1. ' This order shall dispose of the legal objection in respect of the maintainability of the suit based on bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan that bars the jurisdiction of Courts to make any order or entertain any proceedings in respect of matter specified in clause (a) of sub-Article (1) of the same. It may be noted that the learned counsel for the plaintiff vide order dated 22-6-2000 was put on notice to satisfy the Court in respect of the maintainability of the suit same plea has been raised by the defendant through counter-affidavit to C.M.A. 269 of 2001.
2. ' Briefly stated facts are that plaintiff was appointed as Director Special Project w,e,f, 24-11-1994 vide appointment letter dated 22-12-1994 by defendant No, 2, who served the plaintiff with a show- cause notice for his removal from service on 10-10-1997, inter alia, on the ground that (i) his appointment was politically motivated, (ii) crossed maximum age for induction of regular employee (40 years), (iii) no post of Director was available, (iv) against the eligibility requirement viz. Master Degree in Second Division. The plaintiff replied the show-cast notice. He was placed in surplus pools and after evaluation process by letter dated 25-10-1999 confirmed that no violation has occurred and the plaintiff's appointment was in order. The then Managing Director also recorded that the plaintiff had been victimized and was unnecessarily placed in surplus pool without any reason and shifted the plaintiff in main stream. The plaintiff ultimately was assigned the post of Director notice of his removal was withdrawn by letter dated 30-11-1999. The plaintiff's case was that the matter concerning his appointment stood past and closed but despite the same the defendants who have issued another notice dated 8-5-2000 for exactly the same allegation as levelled earlier (Annexure-I to the plaint), which has been impugned through this suit. According to the plaintiff, the impugned notice is unlawful, mala fide, unconstitutional, hit by double jeopardy of no legal effect and void ab initio.
3. ' An application under Order 39, Rules 1 and 2, C.P.C. Was also filed with the plaint and interim order was passed on 22-6-2000 against defendant No 2, whereby the impugned notice was suspended, which has been extended and is operating till date.
4. ' The defendants were served with notice of the application and summons of the suit and they have filed counter-affidavit to the injunction application containing, inter alia, that the suit is barred by section 2-A of the Service Tribunals Act read with Article 212 of the Constitution of Islamic.
5. Republic of Pakistan and section 42 of the Specific Relief Act and the prayer made in the suit are relating to the terms and conditions of the employment of the plaintiff, as such in view of Article 212 of the Constitution of Islamic. Republic of Pakistan the suit and the injunction application are not maintainable in law. The Court has no jurisdiction to entertain and decide the same on merits for want of jurisdiction.
6. ' In respect of the legal objection pertaining to the maintainability of the suit in view of bar contained in Article 212 of the Constitution read with section 2-A of the Service Tribunals Act I have heard Dr. Farogh Nasim, the learned counsel for the plaintiff and Mr. Yawar Farooqi, learned counsel for defendant No,2.
7. ' Dr. Farogh Nasim has frankly conceded that in view of section 2A of the Act the service under any Authority, Corporation. Body of Organization, established by, or under a Federal law or which is controlled by the Federal Government or in which the Federal Government has controlling share or interest has been declared to be the service of Pakistan for limited purpose and every person holding a post under such Authority, Corporation, Body or Organization shall be deemed to be a civil servant to provide a forum viz. Service Tribunal for adjudication of grievance of the employees of such organization but contended that in order to claim ouster of jurisdiction of Civil Court, the condition enumerated in section 4 of the Act must be attracted viz. In respect of matters relating to the terms and conditions of service including disciplinary matters and stressed that the matter agitated by the plaintiff do not pertain to the terms and conditions of service and to support his contention he referred a decision of Division Bench of Balochistan High Court Muhammad Idrees v.
8. Government of Pakistan (1998 PLC (C.S.) 239). Wherein the exclusion of jurisdiction of Service Tribunal with reference to section 4 of the Act, was found in following matters:
(1) When the impugned order was passed before 1-7-1969.
(2) When the civil servant punished is not a "civil servant" for the reason of exclusion from defamation of 'civil servant' in section 2(1)(b) of the Civil Servants Act;
(3) When the order is not a final order.
(4) When the punishment imposed is other than the punishment of dismissal, removal, compulsory retirement or reduction to a lower post or time scale.
