This order will also dispose of connected Writ Petitions Nos. 1068 of 1989, 2120 of 1989, 2121 of 1989, 2122 of 1989, 2123 of 1989, 2412 of 1989 and 544 of 1990 as they arise out of the same impugned order.
2. Facts necessary for the disposal of these petitions, briefly stated, are that the petitioners in all the writ petitions were appointed as temporary junior clerks in BPS-5 on the recommendation of the Departmental Recruitment Committee vide order dated 1-2-1989 passed by the Deputy Director (Adorn), Directorate of Education (Schools), Multan Division, Multan (Annex. A). They had not yet completed even a month's service when their services were terminated by order dated 27-2-1989 (Annex C} on the ground that they were no more required. This order, too, was passed by the Deputy Director (Adorn), Directorate of Education (Schools), Multan. Feeling aggrieved, petitioners invoked the jurisdiction of this Court under Article 199 of the Constitution to assail the validity of the order of their termination.
2. I have heard the learned counsel for the petitioners as also the learned Additional A: G. On behalf of the respondents. Learned Additional A.-G. Raised a preliminary objection regarding the maintainability of those petitions. He has contended that the petitioners were civil servants; grievance agitated by them in these petitions relates to the terms and conditions of their service and, therefore, their remedy lay before the Service Tribunal which has the exclusive jurisdiction in the matter by virtue of Article 212 of the Constitution read with section 3 of the Punjab Service Tribunals. Act IX of 1974. In support of his submission, learned Additional A.-G. Has relied upon the cases reported in (i) PLD 1983 SC 100, (ii) PLD 1988 SC 387 and (iii) PLD 1989 SC 508.
3. Learned counsel appearing in support of these petitions, on the other hand, contended that the impugned order though shown to have been passed by the Deputy Director was in fact issued on the directive of the Education Minister who was not competent to order the termination of the petitioners. It was argued that the Education Minister was not a `departmental authority' within the meaning of this expression as defined in the Explanation appended to section 4 of the Punjab Service Tribunals Act and as such the impugned order passed on his dictation was not appealable before the Service Tribunal. Precise submission of the learned counsel for the petitioners was that the appeal before the Service Tribunal lay only in those cases in which the impugned order was passed by an authority competent to pass it. Proceeding on these premises, it was argued by the learned counsel for the petitioners that since the impugned order was not appealable before the Service Tribunal, jurisdiction of this Court under Article 199 of the Constitution to examine the vices of the impugned order is not ousted. Reliance for this submission was placed on two judgments of this Court reported in 1981 PLC (C.S.) 190; and 1981 PLC (C.S.) 277. Learned counsel for the petitioners further pointed out that the impugned order has already been struck down by this Court in exercise of its Constitutional jurisdiction. They, have referred to the order dated 17-5--1989 passed in W.P.
No. 362/89/BWP (Annex D).
4. In order to better appreciate the respective contentions of the parties, it is appropriate to reproduce the relevant provisions of Article 212 of the Constitution and sections 3 and 4 of the Punjab Service Tribunals Act. Article 212 in its relevant aspect provides as under:--- "212--(l)----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) ...................................................
(c) ...................................................
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matte; to which the jurisdiction of such Administrative Court or Tribunal extends--------"
Relevant provisions of sections 3 and 4 of the Punjab Service Tribunals Act are as under:-- 3--(1) The Governor may by notification in the official Gazette establish one or more Service Tribunals,--------------------------------------------------------------------------------- --------------------------------------------------
(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)................................................
(4)------------------------------- (5)------------------------------- (6)-------------------------------- (7)---------------------------------
4. Appeal 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 ad 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 Punjab Civil Servants Act, 1974 or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to a departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.
(2) ..........................................................
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.
The afore-noted provisions place it beyond doubt that the Service Tribunals constituted under the relevant law have been given exclusive jurisdiction in the matters relating to the terms and conditions of service of the civil servants and as soon as a Tribunal is established, all other Courts are divested of jurisdiction to grant any injunction, make any order or entertain any proceedings in respect of the matters lying within the competence of the Service Tribunal. That is to say that in matters in which appeal is competent before a Service Tribunal, no other Court shall have jurisdiction in those matters. Needless to observe that in view of the non obstante clause of Article 212 contained in the words "Notwithstanding anything hereinbefore contained", jurisdiction of this Court under Article 199 of the Constitution to entertain any proceeding in respect of matters in which appeal is available before the Service Tribunal is completely ousted. Scope and import of the jurisdiction, ousting clause of Article 212 of the Constitution with reference to the exclusive jurisdiction of the Service Tribunals constituted under various Service Tribunals Acts, Federal and Provincial has been examined in a number, of judgments. Reference may usefully be made to some of them. First case in the series is "Muhammad Aslam Bajwa v. Federation of Pakistan" (PLD 1974 Lahore 545) wherein the petitions under Article 199 of the Constitution pending before the High Court in relation to matters within the jurisdiction of the Service Tribunal were held to have abated in view of the ouster clause of Article 212. This view was later approved by the Supreme Court of Pakistan in the case of M. Yameen Qureshi v. Islamic Republic of Pakistan and another"
(PLD 1980 SC 22). Again in the case of "Iqan Ahmad Khurram v. Government of Pakistan (PLD 1980 SC 153), their Lordships of the Supreme Court while dealing with the objection regarding the non- maintainability of the petition under Article 199 of the Constitution observed "the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered".
