herein were not appealable and there being no Tribunal/Court of exclusive jurisdiction for such orders the present writ petitions did not abate. It was argued by the learned counsel for the petitioners that appeals under that section were maintainable against an order of a "departmental authority". The word "departmental authority" was defined in the "Explanation" contained in that section as "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". It was submitted that as the authority which was competent to pass orders under M. L. R. 114 could not be called a "departmental authority", within the meaning of the aforesaid "Explanation", therefore, its orders which are impugned in this case are not appealable. It is to be noticed that M. L. R, 114, as already pointed out, was promulgated by the Chief Martial Law Administrator in his supra-constitutional capacity wherein it was stated that orders thereunder could be passed by a "competent authority".
The word "competent authority" was defined to mean "the President and where, in relation to any person or class of persons the President authorises the Government of a province or any officer or authority, not being inferior in rank to the person against whom action is proposed to be taken to exercise the powers of competent authority under this regulation, includes such Governor or officer or authority". If the aforesaid provision of law is read with the "Explanation" defining the "departmental authority" in section 4 ibid it becomes quite clear that "competent authority" within the sphere of M. L. R. 114 can well be considered as a "departmental authority" for the purpose of taking appeals against its orders to the Tribunals/Courts of exclusive jurisdiction. The word "departmental authority" if it has any reference to the word "Department", appears to us an authority different from what is known as judicial authority or Court-authority just as there are departmental proceedings and judicial or Court proceedings. If for instance in laws-(other than the laws promulgated through Martial Law Regulations or orders)-power was given to the President or a Governor to dismiss an employee, an order passed or an action taken by the President or the Governor was duly considered as a departmental action and their status was that of a "departmental authority". The position under M. L. R. 114 was in no way dissimilar. The Chief Martial Law Administrator bestowed jurisdiction or Governor "competent authority" (namely, the President or Governor etc.) to pass orders on departmental level in the form of a depart--mental action against the civil servants and the said function can, therefore, fulfil the necessary qualification of being a "departmental authority" within the range of "Explanation" contained in section 4 of the Service Tribunals Act, 1973. Even otherwise section 6 gives an independent and additional right of appeal with regard to pending matters of the present kind, and well covers the present situation.
9. It was then argued that according to the definition of the word "departmental authority" it meant "any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and condi--tions of civil servants". Learned counsel laid emphasis on the words "competent to make an order" and submitted that appeals under sections 4 and 6 lay to the Tribunals or Courts when the order was passed by an autho--rity competent to make the same in respect of any of the terms and conditions of a civil servant. If in a given case an order was passed by an incompetent authority and was of the kind of corum non judice-or (mala fide which according to The Federation of Pakistan v. Saeed Ahmad Khan and others and The State v. Zia-ur-Rehman and others was also to be considered at the level of without jurisdiction)-then appeal against the same was not maintainable and for these kinds of orders the proceedings pending in any other Court were not to abate because they could be set aside only--(for example)-by superior Courts and not such Tribunals or Courts which are mentioned in section 4. In such cases where the basic order was corum non judice the provision of appeal even otherwise, it was argued, has never been considered to be an adequate remedy so as to be a bar to the exercise of writ jurisdiction. Some case-law was also quoted by the learned counsel in this respect. The argument, to say with respect, is not towards a correct direction because it is not based on complete study either of sections 4 and 6 of Service Tribunals Act of 1973 or of Article 212 of 1973 Constitution. Thoughthe present cases are expressly covered by section 6 but dealing with too Argument it is to be noticed that in section 4(2) of the Service Tribunals Act, it is laid down that "where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred--(a) in the case of a penalty of dismissal from service, removal from service compulsory retirement or reduction to a lower post or time-scale, or to a lower stage in a time-scale to a Tribunal referred to in subsection (3) of section 3, and (b) in any other case, to a Tribunal referred to in subsec--petition (7) of that section". This will show that read in this context orders whereby penalty had been inflicted for example without jurisdiction the same also were equally appealable, just as those where penalties have been imposed with jurisdiction because, otherwise conversely arguing where the penalties have been "competently" inflicted what is the logic of providing appeals against the same if there is no defect in their "competency" in any respect. The right of appeal according to us as given in sections 4 and 6 is independent of such like niceties because daily we come across appeal---cases in which pleas are being taken that orders of the subordinate Courts or authorities are without jurisdiction and the appellate Courts or forums if so satisfied set aside such orders. Whether any parti--cular order in fact is with jurisdiction or without jurisdiction can well be decided by an appellate Court and this is one of the incidents of appeal. It was held in Maharaj Kumar Bindeswarl Prosad Singh v. Thakur Lakpat Nath Singh and others (8 1 C 26), Jwala Prasad v. Salik Ram (1 L R 13 All. 575 ) and Ranjit Missir v. Ramudar Singh (16 1 C 940), that where jurisdiction is usurped by a Court in passing an order against which an appear would lie if it had been passed with jurisdiction on an appeal cannot be G defeated on the ground that the order was without jurisdiction. Also see to the same Gangadhar Karmagar and others v.
