1. ' Order dated 21-10-2003 whereby number of employees of Irrigation Department, Government of Punjab were 'placed under suspension, has been assailed through this petition and the connected petitions i,e, W.P. No,15412 of 2003, W.P. No, 15413 of 2003, W.P. No,15414 of 2003, W.P. No,15415 of 2003, W.P. No,15416 of 2003, W.P. No, 15759 of 2003, W.P. No,15760 of 2003, W.P. No,15761 of 2003, W.P.
2. No,16214 of 2003, W.P. No,16493 of 2003, W.P. No, 16503 of 2003 W.P. No,16549 of 2003, W.P. No,16579 of 2003, W.P. No,16578 of 2003, W.P. No,16689 of 2003, W.P. No,16494 of 2003, W.P. No, 16788 of 2003, W.P.
3. No, 16864 of 2003 and W.P. No, 17022 of 2003.
2. Dr. Farooq Hassan, Advocate, the learned counsel for the petitioners contends that such a composite order suspending large number of employees could not be passed, which evinces no application of mind to each specific case and that the same is violative of section 4 and 5 of the Punjab Removal from Service (Special Powers) Ordinance, 2000. According to him section 4 of the Ordinance envisages due application of mind to the case of each individual for formation of an opinion that the suspension was necessary. In order to avert the objection as to the maintainability of petition in view of bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, it is contended that appeal before the Tribunal lies only against a final order under section 10 of the Ordinance and the suspension order being not a such order no appeal is maintainable before the Service Tribunal. According to him jurisdiction of this Court for assailing such an order is intact. Reference has been made by him to I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Muhammad Aslam and 2 others v. Secretary Establishment Division and others (2001 SCMR 1945), Mushtaq Ahmed Sabto and others v. Federation of Pakistan and others (2001 PLC (C.S.) 623), and Mir Shah Nawaz Marri, Ex-Director, Mineral Development Presently O.S.D. S&GAD. Quetta v. Government of Balochistan through Chief Secretary, Balochistan Civil Secretariat Quetta and 4 others 2000 PLC (C.S.) 533). Rana Muhammad Arshad, Advocate, the learned counsel in one of the petitions has in addition to what has been argued by Dr. Farooq Hassan, contended that non-application of mind by the respondent is evident from the fact that the names of his clients did not find mention in the order of the Minister dated 30-6-2003, yet they have been proceeded against. It is contended by him that in a matter of such a colorable exercise of power, the writ jurisdiction of this Court can be invoked by the petitioners. Mr. Ghulam Rasool Bhatti, Advocate in some of the petitions, has adopted the contentions raised by Dr. Farooq Hussain, Advocate.
4. ' The learned Additional Advocate-General has invoked the provisions of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 to contend that the jurisdiction of this Court stands ousted in view of the remedy of appeal available to the petitioners before the Punjab Service Tribunal. Reference has been made by him to Muhammad Sadiq Khokhar v. Engineer-in- Chief Pakistan Army, G.H.Q., and another 1985 SCMR 63), Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab Local Government and Rural Development Department, Lahore and others (1998 SCMR 1948), Asadullah Rashid v. Haji Muhammad .Munir and others (1998 SCMR 2129) and Pervaiz Aslam v. Ilyas Hussain Shah and another (1999 SCMR 784) to contend that whatever may be the grounds of challenge, writ petition cannot be entertained by this Court. He has also referred to an order passed in Writ Petition No,19866 of 1996 whereby a learned Single Judge dismissed the petition on 20-12-2000 due, to the bar of jurisdiction. He has referred to Muzaffar Hussain v. The Superintendent of Police, District Sialkot (2002 PLC (C.S.) 442) wherein proceedings under Ordinance No,IV of 2000 had been challenged but the Full Bench of this Court declined to interfere on account of bar of jurisdiction contained in Article 212 of the Constitution. It is argued by him that Muhammad Aslam and 2 others v. Secretary Establishment Division and others (2001 SCMR 1945) has inappropriately been relied upon, by the petitioners, which was a leave granting order and that according to his information and instruction the said petition has been dismissed having become infructuous, due to later developments. It is contended that any variation in the order of the Minister and the competent authority cannot be made a ground by the petitioners as the Minister had only a recommendatory authority whereas the order was to be passed by the competent authority.
3. Admittedly the petitioners are civil servants who were ordered to be placed under suspension through the impugned order. There cannot be any cavil that the matter pertains to their conditions of service. Section 3 of the Ordinance empowers the competent authority to take disciplinary action against a person and to remove him from service by following prescribed procedure. Under section 4 of the Ordinance the competent authority can place under suspension a person against whom an action is proposed to be taken under section 3 of the Ordinance. Thus the competent authority can, not only proceed against a person but also place him under suspension. It falls within the jurisdiction of the competent authority to suspend such a person. The contention of the learned counsel for the petitioners, however hinges upon the manner of exercise of such power, which has been taken exception by them that such a composite order could not be passed without having regard to the allegations/merits of individual cases. It can thus at the most be termed an improper exercise of power but cannot be regarded as wholly without jurisdiction. In Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280) it was held that a. Writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 was not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service though are order may have been assailed on the ground of mala fide exercise of power, ultra vires corum nonjudice Similar view was reiterated in Syed Mazhar Hussain Bukhari v.
5. Secretary, Government of Punjab Local Government and Rural Development Department, Lahore and others (1998 SCMR 1948). In Muhammad Sadiq Khokhar (Supra) an order suspending a civil servant had been assailed before the High Court, which petition was dismissed due to bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. When the matter reached the Hon'ble Supreme Court of Pakistan it was observed that. "The petitioner feels aggrieved from the order of his suspension and insofar as it, has taken effect it has attained finality. It is not disputed either that the petitioner's grievance is germane to the terms and conditions of service and a dispute with regard thereto falls within the exclusive jurisdiction of the Tribunal under clause (2) of Article 212 of the Constitution. Non obstante clause in Article 212 (2) gives it overriding effect and consistently with the principle of harmonious interpretation of the Constitution the High Court rightly dismissed the writ petition moved by the petitioner for want of jurisdiction." It may be observed that an argument of similar nature that order of suspension was not a final order whereas appeal before the Service Tribunal was envisaged only against a final order did not find favor with their Lordships.
6. This judgment had been followed by this Court dismissing W.P. No,19866 of 1996 on 20-12-2000 in which suspension order of the civil servant had been assailed. Reference in this context may also be made to Mrs.< Shah Jahan, Headmistress, Government Girls Elementary School, Pindi Bhattian v.
7. Khushnood Akhtar Lashari, Education Secretary, Punjab, Lahore (2003 PLC (C.S.) 1416). It may also be observed that writ petitions assailing orders of suspension had been dismissed by the Rawalpindi Bench of this Court, which gave:rise to the petitions before the Supreme Court of Pakistan and leave was granted, which order is reported in Muhammad Aslam and 2 others v.
8. Secretary Establishment Division and others (2001 SCMR 194'5). As stated by the learned Additional Advocate-General the said petitions stand dismissed having become infructuous. View thus expressed by the Hon'ble Supreme Court in Muhammad Sadiq Khokhar case continues to prevail therefore, respectfully adopt the preponderant View taken by the Hon'ble Supreme Court of Pakistan and this Court in preference to any contra view expressed elsewhere.
9. ' Thus without dilating upon the infirmities, flaws and illegalities attributed to the impugned order of suspension of the petitioners the pefitions are dismissed due to bar of jurisdiction contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.