JURISDICTION OF HIGH COURTS IN SERVICE MATTERS
By:
NOOR ALAM KHAN ASC,
Member KP Bar Council, Peshawar
Member Executive SCBA of Pakistan
Chairman
Voice of Prisoners
As provided in Article 240 of the Constitution, the parliament
passed an Act in 1973, called as “Civil Servants Act 1973”, to regulate the
appointment of persons to, and the terms and conditions of Service of persons
in, the service of
212. Administrative Courts and Tribunals.--(1) Notwithstanding anything hereinbefore contained the
appropriate Legislature may by Act [provide for the establishment of] one or
more Administrative Courts or Tribunals to exercise exclusive jurisdiction in
respect of --
(a) matters relating
to the terms and conditions of persons [who
are or have been] in the service of
(b) matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding
anything hereinbefore contained, where any Administrative Court or Tribunal is
established under clause (1), no other court shall grant an injunction, make
any order or entertain any proceedings in respect of any matter to which the
jurisdiction of such Administrative Court or Tribunal extends [and
all proceedings in respect of any such matter which may be pending before such
other court immediately before the establishment of the Administrative Court or
Tribunal [;
other than an appeal pending before the Supreme Court,] shall abate on such
establishment]:
Provided that
the provisions of this clause shall not apply to an
(3) An appeal to
the Supreme Court from a judgment, decree, order or sentence of an
Fundamental principle which is enunciable from S.3 (2) of Civil Servants Act, 1973, is that the same hold out a guarantee to all civil servants that no action could ever be taken which could adversely affect term s and condition s of their service e.g. tenure of their employment; pay and grade earned by them through years of labour and hard work; right to promotion including legitimate expectancy of future advancement in their respective careers; retirement benefits such as pension, gratuity and provident fund etc. and all other terms and conditions which were prescribed by chapter II of Civil Servants Act, 1973, and by other laws, rules and regulations relating to the subject.[1]
If a civil servant aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of any of his terms and conditions of his service. the remedy, if any, is by way of an appeal before the Service Tribunal not the High Court. While dealing with maintainability of constitutional petition by a civil servant relating to “terms and condition s” of his service, it is settled that the exclusive jurisdiction to decide the same vested in the Service Tribunal and not the constitutional court.[2]
The purpose of this article is to
give you information relating to the jurisdiction of High Court in service
matter with the help of case laws and by discussing each and every terms and
condition of civil servants.
Appointment
Appointments to posts are to be made by competent authority under Civil Servants Act, 1973 and the rules made there under. Appointment should be made in prescribed manner. 1992 SCMR 468(d) + 1993 PLC (C.S) 39 + PLD 1990 SC 1013 + 2001 PLC (C.S) 400, 167 and strictly on merits. NLR 2000 TD 40 + 2000 PLC (C.S) 373 + PLD 1999 SC 484. There are two things necessary for an appointment against a post, which is Eligibility and Fitness. The question of eligibility to be considered for appointment or promotion to a post related to the terms and conditions of service and that jurisdiction of High Court under Article 199 of the Constitution is ousted. 1997 SCMR 1154 and Tribunal has the jurisdiction to entertain and decide appeal relating to eligibility. 2007 SCMR 1300. Any right denied on basis of eligibility or otherwise could be challenged before Service Tribunal. 2005 SCMR 695 + PLD 1996 SC 222. No right of appeal is provided to a civil servant against order of departmental authority determining “fitness” or otherwise of a person to be appointed or “hold a particular post” or to be “promoted” to a higher post or grade. 2011 SCMR 265. Services Tribunal has no jurisdiction in such matter. 2001 SCMR 1446 + 2000 PLC (CS) 1177 + 2004 PLC (C.S.) 1027. High Court cannot substitute its own opinion for appointing authority/selection committee. 1999 PLC (C.S) 201 Matter relating to appointment or withdrawal of appointment pertained to terms and conditions of Service and a dispute with regard thereto fell within the exclusive jurisdiction of Service Tribunal. 2002 CLC 1741 + 2013 SCMR 859
Abolition of post
