JURISDICTION: TERMS AND
CONDITIONS OF CIVIL SERVANTS
By
ZOHAIB IMRAN
Advocate High Court & Service Tribunals
Zohaib_imran_elahi@hotmail.com
INTRODUCTION:
The term jurisdiction has manifold jurisprudential concepts, flowing from the
statute as a power to adjudicate claimed by any court of law or tribunal.
Jurisdiction has always been subject to the law, right from where it emanated,
essentials enumerated or provided in particular lis must have to be read
together before court/tribunal reaches to definite conclusion as to question of
jurisdiction. The term jurisdiction is not alien to the existence of
court/tribunal as it is for the court/tribunal to decide about the question of
its own jurisdiction. The philosophy behind jurisdiction may have procedural
aspects but over-all it affects the substantive right granted under a
particular statute if such procedural requirement is not fulfilled.
JURISDICTION &
JUDICIAL POWER: The high court under Article 199 often claimed judicial
power to entertain a particular case before it notwithstanding the ouster
provided in other constitutional provisions. The term “judicial power”
has undergone many interpretations by superior courts of our country, in my
view; it cannot exist independent of jurisdiction. The term judicial power is
subject to existence of jurisdiction as provided in Article 199 itself, which
starts from “Subject to the constitution” and as such, have to be interpreted
along with other constitutional provisions curtailing the jurisdiction of high
court. in 1997 SCMR 167 & 169 civil servants approaching high
court by filing writ petitions and getting interim orders in their favour. The
aggrieved party filed the petition before the honourable Supreme Court of
Pakistan claiming therein that learned high failed to decide question of its
own jurisdiction first before proceeding further into the matter, on this
ground, Supreme Court remanded back both the cases to the high court for
decision as to question of its own jurisdiction first before proceedings
further into the matter.
CREATION OF SERVICE
TRIBUNALS UNDER ARTICLE 212: Many researches having been conducted on
the performance and functioning of service tribunals, most of the civil
servants showed discontentment and lack of trust over the proceedings
undertaken by the tribunals. The most important reasons behind such
non-confidence perhaps is appointment of “Executive class” as members of
service tribunals, statements whereof obtained from different groups of public
is relied here. The civil servants or even lawyers have don’t find the action
of government as reasonable while not appointing the serving Judicial Officers
viz District & Sessions judges as members of tribunals. Another element of
discontentment is appointment of members of service tribunal without
consultation by the respective high court concerned. The speech aired by
Zulfiqar Ali Bhutto, Late Prime Minister of Pakistan, even did not imply that
members of tribunals would be immune from any judicial supervision. One of the
members of Federal Service Tribunal (Mr Moazam Hayat) even wrote on this issue
to substantiate that appointments in tribunals be made in meaningful consultation
with the respective high courts. The said reasons are major contributory in the
minds of litigants approaching high courts while ignoring the bar contained in
Article 212 of constitution of Pakistan.(Reference to my earlier article
published as PLJ 2010 MAG 56 would definitely be beneficial at
this point)
DEPARTMENTAL
AUTHROITY AND BAR OF ARTICLE 212: There is no cavil to the proposition
that service tribunals have exclusive jurisdiction in matters falling within
the terms and conditions of civil servant. Be that as it may, the essentials
enumerated in Section 4 of Punjab Service Tribunal Act 1974 (hereinafter
referred to as “PST ACT 1974) (read with other statute para materia) are
cumbersome, rather not self explanatory or executory. In 2007 PLC CS 285 Mr Justice Syed Zahid Hussain (as
his lordship then was) allowed the writ petition filed by the civil servant
filed against stoppage of his pay on the legal ground that since the stoppage
of pay was not directed or ordered by his departmental authority but by
Accountant General, therefore bar of Article 212 is not applicable as such.