(5) When the impugned order relates to a person's fitness to hold a post or to be appointed to such post or to be promoted to a higher post of grade; and
(6) When the order is not paused by a competent departmental authority and is for such reason void.
9. ' Mr. Farogh Nasim contended that the subject-matter does not pertain to the terms and conditions of service but action not permitted by regulation as the act complained is not "misconduct", as such the Tribunal has no jurisdiction and the jurisdiction of this Court is not ousted only in respect of matters in which the Service Tribunal has jurisdiction under subsection (1) of section 4 of the Act.
10. If the Service Tribunal does not have jurisdiction to adjudicate upon the particular grievance, the jurisdiction of the Court remains intact. His further contention was the matter in issue is not in respect of the terms an conditions thus is outside the jurisdiction of the Tribunal and ouster of jurisdiction cannot be claimed in the matter and in support of his contention has referred case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041), wherein the question of ouster of jurisdiction of the Court under Article 212 of the Constitution came up for consideration, which has been addressed as follows: "From the above quoted articles of the Constitution and section 4 of the Act it is evident that the jurisdiction of the Court is excluded only in respect of the cases in which Service Tribunal under subsection (i) of section 4 has jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance the jurisdiction of the Court remains in tact."
11. ' Learned counsel for the plaintiff has also placed reliance on cases (i) Irshadur Rehman v.
12. Government of Pakistan (PLJ 1996 Karachi 384), (ii) Amjad Latif v. C.B.R (1996 CLC 1422) and (iii) M.A.
13. Jabbar v. Federation of Pakistan (1999 PLC (C.S.) 686). In Rehman's case the question of jurisdiction raised was based on Article 212 of the Constitution. The facts were that the petitioner therein was serving as a clerk. He applied for appointment of Inspector a post to be filled by direct recruitment.
14. He was not selected: He filed a Constitutional petition before this Court. The objection of maintainability of the petition was brushed aside by observing that subsection (2) of section 3 and section 4 of the Service Tribunals Act confers exclusive jurisdiction with Tribunal in respect of the matters relating to the terms and conditions of service of civil servant in consonance with clause
(a) of Article 212 (1) which has invested the legislator with the power to create Tribunal exercising exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who are or have been in service of Pakistan. The jurisdiction of other. Court is barred in respect of the matter relating to (a) terms and conditions of service and terms and conditions of civil servant i,e, persons, who are or have been in service of Pakistan. In Amjad Lateef's case the bar contained in Article 212 was found to be not applicable as terms and conditions of Service were not in issue but the procedure for selection was impugned. In M.A Jabbar the appointment of the respondent to a post was challenged. The maintainability of the Constitutional petition was attacked for the same reasons. It was repelled on the ground that as condition for initial appointment at the time of first entry to post did not fall within the definition of terms and conditions of civil servant.
15. There is no cavil with the proposition enunciated in above case that the jurisdiction of Courts are ousted only in respect of the matter in which Service Tribunal under subsection (1) of section 4 has the jurisdiction. The question for determination is whether the subject-matter is in respect of the terms and conditions of service.
16. ' Learned counsel for the defendant No,2 has contended that the cases referred to above have no relevancy to the plaintiff's case as in all above petitions the matters were not in respect of the terms and conditions but the matter was of initial appointment which cannot be the matter pertaining to terms and conditions of service or terms and conditions of civil servant. In the instant case, the matter pertains to eligibility of the plaintiff to hold the post of Director which is subject- matter of departmental action: ' The learned counsel for the plaintiff maintained by referring the regulation and contended that the purported action is not permitted under the Regulation, as the same cannot be a misconduct he further submitted that the action must be under the Act or under the Rule and if the action or act is against the rule then the ouster of jurisdiction cannot be pleaded. He referred Abdul Rauf and another v. Abdul Hameed Khan (PLD 1965 SC 671), wherein the term "Act" or "under the Act" in statute was interpreted with reference to ouster of jurisdiction and it was held that no order is an order passed under the Act, if it was not passed in exercise of power granted by the Act and was, therefore, without jurisdiction. This argument is based on the assumption that the "regulations" of defendant-Corporation is statutory rule of regulation. The regulation known as PIAC Empoyees (Efficiency and Discipline) Regulations, 1985, remained subject for consideration before the superior Courts. I would not like to burden this judgment by re-appraisal of the case-law on the subject except the case of Riazuddin v. Chairman, PIA (PLD 1992 SC 531) wherein after re-appraisal of case- law, regulation referred to above was not equated with statutory rule, para. 6 of the report is relevant which is reproduced for reference: "In the present case PIAC has regulations which have been framed by the Board of Directors of the PIAC, pursuant to the powers contained in section 30 of the Act. However, there is nothing on record to indicate that the above regulations have been framed with perevious sanction of Central Government or that they were gazetted and laid before National Asseembly in terms of section 31 of the Act. In this view of this matter, the regulations cannot be treated as statutory rules of the nature which would bring the case of the PIAC within the above qualification as to entitle the employee of the PIAC to claim relief of reinstatement on the ground of breach of the statutory provision."
