Service matters jurisdiction is service tribunal not writ in High Court.

Service matters jurisdiction is service tribunal .

سروس معاملات میں سروس ٹربیونل کے پاس اختیارات ھیں ھائیکورٹ کے پاس نہیں۔

سپریم کورٹ آف پاکستان

سیول پٹیشن نمبر 6211 آف 2021

سماعت کی تاریخ: 27.10.2023

فریقین:

درخواست گزار: احمد اللہ اور دیگر

جواب دہندگان: ضلعی تعلیمی افسر (مرد)، بونیر اور دیگر

ججز:

مسٹر جسٹس قاضی فائز عیسیٰ، چیف جسٹس

مسٹر جسٹس امین الدین خان

مسٹر جسٹس عثر من اللہ

وکلاء:

درخواست گزاروں کے لیے: مسٹر شمس الحق ہادی، ایڈووکیٹ سپریم کورٹ؛ سید رفاقت حسین شاہ، ایڈووکیٹ آن ریکارڈ

جواب دہندگان کے لیے: کوئی نمائندگی نہیں

پس منظر:

درخواست گزاروں نے بطور سرٹیفائیڈ ٹیچر عارضی/معاہدہ پر تقرر کے بعد خیبر پختونخوا ملازمین تعلیم و ثانوی تعلیم (تقرری و باقاعدگی کی خدمات) ایکٹ، 2017 کے تحت باقاعدہ خدمات حاصل کیں۔ انہوں نے 11.11.2019 کو ڈیپارٹمنٹل پروموشن کمیٹی (DPC) کے اجلاس کے دوران اپنے پروموشن کے عمل میں شمولیت کی مخالفت کی اور 25.02.2020 کے نوٹیفکیشن کو چیلنج کیا جس میں ڈی پی سی کی سفارشات کو منظور کیا گیا تھا۔

اہم نکات:

1. درخواست کی بحالی:

درخواست گزاروں نے ہائی کورٹ کی غیر معمولی دائرہ اختیار کو استعمال کرتے ہوئے درخواست دائر کی تھی۔ تاہم، پروموشن کے لیے اہلیت اور خدمات کی شرائط کے مسائل خیبر پختونخوا سروس ٹریبونل کے دائرہ اختیار میں آتے ہیں۔

2. دائرہ اختیار کی رکاوٹ:

آئین کے آرٹیکل 212 کے تحت سروس ٹریبونلز کو سرکاری ملازمین کی خدمات کی شرائط کے بارے میں مکمل دائرہ اختیار حاصل ہے، جس میں اہلیت اور سینارٹی کے مسائل شامل ہیں، جبکہ پروموشن کے لیے فٹنس کے فیصلے کا جائزہ ٹریبونل لے سکتا ہے۔

سپریم کورٹ کا فیصلہ:

چھٹی کی درخواست مسترد:

سپریم کورٹ نے درخواست کو دائرہ اختیار کی بنیاد پر مسترد کر دیا اور ہائی کورٹ کا فیصلہ میرٹس پر برقرار نہیں رکھا۔

درخواست گزاروں کو مناسب فورم، یعنی خیبر پختونخوا سروس ٹریبونل، کے ذریعے اپنے مسائل کا حل تلاش کرنے کی ہدایت کی گئی۔

نتیجہ:

درخواست گزاروں کو اپنے پروموشن اور خدمات کی شرائط سے متعلق مسائل کے حل کے لیے خیبر پختونخوا سروس ٹریبونل کے پاس جانا ہوگا۔

Must read judgement

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Mr. Justice Qazi Faez Isa, C.J.

Mr. Justice Amin-ud-Din Khan

Mr. Justice Athar Minallah

Civil Petition No.6211 of 2021

(Against the judgment dated 12.10.2021 of the Peshawar High

Court, Mingora Bench (Dar-ul-Qaza) Swat passed in Writ

Petition No.562-M of 2020)

Ahmad Ullah and others

…Petitioners

Versus

District Education Officer (Male),

Buner and others

…Respondents

For the petitioners:

Mr. Shamsul Hadi, ASC

Syed Rifaqat Hussain Shah, AOR

For the respondents:

Not represented.

