Muhammad Kamal Vs Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

W.P. No.6634-P/2024 Muhammad Kamal Vs.

Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others Date of Hearing 16.12.2025 For Petitioner(s): Muhammad Arsalan Afridi, Advocate.

For Respondent(s): Mr. Rehmat Ali, AAG.

JUDGMENT

IJAZ ANWAR, J. This writ petition has been filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer:- “It is, therefore, most humbly prayed that on acceptance of this writ petition, the following directions may kindly be issued:

A) by declaring null & void the provision of Section 4(A) of the Khyber Pakhtunkhwa Service Tribunal Act, 1974 to the extent of 90 days’ laps after the date of departmental representation of the civil servant as the same is unconstitutional restriction upon a civil servant for redressal of his cause of action.

B) by directing the respondents No.01 to 03 to amend the impugned Section 4(A) of the Khyber Pakhtunkhwa Service Tribunal Act, 1974 according to the fundamental rights enshrined in the constitution and decrease the time frame from 90 days into 07 days in transfer

cases and 15 days in other matters after the date of departmental representation of the civil servant.

C) by directing the respondent No.05 the worthy Chairman of the Service Tribunal to entertain the service appeal especially in transfer cases after seven days from the date of departmental representation and 15 days in other matters from the date of the departmental representation of the civil servant.

D) by directing the respondent No.04 to decide the departmental representation of the petitioner within 07 days positively.

Any other relief not specifically prayed for may also be granted in favor of the petitioner”.

2.Comments were called from the respondents who furnished the same, wherein, they opposed the issuance of desired writ asked for by the petitioner.

3.Learned counsel, representing the petitioner, argued that initially, petitioner has questioned his transfer order before this Court on the ground that after service of departmental appeal, a civil servant has to wait for a period of 90 days to approach the Khyber Pakhtunkhwa Service Tribunal, however, his Writ Petition No.5547-P/2024 was dismissed in limine vide judgment dated 13.11.2024 on the ground that the jurisdiction of this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. He further argued that the mandatory wait for decision of the departmental appeal of 90 days as provided in Section 4 of the Khyber Pakhtunkhwa Service Tribunals Act,

1974 (hereinafter to be referred as “the Act”) is violative of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973 and amounts to depriving a civil servant of approaching the Service Tribunal for invoking speedy remedy. He further argued that in view of the judgment of the apex Court reported in “2015 SCMR 456 titled “Ali Asghar Khan Baloch and others Vs. Province of Sindh and others”, such time frame of 90 days is not sustainable in the eyes of law.

4.Arguments heard and record perused.

5.We have noted that though, a Division Bench of the Hon’ble High Court of Balochistan in CP No.312/2022 decided on 20.12.2022 has struck down such provision in the Balochistan Service Tribunals Act, considering it to be violative of Articles 4, 9 and 10A of the Constitution of Islamic Republic of Pakistan, 1973, however, it is noted that the apex Court in the case titled “Ali Asghar Khan Baloch and others Vs. Province of Sindh and others (2015 SCMR 456)” also formulated the following issues:-

(1)Whether Section 4(i)(a) of the Service Tribunals Act restricting a Civil Servant from filing appeal to the Tribunal after lapse of 90 days is violative of the spirit and command of Article 10-A of the Constitution.

(2)Whether time frame provided by Section 4 of the Service Tribunals Act debarring an aggrieved Civil Servant to approach the Service Tribunal amounts to denial of the relief to him in terms of Articles 4, 9 and 25 of the Constitution;

and the matter is yet to be decided by the apex Court.

6.For declaring a law ultra vires to the Constitution, the Hon’ble Supreme Court of Pakistan has laid down the following rules in the case of “Lahore Development Authority Vs. Ms. Imrana Tiwana (2015 SCMR 1739)” which must be looked into by the Courts while considering the constitutionality of a law:- I. There is a presumption in favour of constitutionality and a law must not be declared unconstitutional unless the statute is placed next to the Constitution and no way can be found in reconciling the two;

II. Where more than one interpretation is possible, one of which would make the law valid and the other void, the Court must prefer the interpretation which favours validity; III. A statute must never be declared unconstitutional unless its invalidity is beyond reasonable doubt. A reasonable doubt must be resolved in favour of the statute being valid; IV. If a case can be decided on other or narrower grounds, the Court will abstain from deciding the constitutional question;

V. The Court will not decide a larger constitutional question than is necessary for the determination of the case;

VI. The Court will not declare a statute unconstitutional on the ground that it violates the spirit of the Constitution unless it also violates the letter of the Constitution;