Meaning thereby the term “Departmental Authority” is important
and can over ride the other essentials provided in Section 4 of ACT 1974. On
the other hand, an analogy is inferred from the judgment cited supra that all
the essentials of Section 4 of PST ACT 1974 must have to be complied with by
the civil servant before invoking jurisdiction of Service Tribunals. On the
other hand, superior courts have also held that departmental authority does not
necessarily mean competent authority, but it should be notified in line with
the relevant statute wherefrom the power is acclaimed.
TRANSFER ORDER
PASSED BY POLITICIANS: Philosophy behind throwing challenge to orders
of Extra-departmental authorities before high court is that according to rules
it is only the departmental authority whose order is impugned can be impleaded
as respondent in the appeal before the tribunal. So whenever the transfer order
is passed is MNA/MPA directly or indirectly high court under Article 199
entertained and allowed the writ. In 1997 PLC CS 199 single judge
of Lahore high court Lahore held that transfer of civil servants being part of
terms and conditions of their service, would fall within exclusive jurisdiction
of appropriate Service Tribunal. Jurisdiction of High Court
under Art. 199 of the Constitution stands barred by
express provisions of Art. 212 of the Constitution in
such matters. Further held that where transfer order was passed by
Departmental Authority but same was passed on direction of extra departmental
authority i.e., M.N.A./M.P.A./Minister or on any other extraneous
consideration, then such order would also have to be agitated before and
decided by appropriate Service Tribunal. The court further held that transfer
order of civil servant could be impugned in appeal directly before service
tribunal, without first assailing the same before higher departmental
authorities. While concluding the judgment the honourable judge held that
where, order of transfer/posting was made by incompetent extra Departmental
Authority e.g. by M.N. A./M.P.A./Minister without support of any formal
order of competent Departmental Authority, then such incompetent order could be
assailed in Constitutional jurisdiction. The writ petitions against such orders
passed by extra departmental authorities are entertained on the ground that
since MPA/MNA being not departmental authority, according to rules and law,
cannot be made respondents in Service Appeal before
the tribunal, as such the only remedy available with the affected person/civil
servant is to invoke constitutional jurisidciton of high court under Article
199.
JURISDICTION OF HIGH COURT UNDER ARTICLE
JURISDICTION OF SERVICE
TRIBUNALS:
INVOKATION OF: The
existence of order affecting the terms and conditions of civil servant and
he being aggrieved of that order is sine qua non for invoking jurisdiction of
Service Tribunal. Unless there was a specific order adversely affecting the
civil servant and he was found aggrieved, jurisdiction of Service Tribunal
could not be invoked and in those matters jurisdiction of Civil Courts, High
Court, would remain intact. The reason being so, tribunal are of limited
jurisdiction and can assume jurisdiction and deal with the orders challenged
before them and cannot exercise extra-ordinary jurisdiction just to counter the
prospective damage to the terms and conditions of civil servant. And while
examining the legality of adverse order, Service Tribunal could strike down the
order or a rule, having the effect of adversely affecting the terms and
conditions of the civil servant, it could issue directions of the appropriate
nature to dilute the adverse effect of impugned order but when a Departmental
Authority would not act under law or rule, prolong or delay the matter the
jurisdiction of High Court would remain intact to issue a direction to
Authority to act in accordance with law and rule. In contradistinction, where
the vested rights of a civil servant are likely to be adversely effected against law or rule by any proposed or threatened
action of the departmental authority, the High Court can intervene. The
question of prospective declaration or direction would not arise or restrain
the high court to issue writ.
In 1990 P L C (C.S.) 637, civil serant was removed
from service under Sindh Police (Efficiency and Discipline) Rules, 1988 and
challenged his removal by filing writ petition, which was dismissed on the
ground being barred under Article 212 of Constitution. The honouralbe court
further held that service tribunals are quasi judicial forums and can go
into the merits of the case as well as discretion exercised by the authorities.
