Pakistan Case LawTANVEER AHMAD QURESHI Versus GOVERNMENT OF PAKISTAN
These constitutional petitions challenged administrative orders concerning the allocation, transfer, and subsequent reversion of civil servants between various occupational groups within the Central Superior Services of Pakistan. The core legal question was whether the High Court possessed jurisdiction to adjudicate these grievances, or if such matters were exclusively reserved for the Federal Services Tribunal under Article 212 of the Constitution. Relying on established precedent, the Court held that the constitutional bar under Article 212 is absolute regarding matters relating to the terms and conditions of service. Consequently, the Court determined that it lacked jurisdiction to entertain the petitions, even where the impugned administrative orders were alleged to be mala fide, ultra vires, or coram non judice, as such claims must be adjudicated by the Services Tribunal. Accordingly, the petitions were dismissed for lack of maintainability, with one petition dismissed as not pressed. The Court affirmed the principle that all disputes concerning the terms and conditions of civil servants, regardless of the nature of the alleged illegality, fall within the exclusive jurisdiction of the Services Tribunal.
- Does the High Court have jurisdiction to entertain a constitutional petition challenging the terms and conditions of service of a civil servant?
- Are orders alleged to be mala fide or ultra vires regarding civil service matters exempt from the jurisdiction of the Services Tribunal?
- Does the bar on jurisdiction under Article 212 of the Constitution of Pakistan 1973 apply to disputes concerning the allocation or reversion of civil servants between occupational groups?
NASIR ASLAM ZAHID, J. ‑‑‑This judgment will dispose of C.P. No.D‑173/1991, C.P. No.D‑157/1991 and C.P. No. D‑19/1991. We have heard M/s. Ghulam Hussain Abbasi, Raja Qureshi, Makhdoom Ali Khan and Mr. Naimur Rchman, Standing Counsel, Government of Pakistan.
2.In C.P. No. D‑173/1991, petitioner is Wasif Ali represented by Mr. Ghulam Hussain Abbasi, and respondents are Federation of Pakistan, Central Board of Revenue and Director Training. Directorate of Training Customs and Excise, Karachi. Petitioner's case is that he is a probationer Assistant Collector of Customs (in BPS‑17) in the Customs and Excise Group attending specialised training course in the Directorate of Training (Customs and Excise), Karachi. According to the petitioner, he passed the compewi,, examination for recruitment to the Central Superior Services of Pakistan Ht September 1989, securing 68th position on merit and his preference for scrvice group in order of merit was as follows:
the petitioner had passed his M.B.,B.S. Examination from Liaquat Medical College, Jamshoro, in 1985, with excellent academic record having secured 2nd position in First Professional M.B.,B.S. 2nd Position in 2nd Professional M.B.B.S. 1st position in 3rd Professional MBBS and 1st Position in Final Professional M.B.,B.S. He also secured four 1st Positions in different medical disciplines in the final professional M.B.,B.S. According to the petitioner he was declared as the best graduate of M.B.,B.S. of the year 1985 and, in recognition of his extra ordinary merit, he was awarded seven cold medals and conferred other honours. He also enrolled himself as a vision medical student of Harward Medical School Bostan, USA. According to the petitioner, but for his choice of career for the Superior Services of Pakistan. he would have been in the medical profession.
After qualifying for recruitment to the Central Superior (Services of Pakistan, according to the petitioner, he was selected for appointment as Assistant Collector (in BPS‑17) in the Customs & Excise Group (which was a second preference) by o0er dated 30‑10‑1989, and was required to report loa the training programme organised by the Civil Services Academy, Lahore Petitioner was also required to execute a surety bond in favour of the President of Pakistan ensuring petitioner's continuous service for the period of probation and three years thereafter. According to the petitioner, he successfully completed all assignments and training programmes and after qualifying in the common training programme at Civil Services Academy, Lahore, he assumed charge as an Assistant Collector Customs on 28‑7‑1990 in the Directorate " Training Programme at Karachi.
However, on 4‑2‑1991, he received an order of the same date signed by respondent 3 relieving the petitioner from the same date with the direction to report to Secretary CBR. According to the petitioner, his removal from on going training programme and purported transfer from Customs Service illegal and he continues to be on the pay‑roll of the Directorate of Customs. It may be observed here that the copy of the order dated 4‑2‑1991 relieving the petitioner from Directorate of Training, Karachi, shows that a copy of the said order was endorsed to the Secretary CBR "with reference to telephonic instructions, Secretary (AIT) CBR, Islamabad".
Petitioner has challenged the impugned order as illegal, being without jurisdiction and also as mala fide.
3.In C.P. No.D‑157/1991, petitioner is Tanveer Ahmed Qureshi, represented by Mr. Raja Qureshi. Respondents in this petition are the Government of Pakistan and Director‑General, Civil Services Academy, District Management Group, Lahore. Petitioner passed his M.B.,B.S. from University of Karachi in September, 1986. In 1989, he appeared in the examination for recruitment to the Central Superior Services of Pakistan. He passed the examination and was allocated foreign service group. Later on according to the petitioner, on his verbal representation made to the competent Authority, petitioner received a letter dated 23‑7‑1990 from the Government, whereby his group was changed to District Management Group. The petitioner commenced his specialised training programme for District Management Group at Lahore in the Civil Services Academy, but after completing a period of 7 months of specialised training programme to District Management Group (out of the total period of 9 months), according to the petitioner, he has been re‑allocated the foreign services group. The petitioner has challenged his reversion from District Management Group to Foreign Service Group.
