NASIR ASLAM ZAHID, J.---This petition for leave filed by Khalid Mahmood Wattoo, an officer of the Labour and Manpower Department, Government of Punjab, is directed against the judgment dated 23-4-1998 passed by a Division Bench of the Lahore High Court allowing the Intra-Court Appeal filed by Government of Pakistan setting aside the judgment of a learned Single Judge dated 16-2-1996 whereby Writ Petition filed by the petitioner was allowed. We have heard at length the arguments of Hafiz Tariq Naseem, learned Advocate Supreme Court for the petitioner, and, with his assistance, referred to the relevant record.
2. Facts in brief relevant for determining the points raised in the present petition for leave are given in paras. 1 and 2 of the impugned judgment of the I.-C.A.Bench and the same are reproduced here:- "Respondent No,1 is a Joint Director, Labour and Manpower Department, Government of the Punjab. In the year, 1994, he applied to the Federal Government for being posted, on deputation, as Community Welfare Attache. He was recommended alongwith 12 persons for deputation abroad by a Selection Committee of the Ministry of Labour, Manpower and Overseas Pakistanis, Government of Pakistan, Islamabad, in its meetings dated 2-6-1994 and 7-6-1994. Somewhat similar were the recommendations by the Special Selection Board which held its meeting on 23-8-1994. Two more principal candidates belonging to Sindh Urban and Sindh rural were recommended by the Special Selection Board in its meeting dated 16-10;1994. Another person Shah Khawar, Advocate, was recommended by the Special Selection Board on 10-11-1994. Meantime, the number of posts of the Community Welfare Attache were decreased from 16 to 14. The Prime Minister of Pakistan, however, approved, on 2-2-1995, 12 candidates out of 14 recommendees, for posting abroad. It was decided to fillip the remaining two posts from Sindh Rural and Balochistan Provinces. Seven persons were approved from the Province of Punjab. The remaining five persons were the selectees from Sindh, N.- W.F.P. And FATA Norhern Areas. Respondent No,1 (petitioner herein) was dropped presumably on account of reduction of seats.
2. Respondent No,1 (petitioner herein) felt aggrieved and filed Writ Petition No,643 of 1995 before the Rawalpindi Bench of this Court. The same was accepted by the impugned order dated 16-2-1997 passed by a learned Single Judge of this Court directing the appellants (Government) to process ',the case of respondent No,1 (petitioner herein) in accordance with merit already determined by the Special Selection Board. Hence, this Intra-Court Appeal. The appellants (Government) also filed C.M.
No,1349 of 1997 under section 5 of the Limitation Act, 1908, for condonation of delay, if any, in filing the Intra-Court Appeal."
3. As observed, the learned Single Judge, by judgment dated 16-12-1996, declared the order dated 2- 2-1995 of the Government of Pakistan to be without lawful authority and of no legal effect. The said order dated 2-2-1995 reads as follows:-- "PRIME MINISTER'S SECRETARIAT Subject: APPOINTMENT OF COMMUNITY WELFARE ATTACHES ABROAD.
9. The Prime Minister has been pleased to approve the posting abroad of the below named twelve
(12) officers as Community Welfare Attaches:---
1. Quota Name Designation/Department Merit-1 Mr. Shahid Latif Anwar D.S. (BS-19 Sectt. Group M/O Production.
2.Merit-2 Mr. Sikandar Ismail Khan Section Officer (BS-18 OMG),Manpower & Overseas Pakistan 3.Punjab-1 Mr. Ashfaqullah Manager (equivalent to BS-19), Ex-Cadre, overseas Employment Corp.
4.Punjab-2 Mr. Qayyum Qamar KhawajaDS (BS-18) DMG, Lesbela Director (BS-19) (Ex-cadre) Bureau of Emigration & Overseas Employment 5.Punjab-3 Capt. Muhammad Aftab DC (BS-18) DMG, Lesbela 6.Punjab-4 Mr. Shah Khawar Advocate (Private Sector), 7.Punjab-7 Mr. Waheed A. Sheikh D.S. (BS-19) M/O Communications.
8.Sindh (R)-2Mr. M. Sarwar Nasim Director (BS-19) Ex.-cadre Bureau of Emigration & Overseas Employment.
9.Sindh (R)-2Mr. Abdul. Ghafoor BhattiAsstt Professor (BS-18) Jamshoro University.
