2023 PLC(CS)N 7

MUHAMMAD SAFAR MEMON Versus PROVINCE OF SINDH

Citation2023 PLC(CS)N 7

CourtSindh High Court

Judge(s)Khadim Hussain M. Shaikh and Irshad Ali Shah

ORDER

KHADIM HUSSAIN M. SHAIKH, J.---- By means of this petition, the petitioners Muhammad Safar Memon and 52 others, have filed this petition with the following prayers:-

1. Declare the act of the respondent No.4 issued the impugned order/letter dated 24.04.2020 for withdrawal of the ante-date seniority of the petitioners given in year 2015 in pursuance of judgment dated 21.08.2014, passed by learned Service Tribunal in Service Appeal No.105/2014 filed by the batchmate of the petitioners, as such the act of the respondent No.4 is illegal, unlawful having no legal effect.

2. Declare that vest right of the petitioners have accrued against the ante-date seniority in rank of A.S.I from 06.06.1996 same could not be withdrawn in mechanical manner.

3. To declare that the internal correspondence going on amongst the various official respondents from 2 to 4 designed to disturb the existing seniority rights of the petitioners in ultra vires, mala fide and against the principles of natural justice. Rights in existence cannot be taken away even by the competent legislature.

4. Declare that orders relating to the seniority rights of the petitioners as that of sub inspectors along with their batch mates in pursuance of the judgment passed by the learned Service Tribunal on 21.08.2014 has attained finality under Articles 212(2) and 212(3), 1973 and become passed and closed transactions.

5. Suspend the operation of the impugned order dated 24.04.2020, issued by the respondent No.3 without lawful authority and set aside the same.

6. Grant any other relief appropriate in the circumstances of the case.

2. Petitioner Muhammad Safar Memon and 52 others, who all are Civil Servants, working in Sindh Police Department as Sub-Inspectors (BPS-14), have called in question, the subject letter No.105 dated 24.04.2020, issued by Deputy Inspector General of Police, Larkana Range, whereby the service books of the petitioners and others were directed to be provided for settlement of their seniority, as is evident from the copy of the said letter available at pages Nos.175-180.

3. Learned counsel for the petitioners while addressing the Court on the question of maintainability of this petition in view of bar contained under Article 212 of Constitution of Islamic Republic Pakistan, 1973, has submitted that the impugned letter dated 24.04.2020 has been issued by the Deputy Inspector General of Police, Larkana Range with mala fide intention, which per learned counsel, will affect the seniority of the petitioners, therefore, this petition is maintainable. The learned counsel has placed his relied upon the cases of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185), Government of Punjab, through Secretary Education, Civil Secretariat, Lahore and others (2009 SCMR 1) and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499).

4. Admittedly, the petitioners are civil servants and the matter is involving the questions relating to the terms and conditions of service of civil servants; in such a matter, only the Service Tribunal concerned has the exclusive jurisdiction to decide all the questions including the question of mala fide, if any, and the jurisdiction of all the other Courts including High Court is expressly barred thereto, in view of the specific constitutional embargo contained in Article 212 of the Constitution. And, thus this petition is not entertainable. The contention of the learned counsel for the petitioners that the impugned letter dated 24.04.2020, issued by the Deputy Inspector General of Police, Larkana Range, is tainted with mala fide, therefore, this petition is maintainable, being untenable is rejected, for even the plea of mala fide does not confer upon High Court, the jurisdiction over the matters like the matter one in hand, in view of the constitutional ouster as contained in Article 212 ibid as discussed supra. Reliance in this context is placed on the case of Peer Muhammad v. Government of Balochistan through Chief Secretary and others [2007 SCMR 54], wherein the Hon'ble Supreme Court of Pakistan has held that:-

"The question of posting/transfer relates to terms and conditions of a Government servant and Service Tribunal would have exclusive jurisdiction to dilate upon and decide such matter and Constitutional jurisdiction cannot be invoked to get such controversies resolved---the provisions as contained in Article 212 of the Constitution of Islamic Republic of Pakistan ousts jurisdiction of all other Courts and orders of the departmental authority even though without jurisdiction or mala fide can be challenged only before the Service Tribunal and jurisdiction of Civil Court including High Court is specifically ousted. The plea of mala fide does not confer upon High Court jurisdiction to act in the matter in view of the Constitutional ouster as contained in Article 212 of the Constitution of Islamic Republic of Pakistan and learned Service Tribunal has full jurisdiction to interfere in such like matters. In this regard we are fortified by the dictum laid down in case Kh. Abdul Wahid v. Chairman WAPDA 1986 SCMR 1534."

In the case of Punjab Textbook Board, Lahore and others v. Muhammad Akhtar Sherani and others [PLD 2001 Supreme Court 1032], the Hon'ble Supreme Court of Pakistan has observed that:-

"In our considered view the objection to the jurisdiction of the High Court to entertain a writ petition raised on behalf of the petitioners therein, was not technical in nature but going to the very root of the case. This Court has repeatedly held that the Service Tribunal alone is the appropriate forum having jurisdiction to deal with matters relating to the terms and conditions of service of civil servant in view of the bar contained in Article 212 of the Constitution."

In the case of Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others [2011 SCMR 592], the Hon'ble Supreme Court of Pakistan has observed that:-

"2. As far as, objection raised by learned Additional Advocate General Sindh with regard to jurisdiction of the High Court to decide the case under Article 199 of the Constitution pertaining to the terms and conditions is concerned, it seems to be valid prima facie, but in the instant case order has been implemented and it would create hardship for the Respondents if any adverse order against them is passed. However, it is observed that in future the High Court may determine before entertaining such writ petitions as to whether the jurisdiction to decide such cases is barred under Article 212 of the Constitution, particularly when the matter pertains to Terms and Conditions of the employees."

5. In view of what has been stated above, this petition, filed against the impugned letter dated 24.04.2020, which even otherwise is not final, as is even conceded by the learned counsel for the petitioners, in our humble view, besides being not maintainable, is apparently aimed to thwart the process of settlement of the seniority of the petitioners and other employees of Police Department, Larkana Range. The case law cited by the learned counsel for the petitioners being distinguishable on facts and circumstances is not helpful for the petitioners as none of the cited cases involved the facts and circumstances as are involved in the case one in hand. In such view of the matter, this petition is dismissed in limine along with the other listed application.

ZC/M-124/SINDH Petition dismissed.