2016 P L C (C.S.) 195
[Balochistan High Court]
Before Muhammad Noor Meskanzai, C.J. and Muhammad Hashim Khan Kakar, J
Dr. ASADULLAH KHAN TAREEN
Versus
GOVERNMENT OF BALOCHISTAN HEALTH DEPARTMENT and another
Constitutional Petition No.1023 of 2014, decided on 16th March, 2015.
(a) Constitution of Pakistan ---
----Part VII, Chap. 3 (Arts.192 to 203_risdiction ---Scope ---High Court is the apex Court of a
province but is creature of Constitution---High Court is vested with that jurisdiction whic h has
been conferred on it by Constitution or under any law for the time being in force.
Shaheen Akhtar v. Government of Punjab 1998 PLC (C.S.) 70 rel.
(b) Jurisdiction ---
----Determination ---Mandatory for Court to decide at first instance question of its jurisdiction ---
Without deciding question of jurisdiction, proceedings on merits may ultimately prove a futile
exercise.
Registrar High Court of Balochistan, Quetta v. Mazar Khan 2014 PLC (C.S.) 1275 rel.
(c) Balochistan Service Tribunals Act (V of 1974) ---
----Ss. 4 & 5(2) ---Constitution of Pakistan, Arts.199 & 212(1) ---Constitutional petition ---
Maintainability ---Judgment of Service Tribunal ---Implementation ---Petitioner, civil servant
wanted to implement judgment passed by Service Tribunal ---Validity ---Service Tribunal was a
civil court for the purpose of deciding any appeal regarding terms and conditions of a civil
servant ---Service Tribunal had all powers of civil court including those required to implement its
orders as provided under the pr ovisions of Civil Procedure Code, 1908--- In case of disobedience
of orders of Service Tribunal, the same could be enforced under applicable provisions of Civil
Procedure Code, 1908 ---Underlying object of incorporation of Art.212 in the Constitution and
establishment of Service Tribunal by legislation was to provide efficacious, expeditious and
inexpensive remedy to civil servants for redressal of their grievances arising out of violation of
terms and conditions of their service ---Establishment of Service Tr ibunal aimed at prevention of
intrusions into or inroad on terms and conditions of civil servants by departmental authorities ---
Unlike Constitutional jurisdiction of High Court under Art.199 of the Constitution confined to
question of law without venturing upon resolution of factual controversies, it was within the
jurisdiction of Service Tribunal and it was its obligation to decide all questions of law and fact
sought to be raised by petitioner ---High Court declined to issue direction for implementation of
judgment/orders passed by Service Tribunal purportedly in favour of petitioner ---Petition was
dismissed in circumstances.
Niaz Muhammad Khoso v. Government of Balochistan 2012 PLC (C.S) 106; Black's
Law Dictionary (Eighth Edition p.881); Ghulam Murtaz a v. The State PLD 2009 Lah. 362;
Dossani Travel Shop (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.) Ltd. PLD 2014 SC 1; Secretary,
Ministry of Education, Government of Pakistan, Islamabad v. Muhammad Azam Ch. 2009
SCMR 194 + 2009 PLC (C.S.) 539; 2010 SCMR 1301=2011 PLC (C.S.) 1130 and PLD 2010
Federal Statute 684 ref.
Ahmad Nawaz Khan v. Senior Accounts Officer (Admn.), Pakistan Railways, Lahore
1989 PLC (C.S.) 398; Asma Hafeez v. City Police Officer, Gujranwala 2012 PLC (C.S.) 1025;
Ch. Sadiq Ali (Retd.) As sistant Engineer/S.D.O., P.W.D. v. The Chief Secretary, Azad Jammu
and Kashmir Government PLD 1996 SC (AJ&K) 29; Zahooruddin Sheikh v. Pakistan Atomic
Energy Commission through Chairman, Islamabad 2007 PLC (C.S.) 959; Sh. Riaz -ul-Haq v.
Federation of Pakis tan through Ministry of Law PLD 2013 SC 501; Imran Raza Zaidi v.
Government of Punjab 1996 SCMR 645; Tariq Transport Company v. The Sargodha -Bhera Bus
Service PLD 1958 SC 437; Muhammad Hashim Khan v. Province of Balochistan PLD 1976
Quetta 59; Iftikhar Ahm ad v. Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Mehram Ali
and others v. Federation of Pakistan PLD 1998 SC 1445 and Messrs Ranyal Textiles v. Sindh
Labour Court PLD 2010 Kar. 27 rel.
(d) Balochistan Service Tribunals Act (V of 1974) ---
----S. 4 ---Appeal to Service Tribunal ---Limitation ---Scope ---Strict application of law of
limitation in service matters has logic behind it that public interest requires that there should be
an end to litigation ---Law of limitation provides element of certainty in co nduct of human affairs
and statutes of limitation and prescription are statutes of peace and repose ---Law of limitation
does not support sluggish person, who sleeps over his rights and that law would lull a person
who slept over his right and Courts must not exercise their inherent power in favour of such a
person--- Limitation creates right in favour of other party that cannot be taken away by
condonation of delay.
