PROVINCE OF PUNJAB Through Secretary, Education Department And Another vs SAEED AHMED KHAN
This appeal challenges an interim order of the Lahore High Court, which admitted a writ petition for regular hearing and suspended the appointment of a Director (Sports). The respondent, Saeed Ahmed Khan, had challenged the appointment of another individual, Miss Shahida Khanum, while simultaneously seeking his own promotion. The core legal question before the Supreme Court was whether the High Court possessed jurisdiction to entertain the writ petition given the bar imposed by Article 212 of the Constitution of Pakistan 1973 regarding service matters. The Supreme Court, having already disposed of a related appeal concerning the respondent's promotion, declined to decide the jurisdictional issue at the interim stage. Instead, the Court held that the High Court should determine the question of its own jurisdiction and the merits of the writ petition finally. The principle laid down is that where a writ petition involves complex service matters and questions of jurisdiction under Article 212, it is appropriate for the High Court to decide the matter finally rather than having the Supreme Court intervene at the interim order stage.
- Does the High Court have jurisdiction to entertain a writ petition regarding service matters in light of Article 212 of the Constitution of Pakistan 1973?
- Is it appropriate for the Supreme Court to decide the question of High Court jurisdiction at the interim stage of a writ petition?
- Article 212, Constitution of Pakistan 1973
- Rule 10(a), Punjab Civil Service (Appointment and Conditions of Service) Rules 1974
SAJJAD ALI SHAH, J.---In this appeal with leave of the Court is challenged order dated 14-3-1992 passed by the Lahore High Court in Writ Petition No. 1523 of 1992 filed by respondent herein Saeed Ahmed Khan, whereby the said writ petition is admitted for regular hearing with notice to the other side and meanwhile operation of order of appointment of Miss Shahida Khanum as Director Sports, Directorate General of Sports, Punjab, is suspended.
2. Writ petitioner has called in question Notification dated 13-1-1992 as without lawful authority and of no legal effect, by which Miss Shahida Khanum is .Appointed as Director (Sports). Writ petitioner has further prayed that he should be considered for promotion to that post.
3. In the memorandum of writ petition it is stated that the writ, petitioner as Assistant Director was waiting to be promoted as Deputy Director and in that connection he had filed appeal before the Punjab Service Tribunal, during the pendency of which, a seniority list dated 15-11-1990 was published showing writ petitioner at S. No. 1 of the list of Assistant Directors and was subsequently promoted as Deputy Director in BPS-18 with effect from 31-12-1990. He claimed promotion from the back date when the vacancy had occurred on 29-11-1984 and in that connection had filed appeal before Service Tribunal, which was allowed ante-dating date of promotion from 30-6-1985 when the Directorate General (Sports) Punjab Service Rules, 1985 were promulgated.
4. The Government of Punjab (Education Department) filed petition for leave to appeal in this Court against the order of the Service Tribunal and also against the order of the High Court in writ petition admitting the same for regular hearing and suspending operation of order of appointment of Miss Shahida Khanum. Leave has been granted by this Court by order common in both the petitions. In this appeal leave is granted to examine whether the High Court's jurisdiction was not totally barred in the matter in view of Article 212 of the Constitution.
5. At the leave grant stage operation of the interim order passed by the High Court suspending appointment order of Miss Shahida Khanum was suspended. We have heard both these appeals together. We have allowed Civil Appeal No. 514/92 and have set aside the order of the Service Tribunal to the extent of declaring promotion of Saeed Ahmed Khan effective from back date H3 when Directorate General, Punjab (Sports) Punjab Service Rules, 1985 were promulgated as it was not within the competence of the Service Tribunal to do so.
6.In this appeal since final order is not passed by the High Court and petition was filed in this Court against interim order, we feel inclined to allow the High Court to decide this writ petition finally including question of jurisdiction whether it is barred under Article 212 of the Constitution or not. We hold this view for the reason that it appears from the memorandum of writ petition that the writ petitioner has called in question appointment of Miss Shahida Khanum as Director (Sports) on acting charge basis to which she was not entitled as contemplated in Rule 10(a) of the Punjab Civil Service (Appointment and Conditions of Service)
Rules, 1974, which was added on 26-2-1983, benefit of which is claimed by the writ petitioner for himself. The, fact that connected civil Appeal No. 514/92 is disposed of by this Court holding that Service Tribunal was not competent to antedate the promotion of Saeed Ahmed Khan would also help in the disposal of the writ petition. In the circumstances and for the facts and reasons stated above, we dismiss this appeal with observation that the High Court should dispose of the writ petition finally within 2 months from the date of the announcement of the judgment by , this Court.
AA P-221/5