1. MUSHTAQ AHMAD MEMON, J.--By this Intra-Court Appeal, the appellant-plaintiff seeks to impugn order, dated 6th March, 1997 passed by learned Judge in Chamber of this Court in Suit No. Nil of 1997 sustaining office objection about maintainability of the suit and rejecting the plaint.
2. The facts in brief, as stated in the plaint, are that the appellant --plaintiff is a civil servant holding the post of Executive Engineer in Highway Division, Communication and Works Department in the Government of Sind. The appellant-plaintiff was initially inducted as Assistant Engineer in BPS-17 but was recommended for accelerated promotion on 2-9-1996 whereupon on the respondent No. 1, in relaxation of the promotion policy/rules for the post of Executive Engineer, ordered promotion of the appellant-plaintiff. The appellant-plaintiff held such post for some the and after the change of Government, was first transferred and later has been served with show-cause notice dated 9-1- 1997 calling upon the appellant --plaintiff as to why the promotion accorded to him in supersession of 80 (eighty) other Assistant Engineers be not recalled. The appellant-plaintiff feeling aggrieved, filed the suit in the original civil jurisdiction of this Court on.16-1-1997 seeking, inter alia, declaration that the respondents were not entitled nor competent to issue the show-cause notice to the appellant-- plaintiff and/or to transfer or order his reversion and that the various actions on the part of the respondents were illegal, mala fide and void ab initio. To substantiate mala fides, a couple of instances were quoted in the plaint of some other civil servants who had similarly been accorded promotion out of turn, but have not been issued any show-cause notice.
3. It seems that an objection was raised by the office about maintainability of the suit on account of the bar created under Article 212 of the Constitution. In reply thereto it was pleaded that firstly, the show-cause notice could not be challenged for it could not be termed a final order and appeal did not lie there against to the Sind Service Tribunal, and secondly, the discriminatory treatment meted out to the appellant establishes mala fides on the part of the respondents. The objection raised by the office, alongwith the reply, was placed before the learned Judge in Chambers for orders who by the impugned order, has sustained the office objection and rejected the plaint.
4. At the the of hearing, the appellant's counsel re-asserted the arguments made before the learned Single Judge and referred to some case --law to substantiate the same. In support of his first plea that the show-cause notice dated 9-1-1997 did not amount to a final order envisaged by section 4 of the Sind Service Tribunals Act, 1973 the learned counsel referred to the above provision which is as follows:-- "4. Appeals to Tribunals.---Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter. "
5. The above objection, when considered by the learned Single Judge, has been decided by reference to a F.B. Judgment of this Court in the case of Abdul Bari v. Government of Pakistan reported in PLD 1981 Karachi 290 by quoting therefrom the following passage:-- "However, it seems to us that if the impugned order, although not final so far as the departmental authority passing it is concerned, is in the nature of a step towards the final orders that may eventually be passed apparently such interlocutory order will eventually merge in the final order and in any case can be brought up before the Service Tribunal in an appeal from the final order.
6. Clearly, therefore, such orders which are in the nature of interlocutory steps and are in germane to the final order which is appealable before the Tribunal, will also be outside the jurisdiction of the High Court."
7. The learned counsel for the appellant referred to the case of I.A. Sherwani v. Government of Pakistan, reported in 1991 SCMR 1041 and urged that the show-cause notice, dated 9-1-1997 did not amount to a final order which in turn cannot be assailed before the Sind Service Tribunal. The civil suit therefore could lawfully be maintained by the appellant. The following passage from the judgment of Hon'ble Supreme Court in the case of I.A. Sherwani (supra) was referred: "7. It may also be pointed out that subsection (1) of section 4 of the Act provides right of an appeal before the Service Tribunal to a civil servant if he aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of his terms and conditions of the service within 30 days of communication of such order to him."
8. To the same effect is the judgment by Single Bench from Lahore High Court in the case of Muhammad Azhar v. General Manager (Operation) Power WAPDA, reported in PLD 1990 Lahore 352.