VII. The Court is not concerned with the wisdom or prudence of the legislation but only with its constitutionality;

VIII. The Court will not strike down statutes on principles of republican or democratic government unless those

principles are placed beyond legislative encroachment by the Constitution;

IX. Malafide will not be attributed to the Legislature.

Similarly, in the case titled “Shahtaj Sugar Mills Ltd.

and others Vs. Government of Pakistan through Secretary Finance and others (2024 SCMR 1656)”, the apex Court also held as follows:- “9. The Constitution is based on the seminal principle of trichotomy of powers. The legislature makes the laws, the executive executes it while the judicial branch is entrusted with the duty to interpret it. Article 141 of the Constitution explicitly declares that, subject to the Constitution, the Majlis-e- Shoora (Parliament) may make laws, including laws having extra-territorial operation, for the whole or any part of Pakistan. Likewise, a Provincial Assembly may make laws for the respective province or any part thereof. Article 142 sets out the powers of the Majlis-e-Shoora (Parliament) to make laws. Article 77 expressly provides that no tax shall be levied for the purposes of the Federation except by or under the authority of an Act of the Majlis-e- Shoora (Parliament). The Constitution has clearly set out the limits for each organ of the State and crossing these limits amounts to encroaching upon the domain of the other and consequently breaching the provisions of the supreme law. As already noted, making the law falls exclusively within the domain of the legislature. The judicial branch has no jurisdiction to promulgate laws and, therefore, stringent rules and principles have been laid down in the context of the exercise of the power of judicial review, relating to examining the vires of a law promulgated by the legislature. The foundational rule of interpretation is a presumption in favour of

constitutionality. The burden to prove that the promulgated law is invalid is on the person who challenges its vires. Based on the said rule, this Court has enunciated the principle that law should be saved rather than be destroyed and that courts must lean in favour of upholding the constitutionality of legislation. The function of legislation is the exclusive prerogative of the legislature. The wisdom of the legislature to promulgate a law and to achieve a particular object and purpose cannot be questioned and, therefore, it is presumed that laws have been legally, validly and constitutionally promulgated on the basis of its competence. The courts have no jurisdiction or power to rewrite the laws and the Constitution. The promulgated laws or its provisions cannot be struck down lightly and it is the duty of the courts to make every possible effort to reconcile the statute to the Constitution and to strike it down when it becomes impossible to do so.3 The courts are not empowered to strike down a law or its provision on higher ethical notions or on the basis of philosophical concepts and no mala fide can be attributed to the legislature. It is the duty of the courts to give effect to the scheme of representative governance of the State which is the foundation and the edifice of the Constitution is built on it. This Court has, therefore, laid down stringent and narrow grounds in the context of striking down a law or a provision while exercising the power of judicial review”.

The Court further held that:-

10.The Constitution does not expressly empower the Majlis-e-Shoora (Parliament) to delegate certain functions to an outside agency, authority or a person. However, this Court has consistently held that delegation of certain powers and functions is not an unusual phenomenon, rather it has become

necessary in the present complex modern world to delegate certain functions in order to implement the object of a statute and to work out certain details. But, simultaneously, it is settled law that since the Majlis-e- Shoora (Parliament) is a creation of the Constitution, therefore, it cannot exceed the boundaries expressly set out therein. The power to exercise legislative authority expressly provided under the Constitution cannot be abdicated by the legislature by way of delegation. The difficulty in discerning the exact limits within which the legislature may avail itself of delegating certain functions to an outside agency or authority has been recognized in the United States by the Supreme Court. Chief Justice Marshal, who had delivered the opinion of the Court, observed that 'maker of the law may commit something to the discretion of the other departments, and the precise boundary of this power is a subject of delicate and difficult inquiry, into which a Court will not enter unnecessarily.

11.This Court, in Sirajul Haq Patwari's case has cautioned that the doctrine of impermissible excessive delegation of legislative power must be exercised with greatest circumspection. Hamood-ur-Rehman, J., as he then was, has observed that before striking down a law a great amount of caution and care was necessary because it was bound to result, of necessity, in upsetting the legislative scheme. The cardinal principle of interpretation of the law should be to interpret it in such a manner that it should rather be saved than destroyed. The courts should lean in favour of upholding the constitutionality of the legislature and it is therefore incumbent upon the courts to be extremely reluctant to strike down laws as being unconstitutional. It was emphasized that this power should be exercised only when absolutely necessary, for injudicious exercise of this power was likely to result in grave

and serious consequences”.

