MUHAJNMAD DAUD KHAN (CHAIRMAN).-Compulsory retirement of the appellant from service under Material Law Regulation 114 followed by rejection of his review petition entertain able as per Martial Law Regula--tion 116, has given rise to the present appeal under section 4 read with section 6 of the Service Tribunals Act, 1973. The contention is that while enforcing provisions of aforementioned Martial Law Regulations, competent authority not only lost sight of provisions of the Regulations but was motivated by malice both legal and factual, reflected by hasty formulation of the list including - not only retired officials but some dead ones as well. Several other issues were also agitated, yet the limited dispute set up for decision, does not require a detailed survey of the rest. It will suffice, if we concentrate on points materializing from defence.
2. The contest was restrict, by the respondent to extent of compe--tence. They conceded partial jurisdiction to the Tribunal extending to questions of mala fides want of jurisdiction or excessive use thereof, His sole reliance was on the Supreme-Court authority Federation of Pakistan v. Mr. Saeed Ahmed Khan, wherein limits A ere prescribed and burden of proof squarely placed on petitioners.
3. To examine question of jurisdiction and its extent, we have to refer to various laws applicable.
Martial Law Regulation 114, called Removal from Service Special Provision Regulation of 1972, was promulgated on l3th of March, 1972. In pursuance thereof a. list of names appeared in the Gazette Extraordinary of Pakistan on 13th of March 1972, depicting officials variously dealt with under Martial Law Regulation 114. Another list was subsequently published affecting those who were abroad at the time. The Regulation has many provisions but we are only concerned with 1, 2 (a) (b), 3 (1), 3 (3) and (4) which are reproduced below for ready reference ---(1) This Regulation shall come into force at once and shall have effect notwithstanding anything contained in the Provisional Constitution Order, 1969, or in any Martial Law Regulation or Order including Martial Law Regulation No. 58 or in any other law for the tune being in force.
(2) (a) Competent authority' means the President and where, in relation to any person or class of persons, the President authorises the Governor of a Province or any officer or authority, not being inferior in rank to the person against whom action is proposed to be taken, to exercise the powers of competent authority under this Regulation includes such Governor or officer or authority ;
(b) 'Misconduct' includes conduct prejudicial to good order or service discipline, or conduct unbecoming an officer and a gentleman or involvement in industry, trade or speculative transactions or em--ployment of the influence of official position to gain undue advantage, or assumption of financial or other obligations to private institutions or persons such as may cause embarrassm ent in the performance of official duties or functions; 3.-(1) Where in the opinion of the competent authority, a person in Government service or a person in Corporation service is-
(a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or
(b) guilty of misconduct, or
(c) inefficient or has for any reason ceased to be efficient, or
(d) engaged or is reasonably suspected of being engaged in subversive activities the competent authority may notwithstanding anything contained in the terms and conditions of service of such person, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall prematurely retire from service.
(3) Notwithstanding anything contained in any law or in any decision of a Court nothing in sub- paragraph (1) shall be construed as requiring the competent authority, before making an order under that clause in respect of any person, to give such person an opportunity of showing cause against such order.
(4) No action taken, order passed, thing done or power exercised under this Regulation shall be called in question by or before any Court including the Supreme Court and a High Court or a Tribunal or any other authority."
4. It may be noted that the Regulation at this stage was a Supra Constitutional Provision claiming supremacy over the Provisional Constitu--tion Order, 1969, Martial Law Regulations or Orders including Martial Law Regulation No. 58 and any other law for the time being in force. Its provision prevailed despite every other law to the contrary. It did away with pre-order notice required under ordinary law, and with right of appeal or review, besides barring jurisdiction of all Courts, Tribunals and authorities.
5. Despite the blanket protection given, the Chief Martial Law Adminis--trator promulgated another Regulation on 13th March 1972, generally known as Martial Law Regulation No. 116 and technically called Removal from Service (Review Petition) Regulation of 1972. This Regulation is also far -- reaching in its effect. It overrides provisions of the, Constitutional Order, Martial Law Regulation or any other law for the time being in force, to specifically entitle prematurely retired officials to submit a review petition to the Chief Martial Law Administrator. In clause 4, competence of Chief Martial Law Administrator to examine the review petition and any other relevant material, for confirming, modifying or rescinding the order under Martial Law Regulation No. 114 finds mention.