Authority enjoyed plenary powers to carry out organizational and administrative changes within department by creating or abolishing posts according to impending needs and attending factors. Incumbent upon Authority to show preference for adjusting persons who have been rendered surplus, against available posts in basic pay scale to which Civil Servant fell, subject to fulfillment of qualifications and other conditions. 1999 SCMR 1566. Question of abolition of post might be within the exclusive competence of a particular authority but if it is used as a device for achieving an object not permitted by law, then it is a violation of the terms and conditions of employment. Service Tribunal, has exclusive jurisdiction to deal with the same. 1990 SCMR 999 + 1992 PLC (C.S) 1157 + PLD 1991 SC 514 + PLD 1985 SC 195
Absorption
Surplus personnel of Federal Security Force seeking absorption in Sindh Police Constabulary under policy of Federal Government. Order of termination of their service issued at behest of Inspector. General of Sindh Police by Commandant Sindh Constabulary. Matter involving terms and conditions of service. Could be agitated before Service Tribunal. Impugned order alleging breach of terms of service or violation of principles of natural justice. Constitutional petition before High Court, held not competent 1983 PLC (CS) 607
Ad hoc
appointment
Ad hoc appointment by its very definition, is of a person who is although qualified, yet his appointment is not in accordance with the rules. Civil servants, therefore, could not claim to be regular appointees, only required to undertake departmental examination and nothing beyond. High Court having not given finding to the effect that test, interview and selection procedure is not the one prescribed under the rules, avoidance of formal written test, interview and process of selection could not be permitted. Civil servant s' grievance related to terms and conditions of service which is exclusively triable by Service Tribunal. Judgment of High Court being without jurisdiction is set aside in circumstances. 1991 SCMR 2027. Ad hoc employee would acquire no vested right to remain in service and his services are liable to be terminated the moment a regular appointee is chosen. 2009 PLC (CS) 837. No right created in favour of appointee which could prevent appointing Authority from retracing their steps taken by them. Authority is competent to terminate services of ad hoc appointee without assigning any reason and without show-cause notice. Constitutional Petition against such termination of services being incompetent, deserved dismissal. 1989 PLC (CS) 8. Bar as contained in Article 212, Constitution of Pakistan would apply if the petitioner is a civil servant and matter concerned the terms and conditions of his service. termination of service ad hoc employees, even if unlawful, since concerns the terms and conditions of their service the Constitutional Petition under Article 199 of the Constitution of Pakistan is barred in view of Article 212 of the Constitution of Pakistan. 1997 PSC (CS) 1168 + 2005 PLC (CS) 205
Annual Confidential Report
(A.C.R.)
The Annual Confidential Report (ACR) is an evaluation report of
a Government servant. It contains specific observations regarding character,
conduct, integrity and performance of a servant. It reveals the clear picture
of a servant has to be reported upon, with regard to amongst others, his
personal qualities, standard of performance, dealing with others, potential
growth and his suitability for promotion, or to appoint to a higher post
according to individual aptitude. It is an important document. It is written
with a view to adjudge their performance every year in the areas of their work.
The columns of ACRs are, therefore, to be filled up by the Reporting and
Countersigning Authorities in an objective and impartial manner. Recording of adverse remarks in ACR of an employee is one
of the term and condition of his service. Service Tribunal is empowered to
examine the remarks. PLJ 1991 Tr.C (Service) 139 + 1983 PLC (C.S) 400 If adverse remarks have been recorded the civil servant
enjoyed a right to initially challenge the same before the next higher
authority of the Department on the grounds available to him including the one
that the adverse remarks have been recorded on subjective reasons and if his
grievance is not redressed, then the civil servant could approach the Tribunal
for redressal of his grievance. Service Tribunal is empoared to examine the
remarks on the basis of available material and if the Tribunal came to the
conclusion that Annual confidential Report has not been recorded property or it