7.The Hon’ble Supreme Court of Pakistan in a judgment “PLD 2012 SC 923 (Baz Muhammad Kakar case)” while referring to the Indian, American and British cases, has elaborated the concept of independence of judiciary and has held that if the law is in conflict with constitution, the same can be declared void. The relevant paragraph of the judgment is reproduced for reference:- “65. Article 2A of the Constitution provides that independence of the judiciary shall be fully secured primarily to ensure that the Superior Courts play their due role in the enforcement of the Fundamental Rights of the citizens guaranteed under the Constitution. A host of other provisions incorporated in the Constitution point to the scheme and significance of the role to be played by this important organ of the State. Article 8 of the Constitution provides that if any law is found to be inconsistent with the Fundamental Rights provided in Chapter 1, Part II of the Constitution, such a law, to the extent of inconsistency shall be void. The Superior Courts, in the past, in exercise of the' powers of judicial review as has been discussed hereinabove, have been examining and declaring the laws void, meaning thereby that such laws are rendered inoperative constitutionally. Thus, it is concluded that the Superior Courts, while exercising the power of judicial review are possessed with; the jurisdiction to declare a law void to the extent of inconsistency with the Fundamental Rights, the principle of Independence of Judiciary or any other provision of the Constitution”. A Single Bench of the Hon’ble Lahore High Court in a

case “PLD 2011 Lahore 120 (Messrs Shaheen Cotton Mills, Lahore)”, while discussing the delegated legislation and executive action being ultra vires, has elaborated the principle in the following words:- “30. Where such limitations are purported to be imposed through a statute promulgated by the Federal or Provincial Legislature, the said Law must also stand the test of constitutionality by not being in violation of the Constitution or the other fundamental rights guaranteed thereby. If the limitations are purported to be imposed through delegated legislation, the additional test of not being uncertain, not unreasonable or ultra vires the parent statute and not in conflict with any other law would also apply. In case of executive action, the same must necessarily be taken in exercise of powers vested on it by Law and in accordance therewith without offending any other law or the Constitution or the fundamental rights guaranteed thereby”.

8.Keeping in view the above laid down principles by the Superior Courts, we will try to see how the provisions of “the Act” are violative of the provisions of the Constitution. Section 4 of “the Act”, having been questioned in the instant writ petition, as such, it is reproduced as under:- “4. Appeals to Tribunals: Any civil servant aggrieved by any final order, whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the

Tribunal having jurisdiction in the matter:

Provided that

(a)Where an appeal, review or representation to a departmental authority is provided under the Khyber Pakhtunkhwa Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred;

(b)no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining-

(i)the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade: or

(ii)the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement;

(c)no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, Explanation.--In this section, "departmental authority" means any authority other than a Tribunal which is competent to make an order in respect of any of the terms and conditions of service of civil servants”.

9.The above provision of law provides that in order to invoke the jurisdiction of the Service Tribunal against any order relating to the terms and conditions of service of a civil servant of which he/she finds himself/herself aggrieved, he/she has to submit a departmental appeal before invoking the jurisdiction of the Service Tribunal and a statutory wait of 90 days is provided for decision of the departmental appeal and submission of departmental appeal has a statutory backing under Section 22 of the Khyber Pakhtunkhwa Civil Servants Act, 1973. Section 22, also being relevant, is reproduced as under:- “22. Right of appeal or representation:

(1)Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed be made within thirty days of the date of such order.

(2)Where no provisions for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may within thirty days of the communication to him of such order make a representation against it to the authority next above the authority which made the order:

Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade”.

10.While the manner in which a departmental appeal is to be submitted is provided under the Khyber

Pakhtunkhwa Civil Servants (Appeal) Rules, 1986 which provides that departmental appeal be submitted before the authority next above the competent authority who passed the order impugned. Rule 3 of the Rules ibid provides a period of thirty days for filing such departmental appeal against the order of which a civil servant finds himself aggrieved while Rule 4 provides a manner in which a departmental appeal is to be submitted, whereas, Rule 5 provides for action to be taken by the appellate authority. Rule 5 of the Rules ibid, being relevant in the present controversy, is also reproduced as under:-

5.Action by appellate authority:

(1)The appellate authority after making such further inquiry or calling for such information or record or giving the appellant an opportunity of being heard as it may consider necessary, shall determine’

(a)Whether the facts on which the order appealed against was based have been established;

(b)Whether the facts established afford sufficient ground for taking action; and

(c)Whether the penalty is excessive, adequate or inadequate, and after such determination, shall confirm, set aside or pass such order as it thinks proper, provided that no order increasing the penalty shall be passed without giving the appellant an opportunity of showing cause as to why such penalty should not be increased.