Clause 6 saves even this order from interference of Supreme Court, High Courts, Tribunals and other authorities.
6.After gauging implications of Martial Law Regulations Nos. 114 and 116 and impact of Asma Jilani's case (PLD 1972 SC 139) on their cases, some of the aggrieved officials invoked Constitutional Jurisdiction of the High Court to nullify effects of Martial Law Regulation 114 and 58. However, Interim Constitution enforced on 21st Day of April 1972 recognising the uncertainties caused by fluid State of law ensuing from the interpretation, that laws flowing from an usurper of power, on annulment of Constitution had no legal force except on doctrine of necessity; validated under Article 281 the Martial Law Regulation, Presidential Orders and Proclamations made as from the 21st Day of March, 1969, onward. Subse4uently an amendment was introduced into the Article to import "Notwithstanding any judgment of any Court". It was done to remove all doubts and to clarify intention of the Legislature.
7. Saeed Ahmed Khan's writ petition was taken up for bearing by the High Court. Despite the 6th amendment order of 1973 in Article 281, it concluded that no change was wrought in the Constitutional jurisdiction of the High Court under Article 201 of the Interim Constitution. It could still examine cases to the limited extent of want of jurisdiction or coram non Judice and male fide. The High Court granted a certificate for appeal to the Supreme Court because it involved a substantial question of law as to the interpretation of Interim Constitution,
8. Supreme Court opined, "We are still unable to agree upon accepted principles of construction to which we have adverted earlier, that acts, orders, proceedings which are done, taken or made without jurisdiction, male fidg or coram non judice have been saved from the scrutiny of the Courts by ouster clause". It further considered the question of male fide to say that it was one of the most difficult propositions to be proved and the onus entirely lay upon the persons urging mala fide to establish it, because, there is, to start with, a presumption of legality and regularity attached to all official acts and until that presumption is rebutted, the actions cannot be challenged on vague allegations of male fide. It further pointed out that male fide has to be specified and no shifting shall be allowed there from nor was a roving inquiry to be undertaken for the purpose of fishing out some kind of favourable case.
9. The law thus settled on 11th March 1974, was yet to under go another metamorphosis because of promulgation of Service Tribunals Act, 1973, under Article 212 of the Constitution and subsequent amendment thereof on 4th May 1974 published in the Gazette, Extraordinary on 8th May 1974.
Purported change in clause 1 (a) included persons who were or had been Civil Servants so that jurisdiction of the Tribunals also stood extended to retired persons. Consequently in clause 2 a specific provision in the following words was added.
"All proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of Administrative Court or Tribunal shall abate on such establish--ment."
10. Overall effect of this amendment introduced into the Constitution on 4th May 19)4 was that jurisdiction of High Courts stood excluded if that of the Service Tribunals was deemed extended to it. This is the issue which has been hanging fire for a long time. In Aslam Bajwa's case (1), cumulative effect of Act LXX of 1973 read with Article 212 was considered and in the light of admission made by the Attorney-General, it was decided by their Lordships of the Lahore High Court that writ petitions had to abate in face of exclusive jurisdiction vested in the Tribunal, which will of necessity be more comprehensive because of its nature. Litigation in the civil Courts and High Courts of Lahore and Peshawar ceased on this note.
11. This being the state of law, the matter was subjected to lengthy argu--ments and some very learned Advocates applied their minds to various aspects of the question. Some of them ceded to the contention that only limited juris--diction visualises by the Supreme Court in Saeed Ahmed's case vested in the Tribunals. Others however, held a contrary view. Their contention was that Supreme Court citation relied upon lays down the law with respect to Constitutional jurisdiction of High Courts or general jurisdiction of civil Courts which could only step in for violation of law or as provided by Article 199 of the permanent Constitution when any person was doing some thing not permitted by law or not doing but he was required to do under any law or when an authority had acted without any lawful authority. High Courts could in such a case give the required direction if no other adequate remedy was available. Otherwise civil Courts would be entitled to redress the grievance. The point to be noted is that High Courts Authority extends to all walks of life by way writ and so does that of other civil Courts. The only restriction in the case of latter is specific statutory bar.