A Full Bench of the Peshawar High Court in "Mian Amanul Mink: v. N: W.F.P. Through Chief Secretary (PLD 1981 Pesh. 1) while dealing with Article 212 of the Constitution held that "The provisions of this Article on the very language oust the jurisdiction of all other Courts and as observed by a Division Bench of this Court in the case of Dr. Raja Mansoor Elahi v. N.-W.F.P. (PLD 1980 Pesh. 81) an order of a departmental authority even if it is without jurisdiction or is mala fide can be challenged before the Tribunal and the jurisdiction of the Civil Courts and for that matter of the High Court is specifically ousted." In yet another case reported in PLD 1983 SC 100, Supreme Court of Pakistan after examining the provisions of Article 212 of the Constitution and of section 4 of the Service Tribunals Act held that under the new dispensation, the Service Tribunal was made the sole arbiter of all disputes relevant to the terms and conditions of civil servants and the jurisdiction of ordinary Courts was altogether excluded in these matters. It was observed "These provisions leave no doubt that disputes relating to the service rights of civil servants was henceforth being made the exclusive concern of the Service Tribunals".
5. As shown above, law by now is fairly well-settled that in matters relating to the terms and conditions of a civil servant which lie within the competence of the Service Tribunal, jurisdiction of all other Courts including the High Court stands ousted by virtue of Article 212 of the Constitution.
Argument of the learned counsel for the petitioners, as noted hereinabove, however, was that since the impugned order was not passed by a competent departmental authority, it was not appealable before the Service Tribunal and, as such, the jurisdiction of this Court under Article 199 of the Constitution would remain intact. In support of his submission, learned counsel referred to section 4 of the Punjab Service Tribunals Act and contended that it provides an appeal before the Service Tribunal against a final order made by a departmental authority and the "departmental authority", it was pointed out, is defined in the explanation appended to section 4 to mean any authority which is competent to make an order in respect of any of the terms and conditions of civil servants. It was submitted that the Minister for Education on whose direction/dictation, the impugned order was passed was not competent to order the termination of the petitioners and, therefore, the impugned order could not be said to have been passed by a "departmental authority" within the meaning of the aforesaid Explanation so as to render it appealable under section 4 of the Service Tribunals Act.
6. There can be no cavil with the proposition that it is only the order of the departmental authority which can be challenged in appeal before the Service Tribunal and if the order is not that of such an authority, then; of course, the jurisdiction of the Tribunal will not be attracted and this Court in that case will have the jurisdiction to grant relief to the aggrieved civil servant under Article 199 of the Constitution. Argument of the learned counsel for the petitioners, however, overlooks an important fact that in the present case, the order impugned in these petitions was passed by the Deputy Director (Education) who, it is not denied, was competent to make such an order. As regards the objection of the petitioners that the officer had passed the impugned order in pursuance of the direction given by the Minister of Education and without any independent application of his own mind, it may be observed that this objection would, at the most, render the impugned order as having been passed unlawfully but would not make it an order of a non--- departmental authority so as to take it outside the purview of section 4 of the Service Tribunals Act.
The impugned order was thus clearly appealable before the Service Tribunal because it is not the intention of the Legislature to restrict the right of appeal before the Service Tribunal only to the orders passed competently and with jurisdiction. It was held in the case of Muhammad Aslam Bajwa referred to above that the right of appeal as given in section 4 of the Service Tribunals Act was available even against the orders which are without jurisdiction and it was for the Service Tribunal to decide whether the order impugned before it was with jurisdiction or without jurisdiction. The words "competent to make an order" used in the Explanation to section 4 were also interpreted in that case and it was held that these words "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 of exclusive jurisdiction is the "terms and conditions 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".
7. In the aforesaid view of the matter, I hold that the petition could well assail the impugned order of their termination in an appeal before the Punjab Service Tribunal, which has an exclusive jurisdiction in the matter with the result that the jurisdiction of this Court stands completely ousted by virtue of Article 212 of the Constitution. Needless to observe that the powers of the a High Court under Article 199 of the Constitution are very limited and it cannot interfere with an order of an authority unless it is made without jurisdiction or E without lawful authority whereas the Service Tribunal being a Court of appeal has very wide powers and it can in appropriate cases examine even the propriety of an order passed by a departmental authority. Refer the case of M. Gamin Qureshi (PLD 1980 SC 22).
8. Before concluding, I would like to observe that the two cases cited by the learned counsel for the petitioners are of no avail to him as they are distinguishable. In the first case reported in 1981 PLC (C.S.) 190, order impugned in the writ petition was an order of remand and it was held that since an appeal under section 4 of the Punjab Service Tribunals Act lay against a final order whether original or appellate, the impugned order being one of remand was not appealable before the Service Tribunal. In the second case reported at page 277 of 1981 PLC (C.S.), it was found that the authority competent to pass the order of retirement was the Financial Adviser and Chief -Accounts Officer and not the Financial Member who actually passed the impugned order. It was, therefore, held that since the impugned order was passed by an incompetent authority, it was not appealable before the Service Tribunal and, therefore, jurisdiction of the High Court under Article 199 of the.
Constitution was not ousted. In the instant case, however, the impugned order terminating the services of the petitioners was a final order and it was passed by the Deputy Director (Education) who admittedly was the competent authority to pass such an order and the only objection of the petitioners was that the impugned order was made on the direction of the Minister for Education. In the circumstances, the impugned order, as held above, was appealable before the Service Tribunal and jurisdiction of this Court is, therefore, barred under Article 212 of the Constitution.
As regards the contention of the learned counsel for the petitioners that the impugned order has already been struck down by this Court in exercise of its Constitutional jurisdiction in W.P.
362/89/BWP, suffice it to observe that the question raised herein namely the competency of an appeal against the impugned order before the Punjab Service Tribunal and the ouster of jurisdiction by this Court by virtue of Article 212 of the Constitution was neither agitated nor examined in that case.
Upshot of the above discussion is that these petitions are not maintainable and the same are accordingly dismissed but with no order as to costs.