9. It may however be observed that the above dictum does not have universal application but is circumscribed by certain limitations. Such limitations are taken note of in the very judgment of the Hon'ble Supreme Court. One such limitation being that the jurisdiction of the Service Tribunal cannot be bypassed by resort to technicalities. It is pertinent to mention that the judgment of the F.B. Of this Court in the case of Abdul Bari (supra) was" also cited and considered in the case of I.A.
10. Sherwani and was not disapproved. The following observation contained in the above-referred judgment in I.A. Sherwani (supra) lends support to the view expressed by the learned Judge in Chambers:-- "However, we tray clarify that a civil servant cannot bypass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in the case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights."
11. Such view read with the earlier judgment of the Supreme Court in the case of Abdul Wahab Khan v.
12. Government of Punjab reported in PLD 1989 Supreme Court 508, wherein after observing that although an order vis---a-vis the stage at which it was passed, may not be appealable, the concerned civil servant would have to wait till such an order is passed against him as is appealable before the Tribunal under the law applicable thereto.
13. Applying the principles, as above, the contention raised by the learned counsel for the appellant, if accepted, will amount to creating a via media for circumventing the provisions of the Sind Service Tribunals Act, 1973. Moreover, the bar of jurisdiction is created by the Constitution itself and the power of judicial-review has to be exercised with circumspection compared with the cases where the restrain is created through a sub-Constitutional Legislation. We cannot also lose sight of the non obstante clause pre-fixed to Article 212 of the Constitution, with the result that the Constitutional jurisdiction of the High Court or the plenary jurisdiction of the Civil Court has to be exercised sparingly and only in extraordinary situation where mala fides or want of jurisdiction is evident and manifest from the record. The provisions contained in Article 212 of the Constitution which begin with the non obstante clause has to be given the effect sought to be achieved by it.
14. Even while interpreting Article 225, which begins with simple negative clause, the Supreme Court in the case of Election Commission of Pakistan v. Javed Hashmi and others reported in PLD 1989 SC 396, after considering the desirability or otherwise of exercise of power under Article 199 of the Constitution, at the intermediary stage when the Tribunal created under the Representation of the People Act, 1976 could not intervene, has laid down the following rules:- "In enacting Article 225 in the Constitution the purpose of Legislature is obvious that it did not contemplate to attacks on matters connected with the election proceedings, one while the election process is on and has not reached the stage of its completion by recourse to an extraordinary remedy provided by Article 199. And another when the election has reached the stage of completion by means of an election petition. It is also of utmost consideration that in the case of to attacks on a matter connected with the election proceedings there is likelihood of there being to inconsistent decisions, one given by the High Court and the other by the Election Tribunal which is also an independent Tribunal and this could not be the intention of the Legislature. "
15. In the same judgment it is further observed as follows: ---The scheme of the electoral laws and conduct of election accordingly appears to be that any matter which has the effect of vitiating the election process should be brought up only at the appropriate stage in an appropriate manner before the Election Tribunal and should not be brought up at an intermediate stage before any Court as otherwise Article 225 of the Constitution would be deprived of its meaning and contents.--- Likewise, the object of Article 212 is that any matter touching the terms and conditions of service of a civil servant should be agitated before the concerned Service Tribunal alone. It is not disputed by the learned counsel for the appellant-plaintiff that any order passed in pursuance of the show- cause notice impugned in the civil suit, would be appealable before the Sind Service Tribunal in accordance with law applicable to that Tribunal regarding filing of appeal. In the circumstances, interference at this stage with the departmental action dated 9-1-1997 would `amount a to defeating the purpose and object of Article 212 of the Constitution. While it is true that interference in exercise of plenary jurisdiction of the Civil Court and in exercise of power of judicial review has been held permissible where the impugned action is manifestly found devoid of jurisdiction and it is found desirable to prevent abuse of the authority. Such principle has been laid down in the case of Muhammad Afzal Khan v. K.D.A. Reported in PLD 1984 Karachi 114. In the present case, however, the show-cause notice was issued by an authority whose jurisdiction to take such action has not been questioned.