12. In case of special Tribunals their jurisdiction has to be established. Article 212 of the Constitution which entitles a Government to establish Service Tribunals does not thereby enunciate total exclusive jurisdiction but restricts it to matters which are entrusted by Act of Parliament to such Tribunals ent rely pertaining to terms and conditions of service. Service Tribunals Act of 1973 has two se3tions Nos. 3 and 4, which deal with this aspect. Section 3, to my mind, is characterization section. Its subsection (2) runs as under.
"A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, including disciplinary matters."
13. While section 4 delimits the impact to final orders whether original or appellate and then excludes promotions and posting from its pail and other matters decided earlier than 1st of July 1969. Similarity right of a person to hold a particular appointment cannot be taken cognisance of, by Service Tribunals. Thus, it cannot be said that entire terms and conditions of service have been entrusted to the Tribunals. Generalization of section 3, if provisions of section 4 are ignored, will mean that although no Tribunal has jurisdiction, yet Courts also stand excluded. It will lead to a fallacious presumption "of right without remedy". That is why I do not consider section 3 to be a jurisdictional section. It will be too incompatible a view that though some remedies do not lie within the competence of the Service Tribunals yet being Service matters they cannot be looked into by other Courts. A remedy, if there is an existing right; cannot be denied by implication only. Civil Courts jurisdiction, therefore, will only be ousted if specific provisions exist, conferring .right of hearing on the Tribunals.
14. This discussion pin-points rival jurisdictions. It draws a line to the limits of Tribunals competence and leaves rest of the field to competent (1) PLD 1974 Lah. 545 Courts. It also reflects that Special Tribunals or Courts have defined jurisdiction which cannot be independent of a statute.
15. Service Tribunals Act creates an appeal forum to examine final departmental orders whether original or appellate with respect to matters entrusted to it by a statute. Unless a dispute pertained to terms and conditions within the four walls of section 4, the Tribunal shall have no jurisdiction whatsoever to take cognisance of it. Appellate jurisdiction hits been dealt with and discussed by various authorities under section 96 of the C. P. C. An appeal means removal of a cause from inferior to a superior Court for the purpose of testing soundness of the decision of an inferior Court.
It is only continuation of original proceedings and a stage in suits itself. An appellate judgment when delivered stands in the place of original judgment for all legal purposes. It is a statutory right, substantive nature, which has to be conferred by general or specific law under which the case is being dealt.
16. Section 5 of the Service Tribunals Act, 1973, defines the right, by saying that a Tribunal may on appeal confirm, set aside, vary or modify the order appealed against. Section 4 extends this right of interference to orders made after 1st of July 1969. Consequently when an appeal is filed, a Tribunal would be competent, if the conditions exist to examine all the record available with the departmental authority to find if there is any error in the order and to substitute it by its own conclusions. The Tribunal sits in the place of departmental authority and would be entitled to do all that could be undertaken by original/appellate/review authority. The view was conceded by the Attorney-General in Aslant Rajwa's case and was upheld by the positive findings of the High Court.
Yet respondent i.e. the Federation of Pakistan is now withdrawing from its earlier stand.
17. Let us now examine validity of such a shift. Principle of estoppels was invoked by appellants against the attitude. But the contention was brushed aside by the assertion that there can be no estoppels against a pure proposition of law. The stand is vindicated by many authorities except when a question of law depend or is linked to question of fact inextricably. Yet the controversy still remains wide open, Respondent has still to explain how the argument of limited jurisdiction is sustainable in the face of section 5 of the Service Tribunals Act. His mainstay is Saeed Ahmed's case, wherein certain principles of mala fide, Coram non juice and want of jurisdiction were reiterated, but the context in which the enunciation was made cannot be altogether overlooked.
The-Supreme Court was then considering impact of Article 269 on the Constitutional jurisdiction of High Courts, contained in Article 199, a jurisdiction all encompassing where other remedies are not available. This basic jurisdiction under Article 199 and that of other Courts under section 9 of the C.
P. C. of 1908 does exist unless specifically barred. The presumption is in favour of jurisdiction. But in the case of a Special Tribunal, it has to be specifically established and its limitations prescribed.