In 1990 PLC CS 185 civil servant approaching high court
under Article 199 against disturbance of his seniority due to the reservation
of posts and fixation of ratio in same grade for purpose of promotion. The
arguments of petitioner also include that there is violation of law and
tribunal had no jurisdiction for declaration as such, hence high court has the
jurisdiction. But the honourable court apart from dismissing the petition held
that Service Tribunal is deemed to be a Civil Court for purpose of deciding any
appeal before it with all powers under Code of Civil Procedure and
further held that Service Tribunal like any Civil Court would have jurisdiction
to examine whether or not a law is void by reason of its conflict with
Fundamental Rights or is otherwise ultra vires or that order made is mala fide.
But in case reported as 2002 PLC CS 1527 service regulations were challenged
but high court allowed the writ on the ground that no where the terms and
conditions of service is involved.
In PLD 2004 SC 317 amendment
made by the Authorities in rules regarding promotion, was assailed before High
Court under Art.199 of the Constitution, by the civil servants, whereby the
learned high Court declared the amendment as ultra vires of the vested right of
the civil servants. Authority feelin aggrieved challenged the judgment of high
court in Supreme Court and plea raised by the Authorities was that under Art.
212 of the Constitution, the jurisdiction of High Court was barred as the
matter pertained to terms and conditions of service, which argument found
favour of the Honourable Supreme Court of Pakistan and ultimately held that
remedy for the civil servants was to file appeal before Service Tribunal and
jurisdiction of High Court in such matter was barred.
DISCHARGE OF
PROBATIONER UNDER RULE 12.8 OF POLICE RULES 1934: 1998 PLC CS 770: In
this referred case, officiating Prosecution Sub-Inspector was discharged from
service on the ground he did not know the job and as such, terminated during
the probationary period. The petitioner’s counsel relied upon PLD 1974 SC
At any event, the
matter pertains to the fitness of the petitioners to hold specific posts. The
competent Authority has found that the petitioners are not fit to hold such
posts. In matters of this genus subjective as well as objective considerations come
into play at the departmental level and it is for that reason that matters of
the kind are not open to scrutiny before Courts as postulated in section 4(1),
proviso (b) of the Service Tribunals Act. At the same time, even such a
matter of fitness of a person to be appointed to or hold a particular post as
also to be promoted to a higher post will remain within the purview of the
departmental authorities to examine further and that can be done through an
appeal or review, where expressly provided for, and a representation where no
provision for appeal or review exists. That is the only remedy in such matters.
There, if any manifest illegality is involved, an appropriate plea can be
advanced. Against the final order, if violation of law is claimed, an aggrieved
civil servant, and a probationer is, covered by the category, may move the
Service Tribunal. Even so, in cases involving fitness to hold a post, the
jurisdiction of the Tribunal should be confined only to the element of
illegality, if any, and no more.”
The above law expounded by
honourable high court was impliedly followed by Federal Service Tribunal in
case cited as 2007
PLC CS 1246, relevant portion is reproduced as under:- “Matter of fitness of promotion. Jurisdiction of Service Tribunal to look into such matter.
Authorities contended that Service Tribunal had no jurisdiction under the law
to look, into the matter of fitness for promotion. Ordinarily, that argument
would be valid and the Tribunal would not look into the matter of fitness for
promotion, but the Tribunal could examine
the: question of fitness for promotion, if it was claimed before it on
the strength of arguments that an eligible officer had been bypassed for
promotion in violation of the. Promotion policy etc.
Service Tribunal was fully competent to examine the question of fitness for
promotion, if it was alleged that appellant had been bypassed/superseded in
violation of the promotion policy in question
In Muhammad Iqbal and others v. The Government of the
"If
the petitioners' appointments were in accordance with law as contended by them,
termination of their services without any justifiable reason would entitle them
to maintain appeals before the Service Tribunal and not a writ petition or
Intra-Court Appeal or the present petitions for leave to appeal. The Service
Tribunal is competent to go into the question, whether their appointments were
made in accordance with law and whether termination of their services was
warranted by law in view of clear, provision of Article 212 of the
Constitution. In this behalf, reference may be made to a recent judgment of
this Court in the case of Muhammad Anis and others v. Abdul Haseeb and others (PLD
1994 SC 539). We are, therefore, of the view that the present petitions for
leave to appeal are misconceived. The petitioners should approach Services Tribunal.
