JUDGMENT SHEET

IN THE PESHAWAR HIGH

COURT, PESHAWAR.

JUDICIAL DEPARTMENT

W.P No.68-P/2015 with I.R.

JUDGMENT

Date of hearing_2.4.2015 and Announced on

14.4.2015.

Petitioner (s) (Irfan Aman Yousafzai etc)

By Mr.Sikandar Rashid, Advocate.

Respondent (s) (Federation of Pakistan) By Mr. Afnan

Karim Kundi, Additional Attorney

General.

YAHYA AFRIDI:-J:- Irfan Aman

Yousafzai along with three others, the

petitioners, have sought the Constitutional

jurisdiction of this Court praying for:

“It is therefore humbly prayed

that this Honourable Court

may be pleased to accept the

instant Writ petition and may

graciously be pleased to:

1. Declare the impugned

SRO’s 88 & 89 dated 10th of

February 2014, to the

extent of its effect on the

incumbents of Secretariat

Group & Office

Management Group as

unconstitutional, illegal,

malafide, arbitrary,

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capricious, whimsical,

coram-non-judice, without

jurisdiction and of no legal

effect and the same may be

set aside.

2. Declare the proceedings of the meeting held on 11

th to

13th February 2014 of the

Central Selection Board as

unlawful to the extent of

promotion of officers of

DMG/PAS and other

occupational groups

against BS 20 and 21 posts

of the Secretariat Group.

3. Any Central Selection

Board (CSB) if conducted

should not be under SRO

88 & 89 and should not

affect the KOMG &

Secretariat Group.

4. Suspend the operation of the impugned notification

SRO 88 & 89 till the

decision of the main writ

petition and the

respondents may also be

restrained from finalizing

the proceeding of the

meeting dated 11th to 13

th

February 2014 of the

Central Selection Board

and from notifying the

promotion of the officers of

DMG/PAS and other

occupational groups

against the posts of

Secretariat Group as

Interim Relief, and

5. Any other relief which this Honourable Court deem

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appropriate may also

graciously be granted.”

2. In essence, the grievance of the

petitioners relates to their prospects of

promotion, which have been adversely

affected by issuance of Notification No.SRO

88(1)/2004 dated 10.2.2014

(“Notification”). The assertion of the

petitioners is that the Notification is in

violation of section 3 (2) of the Civil Servant

Act, 1973 (“Act”), whereby major portion

of the posts of the Secretariat Group have

been allocated to a specific service group in

violation of section 9 of the Act.

3. At the very outset of the proceedings,

the worthy Additional Attorney General

raised a preliminary objection, regarding the

jurisdiction of this Court to entertain the

present petition, as it related to matters

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relating to terms and conditions of service of

civil servants. In support of his contention,

the worthy Additional Attorney General

referred to the following judgments; I.A.

Sharwani’s case (1991 SCMR 1041), Iqan

Ahmed Khurram’s case (PLD 1980 S.C

153), Khalid Mahmood Watto’s case (1998

SCMR 2280), Pervaiz Aslam’s case (1999

SCMR 784), Peer Muhammad’s case (2007

SCMR 54), Muhammad Asghar’s case

(2012 PLC (C.S) 142), Ms. Ayesha Bashir

Wani’s case (2012 PLC (C.S) 31),

Muhammad Azam’s case (2012 PLC (C.S)

1104), Khalid Mahmood’s case ( 2013

PLC (C.S) 1286), Government of the

Punjab’s case (PLD 2004 S.C 317),

National Assembly Secretariat’s case (2015

SCMR 253) and Engineer Musharaf

Shah’s case (2015 PLC (C.S) 215).

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4. In response, the worthy counsel for

the petitioners contended that the matter did

not purely relates to terms and conditions of

service of Civil Servants, as in fact, a

challenge had been made to the vires of the

Notification, being against, the Fundamental

Rights of the petitioners and based on

personal malice, bias and prejudice

developed against the petitioners. In support

thereof, the worthy counsel sought reliance

upon the judgment of the superior Courts in

Samina Mehsood’s case (PLJ 2006 S.C

414), Javed Iqbal’s case (PLD 1993 S.C

375), Syed Mehmood Akhtar Naqvi’s case

(PLD 2013 S.C 195), Contempt

proceedings against Chief Secretary

Sindh, (2013 SCMR 1752), and Ali Azhar

Khan Baloch’s case.