Learned counsel for the respondent could not point out even a single paragraph of the judgment v, herein implications of Article 212 were touched. On the other hand, it specifically mentions that ouster clause of Article 269 will not apply to appeals. The argument appears in following words: "The learned Attorney-General himself had conceded before the High Court and has not resoled from the position before us that acts done, proceedings taken or orders made incompetently, without jurisdiction would not be covered by ouster clause. If, in addition to this, we now find that ouster clause does not affect the appeals or revision, if any, permissible under those orders, regulations, enactments, notifications rules, orders or bye-laws, then the ouster clause is not as comprehensive as now sought to be urged."
18. The argument squarely places a heavy burden on the respondent to prove right of appeal and then how the defined right (section 5 of Service Tribunals Act, 1973) stands limited to mala fide etc. Lie has also to show why the record available with the departmental authority cannot be placed before the Tribunal, and what law restricts right of interference and examination to the Appellate Tribunal if Supreme Court Ruling supports the contrary view. To our regret, he had no plausible answer. He had built his case on false foundations and when it crumbled up, he was only left catching at a straw.
19. The learned counsel borrowing from the arguments of appellant's in other cases, merely interested in want of jurisdiction; made a half --hearted attempt to fall back on Article 269 of the Constitution. It runs as under.
"All Proclamations, President's Orders, Martial Law Regulations, Martial Law Orders and all other laws made between the twentieth day of December, one thousand nine hundred and seventy-one and the twentieth day of April, one thousand nine hundred and seventy-two (both days inclusive), are hereby declared notwithstanding any judgment of any Court, to have been validly made by competent authority and shall not be called in question in any Court on any ground whatsoever.
(2) All orders made, proceedings taken and acts done by any authority, or by any person, which were made, taken or done, or purported to have been made, taken or done, between the twentieth day of December, one thousand onine hundred and seventy-one, and the twentieth day of April, one thousand nine hundred and seventy-two (both days inclusive), in exercise of the powers derived from any President's Orders, Martial Law Regulations, Martial Law Orders, enactments, notifications, rules orders or bye-law, or in execution of any orders made be sentences passed by any authority in the exercise or purported exercise of powers as aforesaid, shall, notwithstanding any judgment of any Court be deemed to be and shall not be called in question in any Court on any ground whatsoever."
20. Article 269 (1) validates all Proclamations, Presidential Orders, Martial Law Regulations etc. made, between the relevant dates and under clause (2) all orders made, proceedings taken under the said validated laws are also validated and made sacrosanct. It is urged that validation of laws and actions there under both being regularised, the only point on which a Tribunal would have a right to interfere would be as prescribed in Saeed Ahmed's case. In his zeal, he has urged that word 'Court' used in clause 2 also extends to the Tribunals and so its jurisdiction Is also limited. The argument is too flimsy to be of any force. Article 212 mentions two distinct words 'Court and Tribunals'. Legislature in its- wisdom having preferred to christen it a Tribunal, no Court or person has a right to say differently, despite the fact that Article 212 entitling creation of Tribunals is included in the chapter of judicature; that Tribunal could record evidence and that Dictionary meaning of a Tribunal are identical to that of the Court and even when an appeal is allowed to the Supreme Court. Nonthe;--1C88 it is a Tribunal no amount of oratorical vehemence will chance its import. Yet the argument is not of much importance because Article 269 (1) has validated Martial Law Regulation 114, which bars jurisdiction of even Tribunals. The law being valid and protected by virtue of its inclusion in Schedule 6 the word Tribunal cannot be omitted by any authority under Article 268 (6). Thus a contradictory arguments is being urged by the learned counsel for the respondent. He concedes jurisdiction yet wants to place restriction thereon contrary to the provisions of section 5 of the Service Tribunals Act, 1973. He wants to take advantages of the ruling cited above' to obtain required result, yet ignores the para dealing with right of appeal. He confers jurisdiction when he could have denied it by virtue of Martial Law Regulation 114 (3). He is placed in a very unhappy predicament, without hope of extrication.