Shekharbasini Dasya an others (AIR 1917 Cal. 320), Bandiram Mockejee v. Puma Chandra Roy (1 L R 45 Cal. 926), Wajudl Pramanik v. Mohamed Balai Morul (AIR 1925 Cal. 1032) and Janardhan Reddy and others v. Stare of Hyderabad and others (AIR 1951 SC 217). The words "competent to make an order" do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed. The defect in competency in other words will provide a good ground for appeal rather than negate it. That it is in this context that sections 4 and 6 of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject-matter of a case on which will depend the ouster of jurisdiction of other Courts. If the subject-matter of Courts or Tribunals 4 exclusive jurisdiction is the "terms and condi--tions of service" or "discipline" and relates to persons who are or have been in the service of Pakistan then the ouster of jurisdiction of other Courts is complete. As in the instant case, the petitioners are those who have been in the service of Pakistan and the impugned orders relate to their "terms and conditions of service" and "discipline" and for those matters Tribunals and Courts of exclusive jurisdiction have been established, they can now properly approach those Tribunals/Courts under section 6 read with section 4 ibid and their cases in this Court can no longer proceed.
10. The next submission made was that according to section 4(1) of Service Tribunals Act of 1973 appeals were maintainable only , against "any final order whether original or appellate". It was argued that in the instant case since the petitioners had filed review applications under M. L. R. 116 known as "Removal from Service (Review Petition) Regulation, 1972 which had according to them not been disposed of and were still pending, there--fore, the basic orders passed under M. L. R. 114 in that way having become sub judice could not be considered as "final" orders and were not appeal--able with the result that the present writ petitions not being against "final" orders did not abate and could be proceeded with. Apart from the fact that the argument loses sight of the provisions of section 6 already referred to the words "final order" according to us have been used in contradistinc--petition from preliminary or interlocutory orders which are passed in original as well as appellate proceedings. The intention seems to be that appeals from preliminary or interlocutory orders should not be encouraged and a party must wait till the finalisation of the original proceedings and in cases where departmental appeals are permissible till the finalisation of the appellate proceedings. That this is the meaning of the words "final order" has been so laid down in a number of cases and the position does not admit of any doubt. For this proposition and for the test which an order must fulfil so as to be called a "final order" see Khan Bahodur Faji Badi Ahmed Chow--dhury v. The United Bank of India and other (PLD 1960 DaceK 709) and Haji Badi Ahmad v.
United Bank of India Ltd and others (PLD 1960 Dacca 750) Some other judgments which are relevant in this context are S. Kuppnswami Rao V.The King (AIR1949FC1) Firm Ramchand Manjimal and other V. Firm Goverdhandas Vishandas Ratonchand and others (AIR1920PC86) andM. Abdul Rahman and others v. D.K.Cassism S Sons and(AIR 1933 P C 58)The words final order have no reference to review under R. 116 against orders passed under M. L. R.114. Clause (a) if subsection (1) of section 4 of Service Tribunals Act of 1973 hasmentioned cases in which original or appellate orders will not be straightaway appealable.It is stated therein that an appeal review or representation to a departmental authority is provided under the 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". Review applications under M. L. R. 116 do not figure in the aforesaid provision because those reviews are neither under the Civil Servants Act of 1973 nor under any "rules" as such. The State Counsel submitted that review applications of all the petitioners were rejected long ago and now no review against any order passed under M. L. R. 114 was pending. This is apparently supported from a Press Note P.
