In these petitions i,e, writ petition No,891 of 1997 W.P. No,3006 of 1997, W.P. No,785 of 1997 W.P.No,786 of 1997, W.P. No,1260 of 1997, W.P. No,1447 of 1997, W.P. No,909 of 1997, W.P. No,1419 of 1997, W.P.
No,2513 of 1997, W.P. No,1542 and W.P. No,3245 of 1997 the petitioners claim to be C.D.C. Supervisors, Vaccinators, Daai's, L.H.Vs. and Dispensers who were appointed in the Health Department of the Government of the Punjab as such from time to time. Their services have, however, been terminated vide orders dated 25-1-1997, 26-1-1997 and 28-1-1997 by the respective District Health Officers. The termination orders have been challenged through these petitions.
2. It is the case of the petitioners that they were appointed by the competent Authority on merits and in accordance with law and that their termination is illegal and without lawful authority.
3. In support of these petitions it is contended by the learned counsel as follows:-
(i) That the termination orders have been passed without issuing any notice or hearing the petitioners;
(ii) That the appointment order having been implemented the respondents had no lawful authority to rescind the said orders and terminate their services;
(iii) That the services had been ordered to be terminated through a general order in pursuance whereof the termination has been ordered by the respondents without application of mind and acting under dictation.
4. The learned Addl. A.-G. has opposed the competency of these petitions on the ground that the same are not competent before this Court in view of bar of jurisdiction under Article 212 of the Constitution. It is contended that the petitioners had the departmental remedy and if necessary, the remedy of appeal before the Punjab Services Tribunal where all these question could be raised.
5. Admittedly the petitioners are civil servants whose conditions of service are regulated by the Punjab Civil Servants Act, 1974. Any matter concerning the terms and conditions of service of a civil servant is challengeable before the Punjab Services Tribunal. When the attention of the learned counsel was drawn to the bar of jurisdiction it was argued that the order being illegal and without jurisdiction this Court can exercise writ jurisdiction under Article 199 of the Constitution and that in such cases bar of jurisdiction as envisaged by Article 212 of the Constitution would not be attracted.
6. In Muhammad Iqbal and others v. The Government of the Punjab and others (1995 SCMR 1047) somewhat identical matters arose before their lordships of the Supreme Court wherein large scale termination of school teachers had been ordered. The petitioners whose services had been terminated firstly approached the High Court in writ jurisdiction and then the matter went up to the Supreme Court wherein it was observed as follows:- "If the petitioners' appointments were in accordance with law as contended by them, termination of their services without any justifiable reason would entitle them to maintain appeals before the Service Tribunal and not a writ petition or Intra-Court Appeal or the present petitions for leave to appeal. The Service Tribunal is competent to go into the question, whether their appointments were made in accordance with law and whether termination of their services was warranted by law in view of clear provision of Article 212 of the Constitution. In this behalf, reference may be made to a recent judgment of this Court in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539). We are, therefore, of the view that the present petitions for leave to appeal are misconceived. The petitioners should approach Services Tribunal. It was pointed out by the learned counsel for the petitioners that if the petitioners will now file appeals before the Tribunal, the same may be treated time-barred. It was suffice to observe that the petitioners may file applications for condonation of delay and the learned Service Tribunal will consider the above applications keeping in view the peculiar facts of the present case and the factum that a large number of people are involved therein."
7. There is a recent judgment by their lordships of the Supreme Court Khalid Mahmood Wattoo v.
Government of the Punjab (1998 SCMR 2280)
8. which also reiterates the view taken by the superior Courts in such matters. Paragraph No,7 of the judgment at page 69 is instructive on the point:-
9. "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 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 Services Tribunal and it was held that orders even if mala fide, ultra vires or coram non iudice fell within the ambit of Services 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).
10. On considering the provisions of Articles 199 and 212 of the Constitution in juxtaposition and the aforesaid precedents the conclusions that follow are as Under:--
11. Article 212(1) enables the appropriate legislature to make taw to provide for the establishment of the tribunals to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons in service of Pakistan including disciplinary matters. Clause (2) of Article 212 excludes the jurisdiction of any Court to entertain any proceeding 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 over-riding effect. Therefore, 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.
12. 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 the later has an overriding effect. The jurisdiction of the High Court under Article 199, thus, stands excluded in the matters relating to the terms and conditions of service of a civil servant.
13. That even a case where the order is challenged on the ground of mala fide, ultra vires and corum non judice the jurisdiction of this Court by virtue of Article 212 of the Constitution stands excluded.
(iv) The petitioners being admittedly civil servants they have their remedy before the Punjab Services Tribunal constituted under Punjab Services Tribunal Act, 1974 which has the exclusive jurisdiction in these matters.
(v) That in view of the aforesaid there remains no obscurity as to the forum for challenging such orders which is the Services Tribunal in these cases.
9. In view of the above I am left with no manner of doubt that the petitions relating to the terms and conditions of the service of the petitioners are not competent before this Court, by virtue of clear exclusion of jurisdiction under Article 212 of the Constitution. The writ petitions are accordingly dismissed as not competent.
10.Since I was inclined to take the view that the petitions are not maintainable before this Court, I have intentionally avoided to touch or comment upon the merits of the arguments to avoid prejudice to any of the parties in case the matter is agitated before the competent forum. No order.as to costs.