21. It would have been much easier if he had adopted line of full jurisdiction, then he would be fortified not only by High Court ruling in Aslam Bajwa's case but also by favourable constructions place able on amendment of Article 212 made in May, 1974. He could have easily said that the amendment extending jurisdiction to ex-service men, impliedly removed the partial embargo urged with respect to Martial Law Regulation cases This argument has been fully exploited by learned counsel for the appellant, They contend that retrospectively going back to 1st of July 1969 must be given a meaning. Its intent or import could only be to enlarge the ambit to Martial Law Regulation 114 cases, in the interest of alleviating hardship. It can be visualized that if Martial Law Regulation 114 could be -amended for review by Martial Law Regulation 116, there is no reason why; when both the Regulations have become existing laws; they cannot be deemed to stand amended by another Act of Parliament. These are the reasons, which can be agitated for fuller jurisdiction.
But I am afraid that none existed with respect to its curtailment, I, therefore, hold that if jurisdiction exists, it is as per section 5 of the Service Tribunals Act, untram--melled by any other encumbrance.
22. Contrary view is also possible. In fact its echo reverberated in urgings both at Lahore and Karachi. All through the arguments a counsel standing up for fuller jurisdiction would refer again and again to its want. Only when reminded they would give a sharp shift to it, to fall back to his original stand, but point rankled in every one's mind. The very vacillation brought it to the forefront.
It may, therefore, be decided whether Tribunals, jurisdiction 13as been created at all.
23. There is no doubt that jurisdiction cannot be created by compro--mise. It cannot be conferred by agreement or lapse. Relevant provision is, contained in Article 269 (1), (2) and Martial Law Regulation 114 Martial Law Regulation 114 practically bars right of interference to every authority; including a Tribunal. The Regulation is validated by Article 269 (1). Thus the jurisdiction ousted by the relevant enactments is confirmed by Constitutional provision. Whether amendment of Article 212 extending application of Service Tribunals Act to ex-servicemen deprives it of its venom with respect to redress by Service Tribunals and by implication limits the validation contemplated by Azticle 269 (1) to the extent. PLD 1973 SC 451 has been quoted to guide us as to interpretation of statutes. It lays down: "It is an accepted principle of interpretation of statutes that subsequent legislation in the same subject would, by necessary implication, repeal the earlier law to the extent of their mutual inconsistency or repug--nance. The Court naturally leans against implying a repeal and unless the two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied. The prior statute would be repealed by implication if its provisions were wholly incompatible with a subsequent one, or if the two statutes together would lead to wholly absurd consequences; or if the entire subject-matter were taken away by the subsequent statute.
24. In pressing the quotation into service, one fact is being ignored that the effect of prior statute being repealed by implication, depends on absolute incompatibility wish the subsequent one, to render it ineffectual altogether.
25. In the present case both the Articles when read together do not lead to airy absurd results. It could only mean that right of appeal does extend to ex-civil servants retired after Ist of July 1969 except those against whom these is statutory prohibition to file an appeal. Martial Law Regu-- lation 114 does not give right of appeal. 1t is a protected law although of sub-constitutional nature.
Martial Law Regulation 114, finding protection in Constitution cannot be amended except with permission of the President. The only natural conclusion, therefore, will be that amendment of Article 212 did not contemplated conferring right of appeal on those removed under Martial Law Regulation 114.
26. It may be stated that omission of word 'Tribunal' from clause 2 of the Article 269 is pregnant with meaning, but to my mind this omission in face of validation of Martial Law Regulation 114 itself bears no intent of any importance. Repeating the word `Tribunal' or any authority would be unnecessary, and no frivolous or redundant words are ever used in any law, least of all Constitutional provisions.
27. The other argument that in case of doubt, right of appeal must be presumed, is not valid either.
There being no ambiguity as to denial, the right cannot be imported into Martial Law Regulation 114.
Muhammad Aslam Bajwa v. Federation of Pakistan has of ten been quoted on behalf of the appellant to confer jurisdiction on the Tribunal. No doubt the authority is very exhaustive as to the implications of Article 212, 199, 264 and has dealt in detail with various aspects of the question arising from review provided by Martial Law Regulation 116, yet the competency of the Tribunal to entertain appeal from Martial Law orders mostly depends upon Attorney-General's acquiescence.