is based on extraneous consideration or the allegation is not supported by the
material, then the Tribunal is competent to accept the appeal. 2002 SCMR 870 + 1984 PLC (CS) 444 + 1980 PLC (CS) 4
Confirmation
High Court could not be compelled to reinstate or confirm a person as reinstatement and confirmation both would depend on subjective assessment of particular incumbent. 2004 SCMR 44. Although a person is fit for confirmation as Assistant Sub-Inspector of Police. Constitutional Petition is dismissed by the High Court in view of bar contained in Article 212 of the Constitution. 2004 PLC (CS) 1277. Terms and Conditions of service ordained in Law. Not those specified in Constitution itself and as such jurisdiction under Article 98 (now Article 199 of the Constitution) cannot be invoked in respect of such matters. PLD 1970 SC 279
Correction of date of birth
If a civil servant wanted to get date of his birth changed although he being on verge of his retirement if he prayer pertaining to her date of birth is granted, date of her retirement would be automatically changed. Such prayer therefore, directly pertained to terms and conditions of plaintiff as civil servant. No court including High Court has jurisdiction in respect of terms and conditions of civil servant. 1991 MLD 824. 2000 SCMR 1110 + 1993 SCMR 1692. Plea raised with regard to age would fall within jurisdiction of Service Tribunal. Such suit would not be maintainable in view of bar contained in Art. 212 of the Constitution. 2004 PLC (C.S) 1162 (Sc) + 1999 PLC (CS) 544
Disciplinary matters
Service Tribunal has exclusive jurisdiction in respect of matters relating to terms and conditions including disciplinary matters against Civil Servants. 2002 SCMR 1023+ 1994 PLC (C.S) 209 + 1979 SCMR 498 + 1997 SCMR 343(b) + PLD 1976 Quetta 59 + 1993 PLC (CS) 345 + 1990 PLC (C.S) 533 + PLD 1992 Lah. 127(d) + 2002 PLC (C.S) 92, 1050, 1632 + 2003 PLC (CS) 654 + 2007 SCMR 1143 + 2004 SCMR 492. All questions of law and facts could be taken before Service Tribunal if order is passed by Departmental Authority and bar of Article 212, Constitution of Pakistan (1973) is squarely attracted to a disciplinary matter. 2000 PLC (CS) 145. Order of removal of civil servant is challenged on the grounds that the same has been passed mala fide, without notice of hearing and without Jurisdiction. Matter relating to terms and conditions of Service or disciplinary matter fell within the jurisdiction of Service Tribunal. Such matters could not be adjudicated upon by High Court under Article 199 of the Constitution. 1999 PLC (CS) 1082.
Grievance of civil servant is that the authorities initiated disciplinary proceedings against him and he is directed to proceed on forced leave. Validity. Not only the terms and conditions of the persons who are or has been in Service of Pakistan are provided in Article 212(1)(a) of the Constitution but it also included disciplinary matters. 2005 PLC (CS) 519.
Leave
Grant of leave is a matter falling under terms and conditions
of Civil Servant. Therefore, the Tribunal has the jurisdiction. High Court
refrain to exercise jurisdiction in such matter. 1995 PLC (C.S) 1221 Besides,
when a man enters government service, he undertakes to abide by the terms and
conditions of service and the rules and regulations governing his service which
include the Leave Rules in force and which are subject to amendment from time
to time. Such is not to say those Rules 16, 17, 18, 18-A & 19 of the
Revised Leave Rules, 1980 are good and are not oppressive. Said Rules could be
bad, unjust or oppressive, but the proper forum to assail those is not
Mala fide
Constitutional Petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of his service in respect whereof the Service Tribunal has jurisdiction. Even those orders challenged on the ground of mala fides being appealable before the Service Tribunal 1998 SCMR 1948 + 2002 PLC (CS) 57 + 2010 PLC (CS) 1200 + 1999 PLC (CS) 221 + 1999 PLC (CS) 51. Order challenged in Constitutional Jurisdiction on the ground of mala fides, being ultra vires and coram non judice. Constitutional Jurisdiction of High Court under Article 199 of the Constitution- stood excluded in the matters' relating to the terms and conditions of service in view of Article 212 of the Constitution. 1999 PLC (CS) 1340 + 1998 PLC (CS) 1371 (Supreme Court) Plea of civil servant s is that they are appointed in relaxation of ban, thus, impugned orders are illegal, mala fide, violative of principles of natural justice and without jurisdiction. Such controversy would fall within scope of terms and conditions of service. If High Court found appointments of civil servants to be legal, then in view of bar contained in Article 212(2) of the Constitution, High Court would not be competent to grant relief prayed for. 2005 PLC (CS) 24
