Constitutional Jurisdiction of High Courts for Service Matters, In View of the Bar Contained In Article 212 of the Constitution
CONSTITUTIONAL JURISDICTION OF HIGH COURTS FOR SERVICE MATTERS, IN VIEW OF THE BAR CONTAINED IN ARTICLE 212 OF THE CONSTITUTION
By Muhammad Yafis Naveed Hashmi, M.Sc (Econimics), LL.B, LL.M, Advocate High Court, Islamabad
There is a Constitution in every country to guide the government and to govern the people. Both the government and people are bound to obey it. The Constitution contains provisions relating to the powers and duties of government, the relations between government and people and the rights and duties of people. This helps in maintaining discipline in the society, makes government responsible and makes people aware that the government belongs to them. Aristotle says, "Constitution is the way of life the State has chosen for itself." According to Dicey, the Constitution is a combination of those rules which, directly or indirectly, influence the distribution and use of sovereign power.
Constitution can be regarded in any society or country as the basic pillar on which the whole system of, that society builds. This basis is of two fold; firstly the Constitution guarantees the rights of the citizens of any society (although it does not mean that if a right is not
- For a review of the impact of climate change on the unprecedented goods in Pakistan in 2010, see Dr. Parvez Hassan "Pakistan Floods 2010 and the Environmental Challenges", a paper presented at the 1" International Conference on the Environment and the Role of the Modern State, held at Manaus, Brazil, on 16-19 November 2010. See also Dr. Parvez Hassan and Ahmad Rafay Alam "Bad Weather", published in the Newsweek Pakistan Match 2011 Issue available at: http://newsweekpakistan.com/features/266
written in the Constitution and if declared by the equity cannot be a right of the person i.e. natural rights). Secondly all the laws of that land are based upon the Constitution of that land. That's why the Constitution of any country is considered as "Grand_Law of the Land" or "Mother of all Laws".
Laws in every country will be of two type i.e. special laws and general laws. For the speedy justice Constitution confers the powers to the Legislature to establish administrative courts and tribunals who exercise the exclusive jurisdiction in such like special matters. The purpose of these tribunals or special courts is to dispense the justice in a speedy and specialized manner.
Such; like powers are also conferred by the Constitution of the Islamic Republic of Pakistan to our Legislature in Article 212 of our Constitution. And these powers are exercised by the provincial legislature at provincial level and federal legislature at federal level. The bare text of Article 212 is being reproduced here:
- Administrative Courts and Tribunals.
(1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of:
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(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 Tribunals Act 1974:
Service Tribunals 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 Tribunals 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 Tribunals 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, within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal:
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 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 subsection (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"' 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 subsection (1) of Section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon any
- 1991 SCMR 1041
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 and 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 Sind through Secretary Education v. Nazakat Ali 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 Servants 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
- 2011 SCMR 592
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 Honourable Supreme Court of Pakistan as follows:^4^
^"^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.
The very language of section 4 of Punjab Service Tribunals Act, 1974 very clearly says that the appeal to the tribunal lies only against the
Civil Servants Act 1973
2007 SCMR 886
"Final Order", whether it is original or appellate, meaning thereby 'that if theree 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 extraordinary constitutional jurisdiction. The same has been held by the honourable Supreme Court of Pakistan in the case titled as "Pakistan International Airline Corporation and others v. Samina Masood and others ^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 Servants Act 1974 as follows:
(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 Tribunals 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.
5 PLD 2005 SC 831
(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; ^6^
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 honourable 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 v. Abdul Haseeb etc"' 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.
Proviso (b) of section 4 subsection (I) of Service Tribunals Act, 1974
PLD 1994 SC 539
We may point out 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-Makers in proviso (b) to subsection (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 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 bean 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 once again taken into consideration by the august Supreme Court in case "Muhammad lqbal v. Executive District Officer (Revenue) and others^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 v. 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
8 2007 SCMR 682 & 2007 SCMR 682
9 2011 SCMR 265