2024 S C M R 563
[Supreme Court of Pakistan]
Present: Syed Mansoor Ali Shah, Amin-ud-Din Khan, Jamal Khan Mandokhail,
Ayesha A. Malik and Athar Minallah, JJ
Syed ASGHAR ALI SHAH and another---Petitioners
Versus
KALEEM ARSHAD and others---Respondents
Civil Petitions Nos. 167-P and 391 of 2022, decided on 15th January, 2024.
(Against the judgment dated 18.12.2021 passed by Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal in Service Appeal No.06-P of 2021)
Per Syed Mansoor Ali Shah, J; Amin-ud-Din Khan, Jamal Khan Mandokhail and Athar Minallah, JJ. agreeing; Ayesha A. Malik, J. also agreeing with regard to maintainability of present petitions but not with the reasons given for the same [Majority view]
Constitution of Pakistan---
----Arts. 212(2), proviso, 212(3) & 142---Order of a Tribunal created by a Provincial law---Appeal to the Supreme Court under Article 212(3) of the Constitution---Maintainability---Whether an appeal lies to the Supreme Court under Article 212(3) against an order of a Tribunal created by a Provincial law to which the proviso to Clause (2) of the Article 212 has not been made applicable---[Per Syed Mansoor Ali Shah, J. (Majority view): Proviso to clause (2) does not apply to clause (3) of Article 212 of the Constitution---Appeals against orders of the Provincial Administrative Tribunals are competent before the Supreme Court under Article 212(3) of the Constitution---Supreme Court over ruled the law declared in such regard in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190)]---[Per Ayesha A. Malik, J. (Minority view): As Article 212(1) of the Constitution itself confers jurisdiction on the Provincial Legislature to establish the Provincial Tribunal under Article 212(1), the Constitution also confers appellate jurisdiction to the Supreme Court from a judgment, decree, order or sentence of the said Provincial Tribunal---Discussion of the majority opinion in the instant matter on Entry 55 of the Federal Legislative List (FLL), is not relevant to the dispute at hand]
Per Syed Mansoor Ali Shah, J. (Majority view)
Clause (2) of Article 212 of the Constitution is merely an ouster clause and not a jurisdiction clause. In case of Federal Tribunals, it provides that no other court can take jurisdiction over any matter which falls under the subject matter of the Administrative Tribunal established under Article 212(1). If clause (2) has not been made applicable to a Provincial Tribunal, it at best means that there are other forums also available to redress the grievance of the officers, e.g., the High Court under Article 199 or the Civil Courts under section 9 of the Civil Procedure Code, 1908. In the absence of clause (2), all the judicial forums in a Province have concurrent jurisdiction along with the Provincial Administrative Tribunal. Once a civil servant invokes the jurisdiction of the Provincial Tribunal, the remedy of an appeal by leave against any decision of the Provincial Tribunal before the Supreme Court becomes alive. Remedy of appeal under clause (3) will not be available if the civil servant approaches the High Court or the Civil Court for the redressal of his grievance. Applicability of clause (2) to a Provincial Tribunal is totally insignificant as it has no effect on the remedy of appeal against the decision of the Provincial Tribunal before the Supreme Court which is ensured under clause (3).
Clause (3) is the third part of Article 212, which provides than an appeal shall lie to the Supreme Court from a judgment, decree order or sentence of the Administrative Tribunal, and the Supreme Court shall grant leave if the Supreme Court is satisfied that a substantial question of law of public importance arises in the case. Clause (3) has no correlation whatsoever with the ouster clause of clause (2). Whether a Provincial Tribunal enjoys the ouster clause or not, does not affect the appellate jurisdiction of the Supreme Court. Clause (3) is independently connected with all the administrative Tribunals, including Provincial Tribunals, established under Article 212(1). The appeal to the Supreme Court is available against orders of both the Federal and Provincial Administrative Tribunals by a special constitutional scheme provided under Article 212, which due to the non obstante clause is over and above any sub-constitutional legislation under the regular constitutional scheme.
The law declared in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190) that unless and until the proviso to Article 212(2) of the Constitution is activated, appeal against an order of a Provincial Tribunal is not available before the Supreme Court under Article 212(3) of the Constitution, and that in the absence of such a law passed by the Parliament, the decision of a Tribunal established under the Provincial law is to be challenged under Article 199 of the Constitution, is not correct and is therefore overruled.
