1. ' BASHARAT AHMAD SHAIKH, J.---Respondent Zaman Hussain Khan was a senior teacher in the Education Department and was placed in B-15. It is stated that he held a degree in M.A. Political Science but in 3rd Division. He re-appeared in the said examination and improved his division on 3rd April, 1984. After some time he became a lecturer in the same department but during his tenure as senior teacher he was given selection grade B-17 with effect from 1-9-1984. He also drew three advance increments in pursuance of Government order which, inter alia, provided that a teacher who possessed or acquired Master's degree would be allowed three increments. In 1988 a Central Audit Party conducted the Audit of the Government offices at Kotli and raised an objection that the respondent should have drawn three advance increments in B-15 and not in B-17 and that an amount of Rs,15,585 had been overpaid. In pursuance of this objection the District Accounts Officer wrote a letter on 9th of January, 1989 to the District Accounts Officer, Bagh where the respondent was posted at the relevant time forwarding the letter of Central Audit Party and asked the latter to recover an amount of Rs,15,585 from the respondent. This action of the Accounts Officers was challenged by respondent by filing a Writ Petition in the High Court on 25-3-1990. The Writ Petition has been accepted. Hence this appeal by leave of the Court.
2. ' The acceptance of the Writ Petition has been based on the following two points:--
(a) Under Article 65-A of the Audit Code if a supposed over-payment is to be deducted after two years from the date of payment that matter has to be submitted to the Finance Minister who has to decide whether any recovery should be made or not;
(b) recovery of any amount is a major penalty under the Civil Servants (Efficiency and Discipline)
3. Rules 1977 and if any decision for the recovery of amount allegedly drawn by the petitioner in excess of his entitlement was given by the Finance Minister even then the order should have been implemented through the competent authority after giving show-cause notice.
4. ' The Accountant-General, District Accounts Officers of Kotli and Bagh, Azad Government of the State of Jammu and Kashmir and the Azad Jammu and Kashmir Council jointly filed a petition for leave to appeal to challenge the judgment of the High Court. Apart from challenging the views formed by the High Court it was also urged at the leave stage that the judgment under appeal had been passed without jurisdiction as the order impugned before the High Court could be challenged in the Service Tribunal by filing an appeal. This objection had not been taken before the High Court and was raised for the first time in this Court, but it has become a consistent practice of this Court to allow the parties to raise law points of public importance or points relating to jurisdiction even if they have not been raised in the High Court or any other Court or Tribunal.
5. ' There are no two views that disputes arising out of the final orders relating to the terms and conditions of civil servants fall within the jurisdiction of the Service Tribunal and jurisdiction of the High Court stands ousted in those matters. It is also not disputed that 'pay' is one of the terms and conditions of service. It is clear that the amount involved in the case was paid as increments which are a necessary part of a civil servant's pay. However, it has been contended before us by Syed Nazir Hussain Shah, the learned counsel for the respondent, that the principles reflected above are not applicable to the present case. His contention was that the order of recovery was not passed by an authority competent to pass that order and such an order was not appealable before the Service Tribunal. The learned counsel contended that according to section 4 of the Service Tribunal Act an appeal lies against a final order made by a "departmental authority" as defined in explanation appended to the aforesaid section in the following words:- Explanation: In this section 'departmental authority means any authority, other than a tribunal which is competent to make an order in respect of any of the terms and conditions of civil servant.'
6. ' The learned counsel submitted that if an order is passed by an authority not competent to pass that order, no appeal would lie under section 4 of the Service Tribunal Act and in such a situation a Writ Petition would lie. Applying this principle to the present case, the learned counsel, Syed Nazir Hussain Shah Kazmi, submitted that since the supposed overpayment was older than two years the District Accounts Officer could not order the recovery of the amount but could only report the matter to the Finance Minister who was the competent authority to decide whether the recovery should be made or not. He based his contention on Article 65-A of the Audit Code. This contention was vehemently opposed by the learned counsel for the appellants, Sardar Rafique Mahmood Khan, by submitting that the definition of 'departmental authority' reproduced above does not connote that the order which has to be challenged in the Service Tribunal should have been competently made. He contended that if the matter relates to terms and conditions of service an appeal would lie only before the Service Tribunal whether or not the order sought to be challenged has been passed by an authority competent to pass that order.
7. ' The Azad Jammu and Kashmir High Court has held in some cases that no appeal lies to the Service Tribunal from orders not competently passed because about such orders it cannot be said that they are orders of departmental authority. However, it is for the first time that this Court has been called upon to decide this legal issue.
8. ' On this issue the learned counsel for the parties Sardar Rafique Mahmood Khan and Syed Nazir Hussain Shah Kazmi cited a good number of cases in support of their respective contentions. The first in time is the case of Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah.
