The relevant facts for the decision of this Constitutional petition are that the petitioner is employed as Deputy Chief Controller of Purchase/CF. Pakistan Railways. The Authority decided to initiate disciplinary proceedings against him. He was accordingly served with a show-cause notice, dated 9th of February, 1999. He submitted the reply thereto. The matter is still under-consideration. The petitioner filed a Constitutional petition, whereby he prayed that appointment of respondent No,3 as Chairman, Railways Board as well as Authorised Officer of the petitioner may be declared void and illegal. It was also prayed that the show-cause notice and all the proceedings in pursuance of the same may be quashed. The writ petition came up for limine hearing on 24th of May, 1999, when it was decided to issue pre-admission intimation to the respondents for 14th of June, 1999 on the point of legality of appointment of the respondent No,3 alone. The arguments were heard at some length on this date on the point and the learned Deputy Attorney-General requested for time to produce the notification of appointment of respondent No,3 as Chairman, Railways Board. The case was adjourned to 15th of June, 1999, when the notification was not produced. The petition was admitted to regular hearing and the case was fixed for arguments for today.
2. The learned counsel for the petitioner argued that the appointment of Chairman, Railways Board is governed by Article 3 of the Presidential Order No,33 of 1962, which was subsequently amended through the Transfer of Railways (Amendment) Ordinance, 1998, promulgated on 28th of January, 1998, according to which the Secretary to the Government of Pakistan Railways Division was to be the ex officio Chairman of the Railways Board. It is argued that this Ordinance came into in force on 28th of January, 1998 while the respondent No,3 was appointed as Additional Secretary on 28th of April, 1998 and he ex officio became the Chairman. It is added that this Ordinance stood repealed after four months, therefore, appointment made under the same automatically stood rescinded and terminated and after the reneal of the Ordinance the Federal Government was under legal compulsion to make fresh appointment in accordance with the provisions of P.O. No,33 of 1962. It is added that every citizen can file a Constitutional petition for issuance of writ of quo warranto. In this behalf reference is made to Article 199(b)(ii) of the Constitution of Islamic Republic of Pakistan, 1973 and reliance is placed on the judgments reported as Muhammad Afzal and others v.
Government of Balochistan through Secretary, S&GAD, Quetta and 4 others 1995 PLC (C.S.) 567; Ijaz Hussain v. Abdul Qayyum 1996 PLC (C.S.) 622.
3. On the other hand, the learned Deputy Attorney-General argued that the Courts are established and have the jurisdiction as vested in them in view of Article 175 of Constitution of 1973 while the jurisdiction of all the Courts in respect of service matters is barred under Article 212 of the Constitution of 1973. It is maintained with reference to Article 199 read with Article 212 of the Constitution of 1973 that the Constitution made it clear that in the matte of terms and conditions of service of a civil servant, jurisdiction of all the Courts including the High Court is ousted. It is added that the show-cause notice was issued by the respondent No,3 as Additional Secretary and for that reason the petitioner addressed the reply also to the respondent No,3 as Additional Secretary Railways. It is added that the objection not taken in reply to the show-cause notice, cannot be allowed to be raised in the constitutional petition. The petitioner is now estopped by his conduct. It is added that the petition is not competent under Article 212 of the Constitution. In this behalf reliance is placed on the judgments reported as Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department, through Secretary and others 1997 SCMR 169; Javed Hussain Shah v. Government of Punjab and others 1998 SCMR 220. It is argued that under section 4 of the Federal Service Tribunals Act, 1973, now appeal is competent against the final as well as interlocutory orders. It is added that the term "Authority" has been defined under section 2(2) while the "Authorised Officer" is defined under section 2(3) of the Civil Servants Act, 1973. It is added with reference to Annexure R/1 Notification dated 30th of April, 1998, that the "Authority" of the Civil Servants in Grades 20 to 22 is the Prime Minister while according to Column 4 of the same Secretary or Acting Secretary of the concerned Division is the "Authorised Officer". It is added that whether the respondent No,3 is validly appointed as Chairman or not, the same does not affect the position of respondent No,3 to act as Authorised Officer as he is an Additional Secretary. It is added that the jurisdiction of the Court is barred even if the action is mala fide as alleged by the petitioner. In this behalf reliance is placed on the judgments reported as Javed Hussain Shah v.
