(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.

(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends [and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal [other than an appeal pending before the Supreme Court,] shall abate on such establishment]:

Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, [Majlis-e-Shoora (Parliament)] by law extends the provisions to such a Court or Tribunal.

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.

Here in this above referred Article 212, the words “To Exercise Exclusive Jurisdiction" are used by the legislature which naturally puts a bar on the jurisdiction of other ordinary Court of the country i.e. civil Courts as well as High Courts to exercise their jurisdiction in the matter specified in this above referred article. Hence we will confine ourselves to analyze the Bar of this above referred Article 212 on the jurisdiction of High Court. But firstly we see the scope of constitutional jurisdiction of High Court which is ultimately a vast jurisdiction.

Constitutional Jurisdiction of High Court;

High Court is conferred with a vast, comprehensive and effective jurisdiction under the constitution. Subject to law and the constitution, where no other adequate remedy is provided by law, the High Court in its constitutional jurisdiction, inter-alia, may make an order in any of the following terms.

Directing a person performing within its territorial jurisdiction of the Court (functioning in connection with the affairs of the Federation, province or a local authority to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do ;

Declaring that any act done or proceeding taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, province or a local authority has been done or taken without lawful authority and is of No. legal effect;

Directing that a person in custody within the territorial jurisdiction of the Court may be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner;

Require a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office;

Further, the High Court may make an order giving directions as may be appropriate, to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of the Court for the enforcement of any of the Fundamental Rights conferred by the Constitution.

Under Article 199(2), the High Courts have been made the protectors of the Fundamental Rights guaranteed under the Constitution within their respective territorial jurisdiction. By giving this power to the High Court also, these rights have been made more real for the ordinary citizen. In the exercise of this power, the Court may issue the same type of writs, orders or directions. The constitutional jurisdiction of High Court is a vast jurisdiction and not a limited one. It must also be exercised in a vast manner.

Service Tribunal Act 1974:

Service Tribunal Act 1974 is very much important for the sake of determining the legal impact of the bar of Article 212(2) on the constitutional jurisdiction of High Court and Section 4 of the said Act must be read with the Article 199 of the constitution. The Article 212 mandates the legislature about the establishment of Tribunal in respect of matter relating to the terms and conditions of the service of a person, whereas Section 4 of the Service Tribunal Act, 1974 determines the jurisdiction of the Service Tribunal and if for any matter this tribunal has no jurisdiction, then ultimately constitutional jurisdiction of High Court can be invoked by the aggrieved person, having found no any other alternate remedy. Section 4 of Service Tribunal Act, 1974 is as follows for the ready reference:

4. Appeals to Tribunals.

(1) Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, [or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal]:

Provided that--

(a) where on appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;

(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade; and

(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969].

(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred—

(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, to a Tribunal referred to in sub-section (3) of Section 3 ;and

(b) in any other case, to a Tribunal referred to in sub-section (7) of that section.

Explanation--In this section, "departmental authority" means any authority other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.

From the bare reading of this provision of law, we can easily understand that there are some matters which are not covered by this Section 4 of the Act and cannot be the subject matter to the jurisdiction of the Service Tribunal. And if Tribunal has no jurisdiction to adjudicate upon any matter then the door of the jurisdiction of High Court in writ jurisdiction is always open. The same has been held by the Apex Court of the country in "I.A.Sharwani's Case"[1] in the following words:

"From the above-quoted Article 212 of the Constitution and Section 4 of the Act, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under sub-section (1) of Section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon any particular type of grievance, the jurisdiction of the Courts remain intact."

Now, while discussing the provision under consideration, we highlight some matters in which the jurisdiction of High Courts can be invoked in its writ jurisdiction. It is important to point out here that in this article we would not go into the discussion of civil servant, which is the first and foremost mandatory requirement for the bar of Article 212 on the jurisdiction of High Court. While making our views in this article we presume that the aggrieved person is an admitted civil servant.