Date of hearing:

27.10.2023

ORDER

Athar Minallah, J.- The judgment dated 12.10.2021 of the High Court has

been assailed by eleven petitioners, who have sought leave by invoking the

jurisdiction of this Court under Article 185(3) of the Constitution of the

Islamic Republic of Pakistan 1973 (‘the Constitution’). The petitioners had

invoked the extraordinary constitutional jurisdiction of the High Court under

Article 199 of the Constitution. They had challenged the proceedings of the

Departmental Promotion Committee (‘DPC’) meeting held on 11.11.2019 to

consider eligible candidates to fill the vacant posts of Senior Certified

Teacher (‘SCT’) in District Buner, Khyber Pakhtunkhwa. They had further

prayed that the notification dated 25.02.2020, whereby the recommendations

of the DPC were approved and eligible civil servants were promoted, be set

aside.

The petitioners were appointed as Certified Teachers (‘CT’) in BPS-15

on ad hoc/contract basis in 2015. Their services were regularized on

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07.03.2018 under the Khyber Pakhtunkhwa Employees of the Elementary and

Secondary Education (Appointment & Regularization of Services) Act, 2017

(‘Act of 2017’). Section 3 described the terms and conditions relating to the

regularization and it, inter alia provided that the service promotions quota of

all service cadres shall not be affected. Section 4 explicitly provided that

employees whose services were regularized shall rank junior to all other

employees belonging to the same cadre who were in service on regular basis

and shall also rank junior to such other persons who, in pursuance to

recommendations of the Public Service Commission, were appointed to the

cadre regardless of their date of appointment. Moreover, the inter se seniority

of the regularized employees within the cadre was required to be determined

on the basis of their continuous service. After being regularized under the

Act of 2017 the petitioners had attained the status as civil servants and

grievances regarding their terms and conditions of service were amenable to

the exclusive jurisdiction of the Khyber Pakhtunkhwa Service Tribunal

(‘Tribunal’).

In 2019 the concerned department had initiated the process to consider

eligible candidates to fill twenty one vacant posts of Senior Certified Teachers

(‘SCT’) in BPS-16 in District Buner. The cases of the petitioners were not

forwarded to the DPC because, according to the terms and conditions of

regularization set out under the Act of 2017, their consideration for

promotion had not matured by then. They had also not completed the

required length of service. The petitioners who had invoked the jurisdiction

of the High Court had not contested their seniority determined in accordance

with the seniority set out under section 4 of the Act of 2017. They also did not

exhaust the departmental remedies provided under the law. The High Court

had entertained the petition but, without adverting to the question of

maintainability, dismissed the petition on merits. The learned counsel for the

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petitioner, at the very outset, was asked regarding maintainability of the

petition filed by the sixteen petitioners who had invoked the extraordinary

constitutional jurisdiction of the High Court, keeping in view the bar

contained under Article 212 of the Constitution. He has argued that the

petition was maintainable because no final order amenable to the jurisdiction

of the Tribunal had been passed by the competent authority. Moreover, he

has argued that fundamental rights of the petitioners were involved and,

therefore, the only efficacious remedy was by way of invoking the

jurisdiction of the High Court vested under Article 199 of the Constitution.

The maintainability of the petition was also argued on the ground that, since

the petitioners had been regularized, therefore, interpretation of the Act of

2017 was also required.

