' This judgment will dispose of Constitutional Petitions Nos,307 of 1988, (Muhammad Tufail v.
Government of Pakistan), 308 of 1988 (Ch. Muhammad Essa v. Government of Pakistan and others), 309 of 1988 (Malik Ghulam Nabi v. Government of Pakistan and others), 310 of 1988 (Murid Ahmad Randhawa v. Government of Pakistan), 311 of 1988 (Ch. Muhammad Khalid v. Government of Pakistan and others) 312 of 1988 (Abdul Latif v. Government of Pakistan), 313 of 1988 (Abdul Rabbani Mian v. Government of Pakistan), 314 of 1988 (Ashiq Hussain v. Government of Pakistan) 315 of 1988 (Mian Iqbal Khan v. Government of Pakistan), 316 of 1988 (Muhammad Iqbal Khan v. Government of Pakistan), 317 of 1988 (Ashgar Ali Ranjha v. Government of pakistan), 318 of 1988 (Hamid Ali v.
Government of Pakistan), 319 of 1988 (Zulfiqar Ahmad Kausar v. Government of Pakistan), 320 of 1988 (Amanullah Khan v. Government of Pakistan), 321 of 1988 (Faiz Rasool Chishti v. Government of Pakistan and others), 322 of 1988 (Muhammad Afzal v. Government of Pakistan) 323 of 1988 (Syed Manzoor Hussain Shah v. Government of Pakistan), 324 of 1988 (Safdar Ali v. Government of Pakistan), 325. Of 1988) (Sher Muhammad v. Government of Pakistan), 326 of 1988 (Mehtab Ahmad v. Government of Pakistan and others), 327 of 1988 (Muhammad Latif v. Government of Pakistan); 328 of 1988 (Ahamd Nawaz v. Government of Pakistan), 331 of 1988 (Akhtar Hussain Khan v.
Government of Pakistan) 332 of 1988 (Muhammad Ishaq Mian v. Government of Pakistan) and 573 of 1989(Mujahid-ul-Haque v. Government of Pakistan), as common questions of law' and facts are involved in all these petitions.
2. The facts leading to the filing of these Constitutional petitions are that the petitioners in all these petitions were employed as Family Planning Officers under the Population Welfare Division of the Government of Pakistan, Ministry of Planning and. Development, Islamabad in BPS-16. The services of all these Officers were terminated by the competent Authority vide the order, dated 30-1-1986, which reads as follows:-- "In pursuance of section 6 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance XIV, 1981, the appointing authority has been pleased to terminate the services of the following BPS-16 Officers of the Population Programme under the Population Welfare Division with immediate effect (The Officers whose services were terminated were 156 in number as per the list embodied in the termination order. However, of these 156 Officers, only 25 filed the Constitutional petitions before this Court for questioning their termination and as such the names of all the Officers who though were terminated from service but had not filed the Constitutional petitions have been omitted from this judgment and a reference had been made only to those who have filed the abovementioned Constitutional petitions).
3. Para. 2 of the Termination Order reproduced hereinabove provided as follows:-- "In pursuance of para. 8(5) and para.2 of the Supreme Court of Pakistan judgments, dated 29-2- 1984 and 28-6-1984, as the case may be, the above named Officers shall not he entitled to any terminal benefits for the period from reinstatement to above Termination. However, they shall be paid terminal benefits for the service rendered prior to their termination on 8-9-1981, if not already drawn, in terms of section 7 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance XIV, 1981."
4. M/s Dr. Khalid Ranjha, Hafiz S.A. Rehman and Sardar Zaheer Ahmad Khan, Advocates appeared for and on behalf of the petitioners and Ch. Afrasiab Khan, learned Standing Counsel for the Federal Government and Qazi Ahmad Naeem Qureshi, Federal Counsel for the Government appeared for and on behalf of the respondents.
5. On these Constitutional petitions being brought before this Court, these were admitted to regular hearing vide the order, dated 21-11-1989.
6. At the very outset of the arguments of the learned counsel for this petitioners, they were confronted with the question as to jurisdiction of this Court to entertain these petitions. With reference to the law laid down by the Hon' ble Supreme Court of Pakistan in 1997 SCMR 167 (Miss Rukhsana Ijaz v. Secretary, Education Department and others), 1997 SCMR 169 (Ayyaz Anjum v.