545. Before analyzing this judgment it is necessary to notice the background in which this case came before the Lahore High Court. During the Martial Law period of General Yahya Khan some 303 Government servants were removed or compulsorily retired from service under Martial Law Regulation No,, 58 in December 1969. In 1972 Martial Law Regulation No,, 114 was promulgated during the time when Mr. Zulfiqar Ali Bhutto was the Chief Administrator of Martial Law. Under this regulation another lot of government servants was retired. The Government servants challenged their removal by filing Writ Petitions. In order to save the actions taken by Martial Law authorities from judicial scrutiny an attempt was made by enacting Article 281 in Interim Constitution which was adopted in 1972. This article came up for consideration in State v. Ziaur Rehman PLD 1973 SC 49 and it was held that the protection given under Article 281 did not extend to orders or actions of the Martial Law Authorities which were coram non judice, without jurisdiction or mala fide.
9. Subsequently, when permanent Constitution was framed in 1973 it also contained two Articles, numbered 269 and 270, which also purported to validate and protect the actions taken during the Martial Law period. In Federation of Pakistan v. Saeed Ahmad Khan PLD 1974 SC 151 Article 281 of the Interim Constitution and Articles 269 and 270 of the permanent Constitution of 1973 were considered and it was held that acts, orders or proceedings which were done, taken or made, coram non judice, without jurisdiction or with mala fide purpose had not been saved from the scrutiny of the Courts by the Articles referred to above. Thus the view formed in Ziaur Rehman's case was reiterated in Saeed Ahmad Khan's case and it was ordered that Writ Petitions filed in order to challenge the actions taken against the Government servants under the aforesaid Martial Law Regulations would be heard and decided by the High Court in light of the principles. After the pronouncement of the judgment in Saeed Ahmad Khan's case the Federal Government set up a Service Tribunal in 1973 after enacting the Service Tribunals Act. When the Writ Petitions filed by the Government servants removed during the Martial Law period came up for adjudication before the Lahore High Court, it was contended on behalf of the Federal Government as well as the Government of Punjab that Service Tribunal having exclusive jurisdiction with regard to the terms and conditions of service of persons who were or had been in service of Pakistan, including the disciplinary matters, had been set up, therefore, the Writ Petitions stood abated under Article 212 of the 1973 Constitution. When confronted with this situation the learned counsel for the petitioners raised many points to contend that Writ Petitions had not abated. One of the points raised was that in Saeed Ahmad Khan's case and Ziaur Rehman's case the Supreme Court had held that the High Court could set aside those orders which were found to be mala fide or without jurisdiction thus the orders falling under those categories could only be scrutinised by the High Court in its Constitutional jurisdiction. It was contended before the Court that in view of the definition of "departmental authority" in the Service Tribunals Act an order passed by an authority which was not competent to pass that order would not be at order of a departmental authority and would not be appealable before the Service Tribunal. The Division Bench comprising Karam Elahi Chauhan, J.
10. And Shafiur Rehman, J. Repelled the argument and held that orders passed without jurisdiction would be appealable before the Service Tribunal. It was observed that:- "This will show that read in this context orders whereby penalty had been inflicted for example without jurisdiction the same also were equally appealable; just as those where penalties have been imposed with jurisdiction because, otherwise conversely arguing where the penalties have been 'competently' inflicted what is the logic of providing appeals against the same if there is no defect in their 'competency' in any respect. The right of appeal according to us as given in sections 4 and 6 is independent of such like niceties because daily we come across appeal-cases in which pleas are being taken that orders of the subordinate Courts or authorities are without jurisdiction and the Appellate Courts or forums if so satisfied set aside such orders. Whether any particular order in fact is with jurisdiction or without jurisdiction can well be decided by an Appellate Court and this is one of the incidents of appeal. It was held in Maharaj Kumar Bindeswari Prosad Singh v.
11. Thakur Lakpat Nath Singh and others (8 I.C. 26); Jwala Prasad v. Salik Ram (I.L.R. 13 All. 575); and Ranjit Missir v. Ramudar Singh (16 I.C. 940), that where jurisdiction is usurped by a Court in passing an order against which an appeal could lie if it had been passed with jurisdiction an appeal cannot be defeated on the ground that the order was without jurisdiction. Also see to the same Gangadhar Karmakar and others v. Shekharbasini Dasya and others AIR 1917 Cal. 320; Bandiram Mockerjee v.
12. Puma Chandra Roy ILR 45 Cal. 926; Wajudi Pramanik v. Muhamed Balai Morul AIR 1925 Cal. 1032 and Janardhan Reddy and others v. State of Hyderabad and others AIR 1951 SC 217)."
13. ' The learned Judges then proceeded to examine the true import of the words "competent to make an order" and observed as follows:- "The words 'competent to make an order' do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed. The defect in competency in other words will provide a good ground for appeal rather than negate it. That it is in this context that sections 4 and 6 of the Service Tribunals Act of 1973 are to be read is clear from Article 212 of the Constitution which states that it is the subject- matter of a case on which will depend the ouster of jurisdiction of other Courts. If the subject- matter of Courts or Tribunals of exclusive jurisdiction is the 'terms and conditions of service' or 'discipline' and relates to persons who are or have been in the service of Pakistan then the ouster of jurisdiction of other Courts is complete."