10.Sindh (U) Mr. Hussain Ali PCS (BS-18) Sindh Government.
11.N.W.F.P. Mr. Najeeb Khilji Manager OFP-9 equivalent to BS-19 Ex-cadre 12.FATA/NA Raja Sher Akbar Asstt: Director (BS-17) Ex-cadre, Bureau of Emigration and Overseas Employment.
10. The Prime Minister has further been pleased to order that the remaining two posts shall be filled by a candidate each from Sindh R and Balochatistan the names of the approved candidates shall be communicated shortly.
(Sd.)
Iftikhar Ahmed Joint Secretary (Admn.)
Establishment Division (Mr. Mizharul Hag Siddiqui, Secretary) Islamabad PM's Sectt UO N.Dy 943/DS (A.1)/94, dated 2-2-1995."
By judgment dated 16-2-1996, the Government was directed to process the case of the petitioner in accordance with the merit already determined by the Special Selection Board.
4. The first contention raised on behalf of the petitioner by the learned Advocate Supreme Court was that the I.-C.A. Had been filed beyond time and delay should not have been condoned by the I.-C.A.
Bench of the Lahore High Court. The above plea raised on behalf of the petitioner was not accepted and the objection on the ground of limitation was disposed of as follows:-- "We have heard the learned counsel for the parties at length. The question of limitation is to be considered first. The receipt issued by the Copying Agency of the Rawalpindi Bench of this Court clearly shows that the appellants were given the call dates as 19-2-1997, 5-3-1997 and 15-3-1997. In these circumstances, the appellants could not be made to suffer even if the Copying Agency had secretly prepared the certified copy of the impugned judgment on 20-2-1997. It is now well-settled that an act of the officials of the Court shall not cause any prejudice to a party. We are inclined to take the view that the Intra-Court Appeal filed by the appellants on 21-3-1997 was within time."
We find no infirmity in the above view taken by the I.-C.A. Bench to call for interference. It may be observed here that the learned Advocate Supreme Court for the petitioner had relied upon several reported judgments for the proposition that the Government should be dealt with at par with private individuals in the matter of limitation and that the I.-C.A. Bench had erred in condoning the delay in the filing of the I.-C.A. By the Government. In our view, the I.-C.A. Bench came to the right conclusion that the appeal was not barred by limitation The judgments cited by the learned counsel for the petitioner are, therefore, not relevant and the plea raised on behalf of the petitioner that the Government had been treated in a benevolent manner in the matter of condonation of delay is misconceived.
5. Another proposition advanced on behalf of the petitioner by the learned counsel for the petitioner premised on section 3(2) of the Law Reforms Ordinance, 1962, was that the I.-C.A. Was not competent at all. Precise contention was that the I.-C.A. Bench accepted the appeal on the basis of contradictory finding as on the one hand the Division Bench held that the matter related to terms and conditions of a civil servant but, on the other hand, the Bench ignored that in such type of cases the I.-C.A. Was not competent at all because the aggrieved civil servant would have an alternate remedy of filing a departmental appeal against the adverse order. The contention appears to have substance, but as we are of the view that the writ petition filed by the petitioner before the High Court was incompetent and not maintainable, the contention loses its significance. Additionally, it has been noted that the I.-C.A. Bench had allowed the appeal not only on the ground that the writ was barred under Article 212 of the Constitution, but also on the ground that in a writ no direction can be given to compel the Government to send a Government servant for posting abroad.
6. The next contention 'related to maintainability of the writ petition under Article 212 of the Constitution before the High Court by the petitioner in view of the bar contained under Article 212 of the Constitution. In this context reference may be made to the prayer made by the petitioner in his writ petition before the High Court. It reads as follows:- "It is, therefore, prayed that the impugned order dated 2-2-1995 may kindly be set aside to the effect that the two posts of the Punjab allocated to the Provinces of Sindh and Balochistan (With one seat each) be restored to the due and fixed quota of Punjab and that the respondent No,4 be directed to do what they are required by law to do i.e, restore the two posts to the Punjab Quota and post the petitioner against one of the said two posts."
The impugned order dated 2-2-1995 related to the terms and conditions of service of the petitioner.