For instance limited character of the Tribunal, restriction imposed by section 4 of Act No. LXX of 1973 and then use of word "Tribunal" in Martial Law Regulation 114 were not considered. I have thoroughly read and re-read the authority but I find it silent as to this aspect of the question. With all humility, therefore, I say that although cases were abated but major problem agitated before us, was not in any way resolved by their Lordships of Lahore High Court while dealing with the above case. That the question is not free from difficulty to require independent examination, is also borne out by want of abatement order by Sind Baluchistan High Court. If it was not an - involved issue, Aslam Bajwa's case could have been followed to abate all the proceedings pending therein. Want of abatement order is also suggestive that there are other answers possible to the issue. The other point that strengthens the conclusion is that despite presence of word "Tribunal" in the ouster clause of Martial Law Regulation 114, no amend--ment was made either in Article 269 of the Constitution or in Martial Law Regulation 114. If Legislature intended that amendment should have over--riding effects to encompass even the cases decided under Martial Law Regulation, it could have easily amended the relevant laws. Besides, Govern--ment stand throughout has been that no jurisdiction existed in any Court wbatsoe%er to entertain procedure in such matters. It bad only to shift from this ground in face of Supreme Court ruling in Saeed Ahmed's case, to resale there from again to the limited extent.
28. As already pointed out "estoppels" does not stand in the way of respondent to agitate want of jurisdiction in this Tribunal. They have not done so but partial jurisdiction set up, is not borne out by any relevant law. Absence of jurisdiction cannot be cured as in the case of revenue decision. Thus being of the opinion that this Tribunal bas no jurisdiction, there is no alternative but to dismiss the petition. The order is made accordingly.
Parties to be informed.
G. D. MEMON (MEMBER).-The learned Chairman in his order has brought out clearly the facts of the case and various arguments put forward by the parties, before the Tribunal.
30. Right from the beginning to the end of paragraph 21, the argument has been in favour of appellate jurisdiction vesting in the Tribunal.
31. That a 'contrary view is also possible' has been based on the arguments given in paragraphs 2.- --7.
32. The conclusion in paragraph 28 dismissing the petition has been arrived at on the basis of the opinion that this Tribunal has no jurisdiction.
33. 1 regret, I am unable to agree with this view.
34. The following arguments appear to have weighed in arriving at this conclusion
(i) 'All through the arguments the counsel standing up for fuller juris--diction would refer again and again to its want and the very vacillation brought it to the fore-front.'
(ii) That the jurisdiction cannot be created by compromise nor can it be conferred by agreement or lapse (para 23).
(iii) Amendment of Article 212 did not contemplate conferring right of appeal on those removed under Martial Law Regulation 114.
(iv) Omission of word 'Tribunal' from clause (2) of Article 269, in the face of validation of Martial Law Regulation 1.14 itself bears no import of any importance and that repeating the word, 'Tribunal' or any authority would be unnecessary, for, no frivolous or redundant words are ever used in any law, least of all, in constitutional provisions.
(v) The argument that in case of doubt right of appeal must be presumed, is not valid-
(a) in PLD 1.974 Lah. 545 (Muhammad Aslam Bajwa v. Federation of Pakistan), the question of competency of the Tribunal to entertain appeal from Martial Law Orders mostly depends upon Attorney General's acquiescence.
(b) The question relating to limited character of the Tribunal, restriction imposed by section 4 of Act No. LXX of 1973 and the use of the word 'Tribunal' in Martial Law Regulation 114 were not considered.
35. (a) That the matter is not free from difficulty to require independent examination is also borne out by want of abatement order by the Sind Baluchistan High Court.
(b) Further despite presence of the word, 'Tribunal' in the ouster clause in Martial Law Regulation 114. no amendment was made either in Article 261) of the Constitution or in Martial Law Regulation 11.4.
36, I agree with the view that the jurisdiction cannot be created by, compromise and that it cannot be conferred by agreement. The vacillation on the part of certain counsels might have brought the viewpoint to the fore-front. But this could only imply that a detailed examination and fuller -- consideration of the issues was called for.
