1. ' WAJIHUDDIN AHMED, J.---Serial Nos.1 and 2: While Mr. Awan says that this petition has become infructuous, Mr. Manzar Alam urges that the controversy is still alive and that the order dated 19-5- 1994, which is questioned in the petition, may still be declared to be unlawful and passed without lawful authority.
2. ' It is unnecessary to deal with the dispute in any details and only salient features may be touched.
3. The petitioner has urged that for mala fide reasons, to be precise unfair victimisation of the petitioner and unwarranted favourtism of another an order dated 19-5-1994, virtually forcing the petitioner to go on leave, was faxed. Such order, in extenso, is as under:- "PAKISTAN POSTAL SERVICES CORPORATION.
4. ' OFFICE OF THE POSTMASTER-GENERAL SINDH, HYDERABAD. No,SC/S-Gaztd-1/16, Hyderabad, the 19-5- 1994.
5. ' The competent Authority has been pleased to allow Mr. Shakeel Ahmed Channa, Superintendent, Post Offices, Larkana Division to proceed on earned leave for 60 days from 19-5-1994 to 17-7-1994.
6. ' The competent Authority has further been pleased to order Mr. Irfan ' Anwar Baloch Superintendent, Post Office, Sukkur Division to hold the dual charge of Superintendent, Post Offices, Larkana Division in addition to his own duties.
7. ' Usual charge report should be submitted to all concerned.
8. (Sd.)
9. (JURIO KHAN CHAKRANI), ASSTT. POSTMASTER-GENERAL (STAFF)."
10. ' The respondents themselves have placed on record, as Annexure '0' to their counter-affidavit, the protest of the petitioner in relation to the aforesaid order. That is reproduced verbatim herein below:-- "The Postmaster General, Sindh and General Manager, P.L.I., Karachi.
11. ' Subject: REQUEST FOR CANCELLATION OF LEAVE MEMO DATED 19-5-1994.
12. ' Reference: C.O. Memo. No,SC/S-Gazetted-I/46 dated 19-5-1994 and my previous Fax letter on the above subject dated 26-5-1994.
13. ' Esteemed Sir, ' I am in receipt of your abovementioned letter and I do hereby submit that I was performing my legitimate duties, and I was grieved to see that I was ordered to proceed on leave for sixty days, while I never applied for the same and I do not intend to do so now. I am confident .Hat Mr. Islam Khan Senior Post Master, Larkana G.P.O. Who has already been charge-sheeted for a case of fraud in Baitul-mal and is under investigation in F.IA., Circle Office and other agencies, many times expressed his desire to hold charge of Superintendent of Post Offices. In order to pursue his desire he had applied all sort of maneouvering including creating disturbance harassing me by all means. In these conditions I do hereby humbly want to pray your kindself that a high level inquiry be conducted against the officer and I further request you that I may please be transferred to some other station to avoid harassment and any physical damage. With regards, I have the honour to be, Sir Your most obedient servant, (Sd.)
14. (DR. SHAKEEL AHMED CHANNA ), Superintendent of Post Offices, Larkana."
15. ' The next link in the chain of events appears to have been an office memo dated 14-6-1994 in response to which the petitioner seems to have acceded to accept the period from 25-5-1994 to 14-6-1994 as earned leave in spite of his above recorded protest. This was done through a letter dated 15-6-1994, which was in the following terms:- "The Deputy Postmaster-General, Sindh Circle, ' Hyderabad.
16. ' REFERENCE: YOUR OFFICE MEMO. No, SC/SB-II/CH-IV DATED 14-6-1994.
17. ' Respected Sir, ' After profound regard, in compliance to your above referred letter I hereby request your goodself to treat period from 25-5-1994 to 14-6- 1994 (the actual date of joining as Chief Postmaster, Sukkur G.P.O.) as earned leave to regularise the interim period. Thanks in anticipation.
18. ' Dated the 15th June, 1994. Yours obediently, (Sd.)
19. (DR. SHAKEEL AHMED CHANNA ), CHIEF POSTMASTER. SUKKUR GPO."
20. ' At this stage, Mr. Manzar Alam wants to place the missing memo dated 14-6-1994 on the record and in fact has read it over to us, the terms indicating that a beneficial posting order was being passed provided that the petitioner applied for regularisation of the period between 25-5-1994 and 14-6-1994, apparently already gone by. As seen the petitioner obliged. The document is taken on record by consent.
