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

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