' Since the same question of law is involved, therefore, through this single order, I intend to dispose of all the Writ Petitions, bearing Nos.12051 of 2001, 12052 of 2001, 12055 of 2001, 12056 of 2001, 12057 of 2001, 12058 of 2001, 12059 of 2001, 12060 of 2001, 12098 of 2001, 12112 of 2001, 12139 of 2001, 12140 of 2001 and 12144 of 2001, which have been filed against the show-cause notice issued by the respondent side to the petitioners that why they should not be removed from their services.
2. In all the abovesaid writ petitions show-cause notices have been issued, on different dates to the petitioners, who have been serving at their respective posts in different Districts of the Province of Punjab by which they have been asked to explain that during their service career, they have failed to perform their official duties efficiently. Some of them have earned punishment, which reflect that they are not performing their duties honestly. It has further been mentioned in the Notice that many verbal complaints of corruption have been received against some of the petitioners and they are living beyond their means/capacity; their moral character is bad/unsatisfactory and they are unsuitable for retention in the Department. It has further been stated in the notice that they have proved themselves to be inefficient, careless and irresponsible. In addition to this it is alleged in the impugned notice that the petitioners are guilty of gross negligence misconduct under the Punjab Police (Efficiency and Discipline) Rules, 1975. It is further alleged in the Notification that glaring case of misconduct did not warrant the initiation of departmental proceedings through an Enquiry Officer, hence the same was dispensed with. Consequently it was decided to take disciplinary action against them by issuing show-cause notices as contemplated by rule 6(2)
9((b) of the Punjab Police (Efficiency and Discipline) Rules, 1975. They have been directed to reply the show-cause notice within seven days in accordance with rules that why major/minor penalty may not be imposed upon them stating at the same time whether they desired to be heard in person. It has further been clarified that if explanation is not received within stipulated period it shall be presumed that they have no explanation to offer and order shall be passed ex parte. In all the notices allegations levelled are same except some minor differences.
3. According to learned counsel for the petitioners these notices have been issued on the direction of the Inspector-General of Police, Punjab, vide his letter, dated 31-5-2001.
4. The main contention raised by the petitioners, who challenged the constitutionality of the Punjab Service Tribunal is that a sitting Judge of this Court cannot be the Chairman of the Service Tribunal.
It is further contended from the petitioners' side that the impugned notices are not simple notices but actually it is an order for removal from service; it is also violative of Removal from Set ice (Special Powers) Ordinance, 2000 (Ordinance XVII of 2000), which has overriding effect of the Punjab Police (E&D) Rules, 1975. It is further contended that the decision has already been taken as per letter issued by the Inspector-General of Police, Punjab, Lahore on 30-5-2001 and notices are nothing but mere a formality. The action of I.-G. Police is violative of the instructions. It is further contended that the petitioners are being victimized on the allegations, which have no foundation and for which no information whatsoever has been provided to them and the petitioners are being discriminated and proceeded for purpose of removal from service without any legal justification.
Moreover, stress has been laid on the point that provisions of Removal from Service (Special Powers) Ordinance, 2000 are not applicable towards case of the petitioners as no proceedings were pending against the petitioners before promulgation of the Ordinance. The impugned notices are allegedly under some Punjab Police (E&D) Rules, 1975. There is violation of sections 11, 12 and 13 of the Removal from Service (Special Powers) Ordinance, 2000. Lastly it is prayed that the writ petitions be accepted as the show-cause notices are illegal and unlawful, therefore, respondents be restrained from passing any adverse orders against the petitioners.
5. On the other hand, Mr. Maqbool Elahi Malik, learned Advocate-General putting in appearance in this Court, contended that the first question in the matter is to be decided whether this Court can assume the jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, because the matter relates to the terms and conditions of service and there is a bar of jurisdiction under Article 212 of the Constitution, 1973. He relied upon Khalil Ahmed v. Government of Pakistan (PLD 1981 Karachi 750), which is a Full Bench Judgment in which it has been held that all possible objections pertaining to Statute can be looked into by the Tribunal constituted under Article 212 of the Constitution, 1973. He further contended that the petitioners have selected a wrong forum. All the questions raised by them are within the jurisdiction of Service Tribunal. He further contended that the objection of constitutionality of the Service Tribunal can also be raised before the same Bench as it has not been finally settled.
6. Learned Advocate-General has further contended that only the show-causes notices have been issued and no adverse action has been taken against the petitioners. The writ petitions are not maintainable. He relies upon the following judgments:--
(1) 2000 SCMR 1017 (Mir Nabi Bakhsh Khan v. Branch Manager, NBP etc.);
(2) PLD 1968 SC 119 (A.R. Niazi etc. v. Pakistan through Secretary etc.) and
(3) 1969 SCMR 154 (Virasat Ullah v. Bashir Ahmed, Settlement Commissioner etc.)..