21. ' On 25-6-1994 the respondents passed an order to the effect that 20 days' earned leave, from 25- 5-1994 to 13-6-1994, was allowed to the petitioner whereas the remaining grant of leave with effect from 15-6-1994 to 17-7-1994, sanctioned through the above quoted order dated 19-5-1994, was cancelled. Such order is reproduced hereunder:-- "PAKISTAN POSTAL SERVICES CORPORATION OFFICE OF THE POSTMASTER-GENERAL, SINDH ' No,SC/S-Gztd-1/46, Hyderabad dated the 25-6-1994.
22. ' The competent Authority has been pleased to grant 20 days earned leave with effect from 25-5- 1994 to Dr. Shakeel Ahmad Channa, Chief Postmaster, Sukkur G.P.O. And formal Superintendent of Post Offices, Larkana Division.
23. ' The competent Authority has further been pleased to order the cancellation of remaining portion of earned leave with effect from 15-6-1994 to 17-7-1994 sanctioned vide this office memo of even number dated 19-5-1994.
24. ' Usual charge report should be submitted to all concerned.
25. (Sd.)
26. (JURIO KHAN CHAKRANI), ASSTT. POSTMASTER GENERAL (STAFF)?
27. ' Reverting, Mr. Shabbir Ahmed Awan, for the respondents, contends that even if the petitioner insists upon a decision on merits such cannot be done in this jurisdiction because the matter touches the terms and conditions of .The petitioner's service as a (deemed) civil servant and in the face of the Service Tribunals Act, 1973, bar of Article 212 (2) in the Constitution applies. Answer of Mr. Manzar Alam for the petitioner as to the maintainability of the petition can be none other than that the impugned order of sending the petitioner on purported forced leave is mala fide and, therefore, no order at all and besides such is not a final order, which alone can be challenged before the Service Tribunal.
28. We do not agree that the impugned order is not final. So far as it goes it is. In relation to the alleged forced leave it was clearly the be-all and end-all. It was, therefore,, manifestly challengeable before the special forum of the Service Tribunal.
29. ' The question of mala fides in service matters was finally resolved and settled in the Full Bench case of Abdul Bari v. Government of Pakistan and 2 others, PLD 1981 Karachi 290. However, as pointed out by Mr. Manzar Alam, there is some case-law notably, the State v. Zia-ur-Rehman, PLD 1973 SC 49, Federation of Pakistan v. Saeed Ahmed Khan, PLD 1974 SC 151, Federation of Pakistan v.
30. Malik Ghulam Mustafa Khar, PLD 1989 SC 26 and Sabir Shah v. Federation of Pakistan, PLD 1994 SC 738 to the effect that orders tainted by mala fides or suffering from absence of jurisdiction or those attracting the coram non judice concept are classic examples of unfettered amenability to Constitutional jurisdiction and in matters touching such issues powers of judicial review can never be taken away. Still, the broad proposition is itself subject to Constitutional constraints. Firstly, an ouster clause is a sub-constitutional legislation cannot be equated with an ouster of the Court's jurisdiction under the Constitution itself and when the latter is the case interference, if any, is necessarily to be more circumspect. Secondly, the Constitutional jurisdiction of the Superior Courts is always to be exercised in aid of and not for perpetuating injustice and the power being discretionary, in appropriate cases, even where the rule is attracted, relief can be declined: Export Promotion Bureau v. Qaiser Shafiullah, 1994 SCMR 859 etc. Lastly, pleas of mala fides or want of jurisdiction are to be real and not palpably sham or illusory. All necessary details, demonstrating colourable exercise of power, are to be spelled out, which then have to be closely examined before interference in such matters, where the Constitution itself has barred recourse to Superior Courts, is made. Even then interference remains an exception rather than the rule.
31. ' Applying these principles, we think that, in view of our conclusions listed below, the issue does not call for relief and the exclusive jurisdiction of the Service Tribunal cannot be by-passed.
32. Examining the facts themselves, it is clearly established that the grant of leave from 19-5-1994 to 17-7-1994 to the petitioner was not made on the basis of any formal request of the petitioner. The respondents' version, that the grant was preceded by a telephonic request, aside from being refuted, suffers from an irregularity in that, except under compelling circumstances, leave should be properly applied for. What is more, this version loses credibility because, upon the first protest from the petitioner, the competent Authority promptly retraced its steps and the act may have been fraught with the carrot and stick implications, offering a beneficial posting order in lieu of a corresponding command performance in the shape conceding part of the forced leave. Even so, it was for the petitioner to accept or to reject it. The petitioner patently opted for the first course. Thus, even though mala fides, in all probability, may have operated as a basis of the exercise, the petitioner accepted the regularisation of part of the forced leave and cannot be heard to question it at least in this petition.
33. ' With such observations, we dismiss the petition but refrain from the ordering any costs.