Terms & Conditions of Service:

The clog of Article 212(2) applies when any matter pertains to the terms and conditions of service of a civil servant. If a matter does not relate to the terms and conditions of service, it cannot be burdened under the clog of this Article. Same is the situation in Section 4 of Service Tribunals Act, 1974 wherein it is envisaged in this section also that the appeal to the Tribunal lies only in the matters pertains to terms and conditions of a civil servant. The determination of terms and conditions of service is a very complex type of question, whether any matter comes within the terms and conditions are not it has to be determined firstly by the Courts, while entertaining the service matter. Be that it may be as it is observed by the Honorable Supreme Court of Pakistan in "Government of Sindh through Secretary Education VS NazakatAli etc"[2]

"However, it is observed that in future the High Court may determine before entertaining such writ petitioners as to whether the jurisdiction to decide such cases is barred under Article 212 of the Constitution, particularly when the matter pertain to Terms and Conditions of the employees."

Chapter II of Civil Servants Act, 1973 deals with the terms and conditions of service of a civil servant. The Section 3 of the said Act says

3. Terms and Conditions.

The terms and conditions of service of a civil servant shall be as provided as in this Act and the rules.

As per this above quoted section, it is clear that the matters which are referred in the Civil Servant Act 1973 as well as the rules, only those matters can be amount to terms and conditions of civil servant. Now as far as the said Act is concerned, there are 10 matters which are considered as terms and conditions of civil servant, which are as follows:

* Appointment (Section 5)[3]

* Probation (Section 6)

* Confirmation (Section 7)

* Seniority (Section 8)

* Promotion (Section 9)

* Posting and Transfer (Section 10)

* Termination of Service (Section 11)

* Revision to a Lower Post (Section 12)

* Retirement (Section 13)

* Efficiency and Discipline (Section 16)

* Pay ((Section 17)

* Leave (Section 18)

* Pension and Gratuity (Section 19)

* Provident Fund (Section 20)

* Benevolent Fund and Group Insurance (Section 21)

All the above referred matters are the terms and conditions of service and in such like matters service tribunal has the exclusive jurisdiction to adjudicate them. Likewise the matter which was considered as terms and conditions of service by the rules of any department are also entertain able by the service tribunal. The same categorization of matters fall within the ambit of terms and conditions of service was described by the Honorable Supreme Court of Pakistan in VS[4] as follows:

"Fundamental principle which is enunciable from S.3 (2) of Civil Servants Act, 1973, is that the same hold out a guarantee to all civil servants that no action could ever be taken which could adversely affect terms and conditions of their service e.g. tenure of their employment; pay and grade earned by them through years of labour and hard work; right to promotion including legitimate expectancy of future advancement in their respective careers; retirement benefits such as pension, gratuity and provident fund etc. and all other terms and conditions which were prescribed by Chapter 11 of Civil Servants Act, 1973, and by other laws, rules and regulations relating to the subject.

Final Order:

The very language of Section 4 of Punjab Service Tribunal Act, 1974 very clearly says that the appeal to the tribunal lies only against the "Final Order", whether it is original or appellate, meaning thereby that if there is no any final order then the jurisdiction of Service Tribunal cannot be invoked and the aggrieved person can approach to the High Court in its extra ordinary constitutional jurisdiction. The same has been held by the Honorable Supreme Court of Pakistan in the case titled as "Pakistan International Airline Corporation etc VS Samina Masood etc.”[5]

"But that discrimination is referable only to the final order passed by a departmental authority within the purview of section 4 of the Service Tribunals Act. In the instant case, there was no order passed by the departmental authority original or appellate in violation of the already existing terms and conditions of service and thus, for getting a term and condition struck down on the basis of being violative of the fundamental rights guaranteed by the Constitution, the respondents could only resort to the High Court under Article 199 of the Constitution."

However, it is important to mention here that the word "Final" stands omitted from section 4 of Service Tribunals Act, 1973, and now the Federal Service Tribunal has the jurisdiction to entertain the appeals against all the orders, whether final or not, hence such like ground is not available to the employees of Federal Services.

Fitness for Promotion;

Promotion is defined in Section 8 of the Punjab Civil Servant Act, 1974 as follows:

8. Promotion.

(1) A civil servant shall be eligible to be considered for appointment by promotion to a post reserved for promotion in the service or cadre to which he belongs in a manner as may be prescribed; provided that he possesses the prescribed qualifications.

