2015 P L C (C.S.) 1085
[Balochistan High Court]
Before Muhammad Ejaz Swati and Jamal Khan Mandokhail, JJ
GHULAM QADIR
versus
GOVERNOR OF BALOCHISTAN through Personal Secretary, Quetta and 3 others
Constitutional Petition No.626 of 2011, decided on 4th February, 2015.
(a) Establishment of Office of Provincial Ombudsman Ordinance (VI of 2001) ---
----S. 9(1)(2) ---Balochistan Service Tribunal Act (V of 1974), S.4---Constitution of Pakistan,
Arts.199 & 212---Constitutional petition ---Civil service--- Bar of jurisdiction contained in
Art.212 of the Constitution---Scope ---Appeal ---Limitation ---Petitioner was appointed as Senior
Science Teacher (Gen:) (SST) in BPS -16 but was terminated against which he filed
representation which was not decided, he filed a complaint before the Provincial Ombudsman
which was allowed ---Order of Provincial Ombudsman was assailed and was set aside by the
Governor ---Validity ---Complaint was filed by the petitioner after the delay of nine years which
was condoned by t he Ombudsman without having any application for condonation of delay or
plausible cause---Petitioner being government servant assailed his termination order before the
Ombudsman who had no authority to assume jurisdiction with regard to terms and conditions of
service---Complaint filed by the petitioner before the Ombudsman was not maintainable and the
order passed was without jurisdiction and lawful authority ---Question of limitation would not
arise with regard to the judgment which had been passed without jurisdiction ---Dispute with
regard to terms and conditions of service of a civil servant could only be raised before an
appropriate Service Tribunal and not before the Ombudsman---Petitioner was civil servant at the
time of termination of his service and he was obliged to seek redressal of his grievance from the
Service Tribunal ---Constitutional petition was dismissed in circumstances.
PLD 2001 SC 514 and 1985 SCMR 1408 rel.
(b) Balochistan Service Tribunal Act (V of 1974) ---
----S. 4--- Appeal --- Limitation --- If representation/appeal was not decided by the authority
within a period of 90 days, appeal could be filed within 30 days after decision of appeal by the
department.
Ghulam Shabbir v. Divisional Superintendent, Pakistan Railways and othe rs 2013 SCMR
700 rel.
Manzoor Ahmed Rehmani for Petitioner.
Shaihaq Baloch, Asstt. A.- G. for Respondents.
Date of hearing: 8th December, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- Through the instant petition, the petitioner has
challenged the validity of Order dated 13th August, 2011 (hereinafter the "impugned order")
passed by the Governor Balochistan (respondent No.1) and sought the following relief: ---
"It is therefore respe ctfully prayed, that this Hon'ble Court may kindly be pleased to
declare the impugned order dated 13 -8-2011 passed Governor Balochistan here as respondent
No.1 as illegal, unlawful, without lawful authority and in excess of jurisdiction as such null and
void.
Further this Hon'ble court kindly be pleased to declare that under section 32 of the
Establishment of the Provincial Ombudsman Ordinance, 2001, the Governor is neither vested
with power to entertain representation filed after period of 30 days, nor he has power to condone
the delay.
Further any other relief which this Hon'ble tribunal deems fit and proper may also be
awarded, in the interest of justice."
2. The facts arising out of the instant constitutional petition are that the petitioner was
appointed as Senior Science Teacher (Gen:) ("SST") in BPS -16, vide order dated 12th March,
1999 and was posted at Government High School Mirwah District Naseerabad, however, he was
terminated vide order dated 20th January, 2000, issued by the respondent No.2, as such, the
petitioner filed representation dated 28th January 2000, which according to the petitioner, was
not decided, therefore, he submitted subsequent representations dated 5th February, 2001, 21st
May, 2003, 26th July, 2004 and 29th March, 2005 respectively, however, when the
representation of the petitioner was not decided, he filed a complaint before the Provincial
Ombudsman Balochistan, Quetta on 26th October, 2009, which after notice and hearing, was
allowed vide order dated 6th September, 2010. The said order was assailed by the respondent
No.2 before the respondent No.1, which was allowed vide order dated 13th August, 2011, and
the order of the Provincial Ombudsman was set aside. The petitioner impugned the order of the
respondent No.1 throu gh the instant Constitutional Petition.
3. The learned counsel for the petitioner contended that the very representation filed by the
respondent No.2 before the respondent No.1 was barred by time, and without filing application
for condonation of delay a nd sufficient cause, the acceptance of representation was illegal and
unlawful; that the limitation for filing of the appeal against the order of the Ombudsman is 30
days and the respondent No.1 under the provisions of Establishment of Office of Provincial
Ombudsman Ordinance, 2001 (hereinafter the "Ordinance, 2001") had no lawful authority either
to entertain the representation or condone the delay; that the appellate forum exercised the
jurisdiction not vested in it; that in the impugned order, the provis ions of law have been
misinterpreted, which caused grave prejudice to the petitioner.