14. ' In Muhammad Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22, the facts were that the appellant was a Joint Secretary in Government of Pakistan. He had proceeded on leave preparatory to retirement when he was suspended by the Chief Martial Law Administrator Gen. Yahya Khan under Martial Law Regulation No,,
58. He was charge-sheeted and heard by a Tribunal presided over by an Army Officer and he was consequently dismissed on 19th of May, 1970. When the Service Tribunal was set up under the Service Tribunals Act he filed an appeal before the Tribunal in 1974, but it was dismissed by the Tribunal for want of jurisdiction. The Chairman of the Tribunal, with whom one of the members concurred, formed the view that all the actions taken under Martial Law Regulations promulgated by Gen. Yahya Khan stood validated under Article 270 of the Constitution of Pakistan 1973 and it had also been provided therein that such an action shall not be called in question before any Court on any ground whatsoever, therefore, the Tribunal did not have any jurisdiction to entertain the appeal. However, the second member of the Tribunal expressed a different opinion. He held that under Article 212 of the Constitution the Service Tribunal had the exclusive jurisdiction in matters relating to the terms and conditions of service of civil servants and thus no other Court had any jurisdiction in the matter, but in the cases relating to the Martial Law 'period this jurisdiction could be exercised by the Service Tribunal within the limitations spelt out by the Supreme Court in Saeed Ahmad Khan's case, namely, that the Tribunal could only interfere with the acts, orders or proceedings which were without jurisdiction, mala fide or coram non judice. After an elaborate analysis of the case law the learned Judges of the Supreme Court of Pakistan formed the view that both the majority and minority views, mentioned above, were not sustainable. It was held that:-- "The appeal being one within the ambit of section 4 of the Service Tribunal Act, 1973 was fully competent and it was the duty of the Service Tribunal to examine on merits all the questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal made under Martial Law Regulation No,, 58 in May 1970 . "
15. ' It follows that the view was that all orders, whether they had been passed with jurisdiction or without it, were appealable before the Service Tribunal.
16. ' Waqar Ali Shaikh v. Islamic Republic of Pakistan PLD 1980 SC 42. The appellant in the case was dismissed from service under Martial Law Regulation No,, 58 and filed a writ petition to challenge the order of dismissal. The Lahore High Court held that the writ petition had abated on the establishment of Service Tribunal. He thereafter filed an appeal before the Service Tribunal. On majority view the Tribunal dismissed his appeal on the ground that it had no jurisdiction in view of the validation provisions contained in Article 270 of 1973 Constitution. The Supreme Court accepted the appeal filed by Waqar Ali Sheikh by referring to its view expressed in Muhammad Yamin Qureshi's case that in spite of the validation provision contained in Article 270 of the Constitution the Service Tribunal was fully competent to decide the question of law and fact as may be raised before it.
17. ' Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department PLD 1980 Quetta 58. It is a Full Bench judgment in which it was laid down that if an order has not been passed by a competent departmental authority and is therefore, void no appeal should lie before the Service Tribunal. The circumstances in which the Full Bench was constituted were that quite a few petitions had been filed by persons who were either employees of the Federal Government or the Provincial Government of Baluchistan. The Writ Petitions related to different terms and conditions of their service. A Full Bench was constituted and the following two points were referred to it for decision:-- "(i) Whether Article 212 of the Constitution of Pakistan is a complete bar in respect of cases in which a Government servant seeks relief under Article 199 of the Constitution in relation in his terms and conditions of service;
(ii) If the first question is answered in the negative what are the governing principles and the scope of relief in such cases."
18. ' The question that a particular order had not been passed by a competent departmental authority and was for that reason not appealable before the Service Tribunal was not before the Full Bench in a concrete shape. It was in these general terms that the Bench returned the verdict in para 16 that an appeal shall not lie to the Tribunal in six situations. The relevant portion is as follows:- "16. Analyzing the relevant provisions it would appear that an appeal shall not lie to the Tribunal in the following cases:-
(1) When the impugned order was passed before 1-7-1969;
(2) When the civil servant punished is not a 'civil servant' for the reason of his exclusion from the definition of 'civil' servant' in section 2(1)(B) of the Civil Servants Act;
(3) When the order is not a final order;
(4) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time-scale;
(5) When the impugned order relates to a person's fitness to hold a post or to be appointed to such post or to be promoted to a higher post or grade; and
(6) When the order is not passed by a competent departmental authority and is for such reason void."
19. ' Cases falling in category (6) are relevant in the present case. The Full Bench view was that an appeal shall not lie if the order is void because it was not passed by a competent departmental authority. It may be noted that the Full Bench was not called upon to decide the issue under reference in a dispute but expressed the view in an abstract form. It is noteworthy that Lahore High Court's judgment in Muhammad Aslam. Bajwa's case was not brought to the notice of the Full Bench.
20. ' Abdul Bari v. Government of Pakistan PLD 1981 Kar.
290. Some civil servants who had been retired by orders passed in exercise of power conferred upon the competent authority under section 13(ii) of the Civil Servants Act 1973 filed writ petitions before the Sindh High Court to challenge the retirement orders. When the cases came before a Division Bench of that Court following three questions were referred to a Full Bench:- "(i) Whether the petitions are barred by Article 212 of the Constitution?