Notifications
Government order (notification) is admittedly beyond the jurisdiction of High Court. Other reliefs claimed in Constitutional Petition to vest High Court with jurisdiction are only corollary of the notification of the Government. If High Court has no power to quash the Government notification relating to terms and condition s of service of civil servants it could not issue any writ of prohibition restraining Government from amending rules of service. What is not allowed to be done directly could not be done indirectly. Constitutional Petition filed before High Court is thus barred. 1994 MLD 632. Matters relating to examining the validity of Service Rules and Notifications and the fitness of civil servant to promotion to Higher post pre-eminently fall within the exclusive jurisdiction of the Service Tribunal and High Court would wrongly assume jurisdiction in such a case. PLD 1997 SC 351 + PLD 1994 Supreme Court 539 Notification challenged by petitioner in Constitutional Petition has laid down terms and conditions of recruitment and promotion of the civil servants which related to terms and conditions of service. Petitioner, in circumstances, is precluded from invoking Jurisdiction of High Court 2003 PLC (CS) 1110
Departmental instructions
Instructions issued by Competent Authority act as force of law/ rules. 2003 PLC (CS) 1468 + 2000 PLC (C.S) 231 + 1987 PLC (C.S) 647 + 1984 CLC 1331 + 1986 PLC (CS) 664 + 1989 PLC (CS) 738 + PLD 2000 L 1 + PLD 1961 SC 105 + PLD 1974 SC 291 + PLD 1973 SC 144 + PLD 1964 SC 21 + 1999 YLR 855 + 1990 SCMR 1618. Departmental instructions become enforceable in service matter. PLD 1990 SC 612. If the instructions are not followed by the Competent Departmental Authority, the proper course for the Civil Servant is to approach the appropriate Service Tribunal instead of coming to the High Court through Constitutional Petition. 1999 SCMR 784 Constitutional Petition in terms of Art. 199 of the Constitution is not maintainable in circumstances. 1998 PLC (CS) 49. Service Tribunal as appellate authority enjoyed Jurisdiction to modify sentence (awarded by Departmental authorities) and in the absence of any question of public importance it would not proper for the Supreme Court to interfere in the order of Service Tribunal. 2013 SCMR 572
Policy
matters
High Court has only jurisdiction to interpret the law, but has
no jurisdiction to take the role of policy maker. Constitutional petition would
not be maintainable to challenge policies of Government. 2003 Y L R 435 + PLD 2001 Lah. 506 + PLD 1997 Pesh. 5 + 2003 CLC 319 + 2002
CLC 147 + 2006 SCMR 1427 + NLR 1995 TD 384 + 1999 MLD 3397 + NLR 2005
Pay
Constitutional Petitions are not maintainable as fixation of pay and allowances squarely fell within the domain of terms and conditions of a civil servant. High Court in exercise of Constitutional jurisdiction declined to interfere in the matter. 2011 PLC (CS) 231 + 1992 SCMR 1341. Relief in the matter of enforcement of such terms and conditions is provided in the Service Tribunals Act, 1974. Such requirement being satisfied, Jurisdiction of civil Court under Article 212 of the Constitution stood completely excluded. 1994 SCMR 1263.
Matter relating to salary of civil servants having a direct nexus with the terms and conditions of service of the employees, objection to the jurisdiction of the High Court to entertain a Constitutional petition is not technical in nature but going to the very root of the case. Service Tribunal alone is the appropriate forum having jurisdiction to deal with matters relating to the terms and condition s of civil servants in view of the bar contained in Article212 of the Constitution.. PLD 2001 SC 1032 + 1989 PLC (CS) 7.
Posting
and transfer
Question of posting and transfer of a government servant squarely falls within the jurisdictional domain of competent authority, subject to law and rules made therefore, question of posting/transfer relates to terms and conditions of a government servant, Service Tribunal, therefore, has the exclusive Jurisdiction to dilate upon and decide such matters. Constitutional Jurisdiction of High Court cannot be invoked to get such controversies resolved. 2007 SCMR 54 1992 SCMR 365, 1843, 1213 + 1998 SCMR 219, 245 + PLD 1960 SC 105 + 2000 PLC (C.S) 1369, 1040, 426, 1554 + 2002 PLC (C.S) 324, 1037, 675 + 2005 SCMR 890 + 2012 PLC (CS) 606 + 2012 PLC (CS) 323 + 2012 PLC (CS) 489.