If there was any law or rule of instructions regarding allocation of posts to the Province or changing the allocations to the Province and the same affected the rights of the petitioner in relations to his service, Article 212 of the Constitution was a bar in the way of the petitioner in maintaining a writ petition under Article 199 of the Constitution.Learned counsel had relied upon a judgment of this Court in the case of Federation of Pakistan v. Abdul Aziz (1998 SCMR 91) for the proposition that, despite Article 212 of the Constitution, a writ petition is maintainable in respect of matters relating to terms and conditions of service of a Government employee. The judgment relied upon is distinguishable and, in an case, the question of bar under Article 212 of the Constitution was not considered in the said judgment. 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 to the following judgment:--
(i) Iman Bakhsh v. Dy. 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 the case of MuhammadSarwar (supra), petitioner had filed a Constitutional petition before the High Court against abolition of a post. High Court refused to entertain the petition observing that the civil servant should approach the Service Tribunal to establish his right. Question raised before the Supreme Court in the petition was that action of the authority in abolishing the post was mala fide with a view to deprive the civil servant of his post, emoluments and his status.
It was held by this Court that the relief sought for by the petitioner related to terms and conditions of employment. Petitioner was dismissed and leave was refused.
7. It had also been argued by the learned counsel that the writ petition under Article 199 was competent as the impugned order was mala fide inasmuch as it had been passed to deprive the petitioner, who is from Punjab, from a foreigh posting and accommodating a candidate from Balochistan. Even in cases where the order is mala fide, the bar of Article 212 of the Constitution is attracted. Judgment in Muhammad Sarwar v. Government of Punjab (supra) is an authority for the principle. Reference can also be made with approval to a Full Bench judgment of the Sindh High Court in Khalil-ur-Rehman v. Government of Pakistan (PLD 1981 Karachi 750) where the High Court was examining the validity of order which fall within the jurisdiction of the Service Tribunals and it was held that 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 was ipso facto ousted as a result of barring provisions of Article 212 of the Constitution. The judgment of 5-member Full Bench was authored by Zaffar Hussain Mirza, J. (as he then was) and the judgment referred to a number of judgments of this Court and other superior Courts of the country. It is considered appropriate to refer to the relevant part of the judgment which is as follows:-- "Reference may also be made to some of the judgments of the superior Courts in which it has been held that once it is shown that a particular matter relating to terms and conditions of a civil servant lies within the jurisdiction of the Service Tribunal, the jurisdiction of the High Court and for that matter of other civil Courts will stand ousted. A D.B. Of this Court in Sher Muhammad v. Director-General of Pakistan Telegraph & Telephones Department (PLD 1979 Kar.1) upheld an objection raised before it on the basis of Article 212 of the Constitution and dismissed the petitions seeking to challenge orders passed by departmental authorities relating to the terms and conditions of civil servants which were found to be covered by sections 3 and 4 of the Service Tribunals Act, 1973. In Nan Ahmed Khurrum v.
Government of Pakistan (PLD 1979 Kar. 610) also the same D.B. Reiterated the same view holding that the petitions were not competent under Article 199 of the Constitution as the impugned orders were appealable under section 4 of the Service Tribunals Act, 1973. This view was upheld by the Supreme Court in appeal in lqan Ahmed Khurrum v. Government of Pakistan (PLD 1980 SC 153) and on page 159 of the report it was observed as under:- 'As to the ground concerning the non-maintainability of the petition, 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 on Article 212 of the Constitution would be applicable with full force as in the exercise the question of vires of the rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Balochistan and others and Fazal Ellahi and others with which I agree.'
In Muhammad Hashim Khan v. Province of Balochistan (PLD 1976 Quetta 59) a D.B. Of the Sindh and Balochsistan High Court held that the effect of the establishment of the Service Tribunal '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'. In the other case approved by the Supreme Court, viz. Fazal Elahi Ijaz and others v. Government of Punjab and others (1981 SCMR 433) also the same view was held that if a matter falls within the ambit of the exclusive jurisdiction of the Administrative Tribunal then no proceedings can be entertained by other Courts including the High Court in regard to such matter in view of the bar contained in Article 212. Similar view was taken by a Full Bench of the Balochistan High Court in Mujeebullah Hajzai v. Director- General, Telephone and Telegraph Department (PLD 1980 Quetta 51). In Afzal Hussain Syed v.