(ii) Whether the competent Authority can retire a civil servant at any time after his completing 25 years' service or alternatively the said power to retire and civil servant can be exercised at or about the time when the Civil Servant is due to complete 25 years of service?
(iii) Whether the power to retire under section 13(ii) of the Civil Servants Act (1973) is absolute or is regulated by rules?"
21. ' A Bench of five Judges was constituted to answer the reference. It was, inter alia, contended before the Court that the orders which were mala fide, ultra vires or coram non judice could in any case be challenged before the High Court. The judgment of the Full Bench of the Balochistan High Court in Mujeebullah Aijaz's case, referred to above, and Afzal Hussain Syed v. Government of Punjab PLD 1980 Lah. 697 were referred. At page 302 of the report the learned Judges disagreed with the view adopted in those cases and held that orders passed without jurisdiction could be challenged before the Service Tribunal. The conclusion is contained in the following passage:-- "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 those 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 Ahmad Khan's case that even a constitutional bar on the scrutiny of orders passed 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 passed 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 tenability 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 field of controversy that could possibly arise in respect of an order passed by a departmental authority has been committed under the Constitution to the Occlusive 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."
22. ' Shahid Ahmad Khan v. Inspector General of Police 1986 PLC (C.S.) 426 a Division Bench of the Sindh High Court dismissed a Writ Petition filed by a Police official for want of jurisdiction in view of the provisions contained in Article 212 of the Constitution of Pakistan. While doing so the learned Judges repelled the argument raised before them that the order impugned before them was void and that the bar of jurisdiction was not attracted to cases falling in that category. The learned Judges followed the Full Bench judgment of the Sindh High Court in Abdul Bari's case. Mujeebullah's case from Quetta jurisdiction and Afzal Hussain Syed v. Government of Punjab PLD 1980 Lah. 697 were cited before them but it was observed that these two cases had been expressly dissented from by the Full Bench in Abdul Bari's case.
23. ' In Dr. Raja Manzoor Ellahi v. North-Western Frontier Province PLD 1980 Pesh. 81 a Writ Petition was filed to challenge the retirement order and it was urged that the impugned order was mala fide and without jurisdiction and for that reason a Writ Petition was competent. The petition was dismissed by holding that jurisdiction of the High Court stood ousted because an appeal lay before the Service Tribunal. It was observed that:- "Any order even if it is without jurisdiction or is mala fide can be challenged under Article 212 before the Tribunal and not before the High Court under Article 199 when it concerns the terms and conditions of a civil servant. In case of Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545, Lahore High Court has taken the same view."
24. ' Mian Amanul Mulk v. N.W.F.P. PLD 1981 Pesh.
1. Amanul Mulk was Principal of a High School when the Governor of the North West Frontier Province retired him under section 13(i) of the N.W.F.P. Civil Servants Act. He challenged the order of retirement by invoking the constitutional jurisdiction of the Court. The petitioner's counsel sought to challenge the correctness of the view of a Division Bench of the Peshawar High Court in Raja Manzoor Ellahi's case, just mentioned. A Full Bench was constituted. Shah Abdur Rashid, J. Speaking for the Full Bench held that in order to totally oust jurisdiction of the High Court all that is necessary is that the order to be impugned should be an order of the departmental authority and the Tribunal should have the jurisdiction to decide the matter. It was further observed that it was 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 was without jurisdiction or it was void or it was mala fide or it was in the nature of coram non judice. It was, however, observed that if order is not of the departmental authority but is of another entity then of course the jurisdiction of the Tribunal will not come into play and the High Court will have power to give discretionary relief to the aggrieved civil servant under Article 199 of the Constitution within the limits of the said Article. Shah Abdur Rashid, J. In his elaborate judgment approvingly quoted the following passage from the judgment in Muhammad Aslam Bajwa's case already noted:- "The words 'competent to make an order' do not mean that a particular order involved in a given case was competently made, but simply indicate that if in a proper case the said authority was competent to pass an order in respect of the kind of matters involved therein, then his order will be appealable though in that particular case such an order according to the appellant could not have been passed."
25. ' After analyzing cases of Muhammad Aslam Bajwa, Gulsher Khan v. Province of West Pakistan PLD 1975 Lah. 722; Muhammad Ismail v. Province of Punjab 1979 SCMR 498 Mohibullah v. Federation of Pakistan PLD 1975 Lah. 813 and M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22, the following conclusion was recorded in para 21:- "21. From the above discussion it follows that the Tribunal has jurisdiction to entertain all matters relating to the terms and conditions of civil servants and that jurisdiction is exclusive and no Court, including the High Court, can encroach upon that jurisdiction unless the law made under Article 212 creating the Tribunal does not clothe it with such jurisdiction or otherwise bars it expressly. It would, therefore, be futile to argue that when an order is void or is mala fide or is in the nature of coram non judice, the High Court can entertain a petition under Article 199 even though the matter is within the jurisdiction of the Service Tribunal set up under the relevant law."