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5. Valuable arguments of learned

counsel for the parties heard and available

record perused.

6. This Court is adjudicating the present

petition, exercising its jurisdiction vested

under Article 199 of the Constitution of the

Islamic Republic of Pakistan, 1973

(“Constitution”). The jurisdiction so vested

in this Court, empowers it with vast

authority, including the power to check

excesses of the Executive, jealously guard

the Fundamental Rights of persons under the

Constitution, and to ensure that all are

treated fairly, equitably and in accordance

with law. With such wide powers vested in

the High Court, are certain checks on its

jurisdiction, including the express bar

imposed on entertaining any matter relating

to terms and conditions of service of a civil

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servant. This express bar provided under

Article 212 of the Constitution, does not

only commence with a non-obstinate clause,

but also positioned at latter than Article 199

of the Constitution, carries immense weight,

and would surely eclipses over the

jurisdiction of this Court to entertain matter

under Article 199 of the Constitution.

7. In view of the objection raised, the

precise issue before this Court is to consider

and decide;

“whether the relief sought by the

petitioners in the instant petition,

falls within the purview of the terms

and conditions provided under

Article 212 of the Constitution.”

8. At this stage, the worthy counsel for

the petitioners, emphasized that he would

not press all the reliefs sought in the

petition, but would only urge the Court to

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consider relief at serial No.1 and 3 of the

petition, which essentially relate to the

challenge made to the vires of the

Notification, on the touch stone of being

against law and based on malafide.

9. Reviewing the prayer pressed at this

stage, it is noted that the same relates to the

impugned Notification, which according to

the petitioners has adversely affected their

prospects of promotion and thus, would also

adversely have an impact on their seniority.

10. No doubt, by now it is a settled

principle of law that, civil servants can

successfully make a challenge to the vires of

any legislative or sub-ordinate instrument,

which raises a question of public importance

before the Apex Court under Article 184(3)

of the Constitution. This issue has been

discussed and settled by the Apex Court in

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Tariq Azizuddin’s case (2010 SCMR 1301),

Watan Party’s case (PLD 2012 S.C 292),

Mahmood Akhtar Naqvi’s case (PLD 2013

S.C 195), and thereafter, consistently

followed and more recently discussed in Ali

Azhar Khan Baloch’s case (Civil Review

Petition No.193 of 2013).

11. As far as the jurisdiction of the High

Court under Article 199 of the Constitution

is concerned, it is by now settled that, in

view of the express bar provided in Article

212 of the Constitution, the High Court

lacks the authority to determine the

challenge made to rules or notifications,

which adversely affects the prospects of

promotion of civil servant, even if the same

are challenged on the ground of infringing

the Fundamental Rights of the Civil

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Servants or based on malafide of the

respondent department of the Government.

12. Keeping in view the express bar of

Article 212 of the Constitution, imposed

upon the jurisdiction of this Court, it would

be fair to state that the bar is only to the

extent of those cases, to which the

jurisdiction of the Services Tribunal extends,

as is provided under Section 4 of the Service

Tribunal Act, 1974. Matters, which are

expressly excluded from the jurisdiction of

Services Tribunal, such as fitness of a person

to be promoted to a higher post, the

jurisdiction of the High Court to entertain

and decide the same would thus not be

barred under Article 212 of the Constitution.

However, issues such as eligibility to be

considered for promotion, being expressly

provided under the Civil Servant Act of

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1973, the jurisdiction of Services Tribunal

would be alive and that of the High Court

would be barred under Article 212 of the

Constitution. Thus, the ouster of jurisdiction

of the High Court would only come into

play and be effective, when Federal Service

Tribunal has the jurisdiction to entertain the

said matter.

13. The issue of jurisdiction of the High

Court and its ouster has recently been

elaborately discussed by the Apex Court in

Manzoor Ahmad’s case (PLD 2015 SCMR

253) in terms that:

“8. We have heard the learned

counsel for the parties and have

perused the record. Admittedly,

respondent No.1 is a Civil Servant

and, therefore, he could not have

approached the High Court under

Article 199 of the Constitution for

redressal of his grievance, which

pertained to the terms and

conditions of his service in view of

the Bar created under Article 212(2)

of the Constitution. The High

Court, therefore, was not competent

to adjudicate the issue raised in the

Writ Petition. The High Court has

fallen in error while proceeding on

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the erroneous assumption that

respondent No.1 had raised the

issue of violation of the statutory

Rules, therefore, it was competent to

decide the issues. This was an

incorrect approach of the learned

High Court to entertain a

Constitution Petition of a Civil

Servant on the ground of the

statutory violation. Such grievances

of a Civil Servant fall within the

domain of the Federal Service

Tribunal as mandated by the

Constitution.”