Deputation
Civil servant has no vested right to complete deputation period and the matter is relating to terms and conditions of service. Constitutional jurisdiction as conferred upon High Court under Art.199 of the Constitution cannot be invoked. 2010 SCMR 378
Deputationist through constitutional petition could not claim permanent absorption in borrowing department as it was the prerogative of borrowing department to determine tenure of deputation, to revert/return deputationist or to absorb a deputationist permanently. Determination whether or not petitioner lawfully stood permanently absorbed in borrowing department was the matter pertained to terms and conditions of service of petitioner, therefore, Art.212 of the Constitution would come into play ousting jurisdiction of High Court to entertain and adjudicate upon the matter 2012 PLC (CS) 54
Grant of deputation allowance has direct nexus with terms and
conditions of service. Jurisdiction of High Court is barred under Art.212 of
the Constitution. High Court dismissed constitutional petition in
circumstances. 2013 P L C (C.S.) 391
Probation and Probationers
High Court dismissed civil servant’s Constitutional Petition against termination of their services during probationary period on the ground that such matter being related to terms and conditions of service of civil servants, Jurisdiction of High Court is barred under Article 212 of the Constitution. Validity. High Court’s judgment that it lacked jurisdiction is not shown to be suffering from any infirmity in law. 1998 SCMR 749. Probationers, therefore, on having completed the period of 2 years of probation successfully would be deemed to have attained the status of civil servants for the purpose of S.2-A, Service Tribunals Act, 1973, conferring thereby jurisdiction upon the Service Tribunal to grant them relief under S.4, Service Tribunals Act, 1973. PLD 2003 SC 724. Termination of service of petitioner during probation period is duly warranted by law and he is not entitled for any relief from High Court. 2010 PLC (CS) 856
Promotion
Three rules things are to be seen while considering a case of promotion; the first rule is that; is it a part of selection or of seniority-cum-fitness or of seniority alone; second is, where the promotion is to take place by seniority-cumfitness, the question would necessarily be assignment of the correct seniority and proceedings to determine the entitlement of promotion on its basis and third question necessarily would be a fitness for promotion. Principles of promotion and the assignment of proper seniority for consideration for promotion are matters which did not stand excluded from the jurisdiction of the Service Tribunal, because those did not involve the question of fitness which has been expressly reserved for departmental Authority and are outside the jurisdiction of the Tribunal. Distinction is drawn between the question of fitness of a civil servant for promotion and question of eligibility to promotion. jurisdiction of Service Tribunal is barred where the question of fitness of a civil servant for promotion is involved. Determination of eligibility, is a question on which jurisdiction of the Service Tribunal has not been barred. 2010 PLC (CS) 165. The question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned, and, therefore, the Tribunal has jurisdiction and not the High Court 1998 PLC (CS) 901 + 1997 SCMR 1154 + PLD 1997 SC 351 + 1998 SCMR 2058 + PLD 1996 SC 222 + 2012 PLC(CS) 1104 (SC). And whereas the question of fitness is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or of a Court and, therefore, the Tribunal has no jurisdiction on the question of fitness. P L D 1994 Supreme Court 539 + PLJ 1997 Tr.C (Service) 264 + PLJ 1994 Tr.C 188 + 1998 PLC (C.S) 180, 1175 + PLD 1997 SC 382 & 351 + 2002 SCMR 1056 + 2005 SCMR 695 + 2003 SCMR 1191 + 2002 PLC (CS) 1002 + 2007 SCMR 682 + 2006 PLC (CS) 1014 + 2010 PLC (CS) 165. Question of suitability and fitness for promotion is within the exclusive domain of the Government/ Authority. 2001 PLC (C.S) 157 + 2001 SCMR 1446 + 1999 SCMR 1605 + 2000 SCMR 1056 + 1992 SCMR 1869 or 1669 + 2000 PLC (C.S) 563, 157 + 2002 SCMR 1056 & 574 + PLD 2003 SC 110 + 2003 PLC (CS) 212, 1048, 1110.
When a civil servant is eligible for promotion but is ignored and other eligible person is promoted then his appeal before the Service Tribunal would be competent, while in the present case, appellant (aggrieved civil servant ) failed to show that the promoted civil servant is ineligible for promotion. Service Tribunal, in circumstances rightly declined to interfere. PLD 2008 SC 769.