17. ' Therefore, the breach of such regulation cannot be equated with violation of statutory rules, for a case, complaining breach of said regulation before Civil Court, except for damages.
18. ' The second contention raised by Dr. Farogh Nasim, learned counsel for the plaintiff was that second or third inquiry initiated against the plaintiff is alien to the provision of PIA Employees Regulations, 1985, as such the proceeding is not only in violation of employees regulation but it offends the provisions of Article 13 of the Constitution of Islamic Republic of Pakistan as the plaintiff cannot be vaxed twice on the same fact and ground once he has been exonerated. Dr. Farogh Nasim further contended that second and third enquiry is not permissible under the rules nor under the Constitution as it offends the principle of double jeopardy enshrined in Article 13 of the Constitution and has referred two judgments from Lahore High Court Javed Maqbool Bhatti v.
19. Secretary, Irrigation and Power Department (1998 PLC (C.S.) 208), wherein the Constitutional jurisdiction was exercised in terms of Article 199 and the petition was partly accepted to the extent that petitioner shall not face another trial on the same allegations which stand already concluded by the Inquiry Officer (2) C.P. No, 5867 of 1998 Mushtaq Akhtar v. Director-General, FIA and others wherein the ouster of jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan to entertain and decide such question was taken, which was addressed in the following terms: "The argument is not well-based for the reason that the petition itself is solely based on Article 13 of the Constitution and the relief based on the proposition that the law in derogation of fundamental rights shall to the extent of inconsistency would be void and such a declaration could only be granted by High Court. Again the final order in regard to the present charge-sheet has not so far been made, therefore, the said order is amenable to the jurisdiction of High Court."
20. ' The plea taken by the plaintiff is that there were more than one inquiries and he was exonerated whereas the plea based raised before me on behalf of defendant was that no final order has been passed and only a show- cause notice has been issued. Therefore, in my view the plea of double jeopardy in such matter cannot be determined unless this Court has the jurisdiction.
21. ' On the last leg the argument of Dr. Farogh Nasim was that if the Court comes to the conclusion that eligibility is the matter pertaining to the terms and conditions of service and this Court lacks jurisdiction to adjudicate and decide the matter then Court can direct for the transfer of the suit to the Service Tribunal treating it as an appeal. His request is based on the observations contained in para. 16 of the judgment recorded in Muhammad Anis v. Abdul Haseeb (PLD 1999 SC 539 (sic).
22. While dismissing the appeal, Supreme Court remanded the case to the Tribunal with direction that the petitions filed by the private respondents before the High Court shall be treated as service appeal pending before it which will be decided after the notice to the parties concerned in accordance with law.
