1. ' MUKHTAR AHMED JUNEJO, J.---Petitioner Muhammad Aslam has invoked Constitutional jurisdiction of this Court to challenge an order dated 1-3-1988 passed by Acting Wafaqi Mohtasib (Ombudsman) on complaint of respondent No, 3 Dr. Bushra Ashiq.
2. ' On 27-4-1986, the Federal Public Service Commission (hereafter to be mentioned as the Commission) invited applications for the posts of Assistant Professors and Associate Professors in Jinnah Post-Graduate Medical Centre functioning under Health Division, Government of Pakistan.
3. One of the posts of Associate Professor was in Microbiology for which the required qualification was M.B.,B.S. Or equivalent degree recognised by PMDC or M.Sc. For Basic Science in relevant subject or D.Sc., Ph.D., FCPS, M.D.M.S., M. Phil. Etc. In Microbiology or equivalent qualification recognised by PMDC. In response to said advertisement, the petitioner who is not possessing basic medical degree but who was already working as Assistant Professor at" the Basic Medical Sciences Institute of Jinnah Post-Graduate Medical Centre, applied for the post of Associate Professor of Microbiology. After formalities of interview etc., the petitioner was selected for the post of Associate Professor Microbiology and given such appointment in J.P.M.C. In the same Institution respondent No, 3 Dr. Bushra Ashiq possessing Basic Degree in Medicine is serving as Assistant Professor of Microbiology. She too applied for the post of the Associate Professor to the Commission but her application was not entertained as it was belated.
4. ' On 6-2-1987, respondent No, 3 submitted a complaint to the Acting Wafaqi Mohtasib (Ombudsman) against the selection and appointment of the petitioner as Associate Professor. The Acting Wafaqi Mohtasib entertained the complaint of respondent No, 3, not as a 'service grievance' but on the point of inaction on the part of the agency in respect of the representation made by respondent No, 3 as well as validity of her standwith regard to M. Phil. Degree of the other candidate viz. Petitioner. Under the impugned order dated 1-3-1988, the Acting Wafaqi Mohtasib (Ombudsman) took view that appointment of the petitioner to the post of Associate Professor was highly irregular as he did not satisfy the conditions of appointment as laid down in the regulations and in the advertisement and was not eligible to hold said post. After taking such view the Acting Wafaqi Mohtasib (Ombudsman) recommended the post of Associate Professor of Microbiology to be re-advertised and to be filled strictly in accordance with the mandatory requirements after the appointment of the petitioner was terminated. Compliance of the order was required to be made within a period of three months, in terms of Article 11(2) of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (hereafter to be mentioned as Ombudsman's Order). In pursuance of the impugned order, the Secretary Ministry of Health, Government of Pakistan issued a show-cause notice dated 9-5-1988 to the petitioner to show cause within 15 days, as to why recommendation of the Wafaqi Mohtasib should not be implemented. It was made clear in the notice that if the petitioner did not reply the notice within 15 days of receipt of the same, ex parte action in terms of findings of the Acting Wafaqi Mohtasib (Ombudsman) would be taken. Hence this Constitution petition.
5. ' Mr7 Habib-ur-Rehman, learned counsel for the petitioner raised the following points:-
(1) That the Wafaqi Mohtasib (Ombudsman) had no jurisdiction to take cognizance of the complaint made by a public servant relating to her service and concerning the Health Division under which she was working.
(2) That the Wafaqi Mohtasib (Ombudsman) could order disciplinary action to be taken against a public servant, but he was not competent to order termination of services of a public servant.
(3) The imugned order was based on the complaint of respondent No, 3 who was not an 'aggrieved party' in terms of section 9 of the Ombudsman's Order.
6. ' In support learned counsel for the petitioner cited the cases of:
(1) Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri (PLD 1969 SC 14).
7. ' Ch. Ghulam Mujtaba v. Chief Settlement Commissioner, Lahore and others (1985 SCM R 57).
(iii) The Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151).
(iv) Nagina Silk Mill, Lyallpur v. Income Tax Officer A Ward, Lyallpur and another (PLD 1963 SC 322).
(v) National Bank of Pakistan, Karachi v. Wafaqi Mohtasib (Ombudsman), Karachi and another (PLD 1992 Kar. 339).
(vi) International Cargo Handling Company (Pvt.) Ltd. v. Port Bin Qasim Authority (PLD 1992 Kar. 65).
