1. MUKHTAR AHMED JUNEJO, J.---Petitioner Hidayatullah has invoked Constitutional jurisdiction of this Court against an order, dated 24-4-1993 passed by the Government of Sindh, Education Department.
2. Admittedly petitioner Hidayatullah is District Education Officer in the employment of Government of Sindh and is under suspension. It is also admitted position that terms and conditions of service of the petitioner are governed by the Civil Servants Act, 1973 vide para. 3 of the petition and para. 3 of the comments. It is admitted position that the petitioner has been placed under suspension and a charge-sheet has been prepared against him and he is being dealt with under Sindh Civil Servants (Efficiency and Discipline) Rules (hereinafter to be mentioned as the Rules). Under the impugned order dated 24-4-1993 the petitioner has been placed under suspension with immediate effect.
3. Hence this petition.
4. Points raised by the petitioner in his Constitution petition were: that his appointing authority being the Chief Minister of Sindh, he alone can suspend him; that he can be suspended only after framing of charges of misconduct against him followed by Departmental Enquiry through an Enquiry Officer; that his suspension was mala fide because in presence of ban on appointment of School Teachers he was being pressurized by the Secretary of Education to appoint school teachers in violation of ban and that the Secretary, Education was keeping ill-will, grudge and malice against him. Petitioner further averred that he was riot communicated any charge-sheet or reasons for his suspension and that no penalty of suspension can be imposed upon him without his being given show-cause notice. Petitioner took exception to the fact that he was placed under suspension by a Section Officer, when even the Secretary, Education is not competent to suspend him. Petitioner also averred that the suspension order was violative of the principle of natural justice and was hit by a judgment reported in 1993 CLC 727. Giving reason for invoking Constitutional jurisdiction of this Court, the petitioner took stand that the order of suspension was not a "final order" and cannot be challenged in appeal before the Sindh Service Tribunal. Para wise comments called from the respondent No.2, have been received and perused.
5. The main hurdle coming in way of the petitioner is Article 212(2) of the Constitution of Pakistan which has ousted jurisdiction of this Court in respect of the matters relating to the terms and conditions of service of civil servants and the matters connected therewith or ancillary thereto, notwithstanding the provisions contained in Article 199 of the Constitution of Pakistan. On this point and on other points Mr. Abdul Fatah Malik, Advocate for the petitioner was heard at great length.
6. Learned counsel for the petitioner argued that the suspension order is not "final order" for purposes of section 4 of the Sindh Service Tribunals Act, 1973 and as such, since Sindh Service Tribunal has no jurisdiction in the matter, hence this Court is possessed of the jurisdiction. It was next argued that the suspension was "punishment" although not mentioned as penalty under the rules and hence not appeal able under section 4 of the Sindh Service Tribunals Act. It was lastly argued that the suspension order in respect of the petitioner, was ultra vires because he could be suspended only by the Chief Minister or by the Chief Secretary and not by the Secretary, Education. In support, learned counsel for the petitioner cited the cases of: (i)Muhammad Nawaz v. Government of Punjab 1981 PLC (C.S.) 194.
7. (ii)Khawaja Ghulam Sarwar v. Pakistan through The General Manager, P.W.R., Lahore PLD 1962 SC 142.
8. (iii)Abdul Karim Shaikh v. Post Master-General, Northern Circle, Rawalpindi 1982 PLC (C.S.) 795.
9. Mr. Zawar Hussain Jafferi, learned AA.-G. Argued that order of suspension was passed with approval of `competent authority' and that suspension is a matter relating to the terms and conditions of service of civil servants and as such the matter can be agitated before Sindh Service Tribunal and hence this Court has no jurisdiction in the matter, in view of the bar created by Article 212(2) of the Constitution of Pakistan . Learned AA.-G. Added that charge-sheet against the petitioner had been issued.
10. As per Article 212(2) of the Constitution of Pakistan, where any Administrative Court or Tribunal is established under clause (1) of Article 212, 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. In pursuance of clause (1) of Article 212 of the Constitution of Pakistan, the provincial legislature of Sindh by enacting Sindh Service Tribunals Act, 1973 provided for establishment of Sindh Service Tribunal to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants and for matters connected therewith or ancillary thereto. Jurisdiction of such Tribunal, as defined by section 4 of the said Act, covers appeals by the civil servants against the original or appellate orders made by the departmental authorities in respect of any of the terms and conditions of service of such civil servants. The jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service, as observed by a learned Judge of this Court in the case of Abdul Bari v. Government of Pakistan and others PLD 1981 Kar. 290 where it was further observed that the words "in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends", appearing in clause (1) of Article 212 of the Constitution of Pakistan, clearly make ouster of the jurisdiction of the High Court to correspond with the matters placed within the ambit of the jurisdiction conferred on the Tribunal. Barring provisions contained in clause (1) of Article 212 are of Constitutional nature and they affect jurisdiction of the High Court totally in respect of the subject-matter coming within the pale of a Service Tribunal's jurisdiction.
