Mst. SHAHEEN AKHTAR And Other vs Mst. FARHAT YASMEEN And Others
This matter concerns a petition for leave to appeal against a High Court order regarding a service dispute between two teachers, Mst. Shaheen Akhtar and Mst. Farhat Yasmeen, involving their respective postings and transfers. The core legal question was whether the High Court properly exercised jurisdiction in a service matter where both parties had initially invoked its writ jurisdiction, leading to conflicting orders regarding their postings. The Supreme Court held that while the High Court lacked jurisdiction in service matters and should not have entertained the petitions, it declined to interfere with the impugned order because the High Court's decision essentially placed both parties on an equal footing and sought to accommodate them near their homes, as previously assured by the Department. The key principle laid down is that while the High Court lacks jurisdiction in service matters, the Supreme Court may decline to interfere with an order that does not perpetrate injustice, even if that order was passed without proper jurisdiction, particularly when the parties themselves invoked that jurisdiction and the outcome is equitable.
- Does the High Court have jurisdiction to adjudicate service matters in a Constitution Petition?
- Can the Supreme Court decline to interfere with an order passed by the High Court in a service matter if no injustice has been perpetrated?
- Should a High Court order in a service matter be treated as a precedent for the exercise of jurisdiction in future service disputes?
ORDER
SALEEM AKHTAR, J: --Mst. Shaheen Akhtar, petitioner in C.P.LA. No.463 of 1993, seeks leave to appeal against the order passed by the learned Judge in Chambers of the High Court in the Constitution Petition filed by respondent No. l. Petitioner is a PTC teacher and at the relevant time was posted in Government Girls Middle School, Dhodha, District Chakwal. She applied for leave which was allowed from 15-2-1993 to 14-6-1993 by order passed by DDEO (W), Chakwal. Respondent No. l was appointed against the aforestated leave vacancy on 21-2-1993. On expiry of leave petitioner did not report on duty and during her absence she was transferred to another school and thus posting of respondent No. l in place of petitioner was made permanent. After remaining absent from duty for 45 days, petitioner reported for duty. In this new situation which she faced, she filed Constitution Petition in the High Court challenging the validity of the transfer order dated 10-7-1993. It seems that during the hearing Mr. Naeem Qureshi, Assistant Director (Schools), Rawalpindi Division had appeared in Court and assured that the petitioner and respondent No. l would be accommodated by posting them at places near to their home on or before 22-8-1993. The petition was thus disposed of in these terms on 15-8-1993. In the wake of this order, DDEO (W) on 16-8-1993 withdrew the previous order dated 10-7-1993 and both petitioner and respondent No. l were directed to report back at their previous stations. Respondent No. l feeling aggrieved by this order, filed Constitution Petition in the High Court which was disposed of by the impugned order. The learned Judge noted that in matters relating to transfers and service disputes the High Court has no jurisdiction, but proceeded to dilate upon the facts and contentions raised by the learned counsel for the parties. He further noted that as the previous order was passed relating to service matter in a Constitution Petition, "interest of justice demands that the present petition too should not straightaway be dismissed, but should get similar treatment at the hands of this Court as had been done earlier". However, this could not be treated as a precedent for exercise of jurisdiction in service matters. With these observations and dilating upon the facts, allegations and counter- allegations, the petition was accepted and it was ordered that petitioner and respondent No. l must be accommodated near their home.
2. Mr. Muhammad Munir Peracha, learned counsel for the petitioner contended that the order is without jurisdiction and should not be allowed to operate. We are conscious that the petitioner as well as respondent No. l could not have invoked jurisdiction of the High Court in service matters, but unfortunately they did so and orders were also passed by the High Court. By the impugned order both the parties seem to be at equal footing and no injustice has been done to any one of them. It has been left open for the Department to make necessary order for transfer to schools which may be near to their home as assured by the representative of the Department earlier. In view of these facts, we are not inclined to interfere with the impugned order as no injustice has been perpetrated on any party. We refuse to grant leave.
3. C.P.LA. No.464 of 1993 filed by Mst. Shakila Akhtar is also dismissed.
3-A. In view of the above, there is no force in the criminal original petitions which are also dismissed.