Cap. (R) Mukhtiar Ahmed Shaikh v. Federation of Pakistan through Secretary Ministry
of Law, Islamabad PLD 2014 FSC 23 rel.
(e) Constitution of Pakistan ---
----S. 212---Civil service ---Matter relating to terms and conditions of service and disciplinary
matters ---Jurisdiction of Courts ---Scope ---Any matter pertaining to terms and conditions of
service of civil servant or disciplinary matter cannot be entertained by any Court including High
Court.
(f) Balochistan Service Tribunals Act (V of 1974) ---
----Ss. 4 & 5---Judgment of Service Tribunal ---Implementation -- Principle -- Government is not
under obligation to straightaway implement judgment of Service Tribunal but it must act
promptly and invoke appellate jurisdiction of Supreme Court, if so advised--- If operation of
judgment of Service Tribunal is not suspended by Supreme Court, mere g rant of leave to appeal
cannot defeat implementation process of judgment/order passed by Service Tribunal.
Chairman/Managing Director P.I.A.C. v. Nisar Ahmed Bhutto 2005 SCMR 57; Abdul
Hafeez Abbasi v. Managing Director, Pakistan International Airlines Corporation, Karachi 2002
PLC (C.S.) 1083 Masood Ahmed Changwani v. Secretary, Establishment Division, Islamabad
1999 PLC (C.S.) 443; Azkar Ahmed v. Secretary, Ministry of Information and Technology (I T
and Telecom Division), Islamabad 2012 PLC (C.S.) 1101 and Muhammad Ayub Rizvi v.
Education Secretary 1982 PLC (C.S.) 242 rel.
(g) Interpretation of Constitution ---
----Trichotomy of power, principle of ---Applicability ---Principle of trichotomy of pow er is one
of the foundational values of Constitution where -under all three organs of State, namely the
legislature, the executive and the judiciary are required to perform their functions and exercise
their power within their allotted sphere ---Such organs are exclusive in themselves with regard to
respective domain or jurisdiction and cannot make inroad or transgress spheres of each other.
(h) Constitution of Pakistan ---
----Part VII (Arts.175 to 212- B)---Judiciary ---Duties and functions ---Constitution makes it the
exclusive power / responsibility of judiciary to ensure sustenance of system of 'separation of
power' based on checks and balances ---Such is a legal obligation assigned to Judiciary and it is
called upon to enforce Constitution and safeguard Fundamental Rights and freedom of
individuals.
(i) Constitution of Pakistan ---
----Arts. 4 & 5(2) ---Rights of individuals and obedience of Constitution---Scope ---Executive
authorities, by virtue of Arts.4 & 5(2) of the Constitution, are bound to obey the command of
Constitution and to act in accordance with law and decide issues after application of mind with
reasons as per settled law.
Federation of Pakistan through Secretary, Establishment Division v. Tariq Pirzada 1999
SCMR 2744 and Ch. Zahur Il ahi v. Zulfikar Ali Bhutto PLD 1975 SC 383 rel.
Tahir Ali Baloch for Petitioner.
Shai Haq Baloch, Astt. A.- G. for Respondents.
Mazhar Ilyas Nagi, Amicus Curiae.
Date of hearing: 26th February, 2015.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .--- The instant constitutional petition
filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 ("the
Constitution") carries the following prayer:
"It is, therefore, respectfully prayed that this Hon'ble Court may kindly be ple ased to
declare the action of respondent No.1 of not implementing the judgment dated 07- 09-
2012 passed by Service Tribunal Balochistan, Quetta in S.A. No.71 of 2011, to be illegal
and contemptuous, consequently the respondent No.1 may be prosecuted for the same
and this respondent may be directed to implement the judgment dated 7 -9-2012 passed by
Service Tribunal Balochistan, Quetta in S.A No.71 of 2011 in letter and spirit, with any
other relief and cost of the proceeding, in the interest of justice."
2. The petitioner through this petition has sought direction to respondents for
implementation of the judgment dated 7th September, 2012 passed by the Balochistan Service
Tribunal ("the Tribunal") in Service Appeal No.71 of 2011. The apparent discernable que stion,
which requires adjudication in this petition, seems to be trivial, insignificant and small one
regarding implementation the order of the Tribunal, but, in fact, this petition has raised several
important questions of law of great importance, which w e proposed to deal with in this
judgment.
3. Keeping in view the importance of the matter, we requested Mr. Mazhar Ilyas Nagi, a
distinguished senior advocate, to assist this Court as Amicus Curiae.
4. This is a classic example, which abundantly portra ys how a Professor/civil servant has
been made victim of the circumstances by the respondents, while abusing the judicial system.