4. The learned Assistant Advocate- General controverted the contentions of the learned
counsel for the petitioner and submitted that under the provisions of Ordinance, 2001, the
jurisdiction related to service matters is ousted; that the order passed by the respondent No.4, is
patently without jurisdiction and unlawful which was rightly held so by the appellate forum; that
the petitioner had alternate and efficacious remedy to file appeal before the Balochistan Service
Tribunal against the termination of his service and in presence of bar contained under Article 212
of the Constitution of the Islamic Republic of Pakistan, 1973, the present petition is not
maintainable.
5. We have heard the learned counsel for the parties and gone through the record of the
case. We find that the petitioner in respect of his termination order dated 20th January, 2000, had
filed representation dated 28th January 2000 before the respondent No.2 and according to the
petitioner, due to non -deciding of the said representation, he subsequently submitted
representations dated 5th February, 2001, 21st May, 2003, 26th July, 2004 and 29th March, 2005
respectively, but despite filing the said represent ations, the respondent No.2 did not decide the
same. The petitioner after nine (9) years of filing the said representation had approached the
respondent No.4, by submitting a complaint dated 26th October, 2009, which was accepted vide
order dated 6th Septe mber, 2010 and the said order was set aside by the appellate authority i.e.
respondent No.1 vide order dated 13th August, 2011. The contention of the learned counsel for
the petitioner that the appellate authority had got no jurisdiction to entertain the r epresentation or
condone the delay, is not tenable on the ground that the very complaint filed by the petitioner
before the respondent No.4, whereby nine years delay had been condoned by the respondent
No.4, without having any application for condonation of delay or plausible cause. The petitioner
being a Government servant assailed his termination order before the Ombudsman, who had no
lawful authority to assume jurisdiction upon the matter related to the terms and conditions of the
service of the petition er (civil servant) and that too after lapse of nine years. Section 9(1)(2) of
the Ordinance, 2001 barred the jurisdiction of the Provincial Ombudsman, which reads as under:
"(2) Notwithstanding anything contained in subsection (1), the Ombudsman shall not accept
for investigation any complaint by or on behalf of a public servant or functionary concerning any
matters relating to the Agency in which he is, or has been, working in respect of any personal
grievance relating to his service therein."
5. The aforesaid provision of law clearly bars the jurisdiction of the Ombudsman in respect
of personal grievance relating to the service of a public servant, therefore, the very complaint
filed by the petitioner before the respondent No.4 was not maintainable and the order passed
thereto was without jurisdiction and lawful authority. The question of limitation may not,
therefore, arise in respect of a judgment, which has been passed by the forum having no
jurisdiction as held in the judgment reported in PLD 2001 SC 514.
6. It is now well settled that a dispute such as pertains to terms and conditions of service of
a civil servant can only be raised before an appropriate service tribunal and not before the
Ombudsman, whose jurisdiction is barred under section 9 of the Ordinance, 2001 and Article 212
of the Constitution. It provides notwithstanding anything hereinabove contained, when an
administrative Court or Tribunal is established no other Court shall grant an injunction, makes
any order or entertain any procee ding in respect of matter of such administrative Court or
Tribunal. The petitioner was civil servant at the time of termination of his service and his
grievance was traceable to the terms and conditions of his service, therefore, he was obliged to
seek red ressal of his grievance from the service tribunal as held in the judgment reported in 1985
SCMR 1408.
7. The contention of the learned counsel for the petitioner that despite filing various
representations before the respondent No.2, the same were not de cided, therefore, the petitioner
under the Ordinance, 2001, had rightly approached the said forum for redressal of his grievance,
is also not tenable. Had his representations/appeal were not decided by the competent authority
within a period of 90 days, then he had recourse to file an appeal before the Balochistan Service
Tribunal under section 4 of the Balochistan Service Tribunals Act, 1974 (hereinafter the "Act,
1974") within a period of 30 days after decision of the appeal by the Department as provided by
section 4 of the Act, 1974, which is reproduced herein below: ---
"Appeals to Tribunals.--- Any Civil servant aggrieved by any final order, whether original or
appellate, made by 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, 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
any law 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, so preferred; and
(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 appoi nted to or hold a particular or to be
promoted post to a higher post or grade; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result
of departmental inquiry, except where the penalty imposed is dismissal from se rvice, removal
from service or compulsory retirement."
8. The period for filing of appeal before the Service Tribunal is to be reckoned, if the appeal
is not decided within 90 days after expiry of 90 days, he within 30 days is required to file a
service appeal before the Service Tribunal. The Hon'ble Supreme Court of the Pakistan in a case
of Ghulam Shabbir v. Divisional Superintendent, Pakistan Railways and others 2013 SCMR 700,
held as under: ---
"The learned counsel appearing on behalf of the petitioner stated that his Departmental
Appeal, rejected on 30 -3-2014, was not communicated to the petitioner. This argument is not
relevant as after lapse of 90 days from filing of Departmental Appeal, the petitioner had 30 days
to file service appeal before the Service Tribunal whether or not his Departmental Appeal was
rejected. His appeal before the Tribunal was clearly barred by time and the impugned judgment
does not call for any interference by this Court."
In view of the above, the Constitutional Petiti on No.626 of 2011 is dismissed and the
parties are left to bear their own cost.
AG/23/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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