MUHAMMAD YOUSAF vs THE SECRETARY, MINISTRY OF DEFENCE, RAWALPINDI

The petitioner through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has prayed for issuance of a direction to respondents 1 and 2 to decide as to what set of rules/regulations in the matter of service conditions and conditions of work are applicable to the civilian employees of the Special Communication Organisation, Rawalpindi to avoid discriminatory treatment meted out by respondent No. 2. In the alternate, it has been prayed that a direction be issued to respondent No. 2 to pass a final order on the representation of the petitioner.

2. Parawise comments have been filed on behalf of respondent No. 2. At the very outset learned counsel for the respondent No. 2 has raised an objection about the maintainability of this petition.

3. The learned counsel for the petitioner has tried to meet the argument by asserting that when no alternate or efficacious remedy is available, Constitutional jurisdiction of this Court can be invoked.

The argument is not legally sound.

4. The petitioners are civilian persons and are on active service in the Special Communication Organisation, which is Military Organisation. This being so, the Constitutional jurisdiction of this Court is barred under clause (3) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 which reads as under: -- "199. Jurisdiction of High Court.---(1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law--

(a) on the application of any aggrieved party, make an order--

(i) directing a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation a Province or a local authority; authority, to refrain from doing anything he is not permitted by law to do or to do anything he is required by law to do; or

(ii) ...............

(b) ................

(i) ................

(ii)................

(c)................

(2)................

(3) An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the the being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law.

5. A perusal of section 2(1)(c) and section 8(1) of the Pakistan Army Act makes the controversy clear. It reads as under: -- "2. Persons subject to the Act.---(1) The following persons shall be subject to this Act, namely,

(a) ................

(b) ................

(bb) ..............

(c) persons not otherwise subject to this Act, who on active service, in camp, on the march, or at any frontier post specified by the Federal Government by notification in this behalf, are employed by, or are in the service of or are followers of, or accompany any portion of the Pakistan Army.

Section 8 of the Army Act, 1952 defines the words "active service" as under: -- "(1) "active service" as applied to a person subject to this Act, means the the during such person is attached to or, forms part of a force which is engaged in operations against any enemy or is engaged in military operations in, or is on the line of march to, a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country . "

6. It is, thus, established that the petitioners being on active service are subject to Army Act, 1952.

This being the position, this petition is not maintainable and it is accordingly dismissed leaving the parties to bear their own costs.