It is not disputed that the petitioners were regularized under the Act

of 2017 and consequently they had attained the status of civil servants. The

determination of the seniority quota of other employees who were in service

on commencement of the Act of 2017 was explicitly dealt with under section

4 ibid. The cases of the petitioners were not forwarded to the DPC because

their consideration for promotion had not matured by then. The competent

authority, thus, did not consider them eligible. They also did not exhaust the

departmental remedies individually. The District Education Officer (Male),

District Buner, through a letter dated 23.12.2019, informed the Director,

Elementary & Secondary Education, Khyber Pakhtunkhwa that the

petitioners were not eligible and the grounds were stated therein. The

petitioners preferred to invoke the extraordinary jurisdiction of the High

Court under Article 199 of the Constitution. It is noted that the question of

fitness was not determined since the petitioners were not considered for

promotion nor were they assessed by the DPC. As noted above, after

regularization, the petitioners enjoyed the status of civil servants. The

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conditions of regularization set out under the Act of 2017 governed the terms

and conditions of their service as civil servants. Their grievance before the

High Court was in relation to the question of eligibility to be considered for

promotion.

The constitutional command under Article 212 of the Constitution

starts with a non obstante clause and provides that the appropriate legislature

may, through an Act, provide for a Tribunal, inter alia, to exercise exclusive

jurisdiction in respect of the matter relating to the terms and conditions of

persons who are or have been in the service of Pakistan, including

disciplinary matters. Sub Article 2 of Article 212, which also starts with a non

obstante clause, further provides that where a Tribunal has been established

under clause 1 then 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 Tribunal extends. Clause 3 provides that an appeal shall

lie to this Court from a judgment, decree, order or sentence of a Tribunal if it

is satisfied that a case involves a substantial question of law of public

importance and leave has been granted accordingly. Pursuant to the

aforementioned constitutional command, the legislature of Khyber

Pakhtunkhwa has enacted the Service Tribunals Act 1974 (‘Act of 1974’). It

has been established to exercise jurisdiction in respect of matters relating to

the terms and conditions of service of the civil servants. Section 3(2) of the

Act of 1974 unambiguously provides that the Tribunal shall have exclusive

jurisdiction in respect of the matters relating to the terms and conditions of

civil servants, including disciplinary matters. Section 4 of the Act of 1974

provides that any civil servant aggrieved by any final order, whether original

or appellate, made by a departmental authority, in respect of any of the terms

and conditions of the latter’s service may, within thirty days of the

communication of such order, prefer an appeal to the Tribunal. Where an

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appeal, review or representation has been provided under the Khyber

Pakhtunkhwa Civil Servants Act 1973 (‘Act of 1973’) or any rules against any

such order then an appeal shall lie before the Tribunal if the aggrieved civil

servant has preferred a departmental appeal, application or review or

representation to such authority and a period of ninety days has lapsed from

the date on which such appeal, application or representation was preferred.

Section 4(b) of the Act of 1974 excludes from the jurisdiction of the Tribunal

an order or decision of the 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 post or grade. In the case before us, the petitioners were

declared ineligible to be considered for promotion and, therefore, their

grievance was amenable to the exclusive jurisdiction of the Tribunal. Section

9 of the Act of 1973 confers a right of a civil servant to be considered for

promotion to a higher post provided the latter is eligible i.e. possesses such

minimum qualification as may be prescribed in this regard. As a corollary,

only an eligible civil servant can be considered for promotion in accordance

with clauses (a) and (b), as the case may be, of sub Section 2 and Section 9 of

the Act of 1973. In case of non-selection posts, the promotion is made on the

basis of seniority-cum-fitness. The question of fitness becomes relevant only

when a civil servant is eligible to be considered along with other similarly

placed civil servants.

