FAKHRUDDIN G. EBRAHIM, J.-The petitioners in all these Petitions are civil servants within the meaning of this expression defined in Baluchistan Services Tribunal Act, 1974 (Act V of 1974)
(hereinafter referred to as the said Act). In Petitions Nos. 90 of 1976, 93 of 1976, 77 of 1976, 182 of 1975, 83 of 1976, 59 of 1976, 66 of 1976, 76 of 1976, 77 of 1976, 81 of 1976 and 84 of 1976, the common grievance is that the petitioners have been illegally dismissed from service or removed from service or compulsorily retired.
In Petition No. 15 of 1973, the complaint is against the transfer of the petitioner as District Health Officer, Makran and relieving him of his additional post as Provincial Chief Malaria Eradication Programme Officer in the interest of public service. In Petition No. 18 of 1971, the prayer is for declaring a notification void under Which it is alleged that the petitioners have been denied their seniority.
2. On behalf of the respondent Provincial Government the learned Advocate-General took a preliminary objection as to the maintainability of these petitions in view of the establishment of Services Tribunal under section 3 of the said Act V of 1974.
3. We have heard the learned counsel for the parties at length and for reasons appearing hereinafter are of the view that these petitions are not maintainable.
4. Baluchistan Services Tribunal Act, 1974 was promulgated on 27th June 1974 following which came into existence a Service Tribunal for the Province with the exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters.
Constituted under section 3 thereof. Section 4 of this Act provides for an appeal to the Tribunal by a Civil Servant aggrieved by a final order made by the departmental authorities in respect of any of the terms and conditions of service, other than an order or decision determining "(i) 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; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of departmental inquiry, except when the penalty imposed is dismissal from service, removal from service or compulsory retirement."
5. Section 6 of the Act provides that all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any court immediately, before the commencement of the law as may be enacted by the Parliament extending clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan to the Tribunal shall abate on the commencement of such law, leaving the party the liberty to file an appeal before the appropriate Tribunal in respect of such any matter which is in issue in such suit, appeal or application. Under section 5 the Tribunal constituted under the Act, is for the purpose of deciding an appeal, deemed to be a civil Court having the same powers as are vested in such Court under the Code of Civil Procedure.
6. Following the promulgation of this Act, the Provincial Assembly for Baluchistan made a request in the form of a Resolution that the provisions of clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan be extended to Service Tribunal established under the aforesaid Act.
The Parliament has been accordingly pleased to pass the Provincial Services Tribunal (Extension of the Provisions of the Constitution) (Amendment) Act, 1976 extending the provisions of clause (2) of Article 212 of the Constitution to the Service Tribunal established under Provincial Act V of 1974 the effect of which is that no other Court has the jurisdiction to grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Tribunal shall abate A on such establishment.
7. Now it does not require much of an argument to arrive at the conclusion that the cumulative effect of section 6 of the Provincial Act V of 1974 and clause (2) of Article 212 of the Constitution is that in matters relating to the terms and conditions of service, including disciplinary matters, except for two items mentioned in the proviso to section 4 of the said Act, reproduced above, the Tribunal has the exclusive jurisdiction and all proceedings in any Court relating to these matters cannot be continued, leaving the aggrieved party with the remedy by way of appeal to the Tribunal.
8. On behalf of the petitioners (other than Muhammad Hashim Khan, petitioner in Petition No. 77 of 1970), it was not disputed that a Tribunal has been established under Act V of 1974 and that at the request of the Provincial Assembly, the Parliament has been pleased to extend the provisions of clause (2) of Article 212 of the Constitution.
9. Mr. Khalid M. Ishaque, the learned counsel for one of the petitioners contended that clause (1) of Article 212 of the Constitution contemplated establishment, by the appropriate Legislature, of a Tribunal 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 and that inasmuch as the Provincial Act V of 1974 does not give the Tribunal constituted under it exclusive jurisdiction in all and every matter relating to the terms and conditions of service, the Tribunal is not one contemplated by clause (1) of Article 212 of the Constitution. Admittedly, two items excepted under section 4, and referred to above, though relating to the terms and conditions of service of persons employed in the service of Pakistan, do not come within the jurisdiction of the Tribunal.
Further--more, certain civil servants have been expressly excluded from the operation of Act V of 1974. The question, however, is: Does clause (1) of Article 212 of the Constitution contemplate establishment of a Tribunal of exclusive jurisdiction in respect of all and every matter relating to the terms and conditions of service of a civil servant ? We are unable to find any such intentment in Article 212 of the Constitution. What is intended is establishment of a Service Tribunal of exclusive jurisdiction but as to the extent and scope of its jurisdiction as to persons or matters relating to the terms and conditions, it has been left to the Provincial Legislature to determine. As is apparent from its language, the article is, as was contended B by the learned Advocate-General, only an enabling provision. This IS' further clear by the language of clause (2) of Article 212 of the Constitution wherein the bar against the entertainment by any other Court of any other proceedings is confined to only such matters to which the jurisdiction of the Tribunal extends which would imply that the Tribunal's jurisdiction may not extend to all Civil Servants or every matter relating to the terms and conditions of civil servants.
