5/ 25/2019 JURISDICTION: TERMS AND CONDITIONS OF CIVIL SERVANTS

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

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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 199 IN TRANSFER AND POSTING :
The Honourable Division Bench of Quetta High Court Quetta has in its recent judgment given
new dimensions to the concept of writ jurisdiction in transfer and posting of civil servant. In
2010 PLC CS 1046 MRS. SYEDA TAHIRA SAFDAR, J while speaking for the bench held
that act of transfer however was in violation of policy laid down by the Government and
the impugned transfer and posting of the petitioner were made only on wish of some
Minister , which was neither legal nor proper. It was further held that departmental
authorities alone had the power to order transfer and posting of civil servant. Another important
arena whereupon the honourable court divulged was that posting of an officer of lower
grade on the post of higher grade in the presence ofofficer of similar grade was declared to
be bad in eyes of law. The court further propounded that there being violation of law in
respect of transfer , Service Tribunal had no jurisdiction to entertain the matter, and
also on the ground that in absence of any other adequate remedy available in the matter,
the constitutional jurisdiction of High Court could be invoked by an aggrieved person and
High Court had the jurisdiction to entertain constitutional petition which was ultimately
allowed . In my humble view all depends upon the philosophy of a Particular judge to
adjudicate in prescribed formats. In AIR 1982 SC 1325 at page (1332) the
honouralbe judge while giving philosophical reasons against the imposition of death penalty
upon humans held that death penalty is not a mere legalistic problem which can be answered
definitely by the application of logical reasoning but it is a problem which raises profound social
and moral issues and the answer must therefore necessarily depend on the judicial philosophy of
the judge. The honourable judge further held that judicial conclusion emanate from the
judicial philosophy of those who sit in the judgement and not from the language of the
constitution . On the other hand, our Superior courts many times have held that they have
unbridled, unfettered and unlimited jurisidciton and barring jurisdiction clauses were always
treated to be narrower in scope.
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

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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 393 in order to vest jurisdiction in high
court. But the learned high court developed a new law qua fitness of a person to be appointed or
to hold a particular post and dismissed the petition . The court held as under”
At any event, the matter pertains to the fitness o f the petitioners to hold specific posts. The competent
Authority has found that the petitioners are not fit to hold such posts. In matters o f 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 o f
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. ”

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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 Punjab and others (1995 SCMR 1047)
somewhat identical matters arose before their lordships of the Supreme Court wherein large sale
termination of school teachers had been ordered. The petitioners whose services had been
terminated firstly approached the High Court in writ jurisdiction and then the matter went up to
the Supreme Court wherein it was observed as follows:-
"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 Lahore in case cited as 2010 PLC (CS) 51 held that Provisions of Art . 212 of
the Constitution having a non obstante clause would have an overriding effect over the
constitution. So far plea of order being mala fide is concerned, suffice would be to refer the
judgment of Supreme court in case cited as 1998 SCMR 2280. which also reiterates the view
taken by the superior Courts in such matters. Paragraph No. 7 of the judgment at page 69 is
instructive on the point: -
"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 Punjab,
from a foreign posting and accommodating a candidate from Balochistan. Even in cases where the order is
mala fide, the bar of Article 212 of the Constitution is attracted. Judgment in Muhammad Sarwar v
Government of Punjab (supra) is an authority for the principle. Reference can also be made with approval to
a Full Bench judgment of the Sindh High Court in Khalil -ur-Rehman v. Government of Pakistan (PLD 1981
Karachi 750) where the High Court was examining the validity of order which fall within the jurisdiction of
the Services Tribunal and it was held that orders even if mala fide ultra vires or coram non iudice fell within
the ambit of Services Tribunal and jurisdiction of Civil Courts including High Court was ipso facto ousted as
a result of barring provisions of Article 212 of the Constitution.". Reference to 1999 PLC CS 1340 is also
beneficial at this point.
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

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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