Government of Punjab (PLD 1980 Lah. 697) a learned Single Judge of the Lahore High Court was required to consider the question of Constitutional jurisdiction of the High Court in relation to an order of retirement simplicitor after completion of 25 years Service, as in the present case, and he reiterated the view held in the aforesaid cases holding that the ouster of jurisdiction under Article 212 in such a case was absolute for the reason that such an order is not excepted from the jurisdiction of the Administrative Tribunal established under the enabling provisions of Article 212 of the Constitution, but it was further held that the High Court can intervene if the order is void or coram non judice on the face of the record. The last-mentioned view regarding the power of intervention of High Court in the case of void or coram non judice order will be considered at a later stage. A Full Bench of the Peshawar High Court had occasion to consider the question of the ouster jurisdiction of the High Court under Article 212 in respect of orders of retirement of the same nature, as in the present case, in Amami Mulk v. N.-W.F.P. (PLD 1981 Pesh. 11) and held that such an order being appealable before the Administrative Tribunal the jurisdiction of the High Court was barred under Article 212 as the Administrative Tribunal can examine the question whether retirement was ordered in public interest.
7 We may now state the reason in support of this view. It will be observed that Article 212 of the Constitution opens with the non obstante clause contained in the words 'Notwithstanding anything hereinabefore contained'. We agree with the submission of the learned Deputy Attorney-General that the effect of this clause is to curtail and oust the jurisdiction conferred on the High Court under Article 199. It goes without saying that the source of power of judicial review vesting in the High Court is not inherent in the Court as distinct from the 'judicial poweras elucidated in the case of State v.
Ziaur Rehman (PLD 1973 SC 49), but the power is enforced by Article 199 of the Constitution with all its limitations. Article 175 of the Constitution makes it abundantly clear that 'no Court shall have any jurisdiction save as is or may be conferred on its by the Constitution or by or under any law'. Article 199 qualifies the power conferred thereunder on a High Court with the words 'subject to the Constitution'. It cannot, therefore, be urged that the High Court has inherent power of judicially reviewing the action of the Executive, the Legislature, the Courts or Tribunals, but exercises such jurisdiction in the filed of judicial review as has been expressly conferred upon it by Article 199.
Consequently if by any provision of the Constitution any fetters are placed upon the jurisdiction of this Court in the exercise of power under Article 199, this Court cannot overreach these limitations by any other consideration. In the case of Mujeebullah Eijaz, referred to above, the Full Bench of the Quetta High Court at page 62 of the report expressed this view. In a D.B. Case of the Lahore High Court reported as Muhammad Aslam Bajwa v. Federation of Pakistan (PLD 1974 Lah. 545) the same view was taken earlier while considering the ouster clause under Article 212 and the question was whether petitioners under Article 199 pending before the High Court in relation to matters within the jurisdiction of the Service Tribunal had abated or not. The Supreme Court in the case of M. Yameen Qureshi v. Islamic Republic of Pakistan (PLD 1980 SC 22) approved the view held by the Lahore High Court in the aforesaid case in regard to the jurisdiction of the Service Tribunal to entertain appeal under section 6 of the Service Tribunals Act, 1973 on the abatement of petitions pending before the High Court in respect of such matters. In view of all the aforesaid judicial pronouncements it seems clear to us that an order of retirement in the public interest in respect of a civil servant after completion of 25 years service qualifying for pension or other retirement benefits being appealable under section 4 of the Service Tribunals Act, 1973 the jurisdiction of this Court stands ousted by virtue of the bar contained in Article 212 of the Constitution.
