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Terms and conditions of service of civil servant: High court has no jurisdiction to entertain proceedings: SC

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Terms and conditions of service of civil servant: High court has no jurisdiction to entertain proceedings: SC


Terence J Sigamony
21 Jul 2021





ISLAMABAD: The Supreme Court has held that the high court has no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which can be adjudicated upon by the Tribunal.


A three-judge bench, headed by Justice Umar Ata Bandial, ruled on an appeal of the Chief Secretary, Punjab. The bench set aside the verdict of Lahore High Court (LHC).

The Punjab Provincial Selection Board declined the proforma promotion of Shamim Usman (respondent). He instead of challenging the said order before the Punjab Service Tribunal constituted under the Punjab Service Tribunals Act, 1974, invoked the constitutional jurisdiction of the High Court, which through impugned order dated 19.02.2020 directed the relevant authority to grant proforma promotion to Shamim Usman in Grade-20.

The Punjab government challenged the order before the apex court on the ground that the High Court had no jurisdiction to entertain the matter in the light of the constitutional bar contained in Article 212 of the Constitution.

The judgment authored by Justice Syed Mansoor Ali Shah said that Article 212(1)(a) provides that a Tribunal established under the law will enjoy exclusive jurisdiction in the matters relating to terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters. The term “terms and conditions” is clearly spelt out in Chapter II of the Punjab Civil Servants Act, 1974 and the rules thereunder.

It further said that Article 212(2) in unambiguous terms states that no other Court can grant injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends.
The scope of jurisdiction and powers of the Tribunal are provided in sections 4 and 5 of the Act. The High Court, therefore, has no jurisdiction to entertain any proceedings in respect of terms and conditions of service of a civil servant which can be adjudicated upon by the Tribunal under the Act.

“It is only under section 4(1)(b) of the Act that no appeal can lie to a Tribunal against an order or decision determining the ‘fitness’ of a person to be appointed or promoted and falls outside the purview of the jurisdiction of the Tribunal. In order to fall in the exception envisaged under section 4(1)(b) of the Act, the order must determine ‘fitness’ of a civil servant to an appointment or promotion,” said the judgment.

The court maintained that in the instant case, the order under challenge before the High Court pertained to the eligibility of the petitioner to be even considered for proforma promotion due to the seniority of a large number of officers awaiting promotion before her and in no manner determined the ‘fitness’ of the respondent. The LHC as a constitutional court should always be mindful of the jurisdictional exclusion contained under Article 212 of the Constitution. Any transgression of this constitutional limitation will render the order of the High Court void and illegal.

The judgment said unless the jurisdiction of the Tribunal is ousted under section 4(1)(b) of the Act, assumption of jurisdiction by the High Court in respect of matters of terms and conditions of a civil servant is unconstitutional and impermissible. Even the direction passed in the earlier constitutional petition, in this case, was impermissible under the Constitution.

Copyright Business Recorder, 2021
 

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High Court can’t alter, amend or renegotiate terms, conditions of appointment orders: SC

by The Frontier Post


ISLAMABAD (APP): The Supreme Court on Monday announced a decision in a service matter and stated that the court was supposed to interpret the law and apply it in letter and spirit and it could not go beyond the law as courts lack jurisdiction to provide remedies which were otherwise not in the law or the Constitution by inventing remedies of their own and termed it a dangerous trend which threatened to weaken the very fabric of constitutionalism and rule of law and, this must be discouraged.

The High Court could not alter, amend or renegotiate the terms and conditions of the appointment orders of the Respondents for the simple reason that it did not have jurisdiction to do so.

A three-member SC bench comprising Chief Justice Gulzar Ahmed, Justice Ijaz Ul Ahsan and Justice Munib Akhtar had reserved a decision over a petition filed by the government of Khyber Pakhtunkhwa through Secretary Agriculture, Livestock and Cooperative Department Peshawar against Saeed-ul-Hassan and others. The provincial government had challenged the judgments of different benches of the Peshawar High Court the Respondents had, through their Constitutional Petitions, challenged the decisions of the appellants to terminate the services of the respondents from their respective posts. Their Petitions were allowed, and the Appellants were ordered to reinstate and regularize the Respondents against their respective posts.

The 15-page judgment authored by Justice Ijaz Ul Ahsan stated that “the high court in all the appeals had applied the principle of similar treatment of similarly placed persons and had found the Respondents eligible for Regularization.

It was settled principle of law that each case turned on its own facts and circumstances. When the record was clearly suggestive of the fact that the Respondents could not be regularized, and there were valid and sustainable reasons to do so, the principle of similar treatment of similarly placed employees could not blindly and indiscriminately circumvent the record to regularize those employees who were otherwise not entitled to regularization. Further, some judgments were mechanically rendered without examining the specific facts and circumstances of individual cases by relying on earlier judgments directing regularization and those too in incorrect and erroneous basis. This, by itself, furnished justification to set aside such judgments. Even otherwise, the rule of similar treatment for similarly placed persons has wrongly and incorrectly been applied in the instant cases.”

The court observed that the respondents had themselves conceded that they were employed in different projects on temporary basis and this fact had been admitted before the Supreme Court and the employment of the Respondents was governed by the Project Policy which specifically provided that ex-project employees could not claim regularization and that the posts in questions would be filled as per the rules of the KPPSC or the DSC.

“We are therefore of the view that the learned High Court has erred in law in ignoring the Project Policy and ordering regularization of the Respondents without relying on any statutory instrument which may have created a right in their favour. Discretionary Jurisdiction under Article 199 of the Constitution cannot be exercised in a vacuum. It must be grounded on a valid basis of violation of specific and enforceable legal or constitutional rights. The discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the Constitution as well as by this Court. The impugned judgments are unfortunately lacking all the aforenoted factors and are found to be unsustainable,” it added.

The court order stated that the Additional Advocate General (AAG) had submitted that all of the respondents were appointed on temporary posts as stipulated in their employment contracts and the apex court noted that the high court had not adverted to this aspect of the case and has simply applied the principle of similarly placed employees to give relief to the Respondents. It has been specifically mentioned in the appointment orders of the Respondents that they cannot claim regularization and further, that they are employed on contract for a specific period of time.

In this view of the matter, the learned High Court has incorrectly applied the law to the cases of the Respondents and as such, we find the view of the learned High Court to be erroneous and not in consonance with the settled principles of law on the subject, it added.
 

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