8. ' Mr. Rashid A. Akhund, learned counsel for respondent No, 2 defended the impugned order and argued that the Ombudsman had jurisdiction in the matter because it related to maladministration indulged in by the Health Division in respect of the appointment of an ineligble person to the post of Associate Professor Microbiology. It was next argued that even if the respondent No, 3 is not treated as an aggrieved person the Ombudsman was competent to take cognizance of maladministration in a department of the Federal Government on his own motion in terms of Article 9 of Ombudsman's Order. Referring to the provisions contained in sub-Article (2) of Article 9 of Ombudsman Order, learned counsel for respondent No, 2 argued that sub-Article (2) of Article 9 is non obstante clause which bars jurisdiction of the Wafaqi Mohtasib in certain matters.
9. Learned counsel further argued that sub Article (2) of Article 9 did not oust jurisdiction of the Ombudsman because respondent No, 3 had not submitted complaint in respect of any personal grievance relating to her service and concerning the agency where she was employed. Learned counsel for respondent No, 2 next argued that complaint of respondent No, 3 was against the Ministry of Health, which had accepted recommendation of the Commission which recommendation itself was contrary to the Rules and Regulations. In this manner an act of maladministration within the meaning of Article 2(2) of the Ombudsman's Order was committed as argued. Referring to the advertisement by the Commission, learned counsel for respondent No, 2 argued that it did not specify if the candidate possessing the degree of M. Phil. Could apply for the post of Associate Professor Microbiology. Lastly learned counsel for the respondent No, 2 challenged jurisdiction of this Court to call in question an order passed by the Ombudsman by referring to Article 29 of the Ombudsman's Order, 1983.
10. ' Mr. A.H. Mirza, learned counsel for respondent No, 3 adopted the arguments of Mr. Rasheed A.
11. Akhund and argued that the Ombudsman had power to entertain a complaint on his own initiative and as such it was not necessary, to go into the question whether the respondent No, 3 was `aggrieved' for the purpose of moving the complaint in terms of Article 9 of the Ombudsman's Order, 1983. He further argued that competency of Ombudsman to undertake an investigation into any allegation of maladministration on the part of any agency was not dependent on the mode by which he received the information about the alleged maladministration. Hence even if the complainant was not an aggrieved person, this did not divest the Ombudsman of his jurisdiction to investigate a case of maladministration. Learned counsel for the respondent No, 3 challenged jurisdiction of this Court to call in question an order passed by the Ombudsman. He also termed this Constitution petition to be premature on the ground that the petitioner was issued only a show-cause notice and his services as Associate Professor were not terminated.
12. ' Mr. S.M. Shahudul Haq, learned counsel appearing for respondent No, 1 was' of the view that the matter at issue related to terms and conditions of persons in service of Pakistan and consequently jurisdiction of this Court was barred by virtue of Article 212(2) of the Constitution of Pakistan. He took exception to the fact that the petitioner had not replied the show-cause notice dated 9-5-1988. It was argued that as the petitioner had made representation to the President of Pakistan under Article?: 32 of Ombudsman's Order he should have waited for orders of the President before invoking Constitutional jurisdiction of this Court.
13. ' The jurisdiction exercisable by the Wafaqi Mohtasib is defined under Article 9(1) of Ombudsman's Order and it reads as below:-- "Jurisdiction, functions and powers of the Mohtasib,--(1)The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course' of any proceedings before it, or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officers or employees."
14. The proviso below sub-Article (1) of Article 9 of Ombudsman's Order bars jurisdiction of Wafaqi Mohtasib in the matters specified under clauses (a), (b), (c), of the said proviso. Then comes sub- Article (2) of Article 9 of the Ombudsman's Order, which looks to be non obstante provision unconnected with what has been said in the three clauses of the proviso below sub-rule (1) of Article 9, it contains exception to the rule laid down under sub-Article (1) of Article 9 of Ombudsman's Order. This provision came for consideration in the case of National Bank of Pakistan, Karachi (PLD 1992 Km 349) where the view taken was that once the matter is found pertaining to the personal grievance of service the jurisdiction of Wafaqi Mohtasib is ousted even though the matter may have been finally decided. In the cited case it was observed that sub- Article (2) of Article 9 of Ombudsman's Order is non obstante clause, which either creates exception or it clarifies original position. In view of sub-Article (2) of Article 9 of Ombudsman's Order the Wafaqi Mohtasib shall not accept any complaint made by a public servant concerning any matter relating to the Agency in which he is working in respect of any personal grievance relating to his service therein. In the present case, the complaint made by respondent No, 3 was initially directed against the Ministry of Health which is the Agency in which she was working, inasmuch as the Ministry of Health is controlling Jinnah Post-Graduate Medical Centre (J.P.M.C.) where the respondent No, 3 was Assistant Professor. It was argued on her behalf that her complaint was not in respect of her personal grievance relating to her service. Apparently this looks correct, but if one goes, deep into the matter, it appears that the motive behind moving of the complaint by the respondent No, 3 was, to unseat the petitioner and to make room for her appointment to the post for which the petitioner was selected by the Commission. By making the complaint respondent No, 3 wanted to achieve her object which appears to be that the post of Associate Professor be re- advertised and that she be appointed in that post as against the petitioner. In the circumstances it cannot be said that the complaint made by respondent No, 1 to the Wafaqi Mohtasib was not in respect of her 'personal grievance' relating to her service.