10. It was next pointed out on behalf of the petitioners that they have in some of the petitions challenged the departmental orders on the ground of mala fides and in some the ground of challenge relates to voidness of the law under which action has been taken as being in conflict with Fundamental Rights enshrined in Article 25 of the Constitution and the contention was that the Tribunal is prevented from examining these grounds of attack. Mr. S. H. Jaffery, the learned counsel for "the petitioners in Constitutional Petition N. 18 of 1971 further pointed out that the petitioners had challenged the vires of the notification which question too was beyond the jurisdiction of the Service Tribunal. The learned counsel invited our attention to a Service Tribunal decision, Aslam Mahmood v. Central Board of Revenue (1975 PLC (Trib.) 61) in which the Tribunal was pleased to observe as follows : "The contention is that on account of change in rules, he has been ignored since 1961. As the rules were framed and policy revised much earlier than 1st of July 1961, the question of entitlement of Central Board of Revenue to recast its rules and policy of promotion is beyond jurisdiction of this Tribunal. The law being that only departmental orders made after the above-mentioned date can be questioned."
In so far as the above decision is concerned it does not support the learned counsel's contention that the Tribunal has expressed its inability to examine a question of vires of a notification or law for the Tribunal refrained from examining certain departmental orders as being beyond the jurisdiction on the ground that they had been framed much earlier than 1st of July 1969, (1961 is a misprint), in view of clause (c) of subsection (1) of section 4 of the Services Tribunal Act LXX of 1973.
We are unable to see any such limitation in the powers of the Tribunal while hearing the appeals.
On the other band, the Tribunal under section 5 of the said Act is deemed to be civil Court for the purpose of deciding any appeal before it with all the powers under the Code of Civil Procedure. As any other civil Court the Tribunal to our mind will have the jurisdiction to examine C whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide. We are further inclined to think that the conferment upon the Tribunal the exclusive jurisdiction to adjudicate upon these matters cannot be given any less effect even if it were to be assumed, though as aforesaid there is no warrant for such an assumption that one or the other ground of challenge may not be available to the petitioners before the Tribunal.
11. We may now before concluding deal with the several contentions raised by Mr. Muhammad Hashim Khan, the petitioner in person in Consti--tutional Petition No. 77 of 1976. His first contention was that the Provincial Law contemplated by clause (2) of Article 212 has not been enacted. This Act has been enacted as Act No. XXXV of 1976 and has been published in the Gazette Extraordinary, Part I, dated 4th June 1976 though that Gazette Notification has not been placed before us by the learned Advocate-General as it is not readily available.
He next contended that this Act has not been counter-signed by the Prime Minister under clause
(3) of Article 48 of the Constitution and, therefore, it is not valid. This assertion was made only orally.
Since the Act has been gazetted we are entitled to presume that all official acts have been duly performed.
His third contention was that the Service Tribunal for Baluchistan has not been properly constituted for its Chairman Mr. Justice Muhammad Haleem is not a Judge of a High Court but is a Judge of the Supreme Court of Pakistan. The short reply to this is that Mr. Justice Muhammad Haleem was appointed as an ad hoc Judge of the Supreme Court of Pakistan under Article 182 of the Constitution and he continues to hold the post of a Judge of the High Court of Sind & Baluchistan. A grievance is also made as regards the substitution of one of the three members, as a member of the Service Tribunal by the Governor of Baluchistan, vide notification dated 28th April 1976 on the ground that as on that date the Province of Baluchistan was governed under a Proclamation under Article 234 under which all functions of the Government of the Province have been resumed by the President and the argument was that the Governor thereafter ceased to possess any powers to act on behalf of the President. The argument is misconceived for under Article 234 following a Proclamation, and the assumption of the functions of the Provincial Government by the President, the President is empowered to direct the Governor of the Province to assume on his behalf the said functions. In any event once a Service Tribunal is properly constituted, subsequent disability of any of its members to act as a Member of such a Tribunal, will not make the established Tribunal non- existent.
Fourthly, it was urged that no Rules have been framed under the Act, but the fact, however, is that these Rules have been made and gazetted on 22-4-1976.
Lastly, it was contended that the petitioner has no remedy by way of an appeal either under section 4 or 6 .Of the Act for the time prescribed for preferring such appeal has long since expired.
This is obviously incorrect inasmuch as the period of 90 days prescribed in the proviso to section 6 of the Act commences from the date on which the Parliament by law extends clause 2 of Article 212 of the Constitution and this extension in relation to the Province of Baluchistan was done as recently as 4th of June 1976.
12. Our conclusion, therefore, is that these petitions have abated and, accordingly, they are dismissed but in the circumstances there will be no order as to cost.