16. The learned counsel for the appellant, next urged that the show cause notice challenged in the suit was tainted with mala fides and therefore would be amenable to correction by the Civil Court which is the Court of general jurisdiction. It may be observed that a mala fide action or order has no existence in law and is void ab initio. However, when mala fides is alleged, the burden of proof that the action has been taken with mala fide intention or in colorable exercise of authority lies heavily on the person alleging it. As held in the case of Government of West Pakistan v, Begum'
17. Agha Abdul Karim Shorish Kashmiri reported in PLD 1969 SC 14, mala fides have to be pleaded with particularity and enquiry cannot be launched on the basis of indefinite allegations. In the present case except for citing a couple of instances in the plaint to the effect that some other civil servants have been permitted to enjoy the benefits of unjustified or ill-gotten gains, which at best may be considered discrimination, nothing has been pleased as could be termed mala fide. As has been held in the case of Federation of Pakistan v. Saeed Ahmad reported in PLD 1974 SC 151, it is necessary for a person alleging that an action has been taken mala fide, to show that the person responsible for taking the action has any personal motive either to hurt some one or to benefit himself. Indeed, an action taken in colorable exercise of power for collateral purpose, not authorised by the law, under which the action is taken or action taken in fraud of the law may also be mala fide. Evidently, such aspect is missing in the present case. It is pertinent to note here that even in cases where some administrative action is challenged on the ground of mala fide in exercise of Constitutional jurisdiction ouster whereof is not to be assumed lightly, a clear case of mala fides has to be made out for interference therewith. Such aspect was considered by a D.B. Of this Court of which one of us was a member namely, Wajihuddin Ahmed, J. In the case of Dr. Shakil Ahmed v. Federation of Pakistan and others reported in 1995 PLC (C.S.) 1226 and following dictum was laid down.
18. "On the foregoing premises the learned counsel for the petitioner has placed reliance inter alia on Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 and Sabir Shah v. Federation of Pakistan PLD 1994 SC 738 and contents that where an order challenged before a superior Court is mala fide or suffer from want of jurisdiction or is coram non judice the jurisdiction of superior Courts can always be invoked. The argument, so for it goes, is squarely correct. However, there is a difference where ouster is brought about by a sub-Constitutional Legislation and when the same result comes about through the Constitution itself. In cases falling in the first category there is a greater room for interference than in matters occurring in the latter class. This is based on the the honoured principle that Constitutional jurisdiction cannot be taken away by a sub-Constitutional instrument. However, in either case, interference in the face of an alternative remedy, if equally efficacious, remains an exception rather than the rule. This is more so where ouster is spelled out from the Constitution itself as in this case, namely, through Article 212(2) of the Constitution. For such reason, touching the matters in the latter category, very strict rules have been laid out, as would be reflected in the Full Bench case of this Court reported as Abdul Bari v. Government of Pakistan PLD 1981 Karachi 290. "
19. The above principle is fully supported by the judgment reported in Wali Ahmed Khan v.
20. Government of Sind 1982 PLC (C.S.) 1, K.D.A. v. Wali Ahmed Khan and others 1991 SCMR 2434 and 1996 PLC (C.S.) 15, Mehmud Ahmed v. Secretary, Electricity and Power Department etc. 1996 PLC (C.S.)
15. In the present case, however as already observed, the plaintiff has failed to plead mala fides in the terms as could render the show-- cause notice dated 9-1-1997 patently illegal, without jurisdiction or void. A right cannot be claimed to protect what is illegal or wrong merely on the basis that others have been allowed to retain similarly acquired benefits. A right can only be founded upon what is lawful. It is quite possible that action similar to that taken against the appellant- plaintiff is in the offing against others and the process for such action has taken a longer the or some wrong has escaped the notice of the authorities. The appellant-plaintiff, as has been observed in the impugned order passed by the learned Judge in Chambers, if aggrieved, can challenge the final order passed in the matter before the Service Tribunal, after undergoing the process prescribed by law, on the ground of mala fides and prove the same through evidence.
21. The impugned order passed by the learned Single Judge, in our view is quite valid and justified in the circumstances of the case. No case for interference is made out and this appeal, therefore, fails which is accordingly dismissed in limine.