15. ' Even if it be conceded on the basis of sub-Article (1) of Article 9 that the Wafaqi Mohtasib is competent to undertake an investigation into any allegation of maladministration on the part of any Agency 'on his own motion', such competency does not extend to a matter covered by sub- Article (2) of Article 9 of Ombudsman's Order. In other words, it can be said that the provisions contained in sub-Article (2,) of Article 9 are not subordinate to the provisions contained in sub- Article (1) of Article 9. In view of this legal position competency of Wafaqi Mohtasib to pass the imugned order is open to question.
16. There is force in the contention raised on behalf of the petitioner that in the light of the provisions contained in sub-Article (1) of Article 11 of "Ombudsman's Order, the Wafaqi Mohtasib after having considered a matter and after having formed an opinion that the matter considered amounted to maladministration could move the concerned Agency while communicating his findings, for taking disciplinary action against any public servant of that Agency under the relevant laws applicable to him, but he could not have A recommended that appointment of a public servant be terminated after observing usual formalities under the relevant rules. The maximum that the Wafaqi Mohtasib can do is, to move concerned Agency to take disciplinary action against a public servant under the rules applicable to such public servant. There is nothing in Article 11 of Ombudsman's Order, to entitle Wafaqi Mohtasib to recommend termination of services of a public servant.
17. The barring provisions contained by Article 29 of the Ombudsman's Order would apply, if the Wafaqi Mohtasib's order is within the four corners of the law defining his jurisdiction. If there is any lack of jurisdiction the provisions contained in Article 199 of the Constitution of Pakistan would be attracted. In the case of International Cargo Handling Company (Pvt.) Limited (PLD 1992 Kar. 65) the view taken was that where the order passed by Wafaqi Mohtasib on the face of it is repugnant to law under which it was made or suffers from want of jurisdiction, a Court may invoke its inherent jurisdiction vested in it under law so as to prevent injustice being done to an aggrieved person. It was also observed that jurisdiction of the Mohtasib is restricted by section 9(1) and cannot be extended further. In the case of National Bank of Pakistan (PLD 1992 Kar. 339) the view taken was that when assumption of jurisdiction is clearly based upon misreading of the provisions of law, it is, and has always been a valid ground for interference in writ jurisdiction.
18. ' The Constitutional jurisdiction of High Courts has been subject-matter to a plethora of case-law.
19. In the case of Government of West Pakistan and another PLD 1969 SC 14 it was held that power of judicial review possessed by the High Court under Article 98 of the Constitution of Pakistan. 1962 (which was analogous to Article 199 to the Constitution of Pakistan 1973) cannot be abridged or taken away by a Constitutional legislation although the Court exercising writ jurisdiction cannot claim in the exercise of Constitutional power to usurp the functions of the authority on which the power had been vested but the Court exercising writ jurisdiction can insist for being satisfied that the action taken is not mere a colourable power. In the case of Federation of Pakistan PLD 1974 C 151) it was held that an ouster of jurisdiction is not to be readily inferred, because, the consistent rule is that provisions seeking to ouster the jurisdiction of superior Courts, even by a Constitutional provision, are to be construed strictly with a pronounced leaning against ouster. In the instant case it cannot be said that this Court had no jurisdiction to call in question an order passed by the Wafaqi Mohtasib, if such order was beyond the scope of the provisions contained in sub-Article (1) of Article 9 or was barred by the provisions contained in sub-Article (2) of Article 9 of Ombudsman's Order.