Dean/Chief Executive, Gomal Medical College, Medical Teaching Institution, D.I. Khan v. Muhammad Armaghan Khan PLD 2023 SC 190 overruled.
Per Ayesha A. Malik, J. (Minority view)
Article 212(3) of the Constitution is the constitutional mandate which prescribes that leave to appeal before the Supreme Court for the Tribunal established under Article 212(1) of the Constitution can be filed directly, meaning thereby, the Constitution itself provides for the remedy of appeal before the Supreme Court. Both Sub-Articles (1) and (3) of Article 212 of the Constitution are exceptions to the legislative authority contained in Article 142 of the Constitution as the Constitution itself authorizes and permits the Federal and Provincial Legislature, irrespective of the authority given in Article 142 of the Constitution read with the Federal Legislative List (FLL), to establish the Tribunal and to allow its leave to appeal directly before the Supreme Court. Article 212(2) merely ousts the jurisdiction of other courts or fora. Resultantly, even though the Tribunal is established under Article 212(1), the ouster of jurisdiction of other courts is automatically triggered by Article 212(2) of the Constitution and with respect to federal courts but for the provincial courts it is necessary that the Provincial Assembly activate the proviso to Article 212(2) of the Constitution. In such case, the Tribunal will be an exclusive forum, which totally and completely ousts the jurisdiction of all other courts or fora with respect to the special subject-matters contained in sub Articles (a), (b) and (c) of Article 212(1) of the Constitution. However, if the proviso is not activated, meaning there is no resolution by the Provincial Legislature (followed by an Act of Parliament) the ouster of jurisdiction will not be triggered. Consequently, a litigant will have the option to avail its remedy before any other forum including the remedy before the Supreme Court.
The law declared in the judgment reported as Gomal Medical College v. Armaghan Khan (PLD 2023 SC 190) appears to read exclusivity and ouster as synonymous, because it relies on the principle that the Provincial Legislature cannot act upon the jurisdiction of the Supreme Court without intervening Federal legislation, hence, in order for the Tribunal to have exclusive jurisdiction, the proviso must be activated. This in turn means that if the proviso is activated, then the exclusivity of the Tribunal will mean ouster of the jurisdiction as well. However, exclusivity will not per se oust the jurisdiction of other courts without an express provision stating so as exclusivity of jurisdiction does not imply the ouster of jurisdiction. For ouster of jurisdiction to take effect an express provision is required which is precisely what Article 212(2) of the Constitution does. In other words, the proviso does not act as a bridge between Sub-Articles (1) and (3) of Article 212, rather it allows and empowers the Provincial Legislature to decide whether, for the purposes of the establishment of the Provincial Tribunal, remedy should lie exclusively to the Supreme Court or, in the alternate, giving more options to the litigant.
The discussion of the majority opinion in the instant matter on Entry 55 of the Federal Legislative List (FLL), is not relevant to the dispute at hand. The issue before the Court in this matter is simply whether the remedy of appeal as provided in Article 212(3) of the Constitution is available to the petitioners. The answer to this question is in the affirmative as this remedy has been provided, specifically and categorically, by the Constitution itself, and not by way of any ordinary legislation. Therefore, there is no issue pertaining to legislative competence under Entry 55 of the FLL.
Petitioner in -person (in C.P. 167-P of 2022).
Hafiz S. A. Rehman, Senior Advocate Supreme Court for Petitioners (in C.P. 391 of 2022).
Syed Hamid Ali Shah, Advocate Supreme Court and Syed Rafaqat H. Shah, Advocate-on-Record for Respondents (in C.P. 391 of 2022).
Hasan Nawaz Makhdoom, Additional A.G.P., Ch. Amir Rehman, Additional A.G.P., Ayyaz Shoukat, A.G. (Islamabad), Khalid Ishaq, A.G. (Punjab), Sanaullah Zahid, Additional A.G. (Punjab), Baleeghuzzaman, Additional A.G. (Punjab), Malik Waseem Mumtaz, Additional A.G. (Punjab), Sultan Mazhar Sher Khan, Additional A.G. (Khyber Pakhtunkhwa), M. Ayyaz Khan Swati, Additional A.G. (Balochistan) and Barrister Zeeshan Adhi, Additional A.G. (Sindh) for Respondents.