It is obvious from a cumulative reading of the Act of 1973 that

eligibility and fitness are distinct and their criteria is altogether different. The

question of determination of eligibility in the context of being considered for

promotion precedes the stage when fitness is assessed and determined by a

competent designated authority which, in these cases, was the DPC. The

determination of eligibility is made in the light of the prescribed conditions

and criteria. If a civil servant is determined to be eligible i.e. possesses such

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minimum qualification as may have been prescribed only then is the latter’s

case placed before the designated authority for making an assessment of

fitness for the purposes of promotion. Fitness to hold a higher post relates to

comparative suitability, keeping in view the quantification of performance

assessed on the basis of subjective decision based on objective criteria.1

other words, fitness is the subjective evaluation made by a designated

authority/forum on the basis of objective criteria.2

It is essentially an

assessment of the competence and performance of a civil servant who

becomes eligible to be considered for promotion. The subjective evaluation

on the basis of an objective criteria made by the designated authority/forum

cannot be substituted by a court or tribunal. It is also settled law that there is

no vested right to be promoted to a higher post. The right under the Act of

1973 is conferred to the extent of being considered i.e. assessed and evaluated

subjectively on the basis of an objective criteria if the bar of eligibility has

been crossed. The eligibility purely relates to the terms and conditions of

service, for example the prescribed length of service, quantification of the

marks relating to performance evaluation reports (PERs), completion of

training programs etc. The only factor which is excluded from the exclusive

jurisdiction and domain of the Tribunal is the decision of a designated

authority/forum regarding 'fitness', while eligibility and all other matters

relating to the terms and conditions of service are exclusively within the

domain of the Tribunal. The exclusive jurisdiction conferred upon the

Tribunal, pursuant to the clear constitutional command under Article 212,

ousts the jurisdiction of a High Court while exercising jurisdiction under

Article 199 of the Constitution to decide, entertain or adjudicate upon any

matter relating to the terms and conditions of service. The bar under Article

Tasleem Jan v. Muhammad Zaman(2005 SCMR 695)

2 Muhammad Anis v. Abdul Haseeb (PLD 1994 Supreme Court 539)

Muhammad Zahir Raja v. Federation of Pakistan (2012 SCMR 971)

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212 extends even when an order passed by the departmental authority is

without jurisdiction, mala fide, coram non judice, or in breach of the

fundamental rights guaranteed under the Constitution.3 Article 199 explicitly

declares the jurisdiction of the High Court to be subject to the Constitution

and, therefore, the bar under Article 212 of the Constitution, besides being a

constitutional command, is absolute to the extent of all those matters that fall

within the exclusive domain and jurisdiction of a Tribunal established under

the Act of 1974. This Court has consistently observed that before taking any

decision regarding admission of a constitutional petition brought by a civil

servant, the High Court is expected to first decide the question of jurisdiction,

having regard to the bar contained under Article 212 of the Constitution. It is

further noted that a plea taken by an aggrieved civil servant regarding

violation of fundamental rights guaranteed under the Constitution also does

not confer jurisdiction on a High Court under Article 199 of the Constitution.4

In the case before us, the grievance of the petitioners was essentially

regarding their terms and conditions of service as civil servants. The question

of eligibility was within the exclusive jurisdiction of the Tribunal and,

therefore, the petition was not maintainable under Article 199 of the

Constitution and thus the jurisdiction of the High Court under Article 199

was ousted in the light of the express bar contained under Article 212 of the

Constitution. The petition under Article 199 was not competent and the

grievance raised before the High Court was not justiciable. The petition was,

therefore, deemed to have been dismissed on the ground of maintainability

and not on merits. The findings and determinations made by the High Court

in the impugned judgment regarding the merits are per incuriam and shall not

Superintending Engineer v. Muhammad Khurshid (2003 SCMR 1241)

Peer Muhammad v. Government of Balochistan (2007 SCMR 54)

Asadullah Rashid v. Muhammad Muneer (1998 SCMR 2129)

I. A. Sharwani v. Government of Pakistan (1991 SCMR 1041)

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prejudice any proceedings that the petitioners may have initiated before a

competent forum to agitate their grievance.

8. The above are the reasons for our short order dated 27.10.2023 whereby

leave was refused and the petition was dismissed.

Chief Justice

Judge

Islamabad the

th October 2023

‘APPROVED FOR REPORTING’

M. Azhar Malik/Rameen Moin

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