Government of Punjab and others), 1997 SCMR 170 (Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others) and 1998 SCMR 22'80 Khalid Mahmood 'Wattoo v. Government of Punjab and others) learned counsel for the petitioners were asked to justify the maintainability of these petitions before this Court. It was pointed out to them on the basis Of the judgments hereinbefore referred to that the dispute as canvassed in all these Constitutional petitions was such as related to the terms and conditions of service of the petitioners and the same fell squarely within the jurisdiction of Federal Service Tribunal in view of the express bar contained in. Article 212 of the Constitution. Learned counsel for the petitioners, however, maintained, placing reliance on PLD 1997 SC 382 (Dr. Ahmad Salman, Waris v. Dr. Naeem Akhtar and others) that since the FPSC had been impleaded as a party to these petitions, therefore, the petitioners cases could not be referred to the Federal Service Tribunal and the action of the FPSC could not be brought under challenge before the Federal Service Tribunal and that for the said reason, these Constitutional petitions brought as these were before this Court were competent and maintainable and the petitioners could not for the said reasons be directed to have recourse to the Federal Service Tribunal.
7. Yet another justification put forth by the learned counsel for the petitioner was that when the question regarding the appointment of these and other Officers of the Family Planning Department was pending adjudication before the Hon'ble Supreme Court, Mr. Munir A. Sheikh, as his Lordship then was, in his capacity as Deputy Attorney-General for Pakistan gave an undertaking before the Hon'ble Supreme Court that the FPSC and the Department shall re-examine the cases of all Family Planning Officer afresh in the light of the provisions of the FPSC Act and the Rules made thereunder so as to adjudge their suitability or otherwise for retention in service and that on the basis of the undertaking given by Mr. Munir A. Sheikh, as his Lordship then was, the appeals pending before the Hon'ble Supreme Court disposed of. Learned counsel for the petitioners maintained that the order of termination passed by the respondents against the petitioners was violative of the undertaking given before the Hon'ble Supreme Court and after summoning the relevant record from the FPSC and the Family Planning Department, the inquiry should be set afoot as to whether the directions contained in the order of the Hon'ble Supreme Court passed on basis of the undertaking given before it by and on behalf of the Government was or was not complied with. Learned counsel for the petitioners on the basis of the submissions, thus, had maintained that the Constitutional petitions were maintainable before this Court and this Court had the jurisdiction to entertain the same and to adjudicate upon the question as canvassed in these petitions.
9. Ch. Afrasiab Khan, learned Standing Counsel for the Federal Government and Qazi Ahmad Naeem Qureshi, Federal Counsel for the Government, however, opposed the maintainability of these Constitutional petitions before this Court in view of the express bar contained in Article 212 of the Constitution and the latest pronouncements of the Hon'ble Supreme Court referred to hereinabove which were to the effect that if the dispute brought before the High Court was such as was relatable to the terms and conditions of service of a civil servant, then no interference could be made by this Court in the order passed by the competent Authority and that the only forum competent to go into such questions was the appropriate Service Tribunal.
10. I have considered and evaluated the respective submissions of the learned counsel for the parties hereinabove reproduced and have gone through the order impugned in these petitions. For attending to and disposing of the respective contentions of the learned counsel for the parties, what needs to be kept in view is firstly the impugned order itself. For, a perusal of the order itself would show as to what exactly is the order passed and what does it relate to? Does the order passed relate to the terms and conditions of a civil servant? Secondly, the Constitutional petitions as framed and warded do or do not call in question the selection made by the FPSC with respect to the petitioners? Thirdly, can the legality and the propriety of the contention of the learned counsel for the petitioners be examined by this Court in the exercise of its writ jurisdiction that a factual inquiry be held and finding arrived at and recorded as to whether or not the directions given by the Hon'ble Supreme Court on the basis of the undertaking given before it were or were not co 'plied with by the FPSC and the Department?
11. For finding an answer to the first question, a reference to the order of termination passed against the petitioners and reproduced hereinabove would show that--
(I) that the petitioners who are the subject-matter of the order passed were civil servants in the service of the Central Government in its Population Welfare Division and were employed as Family Planning Officers in BPS-16;
(ii) that the order as passed was an order of termination which put an end to their service and on the face of it was such as related to the terms and conditions of service of the petitioners;
(iii) being an order passed in respect of a civil servant and relating to the terms and conditions of his service, the order was such as could be challenged before a Service Tribunal alone in view of the bar contained in Article 212 of the Constitution and no interference could be made with the same by this Court under any pretext in the exercise of its writ jurisdiction.
12. Now adverting to the contention of the learned counsel for the petitioners that the Constitutional petitions as framed and warded were competent before this Court inasmuch as the FPSC had been impleaded as a party to these petitions and any action of the FPSC could not be brought under challenge before the Federal Service Tribunal. As aforesaid, reliance for this view of their was placed by the learned counsel for the petitioners on PLD 1997 SC 382 referred to hereinabove and it was maintained that the petitioners could not be directed to have recourse to the Federal Service Tribunal inasmuch as any selection/recommendation made by the FPSC could not be brought under challenge before the Federal Service Tribunal. I have gone through the judgment, referred to by the learned counsel for the petitioners and have also perused the impugned order passed against these petitioners by the Department. The said judgment is not attracted to the facts of the petitioner's case inasmuch as the recommendations/selection made by the FPSC have not been brought under challenge before this Court in these Constitutional petitions, so as to attract the applicability of the law laid down in the judgment referred to. It may be pointed out that what has been held in the judgment referred to is that a person who applies to the FPSC but is not selected cannot claim unto himself the status of civil servant, and therefore, he cannot make a grievance of his non-selection by filing an appeal before the Federal Service Tribunal as he is not a Civil Servant.