8. It has, however, been contended, on the aforesaid premises, that the present petitions would still be competent before the Court for a number of reasons. It is first contended that even though the order of the nature a question before us may be appealable before the Tribunal nevertheless the High Court has always been held to have jurisdiction under Article 199 in respect of orders which are mala fide, ultra vires or coram non judice. The argument is that the availability of an alternate remedy under the statute has never been recognized as a bar to the exercise of jurisdiction under Article 199 in respect of orders of the nature mentioned. In fact some of the decisions of the High Court, referred to above, have taken this view. I may mention the Full Bench judgment of the Balochistan High Court in Mujeebullah Hajazi's case already referred to earlier. In this case the Court expressed the opinion that no appeal will lie before the Tribunal, inter alia, in a case 'when the order is not passed by a competent departmental authority and is for such reason void.In Afzal Hussain Syed v. Government of Punjab also it was held that an order of retirement, as in the present case, was appealable before the Tribunal, nevertheless the 'High Court may also intervene if the order is void, or coram non judice on the face of the record. The reasoning in these cases proceeds on the basis that orders which are mala fide, ultra vires the powers of the authority passing them; or coram non judice are null and void in law and, therefore, any Court before which they are brought is not only entitled, but bound to ignore them. With all due respect for the learned Judges we are unable to agree with the proposition. In the first place before a Court could examine whether an order is really of the nature mentioned above it must have jurisdiction to undertake the examination and determine the question. As soon as it is shown that a particular order of the departmental authority lies within the ambit of the Tribunal, the jurisdiction of the civil Courts including the High Court is ipso facto ousted as a result 'of the barring provisions of Article 212. The High Court would, therefore, not be competent on any ground to examine the validity of an order which falls within the jurisdiction of the Tribunal. The decisions on which reliance seems to have been placed for the view convassed in support of the argument related to the ouster of jurisdiction under sub-Constitutional legislation and in relation to finality clauses in Statutes. Apparently in such. Cases the power of judicial review available to the High Court under Article 199 is not affected and, therefore, recourse can be had to the extraordinary supervisory jurisdiction of the High Court to challenge such orders on the ground of nullity. But the situation under Article 212 is entirely different. The ouster contemplated under that Article is of the constitutional nature and, therefore, of necessity curtails jurisdiction of the High Court totally in respect of the subject-matter committed to the Service Tribunals. The second important reason is that the plain reading of the provisions of clause (2) of Article 212 leaves no manner of doubt that these provisions did not envisage concurrent jurisdiction of the civil Courts and the Tribunal in regard to any matter on any ground in respect of the terms and conditions of service. The situation contemplated in the said provisions is that the jurisdiction conferred on the Service Tribunals and the jurisdiction vested in the civil Courts in respect of the terms and conditions of service of civil servants is mutually exclusive, so that the field covered by the jurisdiction of the Service Tribunal is totally outside the jurisdiction of the Service Tribunal of the civil Courts including the High Court. That orders which are mala fide, ultra vires or coram non judice are within the ambit of the Service Tribunal has been held in several cases. In Nan Ahmed Khurrum v. Government of Pakistan, a D.B. Of this Court held that orders which are ultra vires or violative of rule of natural justice or void were within the competency of the Service Tribunal to determine. In Muhammad Hashim Khan's case, already referred to, also it was held that the Service Tribunal's exclusive jurisdiction extends to ultra vires and mala fide orders. Similarly a Division Bench of the Peshawar High Court in the case of Dr. Raja Mansoor Elahi v. N.-W.F.P. (PLD 1980 Pesh. 81) held that 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 including the High Court would be ousted. Similar view was taken in the case of Muhammad Aslam Bajwa by the Lahore High Court as already referred to .
All these cases have been extensively reviewed in an exhaustive judgment, if we may say so with respect by Shah Abdul Rashid, J. In the Full Bench case of Amanul Mulk v. N.-W.F.P., in which the following reasons were given in support of the view that the High Court's jurisdiction stands ousted even in regard to such order:- 'In our opinion all that is necessary is that the order to be impugned should be an order of the departmental authority and if it is an order of such authority and the Tribunal has been conferred jurisdiction by the law under which it is established, the jurisdiction of the High Court is totally ousted.
As a consequence, wherever the jurisdiction of the Tribunal exists, it is not open to the aggrieved civil servant to invoke the jurisdiction of the High Court under Article 199 of the Constitution by saying that the order of the departmental authority is without jurisdiction or it is void or it is mala fide or it is in the nature of coram non judice'."