26. ' In Accountant General v. Qadir Bakhsh PLD 1983 Lah. 246 there was a dispute between a pensioner and Accountant General who was not paying pension in accordance with the decision of the competent authority, Section 4 of the Service Tribunal Act was not applicable. It was held that the Accountant General was not a departmental authority as the employer, namely, the Provincial Government had decided to pay the pensioner a certain amount of pension but the Accountant General was not paying the same.
27. ' Iftikhar Alam v. Province of Punjab 1991 CLC 2004. A learned Single Judge of the Lahore High Court held in a short judgment that bar contemplated by Article 212 of the Constitution of Pakistan preconceives the notion that impugned order ought to have been passed by the competent authority and when the order in question was not passed by a competent authority the case was of coram non judice.
28. ' From the perusal of the aforementioned judgments it becomes clear that the rule laid down by the Supreme Court of Pakistan, in general terms, is that appeals from the orders passed without jurisdiction to the Service Tribunal. It may, however, be pointed out that the Supreme Court judgments referred to above did not decide the question in light of the definition of the term 'departmental authority' because this argument was not raised in these proceedings. However, this argument was raised, in case of Muhammad Aslam Bajwa before the Division Bench of the Lahore High Court and it was after considering this argument that the Lahore High Court formed the same view, namely, that appeal would lie to the Service Tribunal from the orders which had been passed without jurisdiction. The Peshawar High Court adopted the same view in the case of Raja Manzoor Ellahi and subsequently affirmed it in the Full Bench case of Mian Amanul Mulk in 1981. In the same year five Judges considered this legal proposition in Karachi High Court in Abdul Bari's case and reached the same conclusion. However a different view was expressed by the Quetta High Court in Mujeebullah Eijaz's case noted earlier. I have tried to highlight while mentioning this case that this view was expressed in an abstract form and not while resolving a dispute in a concrete shape. I may add that judgments mentioned above were not before the learned Judges who decided Mujeebullah Eijaz's case. The most important point which needs to be stated is that learned Judges did not further express their opinion whether the term "competent departmental authority' meant an authority which is authorized to pass the particular order which is sought to be challenged or an authority which is authorized to pass any order in respect of terms and conditions of service.
29. Similarly, there are some Single Bench cases from Lahore jurisdiction which reflect a contrary view.
30. However, overwhelming and weighty authority is in favour of the view that orders without jurisdiction can be challenged by way of appeal before the Service Tribunal. Once that conclusion is reached the inevitable result is that the jurisdiction of the High Court stands totally ousted and a Writ Petition cannot be entertained.
31. ' So far as general law is concerned, there does not seem to be any dispute that where jurisdiction is usurped by a Court in passing a decree or order against which an appeal would lie if it had been passed with jurisdiction then an appeal cannot be defeated on the ground that the order was without jurisdiction. It has often been held by the Courts that whether a particular order in fact is with jurisdiction or without jurisdiction can well be decided by an Appellate Court and this is one of the incidents of appeal. Some of the authorities were referred by Karam Ellahi Chauhan, J. (as he then was) in his judgment in Muhammad Aslam Bajwa's case. However, this principle of law cannot be applied as a matter of course to the cases under the Service Tribunals Act because of the obvious difference of phraseology in the provisions providing for appeal in the C.P.C. And the provisions providing for appeal under the Service Tribunals Act. It is provided in section 96 of the Code that an appeal shall lie from every decree passed by "any Court exercising original jurisdiction." The phraseology of Section 100 of the said Code is identical. But the appeal sections in the Service Tribunals Act lay down that appeal would lie to Service Tribunal from any final order made by a "departmental authority". It may be noted that while the Code does not define the term "Court", the term "departmental authority" is defined in Service Tribunals Act to mean an authority which is "competent to make an order in respect of any terms and conditions of Civil Servants". As already noted in detail this definition was duly considered in Muhammad Aslam Bajwa's case and conclusion as already referred to was drawn. It was followed by High Courts of Sind and Peshawar.