Regularization
Contract employees has no right to invoke constitutional jurisdiction. where their services are terminated on completion of period of contract. As all respondents are covered under the definition of workman, they are entitled to one month's notice or salary in lieu thereof, as permissible to them under the rule of master and servant. Supreme Court set aside the judgment passed by High Court in favour of contract employees of Pakistan Telecommunication Corporation Limited. Appeal is allowed. PLD 2011 SC 132. Government has the prerogative to formulate policy of recruitment in accordance with law and Constitution. No legal or vested right of the petitioners is likely to be infringed due to regularization of the contract employees, they has no ground to invoke the constitutional jurisdiction of High Court. Petitioners, being civil servants, if apprehended any threat to terms and conditions of their services, are barred under Art.212 of the Constitution to approach the High Court under its constitutional jurisdiction. 2012 PLC(CS) 286 + 2005 PLC (CS) 205. Mere continuance of employment of a temporary employee for two years or more in service did not ipso facto convert the appointment perm ant one. PLJ 2005 SC 821 And employee appointed/engaged on contract/part time basis has got not vested right to claim for being absorbed/appointed on regular /permanent basis. 2007 PLC (CS) 737 (Supreme Court)
Re-instatement
Matter relating to reinstatement of Civil Servant is one of terms and conditions of service and dispute about such matters fell within exclusive jurisdiction of Services Tribunal. Jurisdiction of the High Court is barred in such matters by express provisions of Article 212(2) of Constitution of Pakistan (1973). Services Tribunal has exclusive jurisdiction in the matter. 1999 SCMR 650 + 1982 SCMR 1047 + 1998 PLC (CS) 734.
Resignation
Resignation is a term and condition of
Service Contention that resignation not being specifically dealt with in Civil
Servants Act or Service Tribunals Act as such not a matter affecting terms and
conditions of Service of a civil servant and High Court under Constitutional
jurisdiction can proceed with matter. Contention, held, not correct as
resignation which brings to an end, employment of a person, relates to and
concerned with terms and conditions of employment and mere fact that it has not
been, specifically dealt with by statute or rules framed there-under, would not
suffice. 1983 PLC (CS) 527. When a Civil servant,
having himself tendered resignation
which has been accepted by competent Authority, could not recall the same after
more than one year. Service Tribunal
has dealt with all the aspects of the case. No point of law of public
importance being involved in petition, leave to appeal is refused. 1991 SCMR 440
Retirement
Person having retired from Service would fall within purview of definition of 'civil servant' Act; and is competent to invoke the jurisdiction of Service Tribunal for redressal of any grievance relating to the terms and conditions of his Service. 2011 PLC (CS) 945 + 2006 PLC (CS) 876+ 2004 SCMR 107
Pension
It is now well-settled proposition of law that a person who enters in Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. [NLR 2005 Service Lah. 52] A retired person could not be claimed the benefit of new pension scheme. 1999 PLC (C.S) 5 Pension has to be determined on the basis of qualifying service and not on the basis of total length of service. NLR 1991 CLJ 706. Non-granting of pensionary benefits to retired Army Officer for non-completing tenure of 10 years civil service. Such matter purely related to terms and conditions of his service. Proper forum for redressal of such grievance is Service Tribunal not the Ombudsman. 2007 SCMR 1313.
Seniority
A Civil servant who has been wrongfully denied his rightful seniority in service is entitled to seek redress before the Service Tribunal in properly instituted proceedings. Jurisdiction of High Court is barred. 1994 SCMR 759+ 1997 PLC (C.S) 216, 114, 211 + 1995 PLC (C.S) 1151 + 1994 PLC (C.S) 1607, 569 + NLR 1996 TD Service 316 + 1999 PLC (C.S) 349 + 1998 SCMR 969 + 2009 PLC (CS) 83. When a civil servant is aggrieved of fixation of seniority remedy against seniority list is representation/appeal to competent authority and Competent Authority passed an order reviewing the seniority list, against which order law provides a remedy byway of filing appeal before Service Tribunal. 2010 PLC (CS) 563. When a civil servant in his petition sought determination of his seniority. Such matters are also could not be adjudicated by the High Court in exercise of its Constitutional jurisdiction. 2001 PLC (CS) 1239. Direction of High Court whereby dispute of seniority between parties is virtually decided, are set aside by Supreme Court in appeal against holding that case fell within jurisdictional competence of Service Tribunal and outside realm of High Court, while exercising Constitutional jurisdiction. 1999 PLC (CS) 941. Tentative seniority list even if mala fide, ultra vires or coram non judice would fall within ambit of jurisdiction of Service Tribunal. Constitutional petition is not maintainable. 2005 PLC (CS) 811
Suspension
Suspension order or holding of inquiry against civil servant being step towards passing of final order, Constitutional petition is not maintainable against such interim order. Petitioner, in circumstances, could not challenge order of his suspension in Constitutional petition, he would have remedy to file appeal before the Service Tribunal.. 2002 PLC (CS) 816 + 1990 PLC (CS) 550 + 2001 PLC (CS) 781 + 2002 PLC (CS) 1632. Suspension of Civil Servant from Service being not separable from his terms and conditions of the Service. 2001 PLC (CS) 781 Jurisdiction of High Court under Art.199 of the Constitution to scrutinize the same stands ousted. 2001 PLC (CS) 623 Tribunal alone has the jurisdiction to adjudicate upon such matter in appropriate proceedings. Jurisdiction of High Court in the matter is barred under Article 212 of Constitution. 2000 PLC (CS) 118 + 2001 PLC (CS) 623.