It was pointed out by the learned counsel for the petitioners that if the
petitioners will now file appeals before the Tribunal, the same may be treated
time-barred. It was suffice to observe that the
petitioners may file applications for condonation of delay and the learned
Service Tribunal will consider the above applications keeping in view the
peculiar facts of the present case and the factum that a large number of people
are involved therein."
MALA FIDE ORDER:
JURISDICTION OF HIGH COURT UNDER ARTICLE 199: The Lahore high court
"It
has also been argued by the learned counsel that the writ petition under
Article 199 was competent as the impugned order was mala fide inasmuch as it
had been passed to deprive the petitioner, who is from
DISTINCTION BETWEEN
DEPARTMENTAL APPEAL AND SERVICE APPEAL: The both terminologies have
undergone dramatic changes, often the tribunal
converts the service appeal into departmental appeal and direct the
departmental authorities to decide the same notwithstanding the fact that
authority had earlier expressed its view either legally right or otherwise.
Once jurisdiction of tribunal is attracted under the law, it should adopt every
possible measure to decide the lis itself instead of remanding the matter by
encouraging multiplicity of litigation. The service and departmental appeal are
more common than different, departmental appeal only being condition precedent
towards maintainability of appeal before the tribunal (which in my humble view
is not the intention of the legislature). And departmental appeal gives the
servant his right to agitate matter administratively and if he fails
then can come to the judicial side by filing appeal before the tribunal.
The appeal before the tribunal is continuation of proceedings under Section
107 CPC 1908 and arises from
the order of appellate authority, if any, but by no stretch of imagination it
can be laid down that service tribunals and administrative tribunals and
perform administrative work. The service tribunals are judicial forums, perform
judicial work, their judgments are binding and there being no escape route,
although while hearing the appeal can pass any order, direction which appellate
authority is empowered by law do so, but again that does not mean that powers
of tribunal are limited, while hearing appeals, in my view, tribunals can pass
any order or direction being fit in the facts and circumstances of particular
case, as blessed on Supreme Court Under Article 187 to do complete justice. See
1990 PLC CS 637. I respectfully interpret the provisions of
departmental appeal being remedial, procedural and beneficial in nature and in
no manner evade or destroy the right of service appeal before the tribunal if
the same having not been filed. No where either in Section 4 or else it is laid
down or enacted that failure of civil servant in filing departmental appeal
shall render his service appeal invalid. Departmental appeal is an instrument
or device communicating or bringing into knowledge of concerned authorities the
grievance meted out to the employee and nothing else. In my humble view, there
is no expressed procedure prescribed about filing of departmental
appeal/representation/review, the only concern is to approach the higher
departmental authorities and again in my humble view which may opt verbal/oral form as well. Even otherwise the higher
departmental authorities supervises the over-all
affairs of the department must know the grievances meted out to the civil
servants at behest of his own lower authorities. Perhaps I am much influenced
and guided by the principle laid down by Supreme Court in PLD 1963 SC 382,
goes by holding “.......the proper place of procedure in any system of
administration of Justice is to help and not to thwart the grant to the people
of their rights. All technicalities have to be avoided unless it be essential
to comply with them on grounds of public policy ....... any system which by
giving effect to the form and not the substance defeats substantive rights ..........
is defective to that extent” The honourable Supreme Court in case 2009
SCMR 339 has to some extent condoned the failure to file departmental
appeal by civil servant and ultimately granted relief. The recent observation
of honourable Supreme Court is also important at this juncture. The court lays
down that basic object behind filing of departmental appeal is to provide
administrative forum for redressal of grievance of civil servant before
approaches the service tribunal for adjudication of his claim. The court
further observed that the requirement of filing a departmental appeal never
intended by legislature to create a hurdle in the way of a bona fide litigant
but to facilitate him to avoid unnecessary expense in shape of filing appeal
before tribunals. The court also condemned the action of department in
following words: “while much furore is raised for filing of departmental
appeal, a vest majority of government departments do not take the departmental
appeal with any seriousness. More often than not the departmental appeals
remain unactioned. It can never be the intention of the legislature to make the
filing of departmental appeal as a hurdle in the way of an appellant.