32. In light of the enunciation of law contained in these judgments I have reached to the conclusion that the view expressed in Muhammad Aslam Bajwa's case is the correct view and should be followed. I fully endorse the view that the explanation of 'departmental authority' in section 4 of the Service Tribunal Act refers to an authority competent to make an order in respect of any of the terms and conditions and does not have the effect of laying down the condition that the authority must be competent to pass the particular order from which appeal has to be filed. The words "an order in respect of any terms and conditions" are words of liberal import and a restricted construction is not possible. It may be added that it is significant that the main section lays down that an appeal lies against a "final order" but in the explanation the reference is to "order" in contradistinction to "final order". This further clarifies that the law-maker never intended to lay down in the explanation that "final order" from which an appeal was to be filed should have been competently passed in order to qualify it to be appealable. Thus, the liberal interpretation of the term "departmental authority" would include any authority which can pass an order in respect of any terms and conditions. In Azad Jammu and Kashmir Government v. Syed Zaman Ali Shah PLD 1991 SC (AJ&K) 57 it was held that terms and conditions are scattered but all the matters which form part of Chapter II of the Azad Jammu and Kashmir Civil Servants Act are decidedly terms and conditions of service. The matters which are included in Chapter-II are appointment, probation, confirmation, seniority, promotion, posting, transfer, termination of service, retirement from service, removal from service, reversion to lower grade or service, re-employment, conduct, efficiency and discipline, pay, leave, pension, gratuity, provident fund and group insurance. The authorities who are competent to pass appropriate orders in respect of terms and conditions have been specified under different rules and delegation orders. Similarly the authorities competent to award penalties are specified in the Civil Servants (Efficiency and Discipline) Rules. The "authorised officers" have been vested with authority to impose minor penalties while major penalties have been reserved for "the authority". Every authority who can pass an order in respect of any of these terms and conditions is a departmental authority within the meaning of explanation appended to section 4 of the Service Tribunals Act. Therefore, if an order has been passed by any of these Authorities, appeal would lie to the service Tribunal. If an Authority transgresses its jurisdiction and passes an order without jurisdiction or imposes a major penalty which cannot be imposed by him, it will be a good ground on which an appeal before the Service Tribunal can be based.
33. ' This interpretation is in accord with reason and also advances the remedy. We have noted that certain orders in respect of the civil servants are issued in the name of "competent authority" without specifying the authority which has sanctioned the order. In presence of this interpretation a civil servant would not have to find out whether the order has in fact been passed by an authority which was competent to pass that order in order to choose the forum wherefrom he can seek his redress. Another important aspect of the matter is that powers exercised by the Service Tribunal are much wider than the powers which are exercisable by the High Court under the writ jurisdiction.
34. It is my considered view that although certain unnecessary restrictions and technicalities are attached to the exercise of power by the Service Tribunal, the Tribunal is possessed with powers which are much wider than those exercisable by a High Court under writ jurisdiction. The role of the High Court under the supervisory jurisdiction is limited and relief can be transposed only if the order passed in respect of a civil servant suffers from such patent illegality that it can be called an order without lawful authority and of no legal effect. On the other hand, the Service Tribunal can set aside or vary an order passed by any Departmental Authority on entirely different grounds which admittedly cover wide range. Similarly, question of fact can rarely be gone into by the High Court which are open to adjudication by a Service Tribunal. Thus, it is not understandable as to why supervisory jurisdiction of the High Court over the appellate jurisdiction of the Service Tribunal should be preferred by a -civil servant. The law-maker has provided the civil servant with new and adequate remedy which he could not avail of prior to the enactment of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
35. ' Now I advert to the present case. The learned counsel for the Respondent Zaman Hussain referred to Article 65-A of the Audit Code which is to the following effect:- "65-(A) Final audit of all personal claims should ordinarily be made within 2 years of the date of payment. If any payments are disallowed in audit more than two years after the date of payment, the Accountant General may waive the recovery.
(a) If he is satisfied that the amount was drawn by the Government servant under a reasonable belief that he was entitled to it, and
(b) if the amount involved does not exceed Rs, 500/- in any individual case.
36. ' For all other cases a report should be submitted to the Finance Minister who will decide whether any recovery should be made or not.
37. ' NOTE:- This rule will also apply in the case of overpayment discovered at the time of inspection as also in the case of non-recovery of Government dues, realization of which it is the duty of the audit officer to watch."
38. ' However, Article 65-A should not be read in isolation but should be read alongwith clause (2) of Article 65, which precedes it. Clause (2) of Article 65 runs as follows:-- "(2) Unless in any case it be otherwise provided in this Article, an audit officer should, as soon as the facts come to his notice, direct the recovery of sums in respect of which there is no doubt that they have been improperly disbursed. If the competent executive authority desires to forego recovery, it will initiate necessary action. If in any case, an audit officer is doubtful of the propriety of any expenditure, he should atone take steps to resolve the doubt by reference to the executive authorities. In order, however, to avoid unnecessary expenditure of time and labour on cases of simple and unimportant character the following powers may be exercised:-
(a) An audit officer of a rank not lower than that of Deputy Accountant General may forego recovery of irregular expenditure not exceeding Rs, 5/- in any individual case.
39. ' NOTE:- If the irregularity is such that it is likely to recur, the Government servant responsible should be told that the expenditure was irregular even if no recovery is made.
(b) Some items are placed under objection, not because the whole or any portion of the expenditure is unjustifiable in itself but because it is not exactly covered by rules or the authority for it is insufficient; or full proof, such as is afforded by sub-vouchers, that it has been incurred has not been produced. In such cases, the Accountant General may forego recovery up to limit of Rs, 500 in each case, if the following condition is fulfilled:-
(i) the expenditure must not be of a recurring nature.
40. (c)(a) Where the objection is based on insufficiency of sanction, the audit officer must be satisfied that the authority empowered to sanction the expenditure would accord sanction if requested to do so.
