' NASIR-UL-MULK, J.---Dr. Zubair Khan, presently studying as a full-time student in the University of Dublin, Ireland, undergoing education in medicine and surgery, applied for the post of Assistant Professor in Oral Surgery for K.C.D. In the Health Department, advertised by the N.-W.F.P. Public Service Commission on 31-10-1997. The last date for submission of applications was 8-12-1997 for local candidates and 22-12-1997 for candidates from abroad. The date for the interview of candidate was set for 5-5-1998. Since the petitioner had to appear in his final examination at Dublin from 5-5-1998 to 14-5-1998, the petitioner, through his father, applied to the Commission for the extension of the date of interview. Receiving no written response from the Commission, the petitioner filed the present writ petition praying for the extension of the date of interview.
2. The writ petition came up for preliminary hearing on 30-4-1998. Pre-admission notice was given to the Commission, respondent No,2 for 5-5-1998. On the date fixed the representative of the Commission appeared and stated that the application of the petitioner already stands rejected, in view of the changed circumstances. The writ petition was allowed to be amended at the request of the learned counsel for the petitioner.
3. While arguing the amended writ petition, in motion, the learned counsel for the petitioner advanced two contentions. Firstly, that the application of the petitioner for extension of time was declined in writing only three days before the date fixed for the interview, thus not leaving the petitioner with reasonable time to decide whether or not to appear personally for the interview.
Secondly, that under Policy Decision No, 18(1) published n the Policy Decision of N.-W.F.P. Public Service Commission, 1990 the Commission was bound to consider the petitioner's application in absentia on account of his "distinctly higher qualification than the minimum prescribed for the post".
4. The petitioner in the unamended writ petition had prayed for direction to the Commission to decide his application for extension of time. As that application stands decided, the prayer has become infructuous. As regards the timing of rejection of the application, the contention of the learned counsel for the petitioner would have had relevance had the petitioner showed his willingness to appear for the interview on 5-5-1998. Such willingness has neither been stated in the writ petition nor was it claimed at the Bar. Regarding the extension of time, no doubt a provision therefor is made under the Policy Decision No, 18(3) the Commission is not obliged to extend such time.
5. The second contention of the learned counsel is based on the Policy Decision No, 18(1) of the Commission. The petitioner had not initially applied to be considered in absentia on the basis of his "distinctly higher qualification" but had only sought extension of -time of the interview. The learned counsel for the petitioner submitted that the Commission on their own can apply the Policy Decision No, 18(1) as no provision for application was made in the Policy. True that the Policy Decision does not in so many words require a candidate to make an application to be considered under the Policy Decision yet the Commission is not required to apply the decision suo motu. For the candidate relying upon the Policy Decision must bring it to the notice of the Commission as to how his qualifications are distinctly higher than the minimum required for the post. The learned counsel for the petitioner has furnished an affidavit that he had personally submitted an application in the Office of the Public Service Commission on 5-5-1998, the date fixed for the interview, that the petitioner be considered under Policy Decision No, 18(1). The learned counsel conceded that the application was handed over to the office when the interview for the post was already underway and that no receipt for the application was given to him. It seems that it was too late in the day to move such an application when the interviews for the post were being conducted.
6. For the foregoing reasons we do not find that any vested right of the petitioner has been infringed. The writ petition does not, therefore, deserve to be admitted to full hearing and is dismissed in limine.
Petition dismissed.
1998 PLC (C.S.) 1371 [Supreme Court of Pakistan] Present: Ajmal Mian, C.J., Nasir Aslam Zahid and Munawar Ahmad Mina, JJ ASADULLAII RASHID versus Haji MUHAMMAD MUNEER and others Civil Petition No, 934-L of 1998, decided on 1st July, 1998.
(On appeal from the judgment dated 15-6-1998 of the Lahore High Court passed in W.P. No, 4957 of 1998).
Constitution of Pakistan (1973)--- ----Arts. 199 & 212---Civil service---Constitutional petition under Art. 199 of the Constitution--- Maintainability---Principles---Constitutional petition under Art.199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of Art. 212 of the Constitution of Pakistan---Orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result: of barring provision of Art. 212 of the Constitution---High Court, before taking any decision regarding admission of a Constitutional petition and/or passing order granting interim relief will first decide the question of its jurisdiction in view of Art. 212 of the Constitution and in the light of the judgments of Supreme Court on the point involved. [Jurisdiction]. [pp. 1372, 1373] A, B & C Zahid Akhtar's case PLD 1995 SC 530; Khalid Mahmood Wattoo v. Government of Punjab Civil Petition for Leave No,727-L of 1998; Imam Bakhsh v. Deputy Commissioner, Layyah 1992 SCMR 365; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Rukhsana Ijaz v. Secretary Education 1997 SCMR 167; Ayub Anjum v. Government of Punjab 1997 SCMR 169 and Muhammad Sarwar v. Government of Punjab 1990 SCMR 999 ref. Khalil-ur-Rehman v. Government of Pakistan PLD 1981 Kar. 750 approved. Hafiz Tariq Nasim, Advocate Supreme Court for Petitioner.
