DR. Raja MANZOOR ELAHI vs NORTHWESTERN FRONTIER PROVINCE THROUGH CHIEF SECRETARY, GOVERNMENT OF N.W. F. P., PESHAWAR

ORDER

' SHAH ABDUL RASHID, J.-The petitioner, Raja Manzoor Elahi, has been retired from service by the Governor of the North-West Frontier Province in exercise of the powers under section 13(i) of the North-West Frontier Province Civil Servants Act (XVIII of 1973). The order of retirement has been challenged inter alia first on the ground that the petitioner has not yet completed twenty-five years of service qualifying for pension and other retirement benefits and secondly that the order of retirement is mala fide inasmuch as it has been passed on account of the petitioner's differences with the Secretary Agricultural who was annoyed with him for reasons stated in the petition.

2. We have heard Mr. Abdul Hakim Kundi, Advocate who has appeared for the petitioner. He contends that since the order of the Governor is prima facie without jurisdiction inasmuch as the retirement has been ordered prematurely and the question of mala fide is involved this Court has jurisdiction to strike down the order.

3. Under Article 212 (1) the appropriate Legislature and for that matter the Provincial Assembly has power to provide for the establishment of a Tribunal to exercise exclusive jurisdiction inter alia in respect of,- "matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters."

' The Assembly of the North-West Frontier Province has passed the North-West Frontier Province Service Tribunals Act (I of 1974) and section 3 thereof provides for the establishment of Tribunal. It is not disputed that the Tribunal as contemplated under section 3 ibid has actually been established and is functioning. Section 4 ibid 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 his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal. This provision read with Article 212 of the Constitution of Pakistan ousts the jurisdiction of all other Courts in respect of the matter on which the Tribunal can adjudicate. Section 13 of the North-Wes Frontier Province Act (XVIII of 1973), under which the petitioner has been retired, lays down the terms and conditions under which a civil servant can be retired from service. As the order of retirement is with regard to the term and conditions of the service of the petitioner, the same is appealable to the Tribunal under section 4 of the North-West Frontier Province Service Tribunals Act (I of 1974). This being the case the jurisdiction of all other Courts in view of Article 212 of the Constitution is ousted.

4. The learned counsel for the petitioner has, however, contended that since the order is without jurisdiction and is mala fide, this Court can, in exercise of its extraordinary jurisdiction under Article 199 of the Constitution, make an appropriate order. We are, however, unable to agree with this contention. Article 212, having been enacted in the Constitution itself, by its very language takes away the jurisdiction of all Courts including the High Court in matters with respect to which the Service Tribunal has been vested with the power by the Legislature. The language of Article 212 is plain and does not admit of any other interpretation. In fact clause (2) of the said Article in explicit words excludes the jurisdiction of the High Court under Article 199 as well when it provides that notwithstanding anything herein-before contained where any Tribunal is established no Court shall grant any injunction or make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Tribunal extends. The provision of the Article obviously encompass the provision of Article 199 as well and where the Tribunal has any jurisdiction in the matter, the said provision conferring extraordinary jurisdiction on the High Court cannot be invoked. It is a settled principle of interpretation of statutes, including constitutional documents, that where there is a special provision providing for certain contingency, the general provision would not apply and would yield to such special provision. Any order even if it is without jurisdiction or is mala fide can be challenged under Article 212 before the Tribunal and not before the High Court under Article 199 when it concerns the terms and conditions of a civil servant. In the case of Muhammad Aslam v.

Federation of Pakistan (1) the Lahore High Court has taken the same view.

(1) PLD 1974 Lab. 545

5. In view of the legal position stated above we hold that this Court has no jurisdiction under Article 199 of the Constitution to set aside the impugned order as the question involved is within the special competence of the Tribunal set up under North-West Frontier 'Province Service Tribunal Act (I of 1974) enacted under the authority of Article 212 of the Constitution.

6. The petition is rejected in limine.

7. .