Tenure of office of servants civil
When a person belonging to a particular service or cadre is transferred to another cadre or autonomous body, the same amounts to deputation and terms and conditions of such civil servant have to be settled between borrowing and lending authority. Tenure of such appointment is also term and condition of service as per civil Servants Act, 1973 2012 PLC (CS) 54.
Non-grafting of pensionary benefits to retired Army Officer for non-completing tenure of 10 years in civil service. Petitioner is civil. servant and such matter purely related to terms and conditions of his service. Proper forum for redressal of such grievance is Service Tribunal and not the Ombudsman. 2007 SCMR 1313.
Petitioner's removal/transfer from office of Chairman, Textbook Board before expiry of his tenure period. Validity. Service Tribunal. thus, would have jurisdiction to redress grievance of petitioner in terms of law applicable to him at crucial time. Order of removal/transfer of petitioner as Chairman. Textbook Board would, thus, be appealable before Sindh Service Tribunal. jurisdiction of High Court is barred by Article 212 of the Constitution. Petitioner could approach Service Tribunal for condonation of delay in filing appeal or seeking benefit of S. 14, Limitation Act, 1908. 1998 PSC 1385.
Termination of service
Petitioner who is a civil servant challenged orders of his termination from service in Constitutional petition. Orders of termination of servant having been passed by Competent Authority pertained to terms and conditions of service. Such orders even if are mala fide, could be dealt with only by Service Tribunal. Constitutional Petition is dismissed. 1999 PLC (CS) 221 + 2011 PLC (CS) 270 + 2008 SCMR 314 + 2004 SCMR 521. High Court dismissed civil servant’s Constitutional petition against termination of their services during probationary period on the ground that such matter being related to terms and conditions of service of civil servants, jurisdiction of High Court is barred under Article 212 of the Constitution. Leave to appeal to Supreme Court is declined in circumstances. 1998 SCMR 749 + 2010 PLC (CS) 1200.
Rules
Government is competent to improve, alter or amend or frame the rules. 1990 SCMR 3121 + PLD 1988 SC 155, 362 + PLD 1997 SC 351 + PLD 1994 SC 539(d) + PLD 1995 SC 701 + If a statutory rule adversely affects the terms and conditions of a Civil Servant, the same can be treated as an order in terms of S.4(1) in order to file an appeal before the Service Tribunal. 1991 SCMR 1041(d) + 1998 SCMR 68 (d) + PLD 1980 SC 153 + 1998 PLC (CS) 36. In Muhammad Zafar Bhatti case, amendment made by authorities in rules regarding promotion was assailed before High Court. High Court declared the amendment as ultra virus of the vested rights of civil servants. Supreme Court hold that the High Court has no jurisdiction in the matter and judgment passed by High Court was set aside. PLD 2004 SC 317
Stay Order by
High Court
Article 212 (2) of the Constitution provides that “no Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of Administrative Court or Tribunal extends.” When the dispute is relating to terms and conditions of service, the high Court is required to first determine question of its jurisdiction before making any stay order in such matter. 1997 SCMR 169 + 1997 SCMR 167 + 1997 SCMR 1124. Order granting status quo by High Court, is vacated and their application for interim relief in High Court, is dismissed. 2001 PLC(CS) 236 High Court before granting interim stay order having not adverted to question of jurisdiction with reference to provision of Art. 212 of the Constitution, petition for leave to appeal was converted into appeal and was allowed with direction to High Court to pass fresh order on stay application after attending to and deciding question of its jurisdiction with reference to provision of Art. 212 of the Constitution. 1998 SCMR 220. Frequent transfers of civil servant though were Highly unusual, but that fact would not take away jurisdiction from Service Tribunal. Even mala fide order could be challenged before Service Tribunal. High Court in circumstances, had fallen into error in admitting writ petition to regular hearing and also issuing stay order. Order of High Court was set aside in appeal by Supreme Court. 1999 PLC (CS) 1252
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