7. I have heard arguments of both the sides and perused the documents attached with these writ petitions. The basic question, which has to be decided at the first instance, is whether this Court can assume the jurisdiction in the matter relating to the terms and conditions of civil servants. The second question in these petitions is whether issuance of show-cause notice is an adverse action and writ petitions lies against it or not. The third question is whether the Punjab Service Tribunal, where a sitting Judge of this Court is looking after its affairs is properly constituted or not.
8. First of all I would like to take the first question whether this Court has the jurisdiction or not, it is now well-settled by the Hon'ble Supreme Court that the matters relating to the terms and conditions of service do not come within the jurisdiction of the High Court. It has been held in Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351 relevant at p.364). Relevant portion is reproduced as under:- "The other judgment of this Court on the question of jurisdiction of the Service Tribunal to examine the validity of Service Rules and Notifications and the eligibility for promotion to higher posts is the case of Muhammad Anis v. Abdul Haseen (PLD 1964 SC 539). It was held that the above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it."
' In the judgment reported as I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041 at page 1063). It has been held as under:-- "It is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involve& vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as another in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal."
Even if a statutory rule is ultra vires the Service Tribunal has the jurisdiction to strike down the same.
Asadullah Rashid v. Haji Muhammad Muneer and others (1998 PLC (C.S.) 1371) relevant at pages 1372 and 1373, refers as under:- "The consistent view of this Court has been that a writ petition or Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction, in view of provisions contained in Article 212 of the Constitution."
' Abdul Bari v. Government of Pakistan (PLD 1981 Karachi 290), Habib Bank Ltd. v. Syed Zia ul Hasan Kazmi (1998 SCMR 60) and 1998 SCMR 2280 at page 69 are also relevant in this context.
9. A bare perusal of the above said case-law makes it crystal clear that this Court cannot assume the jurisdiction of the matter relating to the terms and conditions of service. The second question relates to the issuance of show-cause notices to the petitioners. The question that these being interlocutory orders are not challengeable in the Service Tribunal is incorrect. Interlocutory orders are in a nature of step towards a final order eventually to be passed and will be merged with the final order which can only be challenged in the Service Tribunal. High Court cannot interfere in such interlocutory orders as well. This view is fortified in the case of Abdul Bari reported as PLD 1981 Karachi 290 at 303 and 309. No writ petition lies against show-cause notice as no adverse action has been taken. The writ petition is also not maintainable as well. Reliance is also placed on Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance (1984 CLC 142 at page 145) and Nazir Ahmed Sheikh v. Government of Sindh through Secretary, S&GAD, Sindh, Karachi and another (1998 PLC (C.S.) page 607).
10. As far as the constitutionality of the Punjab Service Tribunal is concerned, this question can be raised before the Service Tribunal, as it has now been well-settled that the objection can be raised only before the Court/Tribunal, the constitutionality of which is challenged. Reliance is placed on "PLD 1984 Karachi 462".
11. For the foregoing reasons I am satisfied that these writ petitions are not maintainable and this Court has no jurisdiction to set aside the said show-cause notices or interfere with the same.
Hence all the writ petitions are dismissed in limine, being not maintainable.
12. However, I have noticed that in all the writ petitions allegations are levelled that pick and choose policy has been adopted by the authorities for the issuance of show-cause notice and the blue- eyed officers are being kept by the concerned D.I.-Gs., S.S.Ps. And the other officers, who are not liked by the superior officers are being served show-cause notice. It is further noticed that Punjab Police (E&D) Rules, 1975, have been repealed by Removal from Service (Special Powers) Ordinance, 2000 (Ordinance XVII of 2000). I have asked the Advocate-General, Punjab to obtain the instructions and bring into notice of the Chief Secretary and Inspector-General of Police, Punjab, about the allegations being levelled through these writ petitions by the petitioners, as they are statedly being discriminated.
13. The Advocate-General, Punjab was asked to appear at 11-00 a.m. After obtaining instructions. He entered appearance after obtaining instructions and made a categorical statement that no pick and choose policy has been adopted and the Chief Secretary has assured that the Government of Punjab is not exercising any discrimination before issuing show-cause notices. He has further stated on instructions that Chief Secretary, Punjab has already issued directions to his subordinates to act strictly in an independent and impartial manner and to apply their mind before issuance of show-cause notices and the same are being issued to the officials against whom some material is available with the concerned authorities. He has further assured that if any one against whom there is sufficient material is not served with the show-cause notice will be served shortly and the authorities have been directed to thoroughly probe the record and if they come to a conclusion that prima facie of case for issuance of a show-cause notice is made out, only then the same shall be issued. I have further directed the Advocate-General, Punjab to ensure implementation of his undertaking given in this Court today.