No doubt promotion is a part of terms and conditions of any civil servant and hence such like matter can only be adjudicated by the Service Tribunal. The promotion is divided into two categories as far as its procedure is concerned i.e. firstly the "Eligibility for Promotion" and secondly the "Fitness for Promotion". The Punjab Service Tribunal Act 1974, itself, ousted the jurisdiction of Service Tribunals in the matters pertaining to fitness of promotion; hence the way to approach the High Court is very much open there.

Here in the above referred proviso, the word "shall" is used by the legislature, meaning thereby that there is no exception to this proviso.

The controversy of eligibility of promotion and fitness of promotion was very elaborately discussed by the Honorable Supreme Court of Pakistan in various judgment and a line of distinction has been drawn between these two concepts i.e. eligibility for promotion and fitness for promotion. In "Muhammad Anis VS Abdul Haseeb etc"[7] the Apex Court of the country held:

"We are also of the view that the question of eligibility is different from the question of fitness. Indeed, from the definitions of the words "eligible" and "fit" given in the above dictionaries, it appears that the meanings of above two words are interchangeable and some time they carry the same meanings but at the same time they have different meanings. Even in the above Legal; Thesaurus the word "eligible" has been defined as "fit for appointment, fit for' election, fit for- selection, fit to be chosen, legally qualified and suitable". Whereas Black's Law Dictionary defines the word "eligible" inter alia as qualified to be elected and legally qualified to serve. It may again be pointed out that the Stroud's Judicial Dictionary has highlighted that the word "eligible" carries two different meanings namely legally qualified or fit to be chosen. The question whether a person is legally 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. For example, under Article 193 (2) of the Constitution, the qualifications for being considered for appointment as a High Court Judge have been given. It does not mean that the persons who possess the said qualification are fit for appointment as Judges of the High Courts. The question of fitness of their being appointed is to be determined by the functionaries mentioned therein. In other words a person may be eligible for consideration for a particular post, but may not be fit to be appointed.

We may point out that the question of eligibility and fitness have been treated differently by the Lawmakers 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-Makers in proviso (b) to sub-section (1) of section 4 of the Act have not used the word "eligible" but have employed the word "fitness or otherwise to be appointed or to hold a particular post or to be promoted to a higher post or cadre." In other words, the question of eligibility, which is a term of service by virtue of above sub-section (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."

The question of jurisdiction in the same matters was also one again take into consideration by the August Supreme Court in case "Muhammad Iqbal VS Executive District Officer (Revenue) etc".[8] The relevant para of the judgment is as follows:

"There may be no cavil with the promotion that the question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colorable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong."

The ratio of both these judgments has been followed by the High Courts as well as Apex Court of the country. It was held in "Miss. Zubaida Khatoon VS Mrs. Tehmina Sajid Sheikh":[9]

"High Court was not recording any new evidence but was proceeding on the basis of admitted facts and if having examined the admitted facts, it had come to the conclusion that authority had passed the order in colorable exercise of powers conferred on it, or an authority having power to promote or appoint to a particular post had done so against the law or without jurisdiction or while doing so as for mala fide reasons had not taken into consideration the relevant record. High Court could cone in aid of person aggrieved to redress the wrong.”

Same view of the Muhammad Anis's Case (supra) has been followed in "Muhammad Azam VS Muhammad Tufail etc"[10].

"Service Tribunal had no jurisdiction to dilate upon question of fitness of a civil servant as question of eligibility for promotion would not fall within its domain.”

Implementation of Government Policy;

Government makes different policies for the better administration of its departments. But when these policies are not implemented or the executive departments vitiate from these policies, the High Court may make interference for the implementation of these policies, through its power of writ jurisdiction, even the matter relates to terms and conditions of service, and laid down some guidelines for the government departments. Same has been held by the Honorable Supreme Court of Pakistan in "Zahid Akhter's Case"[11], wherein taking up a transfer matter which is a pure matter related to terms and conditions, as follows:

"Authorities competent to make transfers from one place to another in a span of few months by the order of Minister concerned and carrying out of such orders obediently by the Secretary of the Department concerned highly unethical and undesirable. Guideline is the policy directive of the Government and provisions of R.21, Rules of Business, to be strictly followed by the Secretaries/Heads of the Department concerned. Normal period of posting of Government Servant at a station as per policy decision of Government being for three years has to be followed in ordinary circumstances unless for reasons of exigencies of service such policy has be departed from."

