SUPERINTENDING ENGINEER, HIGHWAYS CIRCLE, MULTAN and others vs MUHAMMAD KHURHSID and others

ORDER

JAVED IQBAL, J.---The controversy regarding grant of B-16 to the respondents with retrospective effect has been set at naught vide judgment impugned whereby it has been directed to award B- 16 to the respondents w.e.f, 15-1-1976, legality whereof has been challenged by the petitioners in view of the bar imposed under Article 212 of the Constitution of Islamic Republic of Pakistan. There is no doubt that matter relates to the terms and conditions of service as evident from the prayer of the respondents made in the writ petition which is reproduced hereinbelow for ready reference:- ' "In the circumstances submitted above, it is most humbly and respectfully prayed that by accepting this petition with costs the respondents may be directed to act according to learned--- grant BS-16 to the petitioners with effect from 15-1-1976 immediately with all back-benefits such as arrears of pay as a result of fixation of pay including one increment from 15-1-1976 and attending benefits of pay on promotion to the post of Assistant Engineers/Sub-Divisional Officers as also benefit of increase in gratuity and pension. Any other relief, which this Hon'ble Court, considers appropriate under the circumstances of the case may also very graciously be awarded to the petitioners."

2. Heard Mr. Aziz Ahmed Chaughtai, learned Advocate Supreme Court on behalf of petitioners who mainly argued that no such order could have been passed by the learned High Court while exercising Constitutional jurisdiction by awarding B-16 to the respondents with retrospective effects. It is also contended that subjective assessment to assess the competency falls within the jurisdiction domain of competent authority which aspect of the matter has been ignored by the learned High Court which resulted in serious miscarriage of justice.

3. Mr. M. Anwar Bhaur, learned Advocate Supreme Court appeared for caveators and supported the judgment impugned by reiterating the reasons contained therein with further submission that it was not a case of promotion but illegality committed by the department has been cured which could have been done in exercise of Constitutional jurisdiction.

4. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of provisions as contained in Articles 199 and 212 of the Constitution. We are of the considered opinion that the provisions as contained in Article 212(2) of the Constitution and section 6 of the Service Tribunals Act, 1973 make it abundant clear that after the constitution of Service Tribunal the jurisdiction of all other Courts regarding service matters has been ousted. There is no cavil with the proposition that "Constitutional jurisdiction of High Court, would be declined where the petitioner has not exhausted all remedies available to him before filing_ of Constitutional petition and aggrieved party must approach specific authority for the redressal of his grievances.

Even otherwise where a particular statute provides a self-contained machinery for the determination of questions arising under the Act as where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by the High Court is bound to produce a sense of distrust in statutory Tribunal." 1989 CLC 1938 (DB), PLD 1989 Kar. 157 (DB). "Where, therefore, a petitioner without exhausting his remedy provided by the statute under which he complained had filed a writ petition, it was held that the application in the circumstances would not lie." (PLD 1990 Quetta 41, 1987 CLC 1229 (DB), PLD 1988 Pesh. 9, PLD 1967 Dacca 6 (DB), PLD 1967 Dacca 708."

5. In the case of Zafar-ul-Ahsan v. Republic of Pakistan (PLD 1960 SC 113) this Court laid down the principle of the ouster of the jurisdiction of Courts which were not kept in view while passing the impugned judgment. It was held:--

(1) If a statute provides that an order made by an authority acting under it shall not be called in question in any Court, all that is necessary to oust jurisdiction of the Courts is that--

(a) the authority should have been constituted as required by the statute;

(b) the person proceeded against should be subject to the jurisdiction of the authority;

(c) the ground on which action is taken should be within the grounds stated by the statute;

(d) the order made should be such as could have been made under the statute.

(2) These conditions being satisfied, the ouster is complete even though in following the statutory procedure some omission or irregularity might have been committed by the authority.

(3) If an Appellate Authority is provided by the statute the omission or irregularity alleged will be a matter for the Authority, and not for a Court of law.

' (Punjab Small Industries Corporation v. Ahmed Akhtar Cheema 2002 SCMR 549).

6. It is regretted to note that learned Single Judge in Chambers has not kept in view the principles of ouster as mentioned hereinabove while passing the judgment impugned. Be as it may, the question of grant of B-16 with retrospective effect does not fall within the jurisdictional domain of learned High Court and Service Tribunal has the exclusive jurisdiction to dilate upon the controversy and decide the same and it squarely falls within its jurisdictional domain.

' In sequel to above mentioned discussion this petition is converted into appeal which is accepted and judgment impugned is hereby set aside.