The order of removal from service, dated 20-10-1998 has been challenged by the petitioner through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan on the ground that the same has been passed without notice or hearing, is mala fide and is without jurisdiction.
2. As the petitioner is, admittedly, a civil servant to whom the provisions of Punjab Civil Servants Act 1974, Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 and the Punjab Services Tribunal Act, 1974 are applicable, the attention of the learned counsel for the petitioner was drawn as to the ouster of the jurisdiction of this Court in terms of Article 212 of the Constitution.
3. The learned counsel for the petitioner contends that where an order impugned in a petition under Article 199 of the Constitution is void and without jurisdiction, this Court would be acting within its jurisdiction to entertain the petition and can interfere; and that in such a case Article 212 of the Constitution would not be attracted or operate as a bar. He has placed reliance on Federation of Pakistan through Secretary Establishment Division, Islamabad and others v. Sh. Abdul Aziz (1998 SCM R 91).
4. The learned Additional Advocate-General has opposed the competency of the petition. that the same cannot be entertained by this Court as the petitioner has adequate remedy before the Punjab Services Tribunal and that the jurisdiction of High Court is excluded by virtue of Article 212 of the Constitution.
5. On due consideration of the contentions of the learned counsel I have not been able to persuade myself to take the view that the jurisdiction under Article 199 of the Constitution can be invoked in cases pertaining to the terms and conditions of the service of a civil servant. The reasons for my view briefly stated are that:-- (0 Article 212(1) enables the appropriate legislature to make law to provide for the establishment of Tribunals to exercise exclusive jurisdiction in respect of the matters relating to the terms and conditions of persons in service of Pakistan including disciplinary matters. Clause (2) of Article 212 exclude the jurisdiction of any Court to entertain any proceedings in respect of any matter to which the jurisdiction of such a Tribunal extends. Both these 'clauses i,e, (1) and (2) of Article 212 begin with a non-obstante clause and, thus, have overriding effect. Thus, any matter pertaining to the terms and conditions of service of a civil servant or disciplinary matter falling within the jurisdiction of a Tribunal cannot be entertained by any Court.
(ii) The jurisdiction of High Court under Article 199 of the Constitution is "subject to the Constitution" whereas provisions of Article 212 operate "notwithstanding anything hereinbefore contained" and as noted above has over riding effect. The jurisdiction of the High Court under Art. 199 thus stands excluded in matters relating to the terms and conditions of service of a civil servant.
(iii) The petitioner is, admittedly, a civil servant and her terms and conditions are regulated by the provisions of Punjab Civil Servants Act, 1974 and the Rules framed in pursuance thereof. Section 15 of the Act provides that a civil servant shall be liable to such a disciplinary action and penalties as may be prescribed. Rule 4 of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 prescribes the penalties. Removal from service is one of the penalty and such an order is appealable before the Service Tribunal under section 4(2) of the Punjab Services Tribunal Act, 1974.
Thus, the Tribunal having been established under the law framed by the appropriate legislature in pursuance of Article 212 of the Constitution, the jurisdiction of all other Courts stand excluded in such matters.
6. There is no obscurity as to forum for challenging such an order in view of the clear pronouncements on the subject by the Apex Court. There is a recent judgment by their lordships of the Supreme Court Kimlid Mahmood Wattoo v. Government of the Punjab (1998 SCM R 2280) in which almost the entire previous case law has been taken into account. I cannot do better than to respectfully, refer and reproduce a portion of the said judgment. It has been laid down in paragraph No,7 at page 69 that:-- "It has 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 foreign posting and accommodating a candidate from Baluchistan. 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." (underlined by me for emphasis).
This provides answer to the contention of the learned counsel inasmuch as even a case where the order is challenged on the ground of mala fide the bar of Article 212 of the Constitution is attracted and the jurisdiction of this Court ousted.
7. The case of Federation of Pakistan (supra) had its own peculiar features. The respondent in that case had been removed from service under Martial Law Regulation No,58 of 1969. He had challenged that order in a writ petition before the High Court which was dismissed as having abated in view of the establishment of Service Tribunal. Thereafter, he filed appeal before the Service Tribunal which was dismissed. He challenged the order of the Tribunal before the Humble Supreme Court and leave was granted. While his appeal was pending before the Humble Supreme Court Provisional Constitutional Order of 1981 was promulgated and his appeal before the Humble Supreme Court also stood abated. In the context of these circumstances when he was bereft of any remedy, he filed petition under Article 199 of the Constitution before the High Court which was accepted and the appeal filed by the Federation of Pakistan was dismissed by the Humble Supreme Court of Pakistan. Besides, that the said case arise in the foretasted peculiar circumstances there was no question raised in that case as to the applicability of Article 212 of the Constitution or ouster of jurisdiction of this Court. In my humble view this judgment has no relevance to the facts and circumstances of the present case.
8. In view of the judgment by their lordships of the Hon'ble Supreme Court in the case of Khalid Mahmood Wattoo (supra) there is no room left for any doubt that Article 212 of the Constitution ousts the jurisdiction of all Courts including that of the High Court under Article 199 of the Constitution in matters pertaining to the terms and conditions of a civil servant, as the civil servant concerned can have a remedy of appeal before the Service Tribunal established in pursuance of Article 212 of the Constitution.
9. As a result, this petition is dismissed as not competent before this Court. In view of the fact that I was inclined to dismiss the petition as not maintainable, I have intentionally avoided to take note of deal with the merits of the case.