Nemo for Respondent No, 1.
Miss Yasmin Saigal, Additional Advocate-General, Punjab for Respondents Nos. 2, 3 and 4.
Date of hearing: 1st July, 1998.
' NASIR ASLAM ZAHID, J.---Petitioner Asadullah Rashid was working as Assistant Agricultural Engineer (W & D), Vehari, when he was transferred to F & W, Vehari vice respondent No,1 Haji Muhammad Muneer (petitioner in the Writ Petition before the High Court) on 19-5-1998 on account of exigency of service. The order dated 19-5-1998 was later on cancelled by order dated 30-5-1998 but then this order was withdrawn by order dated 5-6-1998, the result being that the earlier order dated 19-5-1998 was restored. Being aggrieved, respondent No,1 Haji Muhammad Muneer filed Writ Petition No,4957 of 1998. The Lahore High Court admitted the writ petition for regular hearing.
Reference was made by the High Court to the case of Zahid Akhtar (PLD 1995 SC 530). It was observed in the admission order that prima facie the impugned order dated 4-6-1998 was a mala fide order having been passed due to political interference. Interim relief was also granted to respondent No,1 by suspending the operation of the impugned order dated 4-6-1998. Petitioner Asadullah Rashid has filed this petition seeking leave against the impugned order dated 15-6-1998 of the High Court. On the last date of hearing i,e, 25-6-1998 notice of this petition was issued to the respondents and also to the Advocate-General, Punjab, for today. No one has appeared on behalf of respondent No,1 Haji Muhammad Muneer. However, Miss Yasmin Saigal, learned Additional Advocate-General, Punjab, has appeared on notice. We have heard Hafiz Tariq Nasim, learned counsel for the petitioner and the learned Additional Advocate-General and have also referred to the relevant record.
2. Learned counsel for the petitioner contended that the writ petition filed by respondent No,1 was barred by Article 212 of the Constitution and in that context he has referred to a number of judgments of this Court wherein it has been held that Service Tribunals have exclusive jurisdiction in relation to all matters connected with the terms and conditions of service of the civil servants (subject to some exceptions which are not relevant to the present controversy) and these include matters relating to transfer of a civil servant.
' In a recent decision dated 27-5-1998 dismissing Civil Petition for Leave No,727-L of 1998 (Khalid Mahmood Wattoo v. Government of Punjab), this Court observed as follows: "The consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of the provisions contained in Article 212 of the Constitution. Reference can be made I to the following judgments:--
(i) Imam Bakhsh v. Deputy Commissioner, Layyah (1992 SCMR 365);
(ii) Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539);
(iii) Rukhsana Ijaz v. Secretary Education (1997 SCMR 167);
(iv) Ayub Anjum v. Government of Punjab (1997 SCMR 169);
(v) Muhammad Sarwar v. Government of Punjab (1990 SCMR 999)."
In that decision, Full Bench judgment of the Sindh High Court in the. Case of Khalil-ur-Rehman v.
Government of Pakistan (PLD 1981 Karachi 750) was also approved where it was held that order, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court was ipso facto ousted as a result of barring provisions of Article 212 of the Constitution. Reference in the decision of this Court dated 27-5-1998 in Civil Petition No,727-L of 1998 was also made to Zahid Akhtar (PLD 1995 SC 530) and it was observed as follows:-- "Against his transfer, the petitioner Zahid Akhtar had filed a writ petition in the Lahore High Court, which was dismissed as not maintainable in view of the bar contained in Article 212. Petitioner filed a petition for leave. In its decision, this Court referred to various principles and also the Govennt Transfer Policy to be followed, but ultimately the petition for leave was dismissed as not maintainable."
3. Miss Yasmin Saigal, learned Additional Advocate-General, Punjab, supported the case of the petitioner submitting that the High Court should have first decided the question of its jurisdiction before admitting the writ petition and/or granting interim relief.
4. As a result, Civil Petition No,934-L of 1998 is converted into appeal and the same is allowed, order dated 15-6-1998 of the Lahore High Court passed in Writ Petition No,4957 of 1998 is set aside and the matter is remanded to the High Court for fresh decision after hearing the parties. Before taking any decision regarding admission of the writ petition and/or passing orders granting interim relief, the High Court will first decide the question of its jurisdiction in view of the provisions of Article 212 of the Constitution and in the light of the judgments of this Court on the point involved.
' There shall be no order as to costs.