4.Petition No. D‑19/1991 has been filed by Liaquat Ali Memon and 4 others. Petitioners are represented by Mr. Makhdoom Ali Khan. Respondents in this petition are Federation of Pakistan, Federal Public Service Commission and 5 others private respondents including Wasif Ali (Petitioner in Petition 173/1991) and Tanveer Ahmed Qureshi (Petitioner in Petition 157/1991). Petitioners Nos. 1 to 4 appeared in the Civil Services Examination in the year 1987 and after qualifying the same, Petitioner No. 1 was placed in Accounts Group, petitioner No. 2 in Foreign Service Group and Petitioners No. 3 and 4 in the Information Group. Petitioners Nos. 1 to 4 who are already in Civil Service than decided to re‑appear in the Examination of 1989 for improvement of their position to move to a superior group. Petitioner No. 5 took the examination for the first time in 1989. According to the petitioners, they qualified in the competitive examination of 1989 and on the basis of the total number of seats available for rural Sindh, according to the petitioners, as per merit, Petitioner No. 1 would have been allocated either District Management Group or Customs and Excise; Petitioner No. 2 would have been placed in Police; Petitioner No. 3 in either Foreign Services or Railways; Petitioner No. 4 in Police and Petitioner No. 5 in Income‑tax in view of the preference expressed by them. According to the petitioners, however, the Government failed to allocate these groups to the petitioners. According to the petitioners, the reason for not allocating the proper groups to the petitioners was that five seats, out of the total number of 12 seats declared for Rural Sindh, were allocated .illegally to private respondents Nos. 3 to 7 including Wasif Ali and Tanveer Ahmed Qureshi. According to the petitioners, in this Constitutional petition by reallocating respondents Nos. 3 to 7 from one group to another, the Government has illegally deprived the petitioners of the services and the groups to which they were entitled. The petitioners, in C.P. No. D‑19/1991, have challenged the re‑allocation of the groups of respondents Nos. 3 to 7 and for filling up of the vacancies in accordance with the applicable rules and procedures.
5.Mr. Naimur Rehman and Mr. Shahudul Haq have appeared for the official respondents in these petitions and Mr. Ghulam Hussain Abbasi has appeared for respondent No. 4, Wasif Ali, in Petition No. D‑19/1991. On behalf of the Government, a preliminary objection ha been raised that these petitions are not maintainable in view of the bar contained in Article 212 of the Constitution. On the other hand, Mr. Ghulam Hussain Abbasi, learned counsel for petitioner Wasif Ali in C.P. No. D‑173/1991, submitted that apparently in his case the impugned order dated 4‑2‑1991 was passed on the basis of some telephonic instructions and was, therefore, plainly mala fide in nature. He also referred to the principle of locus poenitentiae. It was also submitted that the bar contained in Article 21.2 of the Constitution was not absolute. In our view, these petitions are not maintainable as the remedy for the petitioners is to approach the Services Tribunal. Reference in this context is made to a Full Bench judgment of this Court in the case of Abdul Bari v. Government of Pakistan (PLD 1981 Kar. 290). It has inter alia been held in the Full Bench judgment that the orders which are even mala fide, ultra vires or coram non judice are within the jurisdiction of Services Tribunal. In the said judgment of the Full Bench of this Court, extensive references were made to decisions of the Superior Courts including the Supreme Court of Pakistan.
6.We may also refer to a recent decision of the Supreme Court dated 3rd July, 1991 in Civil Petitions Nos. 16‑Q and 17‑Q of 1991. In the case before the Supreme Court, petitioners had been reverted to their original groups. The High Court had held that the Constitutional petitions filed by the petitioners were not maintainable as their grievance arising of their reversion to their original groups could be enquired into by the Federal Services Tribunal. The matter was taken to the Supreme Court and the contention on behalf of the petitioners in the Supreme Court was that the question related to the suitability of the petitioners to appointment in particular occupational groups and as such the Services Tribunal was debarred from entertaining their appeals oil account of the bar contained in proviso (b) to section 4(1) of the Services Tribunal Act, 1973. Supreme Court dismissed the petitions, observing as follows:‑‑
"We find little merit in this contention. As already stated, the petitioners were appointed to the Accounts Group consequent upon the allocation made by the Federal Public Service Commission. After receiving their training they were posted as Accounts Officers. Subsequently, on their representation they were appointed to the District Management Group. Still later, the Federal Government changed its decision and reverted the petitioners to the Group to which they were originally appointed. The main question that needed consideration was not whether the two petitioners were suitable for appointment to the District Management Group but that, after living been appointed to the said Group they could be, consistently with the terms and conditions of their service, reverted to the Accounts Group. It was the Services Tribunal which alone could competently resolve this question after finding out from the circumstances which had led to the twice changing of the occupational Groups by the petitioners. The High Court was, therefore, right in holding that it had no jurisdiction to entertain the petitions. Leave is refused:"
7.In our view, the reliefs claimed by the petitioners in C.P. No.D‑173/1991 and D‑157/1991 are within the jurisdiction of the Federal Services Tribunal and as a result these petitions are incompetent in view of the specific bar contained in Article 212 of the Constitution. As regards Petition No.D‑19/1991, Mr. Makhdoom Ali Khan had submitted that in case Petitions Nos. D‑173 and 157 of 1991 were dismissed, his petition would become infructuous. In the circumstances, Petition No. D‑19/1991 is dismissed as not pressed. There will be no order as to costs.
8.We may, however, observe that once a particular group in Superior Services of Pakistan is assigned to a successful candidate on the basis of merit- cum‑his preference anal the candidate undergoes extensive training in such particular group which obviously involves great expenses and the candidate acquires expertise for service in such group, the decision to change the group is not expected to be taken for extraneous reasons.
A.A./T‑150/K Petitions dismissed.
Judges on this bench
- Nasir Aslam Zahid1,226 judgments
- Syed Haider Ali Pirzada649 judgments