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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 PUNJAB
CIVIL SERVANTS ACT 1974. Reads as “ The terms and conditions of service of a civil
servant shall be as provided in this Act and the rules” . In my view this provision is not self
executory or defines the particular aspects of terms and conditions of civil servant. In contra-
distinction to all other grievances which do not fall within the ambit of “ terms and conditions of
service” it includes every aspect of employment of civil servant which relates to his/her service
career. In 2001 SCMR 1320 authorities withheld the salaries of newly appointed employees on
the ground of appointment having been made in violation of recruitment rules, and employees
were ultimately terminated . High court allowed the writ with the direction to the authorities to
pay salaries of the intervening period. Authority went in Supreme Court and failed meaning
thereby judgment of high court attained finality. At later stage comes the case cited as PLD
2001 SC 1032. wherein apart from over-ruling the judgment cited as 2001 SCMR 1320.
Supreme court held “ Matter relating to salary of civil servants having a direct nexus with
the terms and conditions of service of the employees, objection to the jurisdiction of the
High Court to entertain a Constitutional petition was not technical in nature but going to
the very root of the case . Service Tribunal alone was the appropriate forum having
jurisdiction to deal with matters relating to the terms and conditions of civil servants in
view of the bar contained in Art.212 of the Constitution” . But where the civil servant worked
for eleven months after the date of his retirement and feeling aggrieved by the deductions made
by the authorities, high court in constitutional jurisdiction granted him relief in case cited as
2003 PLC CS 1400 . Reference to 1985 PLC CST 400. 1984 PLC CS 229 & 1984 PLC CS
444 would also be beneficial at this point involving matters of ACRs which although does not
expressly find place in statute but form part of terms and conditions of civil servant.
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 1974, in my

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view civil court can entertain the suit wherein prayer for either perpetual injunction is made.
Without touching the provisions of Article 199 qua writ of certiorari and prohibition, the
question as to whether special tribunal has exclusive jurisdiction over a matter can be
determined by civil court (personal view). So much so, in my persona view under section 9,
which gives civil court to exercise jurisdiction of general nature, civil court can even examine
the order passed by the tribunal, if passed without jurisidciton or otherwise nullity in law and
can be declared as such. Question is that where the competent authority determines the unfitness
of a civil servant and section 4(1)( b) bars the jurisdiction of service tribunal in such matter,
whether he is left with any remedy. Section 9 of CPC 1908 is answer to this proposition . Mere
fact that civil servant has no remedy after he being declared unfit does not automatically attract
the provisions of Article 199 as such. A very thoughtful discussion was made in case cited as
2003 PLC CS 56 wherein the civil servant after having not been recommended for promotion
filed civil suit praying therein for declaration and interim relief. Learned single judge on original
jurisdiction dismissed the suit being barred under article 212 of constitution. Matter coming in
high court, wherein his lordship Mr Justice SABIHUDDIN AHMED held that civil
servant/plaintiff being aggrieved with decision of Selection Board for not recommending him
for promotion filed suit for declaring such decision to be null and void; that his fitness for
promotion be re-determined in accordance with promotion policy; and as interim relief,
respondents be restrained from issuing notification of promotion on the basis of
recommendations of Selection Board. Findings of Trial Court were correct to the extent that
question of following a particular promotion policy might be a matter germane to terms and
conditions of service. Such fact itself would not be sufficient to attract application of Art.212 of
the Constitution and there was great deal of force in contention of plaintiff. Service Tribunal
was debarred by virtue of proviso ( b) to SA( 1) of Sindh Service Tribunals Act, 1973 (Section
4( 1 )( b) of Punjab Service Tribunal Act 1974) from entertaining appeals against determination of
fitness to be promoted. Plaintiff under S.54 of Specific Relief Act, 1877 could always apply for
a perpetual injunction to prevent breach of an obligation existing in his favour. If plaintiff was
not entitled to any declaratory relief, an injunction could always be granted to prevent breach of
an obligation on the part of respondents . Further held that mere fact that plaintiff had not asked
for an injunction as independent relief, but had only sought the same by way of consequential
relief to declaration prayed for would be of little consequence. The court went on to hold that
present controversy was outside the purview of jurisdiction of service Tribunal. Mala fide order
or an order in defiance of the obligations of respondents could always be questioned through a
civil suit for injunction.
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 mv 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 199. In the last para of the judgment the honourable bench directed the concerned
to amend the service laws to bless the tribunals with the power of implementation.
THE MAXIM “ PER INCURIAM” : Its applicability: The quoted maxim literally means “ by.
mistake or bv 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

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5/25/ 2019 JURISDICTION : TERMS AND CONDITIONS OF CIVIL SERVANTS
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.

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