This question, in our opinion, stands finally settled by the clear and unambiguous pronouncement of the Supreme Court as regards the wide amplitude of the powers of the Tribunal in regard to the orders challenged before it. In M. Yameen Qureshi's case, already referred to, an order dismissing a civil servant under M.L.R. 58 during the regime of General Agha Muhammad Yahya Khan was subsequently appealed against before the Service Tribunal established under the Service Tribunals Act, 1973. The majority of the Members of the Service Tribunal took the view that all actions taken or orders made under Martial Law Regulations promulgated during the same regime had been validated under Article 270 of the Constitution and were therefore, not liable to be challenged before the Service Tribunal. The minority view, however, was that the Service Tribunal having been vested with exclusive jurisdiction, under Article 212 of the Constitution, in respect of matters relating to the terms and conditions of service of persons who were or had been in the service of Pakistan, including the disciplinary matters, it was clear that no other authorities could exercise jurisdiction in these matters, and, therefore, the appeal was competent under Article 212 of the Constitution read with section 4 of the Service Tribunals Act, 1973, but the scope of the appeal would be subject to the limitations spelt out by the Supreme Court in the case of Federation of Pakistan v. Saeed Ahmed Khan and others (PLD 1974 SC 151) namely, that the Tribunal could interfere only with the acts, orders or proceedings which had been done, made or taken without jurisdiction, or were mala fide, or were in the nature of coram non judice. The Honourable Judges of the Supreme Court held both this majority and the minority views of the Service Tribunal as untenable. His Lordship the Chief Justice, who wrote the judgment for the Court made the following observations:-- "As a result we are of the view that both the majority and the minority view expressed by the learned Chairman and the Members of the Service Tribunal as to the maintainability and the scope of the appeal filed by the appellant before the Tribunal are not sustainable on a proper interpretation of the law. The appeal being one within the ambit of section 4 of the Service Tribunals Act, 1973, was fully competent, and it was the duty of the Service Tribunal to examine on merits all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal made under the M.L.R., 58, in May, 1970,"
It was further observed: "It goes without saying that it lies within the jurisdiction of the Tribunal, and, indeed, it is its obligation, to decide all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal, including his contention that no evidence was heard in his presence, nor was he given any opportunity to show cause against the proposed punishment. The appellant would be entitled not only to a full opportunity to present his case before the Tribunal, but also to inspect all relevant record which might have been taken into consideration by the competent Authority for the purpose of passing the impugned order. As we see the legal position the Tribunal had wide powers under section 5 of the Act, as it may on appeal confirm, set aside, vary or modify the order appealed against. Under subsection (2) of the same section, the Tribunal, for the purpose of deciding any appeal, is to be deemed to be a civil Court, and to have all powers as are vested in such Court under the Code of Civil Procedure, 1908 Such being the scope of the powers of the Service Tribunal we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala fide, ultra vires and coram non judice are within the jurisdiction of the Service Tribunal to determine and, therefore, it follows that the High Court will have no jurisdiction to grant relief on these grounds in respect of orders appealable before the Service Tribunal. Incidentally we may also refer to a contention raised before us on the law laid down in Saeed Ahmed Khan's case that even a Constitutional bar on the scrutiny of orders based during the illegitimate rule under the Martial Law promulgated on 25th March, 1969 was not held to oust the jurisdiction of the High Court in respect of orders mala fide or in the nature of coram non judice. The real import of the rule laid down in that case has been fully explained in the cited case of Yameen Qureshi and we do not wish to burden this judgment with further discussion on the untenability of this contention. Suffice it to say that the statement of law made in Saeed Ahmad Khan's case relates to the interpretation of a validation clause in the Constitution, which in our humble view is not at all pertinent to the situation and context of the present controversy which deals with the ouster of jurisdiction by a clear Constitutional provision. If the entire filed of controversy that could possibly arise in respect of an order passed by a departmental authority has been committed under the constitution to the exclusive jurisdiction of the Service Tribunal, then Article 212 clearly bars the jurisdiction of this Court to entertain any part of such controversy in any proceedings. Their Lordships also emphasized in the cited case of Yameen Qureshi the distinction between the scope of jurisdiction of the High Court by way of judicial review and the wide scope of the appellate jurisdiction of the Service Tribunal."
The underlining in the above quotation from PLD 1981 Karachi 750 is ours for emphasis.
Reference can also be made to the well-known decision of this Court in the case of Zahid Akhtar v.
State (PLD 1995 SC 530). 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 Government Transfer Policy to be followed, but ultimately the Petition for leave was dismissed as not maintainable.
Another judgment is Nasir Ahmed v. Government of Pakistan by Lahore High Court and reported in 1992 PLC (C.S.). 1020, wherein one of us (Irshad Hasan Khan, J., as he then was) observed as follows:-- "Nisar Ahmed Petitioner herein, has made a challenge to the cancellation of his transfer as Veterinary Assistant from A.I. Centre, Narowal to A.I. Centre, Pattoki. His grievance is that the impugned order has not been passed in the exigencies of service, but the opposite party procured the same by directly or indirectly approaching the Minister concerned.