Such, is not the position in the instant case. As aforesaid, the petitioners were working in the Population Welfare Division of the Government of Pakistan, Ministry of Planning and Development, Islamabad in BPS-16 and were civil servants and the impugned order, as aforesaid, related to their terms and conditions of service.
13. There is yet another dimension of the vulnerability of the arguments of the learned counsel for the petitioners that since the FPSC has been impleaded as a party to these petitioners, therefore, the petitioners cannot be directed to have recourse to the Federal Service Tribunal. The arguments is out rightly fallacious. The jurisdiction of a Court cannot be conferred or taken away by the nature and character of the parties impleaded before it. It is in fact the order impugned which is the determining factor for the deciding the forum of jurisdiction. As we have already seen by having a look at the order of termination passed by the Department against these petitioners that it is an order of termination, pure and simple, relating to the terms and conditions of a civil servant. Once, therefore, it is, clear that the order is an order of termination and it relates to a civil servant and to the terms and conditions .Of his service, for examining the legality and the propriety of the order, thus passed, the presence of the FPSC is not at all necessary. By impleading the FPSC as a party.
Therefore, the petitioners 'Cannot confer the jurisdiction of this Court in respect of an order which is otherwise beyond the jurisdiction of this Court keeping in view of the mandate of Article 212 of the Constitution.
14. Coming now finally to the contention of the learned counsel for the petitioners that this Court should hold an inquiry into the facts as to whether the directions contained in the order passed by the Hon'ble Supreme Court on the basis of the undertaking given before it by and on behalf of the Department and the FPSC have or have not been complied with by the Department and the FPSC. It shall be seen that such a determination cannot be made by this Court without holding an elaborate inquiry into disputed questions of fact asserted by the petitioners on the one hand and denied/disputed/controverted by the respondents on the other while exercising writ jurisdiction.
Reliance for this view that such an exercise cannot be undertaken before this Court in the exercise of writ jurisdiction is placed on PLD 1992 SC 723 (Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others).
15. When confronted with these legal and Constitutional hurdles in the way of this Court and its inability on account of lack of jurisdiction to redress the petitioners' grievances arising out of their termination, the petitioner' learned counsel Dr. Khalid Ranjha, Hafiz S.A. Rehman and Sardar Zaheer Ahmad Khan, Advocate submitted that they were prepared to go before the Federal Service Tribunal to seek redress against the termination of their service but that asking them to stand in the qua before the Service Tribunal and wait for their turn in the ordinary course of things would be an order which would be unduly harsh for the petitioners. They submitted that the Constitutional petitions filed by the petitioners against the impugned orders of termination in 1988 have taken 11 long years for being taken up on merits by this Court and if they are now sent to the Federal Service Tribunal and their appeals are entertained as having been filed in the year, 1999, it will take another 10 years before the appeals become ripe for decision by the Tribunal. Learned counsel for the petitioners, therefore, in this view of the matter requested that they shall be satisfied with the order passed by this Court directing that these Constitutional petitions be treated as Service appeals pending since the year, 1988 when these were filed and a direction be made in the order disposing of these petitions to treat them as pending appeals and to decide them out of turn on the basis of priority. This submission of the learned counsel for the petitioners that a course such as this could be adopted for minimizing the agony of the petitioners is based upon the law laid down by the Hon'ble Supreme Court in PLD 1994 SC 539 (Muhammad Anees and others v. Abdul Haseeb and others).
16. As a natural corollary to the foregoing discussion, these Constitutional petitions are held to be incompetent before this Court in view of the bar contained in Article 212 of the Constitution and the law laid down in 1997 SCMR 167 = 1997 PLC (C.S.) 121, 1997 SCMR 170 = 1997 PLC (C.S.) 124 and 1998 SCMR 2280. These petitions shall, however, be treated as Service Appeals and shall be deemed to be pending as such since the year, 1988 when these were filed before this Court. The case of all these petitioners are therefore, remanded to the Federal Service Tribunal as Service Appeals pending since the year, 1988. The learned Federal Service Tribunal shall have regard for the fact in view of the law laid down in PLD 1994 SC 539 that considerable period has already gone by and the petitioners' grievance arising out of termination of service remains yet to be attended to by a competent forum and attaching such importance as these cases deserve, the learned Tribunal shall hear these Service Appeals out of turn and on priority basis so that the appeals are decided as early as possible and the agony of the petitioners set at rest.