' MUNAWAR AHMAD MIRZA, J.---This appeal is directed against the judgment, dated 13th December, 1995 passed by Lahore High Court in Writ Petition No,1800 of 1994.
' Relevant facts briefly mentioned are that respondent Mst. Mussarat Afza on 12th February, 1994 filed Constitutional Petition No,1800 of 1994 asserting that she being eligible was appointed as temporary primary school teacher in B.P.S.-7 vide Letter No,215-20, dated 4th February, 1993 and posted at Government Girls Primary School, 373/G.B (Khaldi), Sammundri, District Faisalabad. It is the case of respondent that pursuant upon said appointment, she submitted joining report on 11th February, 1993 and attended her duties till the date of filing of petition on 14th February, 1993, but the school authorities have, failed to pay her emoluments. Following reliefs were sought:- '...It is, therefore, respectfully prayed that the petitioner may kindly be ordered to pay all the emoluments to the petitioner.
' It is further prayed that the respondents Nos.2 and 3 may also be restrained not to remove the petitioner from the service without notice and without legal reason."
' Petitioner No,2 (Deputy Education Officer (W)) filed para-wise comments on 13th June, 1994 repudiating the claim of respondent and specially pleaded that the order pertaining to appointment of respondent was invalid, therefore, it was withdrawn on the same day vide Letter No,375/78 of 4th February, 1993, which is reproduced in extenso for ready reference. ...The appointment order issued vide this office No,214/EC dated 4-2-1993 at Sr. No,2 in respect of Mst.Musarrat Afza D/o Muhammad yousaf R/o Chak No,169/GB Tehsil Samundri District Faisalabad is hereby withdrawn immediately."
' At this stage it would also be relevant to reproduce here the reply in paragraphs 2 to 4 of the para-wise comments:- "2. Not admitted. The petitioner is third divisioner matriculate and was illegible (ineligible) for appointment even through the then called M.P.A. Quota system. Concealing the above fact, the local M.P.A. Personally got the above orders of appointment issued. On the same day the papers and certificates of the petitioner were examined and her appointment orders were withdrawn.
Later on the services of all others out of merit appointees were also terminated. On the relevant official merit list the name of the petitioner appears at serial No,145, whereas appointments upto only Serial No,15 were ordered.
3. Not admitted. The petitioner is not a Government employee and no amount can be paid to her in terms of emoluments/pay etc. Under the rules.
4. Not admitted. Petitioner, beyond any doubt, knows that she is not a Government employee. There is no vacant post at Government Girls Primary School 373/GB, against which petitioner claims her adjustment. Moreover no claim in the form of pay bills etc. Was ever filed by the petitioner; with any authority of the Education Department or District Accounts Officer. Therefore, question of removal from service does not arise."
' The learned Judge of the Lahore High Court accepted the petition by means of judgment, dated 13th December, 1995 in the following terms:- ' ..,..The upshot of the above discussion is that this petition is accepted with costs and the respondents are directed to clear the salaries of the petitioner up-to-date by 31-1-1996."
' Feeling aggrieved, appellants assailed the above judgment through Civil Petition for Leave to Appeal No,959-L of 1996, which was granted on 14th May, 1996. The leave granting order is reproduced below:- ' ....Learned counsel contends that the High Court had no jurisdiction to decide the Constitutional petition in which the impugned judgment was delivered inasmuch as the said petition related to the terms and conditions of service of a civil servant. In this connection reliance is placed on Article 212 of the Constitution. Learned counsel maintains that since his plea involves the question of jurisdiction, it can be entertained by this Court at the present stage also.
2. In view of above submissions, leave is granted to consider the question of jurisdiction raised by the learned counsel.
3. Operation of the impugned judgment shall remain suspended till disposal of the appeal."
' Mr. Altaf Elahi Sheikh, Additional Advocate-General Punjab, emphatically contended that appointment of respondent Musarrat Afza as primary lady teacher was revoked/withdrawn on the same day undisputably prior to alleged assumption of duty by her, therefore, claim for salary was untenable. Alternatively, it was argued that demand for payment of salary falls within the exclusive domain of Service Tribunal by virtue of bar created under Article 212 of the Constitution .Of the Islamic Republic of Pakistan.
' Mr. M. Munir Peracha, learned counsel for respondent, however, canvassed that respondent Mst.
Musarrat Afza having been appointed by the appellants, writ jurisdiction was competent and consequential relief, as allowed, could be sought by invoking Constitutional jurisdiction.
' We have perused the record in the light of above submissions. It may be seen that the appellants in para-wise comments specifically asserted that letter regarding appointment of respondent Mst.
Musarrat Afza stood revoked/withdrawn immediately on the same day vide Order No,375/78, dated 4th February, 1993 and duly communicated to her. The alleged assumption of charge by the respondent was categorically disputed. Therefore, serious controversy on factual aspects existed which could not be conveniently resolved by exercising jurisdiction under Article 199 of the Constitution. Obviously, the parties did not have the opportunity of leading evidence to produce rebuttal for substantiating their respective stands. In the peculiar circumstances, it is not possible to arrive at definitive finding and glaringly controversial plea and rigidly conflicting stands taken by the parties. Thus, conclusions drawn in the impugned judgment are apparently erroneous.
' There is yet another important feature of the case, that respondent despite being fully aware about revocation/withdrawal of her appointment at least from the date when para-wise comments were filed on 13th June, 1994; did not take any steps to challenge the same. Therefore, while considering the grievances of the respondent, learned Judge of Lahore High Court in Chamber, without determining fate or legal consequences arising from withdrawal/recission of her appointment; could not legitimately grant the relief as prayed in the petition.
' For the above reasons, we are inclined to observe that the impugned judgment, dated 13th December, 1995 suffers from inherent defects and apparent legal infirmity; consequently, same is set aside. The appeal is accepted in the above terms. Parties are, however, left to bear their own costs.