In another case titled as "Sajida Abdullah VS District Coordination Officer etc"[12], while taking up a transfer matter, it was held by the Lahore High Court:

"First of all I intend to dilate upon the question of maintainability if the instant writ petition. By now it is settled principle of law that wherever fundamental rights of any citizen of the country are infringed, extraordinary constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 comes to play. Through the impugned order dated 15-10-2009, not only the basic rights of the petitioner have been usurped but the same is also against the spirit of Wedlock Policy introduced by the Government, therefore, the impugned order has malafidely and illegally been passed in contravention of basic law and the policy declared by Government of Punjab as such the instant petition is maintainable.

Departmental Authority:

It is another very different and important view which also ousted the jurisdiction of Service Tribunal in such like service matters. Section 4 provides the remedy to a civil servant against the order of departmental authority in the form of appeal to the tribunal. Here the word "Departmental Authority" is of much importance which was also explained by the Legislature in "Explanation" of this section, being reproduced here:

Explanation----------

In this section "departmental authority" means any authority, other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of civil servants.

The above quoted "Explanation" of Section 4 clearly; postulates that departmental authority would be only which is competent to pass any order. If an authority is not competent to pass an order, it cannot be regarded as departmental authority in view of this "explanation", even being the authority of the department. In other words we can say that every authority of the department may not be competent but every competent authority must be departmental authority. For instance in Section 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 describes the appointing authorities which are competent to make appointment of the civil servants as per various pay scales. Now if any authority of the department appoints or promotes or transfers any person for which that authority is not competent as per its basic pay scale (high from his appointing authority or low from his appointing authority) would not be competent and in other words would not be "departmental authority" in view of the explanation of Section 4. Hence no appeal would lie against that impugned order. Same has been held by the Apex Court of the Country in "Government of Punjab etc VS Saleem Hussain Gardezi" [13]as follows:

"Appeal before Tribunal was not competent because under S.4, Tribunal could hear only from order passed by departmental authority".

Vires of Service Rule or Regulation:

If any person challenges the vires of any service rule or regulation, then the jurisdiction of High Court can be invoked under Article 199 of the Constitution of Islamic Republic of Pakistan. The reason behind this is that the Service Tribunal, being a Tribunal, has a limited jurisdiction as well as limited scope whereas the powers of High Court under its constitutional jurisdiction are very wide. It was repeatedly held by the Honorable Supreme Court of Pakistan that the vires of any Service Rule of Regulation is challenged only before High Court. In the case of "Dr. Muhammad Tahir Achakazi VS Government of Balochistan"[14], it was held:

"It is true that while examining the question relating to terms and conditions of service of an aggrieved civil servant, the Service Tribunal has jurisdiction to determine the validity of service rules which had affected the terms and conditions of an aggrieved civil servant. However, in our view, the Service Tribunal cannot independently examine the question regarding the vires of a service rule if there is no controversy before it relating to the violation of terms and conditions of service of an aggrieved civil servant."

In the "Samina Masood's Case (Supra)"[15] it was also held, while dilating upon the question of jurisdiction of High Court challenging the vires of a term and condition of service of a civil servant:

"Conversely, the situation in hand is quite the reverse because the vires of the very term and condition arising out of Regulation 25 is challenged for being violative of Article 25 of the Constitution and for being a discrimination purely based on sex. This challenge as such and singularly could not have been brought before the Tribunal, which in turn, had no authority to create a term and condition. It could only go into the question of violation or otherwise of an existing term and condition which may be challenged by a civil servant on numerous available grounds including one of being discriminatory.”

“We are, therefore, of the considered view that when a civil servant challenges the vires of law or rule being ultra vires the Constitution without the same having been violated by the departmental authority, the remedy lies before the High Court under Article 199 of the Constitution and not before the Service Tribunal."

(The author of the article is a renowned practicing Advocate of High Court, having experience in Civil, Criminal, Service & Corporate Matters, and Partner of a Law Firm "Hashmi & Hashmi". yafishashmi@yahoo.com, hashmiadvocates@gmail.com).

[6] Proviso (b) of Section 4 sub-section (1) of Service Tribunal Act, 1974.

[8] 2007 SCMR 682 & PLJ 2007 SC 602.