Ejaz Ahmad Vs Govt etc

PESHAWAR HIGH COURT, ABBOTTABAD BENCH.

FORIM OF ORDER SHEET

Date of order of I order or other Proceedings with Signature of Judge (s) Proceedings

09.05.2023 WP No. 4 5-A/2023 Present [/r. l\/uhammad Arshad Khan Tanoli, Advocate, for the petitioner

KAMRAN HAYAT MIANKHEL. J .- Through the petition in hand petitioner has challenged judgment of Khyber Pakhtunkhwa Service Tribunal Peshawar passed in Service Appeal No. 739-A12019, which was ctismissed vide judgment dated 22.09.2022, and has prayed for the following relief:-

"lt is, therefore, humbly prayec) that, on acceptance of the instant writ petiiion impugned judgment / decree of learnerl KP Service Tribunal dated 22.09 2022 may be set aside and respondent No 1 to 4 may graciously be ordered to revise seniorily list dated 14.04.2019 after placing the name of the petitioner at serial tVo B of the seniority list of assisfanf s after taking into account the turn of the petitioner for promotion as senior clerk in 2004 with all back benefits and respctndents may also be directed to revise seniority list of assisfanfs accordingly Any other relief wltictt this tlon'ble Court deem appropriate irt titc circunstances of the case ma)/ also l;c granteC to the petitioner "

2.l-earned counsel for the petitioner arqued that

under proviso to Article 212 (2) of Constitution of lslamic Republic of Pakistan, 1973 (hereinafter to be referred as the Constitution) provides that direct appeal to the Supreme Court can only be made when tVlajlis-e-shoora (Parliament) extends the provisions of Article 212(2) of the Constitution to such a Court or Tribunal established under an Act of a Provincial Assembly Placed his reliance on Apex Court judgment in Civil Appeal No. 1474 of 2021 decided on 15.11 2022. He further argued that as the Khyber Pakhtunkhwa Service Tribunal is formed under the Khyber Pakhtunkhwa Service Tribunal Act, 1g74 and as no request has been made by the provincial Assembly in the form of resolution to h/lajlis-e-shoora (parliament) under proviso to Article 212 (2) of the constitution, so this court has the power to hear the instant writ petition

3.We have heard preliminary arguments of learned counsel for the petitioner and gone through the record

4.lt will be convenient to begin by reproducing Article 212 of the Constitution, which provides as follows: - "272. 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 exclusivejurisdiction in respect of'-

(a)matters relating to the terms and conditions of perso ns who are or have been in the service of Pakistan, including disciplinary matters;

(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 suctr authority acting in the discharge of his duties as such servant, or

(c)matters relating to the acquisition, administration and disposa/ of any property which is deemed to be enemy property under any law.

(2)Notwithstanding anything hereinbefore contained where any Administrative Couft or l-ribunal is esfab/ished 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 lurisdiction of such Administrative Court or Tribunal extends ancl all proceedings in respect of any such matter which may be pending before such other court imntediately before the establishment of the Administrative Court or Tribunal; other than an appeal pending before the Supreme Court, shallabate on such establishrnent Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, fVlajlis-e-Shoora (Parliament) by law extends the provisions to sr.tch a Cour! or -f ribunal

(3)An appeal to the Supreme Courl from a judgment, decree, order or sentence of an Administrative Court or Triburtal shall lie only if the Supreme Court, being safisfied that the

case involves a subsfantial question of law of public importance, grants leave to appeal." 5 Proviso to Article 212 (2) of the Constitution clearly adumbrate that any Administrative Court or Tribunal established under an Act of a Provincial Assembly will come in the purview of Article 212 (2) of the Constitution when A/lajlis-e-Shoora (Parliament) gave its approval and enact the necessary legislation for extension of provisions of Article 212 (2) to such a Court or Tribunal and that too on the request/resolution of Provincial Assembly lf both these stages are surpassed, the proviso becomes applicable and its effect is the same as that of federal legislation and so all judicial remedies are closed and the only avenue left open for redressal is an appeal to this Court in terms of Article 212(3) of the Constitution of lslamic Republic of Pakistan, 1973. Now this court has to see that whether necessary approval has been granted by tr/l ajl i s-e- Sh oo ra ( Pa rl iament) or not?

6.lVlajlis-e-Shoora (Parliament) in this regard passed an Act namely the Provincial Service Tribunals (Extension of Provisions of the Constitution) Act, 1974 which reads as below: -

"WHEREAS the Provincial Assem blies for Baluchistan the North-West Frontier Province, the Punjab and Sind have made in the form of resolutions fhe request that the provisions of clause (2) of Article 212 of the Constitution of the lslamic Republic of Pakistan be extended to the Servrce Tribunals respectively

f

estab/ished under Acts of those Assemb/ies, AND WHEREAS if is expedient to extend the said provisions to the said Service Tribunais, /t is hereby enacted as follows -

1.Short title and commencement.- (1) This Act may be called the Provincial Service Tribunals (Extension of Provisions of the Cc:nstitution) Act, 1 97 4

(2)lt shall come into force at once

2.Provisions of Article 212 (2) to extend to Provincial Seruice Tribunals. The provisions of clause (2) of Article 212 of the Constitution of the lslamic Republic of Pakistan shall extend to the Service Tribunals respectively established under Acls of the Provincial Assem blies for Baluchistan, the North-West Frontier Province, the punjab ancl Sind. "

7.Section 2 of the ibid Act clearly depicts that provisions of clause (2) of Article 212 of the constitution have been extended to the service Tribunals estabrished under Acts of the Provincial Assemblies of the Khyber Paklrtunkhwa, Baluchistan, Punjab and Sindh on the resolution/request of the respective provincial assemblies.

So, the condition precedent as provided by the proviso of Articie 212 (2) has been duly complied with and the bar so contained therein will be fully applicable and this court rn its constitutional jurisdiction has got no jurisdiction to hear or adjudicate upon the legality or illegality of an order so passed by the Khyber Pakhtunkhwa Service Triburnal The only remedy for the petitioner is to act as per n'rr:ndate of

(r

C

Article 212 (3) which provides an appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal.

B. The Apex Court's judgment, so relied upon by learned counsel for the petitioner is totally irrelevant as in that case the question before the Apex Court was whether the Provincial Assembly can confer the rig ht of direct appeal to the Supreme Court which was decided in negative as no request/ resolution was made to t\/lailis-e- Shoora (Parliament) by the Provincial Assembly to extend the provisions of Article 212 (2) of the Constitution The relevant portion is reproduced herein for ready reference:- "The conclusions arrived at above require certain directions tobe given, keeping in mind that leave petitions and appeals under clause (3) of Article 212 may well be pending from Tribunals not covered by the proviso to clause (2), and many such petitions and appeals appear to have been decided and disposed of in the pasf. We are of the view that matters must therefore be regularized in the following terms:

a. lt is held that no appeal /les fo this Court in terms of Article 212(3) against the decision of a Tribunal created by a Provincial law to which the proviso to clause (2) has not been applied Any sttch leave petitiorts and appeals as are Pending, being not maintainable, must be returned forthwith by the Office and no such leave petitions are to be entertained in future."

9.Learned counsel for the petitioner was heard at substantial length but he failed to make out a case for interference of this court. Resultantly, the instant writ

ar l

p eti tion being without any substance, is frereby dismissed

Announced

JU

-t

Sai/. CS l-ion blc Mr. Juslicc Kantran Hayai Miankhcl llctn bie Mr. ,lustirx: [\,4uharnmatl lpz Khart