20. ' In the case of Mst. Ameer Khatun v. Faiz Ahmed and others PLD 1991 SC 787) cited on, behalf of the respondent No, 1, it was held that if a provision of law is presenting some difficulty in interpretation, it has to be so interpreted as to harmonize with the other provisions of the Act of which it is a part and that the rnovisions of any particular Act are to be so interpreted as to harmonize and to remain consistent with the other laws having a relevance or nexus with the law sought to be interpreted and that all laws in the field are to be so interpreted as to harmonize with the paramount law to which they must ordinarily conform. There can be no cavil with the principles of interpretation laid down by the cited case. There is no question of these principles being violated while interpreting the provisions contained in sub-Article (1) and sub-Article (2) of Article 9 of Ombudsman's Order. In the case of Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (PLD 1969 SC 223) cited on behalf of respondent No, 2, it was held that a right considered sufficient for maintaining a proceeding in writ jurisdiction is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise. In the instant case locus standi of the petitioner to file the Constitution petition was not challenged and could not be challenged.
21. ' Learned counsel for respondent No, 2 made an effort to make out that there was maladministration as defined by sub-Article (2) of Article 2 of Ombudsman's Order and as such the Ombudsman was competent to investigate the matter and pass the orders. In this context it was canvassed that recommendation and decision by the Federal Public Service Commission was to be controlled by rules and regulations. No rule or Regulation is shown to have been violated by the Commission while recommending appointment of the petitioner. It was clearly mentioned in the advertisement issued by the Commission that candidate for the post of Associate Professor Microbiology should be either M.B.,B.S. Or M.Sc. For Basic Science in Microbiology and he should be either D.Sc. Or Ph.D or FCPS, or M. Phil. And in the relevant subject he should have an experience of five years as Assistant Professor etc. Admittedly the respondent No, 3 did not apply to the Commission for the post of Associate Professor, otherwise the petitioner could not have been selected for said post because non-medical candidate was eligible only if medical graduate with requisite qualifications was not available, as per advertisement by the Commission. In any case no case of maladministration was made out and on that ground learned Wafaqi Mohtasib could not have assumed jurisdiction in the matter.
22. Article 212(2) of the Constitution of Pakistan bars jurisdiction of this Court in respect of the matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters. In the present case no such point is involved because the petitioner was not D seeking his promotion to the post of Associate Professor. In response to the advertisement, the petitioner submitted his application form to the Commission for the post of Associate Professor. Direct appointment of a person, does not come within terms and conditions of service.
23. ' Before moving his application, the petitioner sought opinion of the Pakistan Medical and Dental Council about his eligibility for appointment as Associate Professor Microbiology and his application was duly forwarded by Jinnah Post-Graduate Medical Centre to the Secretary, Pakistan Medical and Dental Council. In reply said Council informed J.P.N.C. That the petitioner was eligible for promotion as Associate Professor Microbiology. Learned counsel for respondent No, 2 wanted this to be interpreted in the sense that the petitioner was eligible for promotion but was not eligible for direct appointment as Associate Professor. We are unable to agree with such interpretation. The Medical and Dental Council had nothing to do with promotion or direct recruitment of somebody as Associate Professor. Said council had simply to give opinion about eligibility of the petitioner to be Associate Professor Microbiology and letter of the said Council to J.P.N.C. Can be taken only in that sense.
24. We are unable to agree with learned counsel for respondent No, 3 that the Constitution petition was premature. In pursuance of the impugned order passed by the Wafaqi Mohtasib the Ministry of Health issued a show-cause notice dated 9-5-1988 calling upon the petitioner to show cause within 15 days, as to why recommendation of the Wafaqi Mohtasib should not be implemented. In these circumstances when Ministry of Health was not given any discretion by Wafaqi Mohtasib except to terminate the services of the petitioner, no useful purpose would have been served if the petitioner had replied the show-cause notice and would have waited for decision on his reply because the decision could not have been other than what was recommended by Wafaqi Mohtasib, who had given three months time to the Ministry of Health to implement his recommendation and report compliance. In the circumstances the Constitution petition cannot be termed as premature. For similar reasons it was not necessary for the petitioner to await decision about termination of his service.
25. ' Although the petitioner made representation to the President of Pakistan under Article 32 of Ombudsman's Order, but it was not necessary for him to wait for the reply before invoking the jurisdiction of this Court because vires of the impugned order were challenged and the same was contended to be beyond the competency of the Wafaqi Mohtasib.
26. ' As a result of above discussion we accept this Constitution petition and declare impugned order dated 1-3-1988 by the Wafaqi Mohtasib to have been passed without lawful authority and to be of no legal effect and so also the show-cause notice dated 9-5-1988. No order as to costs. A short order in these terms was passed on 24-8-1992 and these are reasons for the same.