1. A. No. 0720-5488 dated 10-7-1974 which reads as follows:-- "Review Petition under M. L. R. 114.-Inquiries continue to be received in Establishment Division in regard to disposal of review petitions submitted by persons retired under Martial Law Regulation No. 114. All review petitions received were considered by the competent authority and names of the petitioners who were re-instated in service were announced in the Press on 13th August 1973.
The review petitions of the remaining persons were rejected."
The petitioners denied this. Their denial in the face of the above Pres Note is apparently not justified. However, in the face of the above view-- point we do not feel the necessity of resolving this fractual controvers because we have already held that availing of mere remedy of review under M. L. R. 116 was not a condition precedent for filing appeals under section 4 of the Service Tribunals Act, 1973. At this juncture learned counsel for the petitioners pointed out that there wag an inherent conflict between the provisions of M. L. R. 114 and the Service Tribunals Act, 1973, inasmuch as Para. 4 of M. L. R. 114 stated that "no action taken, order passed, thing done or power exercised under this Regulation shall be called in question by or before any Court including the Supreme Court and a High Court or a Tribunal or any other authority", whereas, per sections 4 and 6 of the Service Tribunals Act, 1973-(on the con--struction which we have placed on them above)- such orders will be challengeable in the form of an appeal. It is to be noticed that M. L. R. 114 which no doubt is an existing law is to continue as laid down in Article 268 (1) of 1973 Constitution "subject this Constitution" and it is Article 212 of the Constitution which says that Courts or Tribunals of exclusive jurisdiction with regard to matters mentioned therein may be created by appropriate Legislature and when so created proceedings in any other Court about these matters shall abate.
The right to challenge orders passed under M. L. R. 114 having been bestowed in pursuance of the provisions of Article 212 the bar contained in M. L R. 114 cannot stand in the way of that Article i.e. Article 212. The use of the word "final" in section 4(1) of the Service Tribunals Act, 1973, from another point of view indicates that the finality which otherwise attached to the relevant orders has been destroyed and the Act in this respect being of a retrospective character gave a new right of appeal about past orders as well. In this context it appears to be a welcome move for some of the civil servants though from another point of view the law under discussion abatessuch proceedings in other Courts. Similarly remedy of appeal in some cases may be more beneficial inasmuch as scope of jurisdiction therein will be wider whereas in writ jurisdiction the scope is very limited as laid down by their Lordships of the Supreme Court in Muhammad Hussain Munir and others v. Sikandar and others (PLD 1974 SC 139). However, coming back to the effect of the remedy of review under M.
L. R. 116 we have to observe--(leaving aside the reviews specifically mentioned in section 4(1)(a) of Service Tribunals Act)-that on a general plane mere filing of an application for review does not destroy the finality of the orders sought to be reviewed inasmuch as incidents of review are different from those of appeal. Appeal is a continuation of the .7 trial proceedings and as and when appeal is filed the whole matter gets re opened and becomes sub-judice whereas this is not the case of review in general. See Sagar Mal and another v. Parsotam Das and another (AIR 1942 All.
36), wherein it was held that "the proceedings in review are not a suit and the mere filing of an application will not reopen a suit". Also see Raja Bhagwan Bakhsh Singh v. Mst. Manraji Kunwar (A T 2 1929 Oudh 148), where it was held that "a petition of appeal of necessity re-opens in a Court of higher jurisdiction matter decided by a Court of lower jurisdiction. An application for review on the otherhand does not of necessity, by the mere fact of its being filed, re-open questions settled between the parties by the same Court". In Dwarka Das--edar. Bux v. Ganjanan Jagannath and others (AIR 1946 Cal. 10), it was held that proceedings by way of review adddependent proceedings-and we may respectfully add are not a continuation of the suit.
11. It was next argued that in the earlier round of litigation when some of these cases went to the Supreme Court in the form of Civil Appeal No. 24 of 1973 and Civil Appeal No. 28 of 1973, reported in The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others, the Supreme Court dismissed the appeals of the Federation and the Province and on page 172 wrote as follows : "The High Court will now proceed to consider each individual petition pending before it on merits in the light of the observations made in this judgment as regards the allegations of mala fide."
