Zer Ajam Vs Govt. of Khyber Pakhtunkhwa & others

IUDGEMENT SHEET

IN TI'IE PESHAWAR HIGH COURT,

BANNU BENCH

(udicial Depamnenq

W.P. No.283-Bl2021.

Zer Ajam Khan Versus Govt. of Khyber Pakhtunkhwa & others IUDGEMEtrI

Date ofhearing: 02.5.2023

For petitioner: Mr. Matiullah fan Khan, Advocate. For official respondents: Qayum Khan, Asstt: H.r-".

FAZAL SUBHAN. I.. Through instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution), amended up to date, the petitioner has made the following prayers:-

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2 Contents of the petition reveals that the petitioner being qualified as M.A Islamyat was appointed as Drawing Master on 11.4.1996 and since then he is performing his duties. According to the petitioner, his date of birth as per record is 07.01.1971. That the respondents are preparing seniority list of Drawing Masters annually for the purpose of promotion to the post of SST, however, the respondents have issued the seniority list on the basis ofdate oftaking over the charge instead of date of flrst appointrnent which is against the settled rules, policy and pronouncements of the superior courts and, therefore, he moved an application to the respondents raising his voice against the issuance ofincorrect seniority list on the basis of date of taking over the charge, however, his submission before the respondents went unheard. That the seniority list prepared by the respondents is against the law, facts and policy and, therefore, is liable to be declared null and void and the petitioner being senior in age, hence he has to be awarded his due seniority by placing him at the top of the seniority list. That the respondents were approached time and again but in vain, hence he filed the instant petition.

3 On filing of the writ petition comments of the respondent No.4 were called, which were filed. We have heard

arguments of leamed counsel for petitioner and leamed A.A.G for respondents and have considered the record.

4 At the outset, learned A.A.G raised objection to the filing of this writ petition in respect of the seniority of the petitioner and contended that the question of seniority relates to the terms and conditions of service and, therefore, in view of Article 212(lxb) of the Constitution, the same cannot be brought before this Court in constitutional petition. The learned counsel for petitioner when confronted with these submissions was unable to satisfu the conscious of this Court or to show any other ground in this respect.

5 It is clear from the record that petitioner is a civil servant and serving as Drawing Master in the Education Department and, therefore, the question of seniority agitated before us is covered by the terms and conditions of service, for which the relevant tribunal has already been established and the jurisdiction of this Court is barred under Article 212 of the Constitution. The august Supreme Court of Pakistan in case of "Khalil ITI atr Kakar and others-Vs-Provincial Police Offi cer Balochistan anC others" reported in (2021 SCMR ll6E) has held as follows:-

"9. The word'entertain'used in Article 212(2) of the Constitution is of significance importance.

This means that any petition or proceeding relating to the terms and conditions of service even should not be entertained by the High Court in its constitutional jurisdiction under Anicle 199 of the Constitution. In view of the facts and circumstances of this case, entertaining and then proceeding with the constitutional petitions amounts to defeating the express Constitutional mandate under which Tribunal is vested with jurisdiction to deal with the matters of civil servants. This Court in the case of Ali Aztrar Khan Baloch v. Province of Sindh (2015 SCMR 456) has held as under:-

"149. Article 212 of the Constitution ousts the jurisdiction of High Courts and civil Courts in respect of the matters pertaining to terms and conditions ofcivil 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, and, therefore, of necessity restricts the jurisdiction of civil courts and High Courts on the subject, which squarely falls within the exclusive domain of Tribunals.""

6 Thus in view of the fact that the petitioner is a civil servant, hence he cannot be granted any reliefthrough constitutional petition and his remedy lies with the Service Tribunal, hence, findings no merits in this writ petition, the same stands dismissed.

Announced.

lhfin'

IUI'GE

TD,D)

Honble l,fi, lusdce Foal Subhon & Horue Mr,lufiic. Dr Khutshid hbol

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