Invariably the requirement of the departmental appeal is used as stumbling
block for the appellant rather than facilitating him in the pursuit of his
relief”. Refer to 2009 SCMR 194= 2009 PLC CS 539. And even
in this cited case also departmental appeal was not filed by the appellant.
Also in my humble view, from the close analysis of cases before the tribunal,
the provision of departmental appeal/representation has become a mere formality
or bypass to approach the tribunal created to exercise judicial hierarchy. One
must not lost sight of the provisions of Section 79 to 82 CPC 1908,
which in my humble are more akin to provisions of departmental appeal,
intimating the government about the prospective action being brought against
it. The final adjudicatory body is
tribunal and thereaginst Supreme Court under Article 212(3). Otherwise from the
Speech of Zulfiqar Ali Bhutto (Late Prime Minister of Pakistan) it can be
inferred what he suggested was the creation of tribunals for quick and speedy
decision of grievances of civil servant, otherwise the preamble of PST ACT 1974
is silent on the legislative history, but being student of law, i must refer to
the legislative intent in enacting the Punjab Service Tribunal Act 1974. Having
referred so, if the Provision of Section 4 is rigidly interpreted or understood,
it clearly creates hurdle in way of civil servant to approach tribunal, in as
much as, the arrival of civil servant is made conditional on passing of final
order by the appellate authority or after waiting for 90 days of filing appeal
before the departmental appellate authority. This was not the intent of
legislature, in my view, i.e the prospective assumption of jurisdiction by the
tribunal stood ruled out by Section 4 of PST ACT 1974 and on this analogy also
the provisions of departmental appeal/representation has become scuttle clause
in way of civil servant and must not be taken as condition precedent for
assumption of jurisdiction by the tribunal. It is also important to mention
here that legislature intended to decrease the work load from the high courts
and civil courts, but again the non-presence of orders affecting the terms and
conditions of service let the aggrieved approach high courts.
POWERS AND PROCEDURE
DISTINGUISHED: In my humble view certain unnecessary restrictions and
technicalities are attached to the exercise of power by the service tribunal,
but the tribunal is possessed with powers which are much wider than those
exercisable by a high court under writ jurisdiction. The role of the High Court
under the writ jurisdiction is limited and relief can be granted only if the
order passed in respect of a civil servant suffers from such patent illegality
that it can be called an order without lawful authority and of no legal effect.
On the other hand the Service Tribunal can set aside has exclusive power under
section 5 to vary the order passed by any departmental authority on entirely
different grounds which admittedly cover wide range. Similarly question of fact
can rarely be gone into by the High Court which are
open to adjudication by a Service Tribunal. The high court under writ
jurisdiction cannot assume the appellate jurisdiction of service tribunal
provided by the constitution. Otherwise it was never the intention of
legislature that high court keep scuttle the jurisdictional domain of the
service tribunals on the ground that orders impugned before them are mala fide
or otherwise.
CAN HIGH COURT
EXERCISE INTERFERE IN SERVICE MATTERS IN EXCEPTIONAL CIRCUMSTANCES: In 2001
PLC (CS) 367, petitioners being disabled employees after their cancellation
of appointment pleaded violation of constitutional guarantees. Notwithstanding
the ouster contained in Article 212, high court issued the writ, certain
observations were that Petitioners who were disabled persons and were appointed
under the law after observing all the codal formalities were serving at various
places for the last about three years to the entire satisfaction of their
superiors. There was no complaint or adverse entry against them and their
services were appreciated not only, by their superiors. Despite discussing bar
of Article 212 high court allowed the writ on the ground that action of
Authority against petitioners which was mala fide and arbitrary and taken
without' issuing show-cause notice was declared illegal, by High Court in exercise
of its Constitutional jurisdiction. This may be taken as contra view.