37. Although amendment of Article 212 of the Constitution may not have contemplated or in fact specifically conferred right of appeal on those removed under Martial Law Regulation 114, the insertion of the words "who are or have been", and "shall b.- deemed always to have been so inserted", and . . . . "and all proceedings, in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment", provided for a right of appeal to all person "who are or have been" in the Service of Pakistan including disciplinary matters. This substantive right of appeal has been afforded to all affected pers)ns who are or have been in the service of Pakistan which expression would include those removed under Martial Law Regulation 114.
38. By reason of Article 260 (Chapter V-Interpretation) relating to the definition of "existing law", read with Article 268 (clause 7) Martial Law Regulation 114 acquired the position of an 'Existing Law'.
Although the Martial Law Regulation i.e. the? Existing Law inter alia provided that "No action taken, order passed, thing done or power exercised under this Regulation shall be called in question by or before any Court, including the Supreme Court and a High Court or a Tribunal or any other authority", the word Tribunal' in Article 269 of the Constitution which relates to validation of laws, acts, etc., is conspicuous by its absence. The omission has a definite significance and is not without purpose.
39. The question of competency of the Tribunal to entertain appeal from Martial Law orders, decided in PLD 1974 was based on full consideration of the merits of the case and the Attorney- General could not have conceded or acquiesced in the stand taken without knowing the implications.
40. The 'limited character' of the Tribunal of 'the restrictions imposed by section 4 of the Service Tribunals Act do not destroy the jurisdiction of the Tribunal. In fart, Article 212 read with the Service Tribunal Act provides for exclusive jurisdiction in respect of matters relating to terms and conditions of persons who are or have been in th-3 service of Pakistan including disciplinary matters. This in fact implies that no other authority would exercise ''concurrent' jurisdiction in such matters and to that extent the jurisdiction of the Tribunal would be 'exclusive'.
41. Taking into consideration various factors and the implications of the relevant provisions of the Constitution and the Service Tribunals Act, I hold that the Tribunal is competent to exercise appellate jurisdiction in the matter and the present petition is entertain able under Article 212 of the Constitution read with sections 4 and 6 of the Service Tribunals Act, 1973.
42. As regards the extent of "jurisdiction", I am of opinion that the jurisdiction in appeal would be hedged or circumscribed in view of the provisions of Article 269 of the Constitution. It would be relevant to refer to The Federation of Pakistan v. Saeed Ahmed Khan and others (C. A. No. 24 of 1973). Although the two appeals in this case were filed under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan, the conclusions arrived at in the judgment could be followed with advantage.
43. By reason of the ouster of the High Court jurisdiction and confer--ment of jurisdiction on this Tribunal only the question of extent of the jurisdiction, which could be exercised by the Tribunal in pursuance of the provisions of Article 269 of the Constitution would need to be determined. Being an appellate Tribunal and the right of appeal having been conferred, as is clear from the Supreme Court judgment "In addition ouster clause does not affect appeals permissible under those orders, Regulations . . . . . . .", It is evident that the ouster clause is not comprehensive and does not affect the appeals which would be entertain able. The ouster clause, as would be clear from the relevant paragraph does not apply to acts done, proceedings taken or orders made incompetently and without jurisdiction, act which have not been validated; acts which are done without jurisdiction do not qualify for validation. Acts, which are open to challenge even under the measures under which they were taken or done or purported to be so taken or done are not validated.
S. BARKAT AHMAD (MEMBER).-The facts of the case and various argu--ments on the subject of jurisdiction and limitation, have been examined in detail in the preceding judgments of the learned Chairman and Member-1, and I can hardly add anything to this. I have the same views as expressed by Honourable Member-I, in concluding paragraphs 41 to 43 of his judgment ORDER OF THE COURT The majority decision of the Tribunal is:
(1) The Tribunal is competent to exercise appellate jurisdiction in the matter and the petition is entertain able under Article 212 of the Constitution read with section 4 of the Service Tribunals Act, 1973.
(2) The jurisdiction in appeal is hedged and circumscribed in view of the provision of Article 269 of the Constitution, the ouster clause not being comprehensive.
Acts done, proceedings taken or orders made incompetently or without jurisdiction, acts, which have not been validated do not qualify for validation. Acts, which are open to challenge even under the measures under which they are taken or done or purported to be so taken or done are not validated.