14. Now to the challenge made to rules on

the touch stone of violating the Fundamental

Rights of the civil servant and question of

malafide of the department are concerned,

the Apex Court has also in this regard

clearly laid down in Iqan Ahmed

Khurram’s case (PLD 1980 S.C 153). In

the said case, rules relating to appointment

were amended through a notification, which

altered and enhanced the quota allocated to

the inductees, and affected promotes

challenged the same before the Apex Court,

as it adversely affect their prospects of

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promotion to the higher post. The Apex

Court addressed the issue in terms that:

“As to the ground concerning the

non-maintainability of the petition,

the High Court has held, and it is

also the case of the petitioner, that

the effect of the Rules is that it has

altered the terms and conditions of

service. This being so, the bar of

Article 212 of the Constitution

would be applicable with full force

as in that exercise the question of

vires of the Rules vis-à-vis section

25 of the Act would necessarily be

considered. In this behalf the High

Court has relied on the statement of

law enunciated in Muhammad

Hashim Khan and others vs

Government of the Punjab and

others with which I agree.

This is a common grievance

in the other two petitions and they

would also be hit by the same bar.

We may here point out that a

distinction has to be drawn between

a case where the eligibility of an

officer as to fitness to hold a

particular post or to be promoted to

a higher grade under the Rules

applicable to him and the Rules

which by themselves alter the

method of recruitment and

promotion. In the former case,

proviso (b) to section 4 of the

Service Tribunals Act, 1973, will be

applicable and no appeal will lie to

the Service Tribunal. However, this

will not be so in the latter case as

the Rules per force alter the method

of recruitment and promotion in

supersession of the existing Rules

which provide a cause of action for

the grievance qua the alteration of

terms and conditions of service and

hence an appeal will lie to the

Service Tribunal.”

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The Apex Court has expounded on

the principle laid down in the

aforementioned case, in I.A Sherwani’s

case (1991 SCMR 1041) in terms that:

“9. 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

subsection (1) of section 4 has

the 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 Courts

remains intact. It may again be

pointed out that the Service

Tribunal has jurisdiction

against a final order, whether

original or appellate, made by a

departmental authority in

respect of any terms and

conditions of service. The

question, therefore, arises,

whether the relevant

enactments/notifications

containing the provision for

payment of enhanced pension,

which have been denied to the

pensioners, can be treated as a

final order, original or

appellate, passed by a

departmental authority in

respect of any terms and

conditions of service.”

“10. From the above cited

cases, it is evident that it has

been consistently held inter alia

by this Court that a civil

servant if is aggrieved by a

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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 involves 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 an order

in terms of subsection (1) of

section 4 of the Act in order to

file an appeal before the

Service Tribunal. However, in

the present case, the

petitioners’ case is founded

solely on the ground of

discriminatory treatment in

violation of Article 25 of the

Constitution and not because of

any breach of any provision of

the Civil Servants Act or any

service rule. Furthermore, the

question involved is of public

importance as it affects all the

present and future pensioners

and, therefore, falls within the

compass of clause (3) of Article

184 of the Constitution.

However, we may clarify that a

civil servant cannot bye-pass

the jurisdiction of the Service

Tribunal by adding a ground of

violation of the Fundamental

Rights. The Service Tribunal

will have jurisdiction in a case

which is founded on the terms

and conditions of the service

even if it involves the question

of violation of the

Fundamental Rights.”.

(emphasis provided)

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The ratio decidendi of the

aforementioned judgments has been

consistently followed in Khalid Mehmood

Watto’s case (1998 SCMR 2280),

Muhammad Zafar Bhatti’s case (PLD 2004

S.C 317) and Pir Muhammad’s case (2007

SCMR 54). This Court has also recently

followed the said principle in Engineer

Musharaf Shah’s case (2015 PLC (S.C)

2015) in terms that:

“It would be interesting to note that

the apex Court has in some cases

clearly vested the Tribunal with

exclusive jurisdiction on matters

relating to terms and conditions of a

civil servant, wherein the impugned

action or inaction of the

departmental authority did not have

a formal “final order”. Some of the

leading cases are as follows:-

Vires of Rules.