TERMS AND CONDITIONS
OF SERVICE AS PROVIDED IN SECTION 3 OF
JURISDICTION OF
CIVIL COURT: Reference to Section 9 of Code of Civil Procedure is
beneficial here, reads as “The courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly
barred”. This provision definitely ousts the jurisdiction of civil court in
entertaining matters which relates to the terms and conditions of civil
servant. But if this section if read in juxtaposition with Section 4(1)(b) of Punjab Service Tribunals Act
But Section 4(1)(b) does
not in way give right to civil servant to approach Provincial Ombudsman in
matters involving terms and conditions of service in view of case reported as 2002
PLC CS 606. Otherwise ombudsman being recommendatory body and its
recommendations are just directory and not binding on the departments.
JURISIDCTION OF
TRIBUNALS IN IMPLEMENTING THEIR OWN JUDGMENTS:
I remember the maxim that
where the law authorizes the court or tribunal to adjudicate a particular type
of issue, it arms that court or tribunal to have all the necessary things
ancillary or connected for the execution or implementation of judgment or
order. But in case where the tribunal pronounces the judgment, it feels
helpless to order execution of its own judgment and orders. Perhaps the court
or tribunal which does not have the power to order execution of its own
judgment or order is not court or tribunal in law. Otherwise the tribunals are
distinct from Ombudsman or recommendatory bodies, the judgments of tribunals
are binding in nature and there is no escape route for the department. Mere
fact that service tribunals don’t have the power/jurisdiction to initiate does
not affect the inherent qualification or power possessed by the tribunals to
order execution of their own judgment, but before me there is judgment cited as
2009 PLC CS 668, wherein my most respected Mr Justice M M Aqil
Awan while writing for the Division Bench of Karachi High Court Karachi
held that service tribunals have no power of ordering implementation of their
own judgments and aggrieved party can approach high court under Article
THE
MAXIM “PER INCURIAM”: Its applicability: The quoted maxim literally means “by
mistake or by omission to consider effect of law or fact”. In PLD
1997 SC 351 while authoring for the court examined the effect of
judgment delivered by the high court in writ jurisdiction in clear oblivion of
Article 212 ousting its own jurisdiction. Mr Justice Khalil ur Rehman Khan held
that where the high court entertains the writ petition in clear oblivion of the
Article 212 of Constitution and pronounces the judgment which is subsequently
not honoured, the person responsible for such lapse cannot be held guilty for
contempt of court as the judgment was void being without jurisidciton and
incuriam and as such ought to have been ignored and department is not bound to
implement the judgment which is per incuriam and binds no one.
CONCLUSION:
An illiterate litigant is
least concerned about the jurisdictional technicalities and forum from where to
get justice. Whenever any aggrieved person approaches a counsel for getting
suggestion about his claim or injury qua service matters, 95% lawyers don’t
bother to clear their own selves about the jurisdictional proposition and
straight away file the writ petition before the high court resulting into
dismissal in limine due to Article 212. Only the litigant suffers and no body
else. Perhaps the poor litigants don’t claim damages against the lawyers for
wrong advices, that why they suffer as their claim before the original forum
(serivce tribunal) becomes time barred ultimately. Question of jurisdiction
always remain matter of great importance in court as held in 2010 PLC CS
51 that high court cannot exercise power of judicial review over
cases/matters in which it has no jurisdiction on any ground what so ever, and
ultimate result would have been straight away dismissal of petition. But the
nutshell of above discussion forces me to conclude that high court has got
absolutely no jurisdiction in matters arising out of terms and conditions of
service of civil servant and under no principle of law or equity either
humanitarian or otherwise, high court can assume the jurisdiction or otherwise
scuttle the powers and jurisdiction vested in the service tribunals, which are
being held as constitutional courts.