(b) Where the objection is based on insufficiency of proof of payment, the audit officer must be satisfied that undue trouble would be caused by insistence on submission of full proof and must see no reason to doubt that the charge has actually been paid.
(ii) Where the expenditure under objection has, for any reason, become irrecoverable, an audit officer of rank not lower than that of Deputy Accountant General may write off an amount not exceeding Rs, 20 in each case."
41. A combined reading of the two provisions reproduced above shows that the authority to order recovery of overpayment is vested in the Audit Officer which is reference to an officer who forms the Central Audit Party. However, if the overpayment relates to personal claims and payments are to be disallowed after more than two years, the sanction of the Finance Minister has to be obtained.
42. It is, thus, clear that Audit Officer is duly authorized to make an order in this respect. It is true that he cannot pass an order in the category of cases mentioned above without approval of the Finance Minister but the fact remains that he is authorized to pass an order in respect of pay of the respondent. This is sufficient to bring him within the ambit of the term "departmental authority."
43. ' The conclusion, therefore, is that the respondent could have filed an appeal against the orders passed by the Audit Officer and the District Accounts Officer by which his pay was reduced by three increments and overpayment was ordered to be recovered from him and that the Service Tribunal was fully competent to entertain his appeal. Consequently, the jurisdiction of the High Court stood completely ousted and it fell in error in entertaining and consequently accepting the Writ Petition filed by the present respondent.
44. ' Before parting with the case I may also observe that the learned Judge in the High Court was not right in holding that the order of recovery from the respondent could be passed after completing the requirements of departmental inquiry as the recovery from the respondent was a major penalty under the Efficiency and Discipline Rules, 1977. In expressing the view the learned Judge did not advert to the obvious distinction between overpayment under the Audit Code and a penalty under the Civil Servants (Efficiency and Discipline) Rules, 1977. The penalty of recovery of loss is provided in Rule 4 of the aforesaid Rules and is worded as follows:-- "recovery of the whole or any part of the pecuniary loss caused to Government by negligence or breach of orders."
45. ' As provided in Rule 3 this penalty may be imposed on a civil servant if it is found by the 'authority' that he is:
(a) inefficient; or has ceased to be efficient;
(b) guilty of misconduct;
(c) corrupt;
(d) engaged in subversive activities.
46. ' No such allegation has been leveled against the respondent. There is also no charge that he caused loss by negligence or breach of orders. It is only a case of overpayment. Thus the view expressed by the learned Judge is not correct.
47. ' Consequently I accept the appeal and by setting aside the order of the High Court, order that the Writ Petition filed by the respondent Zaman Hussain Khan shall stand dismissed with no order as to the costs.
48. Appeal accepted.
49. 1998 PLC (C.S.) 448 [Lahore High Court] Before Sh. Lutfur Rehman, J JAMEEL AHMAD versus DEPUTY COMMISSIONER, BAHAWALPUR and 2 others Writ Petition No,, 1044-S of 1997/BWP, decided on 13th January, 1998.
50. Constitution of Pakistan (1973)- --Arts. 18, 25 & 199---Constitutional petition---Employee of statutory corporation---Termination of service---Validity---Petitioner's appointment was on temporary basis as stop-gap arrangement on recommendation of a member of Provincial Assembly---Petitioner had never applied for any post according to rules and procedure, nor he was interviewed by any Recruitment Committee or Appointing Authority---Petitioner's services were terminated at later stage in accordance with Government Policy to review all such cases of irregular appointments and no injustice had been done to petitioner-illegality in fact, had been discontinued---Person appointed through back door at the instance of M.P.A. Could not invoke Constitutional jurisdiction for continuance of his appointment in service---Petitioner was not entitled to get initially illegal order enforced through Constitutional petition---Appointment of petitioner being politically motivated, Court could not become instrumental in regularising the same---Irregular appointments, temporary or permanent, obtained without publicity and properly advertising vacancies, by ignoring and violating prescribed rules and procedure were violative of Fundamental Rights, which guaranteed freedom of profession to every citizen similarly placed or situated in terms of Arts. 18 & 25 of the Constitution---Courts could not bless such irregular and illegal orders to become perpetual or permanent---Such orders instead of endorsing with seal of approval should be struck down at the earliest---Petitioner was, thus, not entitled to relief in terms of Art. 199 of the Constitution. [pp.450, 452] A & B Abdul Jabbar Memon's case 1996 SCMR 1349; Abdul Rashid v. Riazuddin and others 1995 SCMR 999; Munawar Khan v. Niaz Muhammad and others 1993 SCMR 1287 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel. Tahir Mehmood v. Town Committee, Fortabbas and others 1996 T.D. Service 187; Muhammad Aslam and others v. Government of the Punjab and others 1995 PLC (C.S.) 419 and Nur Muhammad v. Deputy Commissioner/Controlling Authority. D.G. Khan and others 1992 PLC (C.S.)
51. 368 ref. Shamshir Iqbal for Petitioner. M.M. Bhatti for Respondents.
52. ' Jameel Ahmad, through this Constitutional petition, challenged the vires and legality of the order dated 1-3-1997, whereby his services were terminated.