Service Tribunal was

competent to adjudicate on the

question of “vires” of rules framed by

the department, even if the same were

challenged on the basis of violating

fundamental rights of the civil

servant. The very rules were deemed

to be the “final order”. Cases in point

are Iqan Ahmed Khurram’s case

(PLD 1980 S.C. 153) and I.A.

Sharwani’s case (1991 SCMR 1041).

(emphasis provided)

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In essence, the principle laid down by

the Superior Courts of our jurisdiction is

that the Federal Service Tribunal is fully

competent to entertain and decide cases,

wherein vires of the service rules or

notifications have been challenged on the

touch stone of being violative of

Fundamental Rights of the civil servant, and

the malafide of the Executive to frame such

Rules, which would adversely affect their

prospects of promotion.

15. Before parting with this judgment, it

would be important to point out that the

judicial precedents referred to by the worthy

counsel for the petitioners, are not relevant

to the facts of the present case. As far as

Samina Mehsood’s case (PLJ 2006 S.C

414) the petitioner therein was not a civil

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servant, but an employee of Pakistan

International Airlines; in Javed Iqbal’s case

(PLD 1993 S.C 375) the matter relating to

employees of the Lahore High Court, and

not civil servants; Syed Mehmood Akhtar

Naqvi’s case (PLD 2013 S.C 195) the Apex

Court had exercised its jurisdiction under

Article 184(3) of the Constitution; and it did

not refer to the jurisdiction of the High

Court under Article 199 of the Constitution.

In Contempt proceedings against Chief

Secretary Sindh, (2013 SCMR 1752), the

matter discussed therein was finally

discussed by the Apex Court in review of

the cited case in Ali Azhar Khan Baloch’s

case (supra), wherein the august Supreme

Court passed unprecedented stringent

strictures for cases, which were entertained

by the High Court, when the same related to

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terms and conditions of service of Civil

Servants and that the High Court’s

jurisdiction was expressly ousted under

Article 212 of the Constitution.

16. Reviewing the judicial

pronouncements rendered by the superior

Courts of our jurisdiction, as discussed

herein above, it would be safe to state:

(i) A Civil Servant can move the

Apex Court under Article

184(3) of the Constitution, in

cases where vires of service

rules or notifications are

challenged on the touch stone

of being against their

fundamental rights with the

paramount condition that the

matter be of public

importance.

(ii) Civil Servant can move the

High Court in its

constitutional jurisdiction

under Article 199 of the

Constitution only in cases

where the bar of Article 212 of

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the Constitution cannot be

invoked, as the Federal

Services Tribunal lacks the

jurisdiction to entertain the

impugned matter.

(iii) Civil Servant can challenge

the Service Rules or

Notification before the Federal

Services Tribunal, as the same

are deemed to be final orders,

within the contemplation of

section 4 (1) of Civil Servant

Tribunal Act, 1973.

(iv) Civil Servant can move the

Services Tribunal challenging

the vires of the rules even on

the touch stone of being in

violation of fundamental

rights or malafide.

(v) The Civil Servant cannot

move the Constitutional

jurisdiction of a High Court

challenging the vires of a

service rule or notifications,

which affects the prospects of

promotion of a civil servant

even if the challenge is made

on the touch stone of breach of

fundamental rights of the civil

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servant or malafide on the part

of the Executive to frame the

said rules or Notification.

17. Having reached the conclusion that

this constitutional Court lacks the

jurisdiction to entertain the petition, it would

not be appropriate to pass any finding on

merits and the specific challenge made to

vires of the impugned Notification in the

present petition.

Accordingly, for the reasons stated

hereinabove, the jurisdiction of this Court is

barred under Article 212 of the Constitution

to exercise its jurisdiction to entertain the

present petition, as it relates to terms and

conditions of services of the petitioners, for

which the exclusive jurisdiction vests with

the Federal Services Tribunal.

Announced.

Dated. 14.4.2015.

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J U D G E

J U D G E (K.Ali)