23. ' Mr, Yawar Farooqui, learned counsel for the defendants to meet the above submission urged that in terms of clause (2) of Article 212, once the Administrative Court or Tribunal is established under clause (a), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which tine jurisdiction of such Administrative Court or Tribunal extends. He contended that Services Tribunal has been established under Article 212 of the Constitution. Such established Tribunals have exclusive jurisdiction to entertain the matters enumerated in Article 212 (1)(a) of the Constitution to the ouster of jurisdiction of other Courts. Clause (a) of sub-Article (1) of Article 212 pertains to the matters relating to the terms and conditions of persons, who are or have been in the service of Pakistan, including disciplinary matters. Mr. Yawar Farooquits further contention was that in view of section 2-A of the Service Tribunals Act, service under any Authority, Corporation, Body or. Organization established by or under Federal Law or which is controlled by the Federal Government or on which Federal Government has controlling share or interest, has been declared to be service of Pakistan and every person holding the post under such Authority , Corporation, Body or Organization shall be deemed to be a civil servant and for the adjudication of their grievance has to invoke the jurisdiction of the Tribunal. He contended that PIA Corporation controlled by the Government of Pakistan. Therefore, the plaintiff is, for limited purpose, a civil servant. Mr Yawar Farooqi contended that clause (2) of Article 212 of the Constitution alongwith section 4 of Service Tribunals Act was examined in Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290) by Full Bench of this Court and the plea of ouster of jurisdiction was maintained. The view taken was as follows: "The plain reading of the provisions of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the ,High Court would be ousted in regard to all such matters which fall within the ambit of the Authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words 'in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends' clearly make the ouster of the High Court to correspond with the matters placed within the ambit of the jurisdiction conferred on the Tribunal."
24. ' It was further observed that if the impugned order, although not final so far as the departmental authority passing it, is concerned, is in nature of a step towards final order that may eventually be passed, apparently such interlocutory order will eventually merge in the final order and in any case can be brought up before Service Tribunal in appeal from the final order. Clearly, therefore, such orders, which are in the nature of interlocutory step and are germane to the final order, which is appealable before the Tribunal, will also be outside the jurisdiction of the High Court.
25. ' Mr. Yawar Farooqi contended that the show-cause notice has been issued to the plaintiff and on mere apprehension that his service may not be dispensed with, the plaintiff has filed the suit, thus pre-empted the jurisdiction of domestic forum as well as Tribunal. His further contention was that even at this stage the suit is premature. His second contention was that the matter touches the terms and conditions of service by referring paras. 8 and 11 of the Regulations pertaining to the qualification and contended that the basic educational and technical education and experience for eligibility of a person to hold a particular post in service of Corporation. He maintained that "eligibility" has been subject-matter of examination in number of cases before the Supreme Court and the Supreme Court ruled that the question of eligibility relates primarily to the terms and conditions of service and jurisdiction of the Tribunal has not been barred in such matters. To support his submission, he referred cases of (i) Mian Abdul Malik v. Dr. Sabir Zammer Siddequi and 4 others (1991 SCMR 1129) the same view was reiterated in Syed Badaurd-ud-Din and 10 others v.
26. Government of N.-W.F.P. Through Agriculture, Forest and Cooperative, Peshawar and 11 others (PLD 1994 SC 345) and (iii) Muhammad Anis and others v Abdul Haseeb and others (PLD 1994 SC 539). In all above cases, the-view taken by the Supreme Court was as follows:-- "The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned and, therefore, Service Tribunal has jurisdiction in the matter and where the question of fitness is a subjective evaluation on the basis of objective criteria when substitution for an opinion of the competent Authority is not permissible by that of Service Tribunal or of a Court, and therefore, Service Tribunal has no jurisdiction on the question of fitness."
27. ' It was further observed that the question whether a person is legal) qualified for appointment or promotion to a particular post and grade is relatable to the factum whether he possesses the requisite qualifications for consideration, whereas the question of fitness pertains to the competency of the person concerned to be decided by the competent Authority.
28. ' In Muhammad Anis case (supra), it was further observed that the question of "eligibility" and "fitness" have been treated differently by the Law-Makers in the Civil Servants Act, 1973 and in the Act. In section 9 of the former Act, as pointed out hereinabove, a right has been conferred on a civil servant to be considered for promotion if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted. In contrast to above section 9 of the above Act, the Law Maker in proviso (h) of subsection (1) of section 4 of the Act have not used the word "eligible" but have employed the words "fitness or otherwise to be appointed or to hold a particular post or to he promoted to a higher post or cadre". In other words, the question of eligibility, which is a term of service by virtue of above subsection (1) of section 9 of the Civil Servants Act, 1973, has not been excluded from the purview of the jurisdiction of the Tribunal but the question whether a, person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade, has been excluded.
29. In view of the dictum recorded in above 'cases, the question of eligibility relates primarily to a term of service, and for determination thereof, has not been excluded from the purview of the jurisdiction of the Tribunal. I am of the view that contention raised by Mr. Farogh Nasim that eligibility is not a matter connected with terms and conditions of service, has no force and ouster of jurisdiction of Tribunal and assumption of jurisdiction by this Court cannot be canvassed.