2. The brief facts of the matter, as alleged by the petitioner, are that the Town Committee, Khairpur TameWali (respondent No,,2) invited applications for the post of Octopi Clerk and he applied for the same. After following the procedure and on the recommendations of the Recruitment Committee he was appointed Octopi Clerk on temporary basis vide Order No,,753, dated 24-12- 1995. Thereafter, on 1-3-1997, his services were terminated without any reason and legal justification, which necessitated the filing of this Constitutional petition.
3. The respondents in the parawise comments categorically denied all the material allegations and maintained that neither the vacant posts were advertised nor applications were invited for filling the same. On the contrary, the petitioner had submitted an application for the post of Chungi Moharrir duly recommended by the M.P.A. PP-223 (an M.P.A. In the then Government of Pakistan Peoples Party) and in view of the said recommendations the petitioner was appointed purely on temporary basis as a stop-gap arrangements. It was also denied that any recruitment committee had considered the case of the petitioner and had recommended him for appointment.
4. The learned counsel for the petitioner, while arguing about the maintainability of the Constitutional petition, submitted that the termination of services of the petitioner without issuing him any show-cause notice amounted to condemning him unheard and, thus, the termination order having been passed in violation of the principle of natural justice could be challenged through a petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. In this regard he cited the following cases:--
(i) Tahir Mehmood v. Town Committee, Fortabbas etc. (1996 T.D. (Service) 187);
(ii) Muhammad Aslam and others v. Government of the Punjab and others (1995 PLC (C.S.) 419), and
(iii) Nur Muhammad v. Deputy Commissioner/Controlling Authority, D.G. Khan and others (1992 PLC (C.S.) 368).
5. I am afraid, the contentions of the learned counsel are absolutely without any force and, in fact, misconceived. The real question which needs adjudication is not the violation of any principle of natural justice, but is whether a person appointed through back door at the instance of an M.P.A.
53. Can invoke the Constitutional jurisdiction for continuance of his appointment in service. The simple answer is no. Such appointments are ab initio irregular, illegal and void and no order which has no legal basis can be enforced or legalized through Courts. Thus, irregular appointments, temporary or permanent, obtained without publicly and properly advertising the vacancies by ignoring and violating the prescribed rules and procedure are violative of Fundamental Rights, which guaranteed freedom of profession to every citizen and alike treatment to every citizen similarly placed or situated. (Articles 18 and 25 of the Constitution). The Courts cannot bless the irregular or illegal orders to become perpetual or permanent. Such orders instead of endorsing with seal of approval should be struck down at the earliest.
6. In the case of Abdul Jabbar Memon and others (1996 SCMR 1349) the apex Court disapproved the appointments being made without following the prescribed procedure in the following words:- "While inquiring into various complaints of violation of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Right (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession. Subject to notice to all concerned, and subject to final orders after full hearing in the matter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith.
54. ' Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement."
7. The appointments made on political recommendations were declared illegal ab initio in the case of Abdul Rashid v. Riazuddin and others (1995 SCMR 999). The relevant para. Is as under:-- "Similar question as involved in the present petition, came up for consideration in Munawar Khan v.
55. Niaz Muhammad and others (1993 SCMR 1287) where it was held that 'allocation of such quotas to the Ministers/M.N.As./M.P.As. And appointments made thereunder are all illegal, ab initio and have to be held so by all Courts, Tribunals and authorities'. The appointment made on the recommendation of M.P.A. Was held to be void ab initio and illegal and while allowing appeal the order of appointment of the appellant was restored. In the facts and circumstances of the case, for doing complete justice, we refuse to grant leave.
8. The Supreme Court in the case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041) laid down the principle with regard to the equal protection of law and reasonableness of classification, inter alia, as follows:--
(i) that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii)........................
56. (iii)............................
(iv) .............................
(v) that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
(vi) that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
9. The petitioner was 'appointed on temporary basis as stopgap arrangement on the recommendation of an M.P.A. He never applied for any post according to the rules and procedure.
57. He was never interviewed by any recruitment committee or appointing authority and, therefore, there was no question of being recommended by any such committee. His appointment was purely on temporary basis as a stopgap arrangement in compliance to the wishes of a parliamentarian to whom the petitioner happened to approach directly or through someone.
58. Surprisingly, after the recommendation, the whole process of appointment was completed in no time. The word "recommended" had such a dynamic force that right from Administrator to Head Clerk, four of them, made noting in line with the wishes of the M.P.A. And the appointment letter was out the same day. His services were terminated at a later stage in accordance with the Government policy to review all such cases of irregular appointments in the light of the observations made by the Supreme Court in this regard. No injustice has been done to the petitioner. In fact, an illegality has been discontinued. The petitioner is not entitled to get the initially illegal order enforced through a Constitutional petition. The appointment of the petitioner was politically motivated and the Court cannot become instrumental in regularizing the same. The rulings cited by the learned counsel for the petitioner have no relevance at all to the facts of the case in hand.
59. ' In view of the above discussion, this writ petition is dismissed in limine being not maintainable