2. It is not necessary to go into merits of the case, suffice it to say that a civil servant is liable to the transferred anywhere in the exigencies of service. To the same effect is the judgment of the Supreme Court of Pakistan in the case of Allah Rakha v. Government of the Punjab (1980 PLC (C.S.) 397), which I respectfully follow.
3. Be that as it may, under rule 2 (d) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, it is misconduct on the part of a civil servant to bring political or other outside influence directly or indirectly to bear on the Governor, the Chief Minister, a Minister, or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a civil servant.
4 . It is the duty of the Head of the Department to ensure that no order in violation of the law and the relevant rules is passed by his subordinates. It is also obligatory on the Secretary to re-submit the case to the Minister inviting his attention to the relevant Rules, Regulations and the Government Policy where the Minister's order appears to involve a departure from the Rules, Regulations or Government Policy and if the Minister still disagrees with the Secretary, the Minister shall refer the case to the Chief Minister for orders. The Secretary of the Department being responsible for the careful observance of the rules in his Department, while submitting a case for the order to the Minister is also duty bound to suggest a definite line of action in conformity with the Rules, Regulations/Government Policy, as the case may be, and failure to do so makes him liable for a suitable departmental action by the competent Authority in accordance with law. An aggrieved person can also seek appropriate direction in appropriate proceedings before an appropriate forum against any action enforceable in law prejudicial to his interest. Likewise, if a Minister abuses the powers vested in him in the discharge of his official functions, his action is also open to challenge before an appropriate forum in appropriate proceedings in accordance with law. The Punjab Government Rules of Business, 1974, as amended from time to time and made pursuant to Article 139 of the Constitution, must be strictly adhered to by all concerned. Needless to say that obedience to Constitution and the law is the inviolable obligation of every citizen wherever he may be.
5. The Petitioner may, if so advised, approach the Secretary, Live Stock, Government of the Punjab, Lahore, for redress of his grievance. If a departmental representation is made by the Petitioner in his behalf, I have no doubt in my mind that the same shall be disposed of justly, fairly, equitable and in accordance with law by the competent Authority."
8. It was then argued by Hafiz Tariq Naseem, learned counsel for the Petitioner, that in any case the Service Tribunal had no jurisdiction in view of section 4(1)(b) of the Service Tribunal Act and the writ petition under Article 199 of the Constitution was, therefore, maintainable. Section 4 (1) (b) of the Service Tribunal Act reads as follows:-- "4. Appeals to Tribunal.--(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 and 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)............ ................ ................
(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 post or grade; and (c)............. ................. .................
In our view the case did not fall within the exception under section 4(1) of the 1973 Act. The question did not relate to the fitness of the Petitioner to hold a post. There was no order passed by the Government whereby it had been held that the Petitioner was not fit to hold the post in question or that he was unfit to be posted abroad. What the petitioner wanted, as is apparent from the prayer made by him in his writ petition (respondent hereinabove), was that the order dated 2-2-1995 may be set aside and two posts of Punjab allocated to two Provinces of Sindh and Balochistan be restored. This prayer did not relate to fitness or otherwise of the Petitioner. The other prayer that after the restoration of the Punjab quota, Petitioner be posted against one such post also does not relate to the fitness or otherwise of the Petitioner. In the circumstances, prayer made by the Petitioner did not attract section 4(1)(b) of the Service Tribunal Act, 1973.
Reference here may be made to para. 9 of the judgment of the I.-C.A. Bench where it was observed as follows:-- "Even otherwise, the matter of posting and transfer is essentially a matter which falls within the administrative domain of the departmental authorities. Unless there are exceptional reasons, the superior Courts do not interfere in such matter. The competent Authority had never approved the posting/deputation abroad of the respondent. No, direction could be given to compel the Government to send respondent No,1 on deputation/posting abroad."
The Division Bench of the High Court has also relied upon the case of Government of Pakistan v.
Muhammad Yasin (PLD 1997 SC 401) where such a direction by the High Court was disapproved by this Court. We reiterate the above view of the Division Bench of the High Court.
9. Before parting with this judgment it may be observed that, on several occasions since 1992, Petitioner had been recommended for posting abroad but, for some reason or the other, the competent Authority did not pass orders in accordance with such recommendations. It is hoped that if in future the occasion arises and there is a suitable vacancy for foreign posting, petitioner's case will also be considered on merits.
10. As a result, Civil Petition No,727-L of 1998 is dismissed and leave is refused.
…and 45 more citing cases