JAVED HUSSAIN SHAH vs GOVERNMENT OF PUNJAB and others

ORDER

' ZIA MAHMOOD MIRZA, J.---Petitioner is aggrieved of an interim stay order dated 3-3-1997 passed by a learned Judge of the Lahore High Court in a Constitutional Petition (W.P. No,4753 of 1997) filed by Syed Hamid Gul Shah, respondent No,5 herein and he seeks leave to appeal against the said order. By an order dated 11-3-1997 passed by me in Chamber, it was directed that the stay matter (C.M.A. No,134-L of 1997) together with the petition for leave to appeal be fixed in the next week and meanwhile the petitioner, if so advised, may make an application in the High Court seeking the recall of the impugned interim stay order.

2. It is stated at the Bar that the petitioner has since moved an application (C.M. No,3 of 1997) in the High Court for vacation of the interim order contending therein that since the matter agitated by the respondent through Constitutional Petition related to the terms and conditions of his service, jurisdiction of the High Court was barred under Article 212 of the Constitution. Notice of this application, it appears, was issued to the respondent/writpetitioner on 14-3-1997 but no final order, it is submitted, has been passed so far.

3. We have heard the learned counsel for the petitioner as also the learned counsel appearing for the respondent/caveator. The main grievance of the petitioner is that the dispute raised by the respondent in the High Court through Constitutional Petition could only be agitated in an appeal before the Service-Tribunal which has exclusive jurisdiction in such matters and the jurisdiction of the High Court is barred by virtue of Article 212 of the Constitution. The learned Judge in the High Court, however, passed the impugned stay order without attending to the question of jurisdiction.

As noted above, petitioner has specifically raised an objection to the jurisdiction of the High Court through a Misc. Application (C.M. No,3 of 1997) which application is stated to be still pending It is not being denied that the learned Judge in the High Court before passing the impugned stay order did not advert to the question of jurisdiction with reference to the provisions of Article 212 of the Constitution. In the circumstances, we convert this petition into an appeal and allow the same with the direction that the High Court may pass a fresh order on the stay application of the writ- petitioner after attending to and deciding the question of its jurisdiction with reference to the Provisions of Article 212 of the Constitution.