It was argued that such of the cases which had come on remand to this Court from the Supreme Court by virtue of the aforesaid direction must be determined by this Court; the provisions of Article 212 of the Constitu--petition and the laws enacted thereunder arid the establishment of Courts or tribunals of exclusive jurisdiction notwithstanding. Further support for this plea was sought by invoking the principle that a case is to be decided with the reference to the law which was prevalent at the time of, for example, institution of a suit and riot in accordance with law which comes thereafter. It was also submitted that if the State wishes these cases to abate they better be directed to approach the Supreme Court so as to get their direction of remand changed on this point. The contention raised has no merit. It is well settled that if during the pendency of a litigation new law comes into operation the Courts can take notice of and enforce the same. See Commissioner of Sales Tax (West), Karachi v. Messrs Kruddsons Ltd. (PLD 1974 SC 180).
Respectfully following this principle we feel that if due to the establishment of Tribunals/Courts of exclusive jurisdiction under the Constitu--petition and legal provisions hereinbefore discussed, the present petitions abate, we should not hesitate to give effect to that law, merely because some of the cases were sent to this Court on remand.
12. It was then argued that within the scope of Article 212 only prospective laws could be made which could cover persons who were in the service of Pakistan on the "commencing day" of the Constitution i.e. 14-8-1973 and not those who had been compulsorily retired before that date.
Support for this view was taken from Article 240 where it was written that terms and conditions of persons in the service of Pakistan were to be regulated by laws (to be promulgated) by the appropriate Legislature. It was submitted that this showed that only those civil servants whose terms and conditions were to be regulated by laws to be made by the appropriate Legislature were within the scope of Article 212 and not those whose terms and conditions had hitherto been regulated by some earlier laws or rules on the subject and who had retired before 14-8-1973. We have considered these submissions but we are unable to endorse them. The wording of Article 212 shows that laws could be made regarding "matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters". Since the Constitution came into force on 14-8-1973 therefore, if this provision is read on that date, then the phrase "persons who are or have been in the service of Pakistan" means both types of persons, namely, those who on that date were in the service of Pakistan and also those who had by that time been compulsorily retired. The plea advanced has thus no merit on the bare wording of Article 212 apart from the fact that even otherwise it is derogatory of the inherent powers of the appropriate Legislature to make retrospective laws. It was submitted that since another Act, namely, the Civil Servants Act LXXI of 1973-(which was called "sister Act" by the learned counsel for the petitioners)-was prospective in the sense that it laid down various terms and conditions of service of civil servants prospectively, therefore, the Act presently involved here namely the Service Tribunals Act, 1973 also covered only those employees against whom actions were taken after the promulgation of these two Acts and not those against whom actions had been taken prior to 14-8- 1973. The contention has no force. Service Tribunals Act is clearly retrospective in operation inasmuch as it covers cases of the present kind where orders had been passed on or onward from 1-7-1969 and its retrospective effect cannot be and has not been destroyed by any of the provisions of the so-- called "sister Act".
13. It was submitted that M. L. R. 114 had stated that orders passed thereunder shall not be called in question before any Tribunal or Court. The said Regulation was an "existing law" which figured in the Sixth Schedule of the Constitution. Since the Service Tribunals Act now provided an appeal against the orders passed under that Regulation, therefore, in a way it altered or modified that law. It was argued that under Article 268 (2) if any alteration in any existing law in Sixth Schedule was to be made then a prior consent of the President was a must. It was pleaded that the Service Tribunals Act, 1973 was not enacted with the prior consent of the President and as such was an invalid piece of legislation. The contention has no force. The power to make law of the kind involved herein has been given by Article 212 itself to both the Federal and the Provincial Legislatures. This was a specific charter for legislation given by the Constitution-makers themselves and was not dependent upon prior consent of the President. The laws to be made under Article 212 could deal with "matters relating to the terms and conditions of persons who are or have been in the service of Pakistan including disciplinary matters". If it is read with Article 240 of the Constitution which stated that conditions of service of persons in the service of Pakistan shall be determined by or under an Act of the Parliament or by or under an Act of the Provincial Assembly--(as the case may be)-then it becomes quite clear that for the subject-matter in hand specific sanction for making laws having already been given by the Constitution-makers themselves further sanction of the President under clause (2) of Article 268 was not called for. Moreover all existing lawc under Article 268(1) are to continue subject to the Constitution and it is the constitution itself which under Article 212 authorises making of laws on the subject-matter in hand in the manner mentioned therein which shows that about the laws presently under examination prior consent of the President was not needed.