11. By now it is more or less a settled position of law that wherever the jurisdiction of the Service Tribunal exists, it is not open to the aggrieved person to invoke the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan, by saying that the order of the departmental authority is without jurisdiction, or it is void, or it is mala fide, or it is in the nature of coram non judice.
12. The authorities cited on behalf of the petitioner do not help him. In the case of Abdul Karim Shaikh v. Post Master-General, Northern Circle, Rawalpindi 1982 PLC (C.S.) 795 the view taken by Federal Service Tribunal was that if the "Authority" was to play the same role in respect of cases calling for major penalties as that being played by "Authorised Officer" in respect of minor penalties, there would be no violence done to the principle of natural justice and the accused cannot be prejudiced merely because the "Authority" initiates proceedings and takes decision without the assistance of an "Authorised Officer". No such question has arisen in the present case. In the case of Khawaja Ghulam Sarwar, PLD 1962 SC 142 it was held that termination of service of a Foreman Grade III in service of Railway, by notice was void and inoperative. Services of the petitioner have not been terminated and he is not Railway employee. The Constitutional guarantees available to the civil servants in 1962, are no more available. Hence the cited case is of no help to the petitioner.
13. The case of Muhammad Nawaz 1981 PLC (C.S.) 194 alone helps the petitioner. In the said case an Administrator Market Committee filed a Constitution petition in the High Court at Lahore, challenging his suspension by the concerned Deputy Commissioner. A legal objection was raised before the learned Single Judge, seized of the matter on behalf of Government of Punjab, that the order of suspension, challenged in the Constitution petition, was a final order and should have been challenged in an appeal before the Service Tribunal. Said legal plea did not find favour with learned Single Judge, who in reply observed as below:--- "The question involved is whether there was any order passed under the Punjab Civil Servants (Efficiency and Discipline) Rules. It is to be noted that according to Article 241 of the Constitution, the terms and conditions of a civil servant are to be regulated by law and all the previous rules vanish as and when that law is promulgated. Since the law has been enacted' and the above rules have also been enforced, only the authorised officer with the approval of the authority could suspend. No general or plenary powers can thus be available. Further, that order was available for three months and lapsed automatically thereafter. Even the orders of suspension suffered from the same defect. The case is, therefore, covered by the Full Bench judgment of the Quetta High Court in the case of Mujeebullah Aijaz PLD 1980 Quetta 58 as well as Muhammad Tufail PLD 1958 SC (Pak.)
201. This Court can, therefore, entertain a petition."
14. While taking such view, learned Single Judge, did not give the reasons for not following the dicta laid down by the Supreme Court of Pakistan in the case of Muhammad Sadiq Khokhar v. Engineer- in-Chief Pakistan Army, G.H.Q. And another 1985 SCMR 63. In said case Hon'ble Supreme Court of Pakistan has observed as below:--- "The petitioner feels aggrieved from the order of his suspension and in so far as it has taken effect it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the Constitution. Non obstante clause in Article 212(2) gives it overriding effect and consistently with the principle of harmonious interpretation of the Constitution, the High Court rightly dismissed the writ petition moved by the petitioner for want of jurisdiction."
15. Cases cited by learned A.A: G., require to be discussed. In the case of IA. Sharwani and others 1991 SCMR 1041 it was observed as below:--- "It has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a Notification."
16. In the case of Mian Amanullah Mulk PLD 1981 Pesh. 1, the view taken was that wherever the jurisdiction of the Tribunal exists, it is not open to the aggrieved civil servant to invoke the jurisdiction of the High Court under Article 199 of the Constitution of Pakistan by saying that the order of the departmental authority is without jurisdiction or it is void or it is mala fide or it is in the nature of coram non judice. In the case of Muttaqi Hussain Rizvi PLD 1978 Kar. 703 a learned Single Judge of this Court took view that where reversion of a civil servant was prima facie result of a departmental enquiry it squarely fell within the purview of the Service Tribunals Act and did not come within any of the exceptions to section 4 of the said Act and it was covered by the barring provisions contained in clause (1) of Article 212.
17. Following the view taken by the Hon'ble Supreme Court of Pakistan, in the case of Muhammad Sadiq Khokhar, we hold that the order of suspension in respect of the petitioner cannot be challenged in this Court under Article 199 of the Constitution of Pakistan in view of clause (1) of Article 212 of the Constitution of Pakistan. Moreover, the petitioner has not made out that due to his having been placed under suspension any of his fundamental or legal rights has been infringed.
18. The condition precedent to the grant of any relief under Article 199 of the Constitution of Pakistan, depends on existence of a fundamental or a legal right of a person and the infringement of such a right, as held in the case of Muntizma Committee, Almustafa Colony (Registered) and others PLD 1992 Kar. 54.
19. For the foregoing reasons this Constitution petition is dismissed in limine with no order as to costs.
20. MA. 897/93 having become infructuous stands dismissed. Such short order was passed by us on 12-5-1993 and these are reasons for the same.