Government of Punjab and others 1998 SCMR 220 and Sardar Asseff Ahmad Ali v. Muhammad Khan Junejo and others PLD 1986 Lah. 310, wherein it was held that quo warranto cannot be issued on mere technicalities. It is added that as per Rule 5 of the E & D Rules, 1973, the Authorised Officer is not the final authority. He is simply to make recommendation to the Authority. In the end it is argued that repeal of the Ordinance, 1998, is of no legal consequence. In this behalf reliance is placed on the judgments reported as The Collector of Customs, Karachi and others v. M/s. New Electronics (Pvt.) Ltd. And 59 others PLD 1994 SC 363; Hakim Ali Zardari v. The State and another PLD 1998 SC 1 and Riaz Ahmed v. The State 1998 SCMR 1729. It is argued that the way out for the petitioner is either to amend the petition or withdraw this petition and file fresh petition against the appointment of respondent No,3.
4. The learned counsel for the petitioner, while summing up the arguments, submitted that although the petitioner has claimed more than one relief but he pressed into service only the relief of quo warranto as was evident from his arguments. It is maintained that as far this relief is concerned the Federal Service Tribunal has no jurisdiction or authority as it is competent to deal with the matters of terms and conditions of service of a civil servant only. In this behalf reliance is placed on the judgment reported as Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and others 1999 SCMR 819. It is argued that the argument as to the proceedings against the petitioner are utterly irrelevant and misdirected. The petitioner was not allowed to argue these points in view of the provisions of Article 212 of the Constitution of 1973 jurisdiction of this Court is barred.
5. I have given my anxious consideration to the arguments, gone through the record, relevant provisions of law, rules and the precedent cases. The petitioner had asked for two-fold relief namely: declaring the appointment of respondent No,3 as Chairman, Railways Board, illegal and void and secondly, for declaring the show-cause notice and proceedings in pursuance thereto, as illegal, void and without jurisdiction.
6. I first of all deal with the legal question as to whether the appointment of respondent No,3 is in accordance with law rather this is the only question involved in this writ petition. The appointment of respondent No,3 was made on 28th of April, 1998 as Additional Secretary (In charge), Ministry of Railways, Islamabad, when the Ordinance of 1998 was in force, therefore, the appointment was governed by Article 3 as substituted by the Ordinance of 1998, which reads as under:-- "3. Constitution of Railways Board.--(1) For the management of the Railways in Pakistan there shall be a Railways Board consisting of a Chairman and five members to be appointed by the Federal Government.
(2) Secretary to the Government of Pakistan Railways Division, shall be Ex officio Chairman of the Board, and out of members mentioned in clause (1); (b).
It is clear from subsection (1) that the management of the Railways in Pakistan is to be governed by the Board consisting of Chairman and five members to be appointed by the Federal Government while subsection (2) provided that the Secretary to the Government of Pakistan Railways Division shall be the ex officio Chairman of the Board and out of members mentioned in clause (i). The respondent No,3 was never appointed as Member, Board of Directors of the Railways, therefore, as he lacked one of the qualification necessary to assume the office of the Chairman Railways, he could not assume the office of the Chairman as per provisions of the Ordinance of 1998, also.
7. The argument that in any case the appointment of respondent No,3 as Chairman expired with the repeal of the Ordinance after the expiry of 120 days as per provisions of Article 89. The orders made and action taken during the period when the Ordinance was in force would remain intact and are saved by Article 264 of the Constitution of 1973, therefore, this argument on behalf of the petitioner is without any merit.
8. Now coming to the argument of the learned Deputy Attorney-General on the question of bar of jurisdiction under Article 212. The petition came up for limine hearing on 24-5-1999. The learned counsel for the petitioner was categorically told that as far the issuance of show-cause notice and proceedings in pursuance thereto under the E & D Rules were concerned, this Court has no jurisdiction. However, if he wanted to press the relief of quo warranto then he may proceed. He accordingly challenged the appointment of respondent No,3 as Chairman, Railways Board alone.
9. The learned counsel for the petitioner did not argue at all as to legality of the show-cause notice and proceedings under E & D Rules after he was told that this Court has no jurisdiction in these matters. In face of this the learned Deputy Attorney-General continued arguing the points raised in the petition challenging the validity of the E & D proceedings.
10. Suffice it is to record here that this conduct of the learned Deputy Attorney-General is most unbecoming of a Law Officer. So much so, he was confronted with the question that if somebody is to challenge the appointment of respondent No,3, could he maintain an appeal before the Federal Service Tribunal? The total reply given by him was that this is not the prayer, therefore, either the petitioner should amend the petition or withdraw this petition to file a fresh petition.
11. The learned counsel for the petitioner, while summing up the arguments, referred to clause (i) of the prayer of the writ where the petitioner had clearly challenged the appointment of respondent No,3 and prayed for declaring the same illegal and void, therefore, the above argument was without any merit.
12. The upshot of this discussion is that the assumption of Chairman, Railways Board by the respondent No,3 is declared ultra vires of Article 3 of the Ordinance of 1998 by accepting this writ petition with costs.