30. ' Mr. Yawar Farooqui has also referred the case of Agha Syed Ali Raza Shah and 11 others v. Pakistan International Airlines Corporation through. Managing Director, Karachi and 2 others (1998 PLC (C.S.)
31. 1239), wherein learned Single Bench of this Court in similar circumstances rejected the plaint under the provisions of Order VII, rule 11, C.P.C. By observing that the jurisdiction of this Court stands excluded in view of Article 212 of the Constitution. The facts of the case referred to above were that PIA employees whose services were terminated or were issued show-cause notice filed suits wherein, inter alia, declaration was sought to the effect that the show-cause notices issued by the defendant were of no legal effect and liable to be struck down contemplating to terminate the employment of the plaintiffs and/or has already issued letters of termination in a mala fide and illegal manner, The rule laid down in Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 SC 26) and Abdul Bari v. Government of Pakistan and 2 others (PLD 1981 Karachi 290) were followed. In the case of Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (supra), the Supreme Court has held that:-- "17. There is a presumption against the ouster of jurisdiction of the superior Courts and any law which has the effect of denying access to them has to be narrowly construed for the reason that these are the fora created by the people for obtaining relief from oppression and redress for the infringement of their rights. But then where the ouster clause is clear and unequivocal, admitting of no other interpretation, the Courts unhesitatedly give effect to it. Thus, in State v. Zia-ur-Rehman (PLD 1973 SC 49) after reviewing the case-law on the subject Hamoodur Rahman, C.J.Observed:- 'The decisions do indicate that where the jurisdiction of the Courts to judicially review any executive acts has been competently taken away, then the Court will not be able to assert its jurisdiction to do so under any circumstances but this must, in my opinion, depend upon the nature of the jurisdiction sought to be ousted and the nature and extent of the ouster itself. If the language used is such to oust the jurisdiction of the Courts in all circumstances, then that will have to be given effect and even acts performed without jurisdiction or mala fides will not be open to judicial scrutiny. But the Courts having the right to interpret the law will in each. Given case decide the precise nature of the ouster clause and the extent to which the jurisdiction of the Court has been ousted keeping in mind the principle consistently affirmed by all Courts that provisions seeking to oust the jurisdiction of superior Courts are to be construed strictly with a pronounced leaning against ouster' ."
32. From the above dictum, it is settled that where the Legislature has ousted the jurisdiction of a forum specially such forum is devoid of having any jurisdiction in the matter even in a case where action of the executive authority is challenged on the ground of same being mala fide, ultra vires or coram non judice. All grounds of attack including the grounds of mala fides, ultra vires, or coram non judice are to be urged before the Service Tribunal and Civil Courts, including High Court has no jurisdiction to entertain the matters covered by Article 212 of the Constitution.
33. ' I may state that vires of show-cause notice even cannot be brought under Constitutional jurisdiction as ruled by Supreme Court in Shugufta Begum v. The Income-Tax Officer, Circle-XI, Zone-B Lahore (PLD 1989 SC 360) that no writ is maintainable to the extent of challenging the vires of notice as it should have been challenged by filing of reply before the issuing authority or authorities superior thereto. Same view was reiterated in cases of Asadullah Rashid. v Muhammad Munir (1998 SCMR 2129) and Khalid Mehmood Wattoo v. Government of Punjab (1998 SCMR 2280) and the same view was followed in case of Dr. Muhammad Bashir Chaudhry v. Chairman, Sheikh Zayed Hospital and 3 others (2000 PLC (C.S.) 1093).
34. So far as the last submission of Mr. Farogh Nasim for transfer of the matter to Service Tribunal. I am of the view that civil original jurisdiction of this Court cannot be equated with the Appellate jurisdiction exercised by Supreme Court in Muhammad Anis (supra), for transfer of suit to the Service Tribunal.
35. ' The upshot of the above discussion is that this Court has no jurisdiction in the matter, the suit is not maintainable, the plaint is liable to be rejected under Order 7, rule 11, C.P.C. Resultantly, the plaint is rejected, with no order as to costs. Interm order passed earlier of injunction application is vacated, the application is also dismissed.
36. Plaint rejected.