Mushtaq Ahmad Vs Govt: of KPK and others

I

(Judicial Department)

W.P.No.666-B/2021.

Mushtaq Ahmad

Versus

Govt. of K.P,K and others

JUDGMENT

Date of hearing: 14.5.2025.

For petitioner: Mr. Ahmad Jan Khattak, Advocate. For respondents: Mr. Abdul Waheed Khattak, Asstt:

A.G.

MaHAMMAD TARIO AFRIDI, J,- The petitioner, 4 Mushtaq Ahmad, was initially appointed as a Forest Guard on 17.09.1990. His services were subsequently regularized with effect from 01.07.2000. He continued to serve in the said capacity until his retirement on 13.11.2019. Upon retirement, he was granted pensionary benefits for the regular period of his service of 19 years, 4 months, and 12 days. However, the period of his temporary service-from 17.09.1990 to 30.06.2000-was excluded from the computation of his pensionary benefits. Aggrieved by this exclusion, the petitioner has approached this Court by way of the instant writ petition under Article L99 of the Constitution of the Islamic Republic of Pakistan,1973,rcad with Paragraph2.3 of Chapter II of the West Pakistan Civil Services Pension Rules, 1963. He seeks a direction to the

respondents to include the aforementioned temporary service period in the calculation of his pensionary benefits, alongside his regular service up to 13.l I .2019.

2.Arguments heard. Record perused.

3.There is no dispute that the petitioner is an ex-civil servant, and that the relief sought pertains to the terms and conditions of his service. The Constitution and the governing legal framework provide that matters relating to the terms and conditions of service of a person who is or has been in the serviced of Pakistan fall exclusively within the jurisdiction of the Service Tribunal. Article 212 of the 4 Constitution establishes a specialized forum for such disputes, thereby ousting the jurisdiction of ordinary civil courts and High Courts. Despite this constitutional bar, petitions of such nature are occasionally brought before the High Court. However, a consistent line of jurisprudence from the Hon'ble Supreme Court has reaffirmed the exclusive domain of the Service Tribunal in such matters. In Ali Azhar Baloch and others vs. Province of Stndh and others (2015 SCMR 456),the Supreme Court held:

Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions of civil servants. In other words, the provisions of Article 212 do not confer a concurrent jurisdiction to Civil Courts, High Courts and Tribunals. The ouster contemplated under the said Article is a Constitutional command ffid, therefore, of necessity restricts the jurisdiction of Civil Courts

and High Courts on the subject, which squarely falls within the exclusive domain of Tribunal.

Similarly, in Chief Secretary Government of Puniab, Lahore and others vs. ItIs. Shamim Usman (2021 SCMR 1390), the Apex Court cautioned:

The High Court had no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which could be adjudicated upon by the Service Tribunal. The High Court as a Constitutional Court should always be mindful of the jurisdictional exclusion contained under Article 212 of the Constitution. Any ftansgression of such constitutional limitation would render the order of the High Court void and illegal.

a Furthermore, in Federatton of Pakistqn through Secretary Establishrnent v. M. Labib ur Rehman and others (2021SCMR 1554), it was held:

It is now established that any matter relating to terms and conditions of service is within the domain of administrative courts and tribunals established under Anicle 212 and even if the element of mala fides, ulfra vices or coram non judice is pressed into, the same can be entertained and decided by the said courts in its jurisdiction. There is no denial to this fact that the bare reading of the said Article is of significant importance especially with reference to its exclusive jurisdiction to entertain matters relating to i.r^r and conditions of service. Hence, in all eventualities any petition relating to terms and conditions of service is to be dealt with by adminisffative courts and tribunals specifically established for its adjudication in pursuance of Article 212 of the Constitution. As a general principle, the framers of the Constitution while inserting the said provision have ousted the jurisdiction of other courts including the High Court under Article

v 199 of the Constitution. There are certain exceptions depending upon the facts and circumstances on case to case basis because of the reason that the law is not static and the same is growing day by day, therefore, it cannot be said with certainty that in all eventualities the service issues cannot be called in question in Constitutional jurisdiction before the High Court. The Constitutional jurisdiction is always considered as extraordinary, which is to be exercised in extraordinary circumstances if so warranted, hence, the Constitutional jurisdiction cannot be curtailed stricto sensu leaving some room for its application where it is so demanding for safe administration of justice and fair play. The superior courts while exercising Constitutional jurisdiction must satisff themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in arry manner when an equally efficacious/adequate remedy is available under the statute for the redressal of the grievances of the litigants. Hence, the. superior courts should be reluctant to frustrate the statutory remedies while exercising their Constitutional jurisdiction, which otherwise has to be exercised sparingly while enabling to advance the legislative intent.

Additional guidance may be drawn fuom Peer Muhammad vs. Government of Baluchistan through Chief Secretary and others (2007 SCMR 54) and Kalimullah Kakar and others v. Provincial Police Officer, Balochistan and others (2021 SCMR 1 168).

4.In view of the foregoing constitutional provisions and authoritative pronouncements by the superior courts, this petition, seeking relief in respect of service-related matters of a civil servant, is barred under Article 212 of the

v Constitution. Consequently, the petition is found to be not maintainable for want ofjurisdiction and stands dismissed.

tlL Announced.

Dt: 14.5.2025 Ury Imran/* IUDGE

TUDGE

(D.B)

Hon'ble Mr. Justice MuhammadTariq Afridi Hon'ble Mr. Justice Abdul Fayaz

qeAIIIED I ,t