14. The last point argued was that filing of a petition under Article 199 of 1973 Constitution, Article 201 of the Interim Constitution (or Article 98 of 1962 Constitution) was a vested right of persons aggrieved and was not a mere matter of procedure, and unless, therefore, there is a clear mandate somewhere to destroy this right it cannot be considered to have come to an end by mere implication arising from the relevant provisions of the Service Tribunals Act, 1973 and Article 212 of the Constitution. Reliance for this proposition was placed upon an oft quoted passage of the Privy Council in the famous case of The Colonial Sugar Refining Company, Limited v. Irving (1905 A C 369) where at page 372 it was held that; "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to the superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested."
Reference was also made to a passage in Maxwell on Interpretation of Statutes (1962) Edition, Chapter 5, page 122 where in section 1 headed "Presumptions against ousting established, and creating new jurisdictions", the learned author writes as follows :------ "It is, perhaps on the general presumption against an intention to disturb the established state of the law, or to interfere with the vested rights of the subject (see Jacobs v. Brett 1875 L R 20 Eq. 1), that so strong a leaning now exists against construing a statute so as to oust or restrict the jurisdiction of the superior Courts, although this feeling may owe its origin to the pecuniary interests of the Judges in former times, when their emoluments depended mainly on fees. (Scott v. Avery (1856) 5 H L C 811). It is supposed that the Legislature would not make any important innovation without a very explicit expression of its intention (Pyx Granite Co. Ltd., v. Minister of Housing and Local Government 1960 A C 260 H L) especially since in recent years such an intention has often been very explicitly expressed (Smith v. East Elloe R. D. C. 1956 A C 736 H L). It would not be inferred, for instance, from the grant of a jurisdiction to a new tribunal over certain cases, that the Legislature intended to deprive the superior Court of the jurisdiction which is already possessed over the same cases. Thus, an Act which provided that if any question arose .Upon taking a distress it should be determined by a commissioner of taxes would not thereby take away the jurisdiction of the High Court to try an action for an illegal distress. (Shaftesbury v. Russel (1823) 25 R R 534) (Rochadale Canal Co. v. King (1849) 14 Q B 122) (Itchin Bridge Co. v. Southampton Local Board of Health (1857)
27 Q B 128). Nor would that Court be ousted of its preventive jurisdiction to stop by injunction the misapplication of poor rates by reason of the statutory power given to the Poor Law Commissioners to determine the propriety of all such expenditure. (Att.-Gen. v. Southampton (1849) 17 Sim. 6 (Birloy v. Charlton (1841) 3 Beav. 499, Smith v. Whitmore (1863) 1 Hom. & M 576, Bannett and White (Calgary) v. Municipal District of Sugar City No. 5 (1951) A C 786 (P C) (Pyx Granite Co. Ltd, v. Ministry o,/ Housing and Local Government 1960 A C 260 (H L). Nor did it follow in either case, that because authority was given to the Commissioners, it was taken away from the Court."
These are all sound legal principles and we have no cavil with them. However, they have no application to the facts and circumstances of the present cases where the matter does not rest on mere implications or any implied provisions, but is expressly covered by specific and very clear mandate of Article 212 of the Constitution and section 6-(read with section 4)-of the Service Tribunals Act already highlighted in the earlier paragraphs.
15. The upshot of the above discussion is that the present writ petition is not entertainable under Article 212 of 1973 Constitution read with section 4 of the Service Tribunals Act, 1973 and is accordingly disposed of with no order as to costs. This case was heard along with a large number of other writ petitions filed by various ex-civil servants of the Central Government. Some of these writ petitions were filed after and some prior to the establishment of the Service Tribunal. These filed prior to the creation of the Tribunal will abate and those filed subsequent thereto will have to be held as not entertain-able. The respective writ petitions will, therefore, stand disposed of accordingly and we will be passing a short order in each of these cases separately with reference to the present judgment and order. Cases of the Provincial employees or Local Bodies' employees will be taken up later on.