(2)The competent authority against whose order an appeal is preferred under these rules shall give effect to any order made by the appellate authority and shall cause the order so passed to

be communicated to the appellant without undue delay”.

11.Thus, according to Rule 5 of the Rules ibid, the appellate authority is vested with vast powers to see whether the facts on which the order appealed against was based, have been established and that the action taken by the competent authority was according to law and whether the order impugned is in accordance with the provisions of law? While going through Rule 5, we find that the appellate authority has vast powers to interfere with the original orders and he can undo any order or pass any appropriate order he deems fit in the circumstances of the case.

12.The matters relating to terms and conditions of service of civil servants are required to be deliberated first at the departmental level and we have seen that after the matters are being taken before the appellate authority, very limited number of cases are left to be brought before the Service Tribunals, because, matters relating to terms and conditions of service are decided there and then by the appellate authorities.

13.The scheme of law as provided in different statutes either in the Federal/Provincial Service Tribunals, labour forums, Universities or in Semi-Autonomous and Autonomous Bodies, right of appeal within that forum is provided; besides, the apex Court has repeatedly held that

right of appeal is to be read in every statute irrespective of the fact that it is not provided there.

14.It is pertinent to mention here that recently, this Court in the case titled “Zakir Ullah Vs. District Health Officer, Swat and others (2022 PLC (C.S.) 886)”, directed that even where the matters not relating to the terms and conditions of service, still departments are obligated to provide for a grievance redressal forums so that instead of directly approaching the Courts, an aggrieved person has a remedy to avail the same at the departmental level. Pursuant to the orders of the High Court, the Provincial Government vide Notifications dated 07.12.2021 and 03.12.2021 constituted Grievance Redressal Committees for dealing with such matters at the departmental level in order to settle the same in the department concerned instead of constraining poor persons to approach the Courts. The period of 90 days, prescribed by the legislation for departmental authorities, is infact a timeline during which comments of the competent authorities are required; besides, if a matter relates to other civil servants, they can also be provided a right of hearing and such period can, under no circumstances, be curtailed, otherwise, it will throng the Courts with uncalled for litigation.

15.The apex Court in the case titled “Khyber Medical University etc Vs. Aimal Khan etc (Civil Petition No.3429-P of 2021 decided on 04.01.2022 (PLD 2022 SC

92)” has, while discussing the constitutional powers of the High Courts in the matters relating to public and private institutions, held that “it is not the constitutional mandate of the courts to run and manage public or private institutions or to mirco-manage them or to interfere in their policy and administrative internal matters. Courts neither enjoy such jurisdiction nor possess the requisite technical expertise in this regard. Courts should step in only when there arise justiciable disputes or causes of action between the parties involving violation of the Constitution or the law”.

16.The aim and object of the statutory period of 90 days before approaching the Service Tribunals is that the grievances of the civil servants are firstly to be considered at the departmental level and where such matters are not decided in the period provided by law, only then such matters are to be brought before the Service Tribunal concerned, irrespective of the fact whether the issues relate to the transfer orders or other terms and conditions of service of the civil servants; besides, the Service Tribunals have all the powers to grant interim relief as well as final orders in the matters.

17.The recent emphasis of the Courts as well as of the Government is to deliberate the matters firstly out of the Courts and in case, parties still find themselves aggrieved of any order then to approach the proper forums in the matter.

The aim and object of prescribing period of 90 days’ wait is

mainly for the purpose that the issue relating to the terms and conditions of service of a civil servant is to be deliberated at the departmental level and it can, under no circumstances, be considered to be violative of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973, because, after the decision of the departmental authorities or on completion of 90 days, such civil servant gets a further fair trial before the Service Tribunal concerned and under no circumstances, Article 10A debars the departmental authorities from deliberating the matters at the departmental level. Even otherwise, for maintaining discipline in the Departments, the Departments shall be given space firstly to decide the matters relating to civil servants at the departmental level. We are, therefore, of the view that Section 4 of “the Act”, under no circumstances, is violative of Article 10A of the Constitution of Islamic Republic of Pakistan, 1973.

18.For what has been discussed above, this writ petition, being misconceived, stands dismissed.

Announced Dt:16.12.2025 Senior Puisne Judge

Judge

(DB)Hon’ble Mr. Justice Ijaz Anwar and Hon’ble Mr. Justice Muhammad Ijaz Khan **محمدالله