5. Mr. Tahir Ali Baloch, learned counsel for the petitioner, submitted that the petitioner,
after having succeeded before th e Tribunal, has a vested right to be dealt with in accordance with
law, as envisaged in Article 4 of the Constitution. He further submitted that the petitioner cannot
be left at the mercy of the departmental authorities, who were under constitutional, lega l and
moral obligation to implement the judgment and orders passed by the Tribunal. He further added
that it is a case of hardship, as the petitioner is going to retire from service within a couple of
months.
6. On the contrary, Mr. Shai Haq Baloch, lear ned Assistant Advocate General, while
controverting the contention raised on behalf of the petitioner, raised objection regarding the
maintainability of the instant petition.
7. Mr. Ilyas Nagi, learned Amicus Curiae, submitted that since the Tribunal's order has
become final, as such, it is the constitutional, legal and moral duty of the respondents to
implement the same in letter and spirit, and in failure, this Court will perfectly be justified in
issuing a writ of mandamus to the respondents to comply with the Tribunal's order. He further
added that, in principle, such kind of petitions should not be encouraged, because this Court
cannot be converted as an executing Court for implementation of orders of the Service Tribunal.
Mr. Mazhar Ilyas Nagi, learn ed Amicus Curiae, also informed us that the Federal Service
Tribunal and Service Tribunals, functioning in the Provinces of Punjab, Khyber Pakhtunkhwa
and Sindh, have already been empowered to execute its judgments/orders by making necessary
amendments in the relevant laws.
8. Mr. Tahir Ali Baloch, learned counsel for the petitioner, when confronted with the
question of maintainability of the instant petition, in view of the judgment passed by a division
bench of this Court in the case of "Niaz Muhammad K hoso v. Government of Balochistan",
(2012 PLC (C.S) 106), he contended that the Tribunal is not vested with any efficacious
jurisdiction/power to execute its own judgment/order, therefore, the petitioner is left with no
alternate, efficacious and speedy remedy but to approach this Court. He further submitted that
the choice of forum for redress of grievance in view of cumbersome technicalities under such
circumstances is not less than searching for a needle in a bundle of hay. While concluding his
arguments , he further added that the petitioner has rightly invoked the constitutional jurisdiction
of this Court under Article 199 of the Constitution and in the cases of administrative tyranny,
High Court must intervene and compel the administration to carry out its constitutional and legal
obligations.
9. Before dilating upon the rival contentions of the parties, it would be appropriate to take
up the question of maintainability of the instant petition under Article 199 of the Constitution.
There can be no cavi l to the fundamental cardinal principle of administration of justice "let
justice be done though heaven should fall", but learned counsel for the petitioner has not
succeeded in satisfying us as to how this constitutional petition is maintainable and how w e can
depart from the principle laid down by a division bench of this Court in the case of Niaz
Muhammad Khoso (supra). Learned counsel has requested for issuance of directions to
respondents to implement the judgment/orders passed by the Tribunal merely on the ground that
injustice had been done to the petitioner without any substantial ground and that grievance of
aggrieved party should be redressed without driving a needy litigant from pillar to post. We are
not impressed with the arguments advanced by t he learned counsel. It must not be lost sight of
that High Court is the apex court in a province but it is the creature of the Constitution and it is
vested with that jurisdiction which has been conferred on it by the Constitution or under any law
for the time being in force. In this regard reference can be made to the case of "Shaheen Akhtar
v. Government of Punjab", [1998 PLC (C.S.) 70], wherein the Hon'ble Lahore High Court
observed as under:
"This is so because the power conferred upon this Court unde r Article 199 of the
Constitution is the power of judicial review; that power is a great weapon in the hands of
Judges but "the Judges must observe the Constitutional limits set by our parliamentary
system on their exercise of this beneficial power", namel y, the separation of powers
between the Parliament, the Executive and the Courts."
10. Arguments advanced by the learned counsel are in the nature of misconception of
principles of dispensation of justice in view of scheme of our Constitution and other relevant
laws. As per dictionary meaning given in Black's Law Dictionary (Eighth Edition p.881)
"Justice" means ---
"The fair and proper administration of law."
It seems that learned counsel for the petitioner is emphasizing on the "Popular justice" that
according to Black's Law Dictionary (Eighth Edition p.881) means ---
"Demotic justice, which is usu. considered less than fully fair and proper even though it
satisfies prevailing public opinion in a particular case. Cf. social justice. "Nothing is more
treacherous than popular justice in many of its manifestations, subject as it is passion, to
fallacy, and to the inability to grasp general notions or to distinguish the essential from
the inessential." [Carleton K Allen, Law in the Making 387 (7th ed. 1964)."
11. This is the duty of the Court seized with the matter to apply the correct law in order to
meet the ends of justice. Administration of justice, according to law, cannot be left to the whims
of litigants and their counsel. Concept of "justice according to law" came under consideration
before the Hon'ble Lahore High Court in the case of "Ghulam Murtaza v. The State", (PLD 2009
Lahore 362), wherein it was observed that:
The quintessence of the Civilization's evolution and growth in the legal field is a
progression from dispensation of justice according to the principle of "justice, equity and
good conscience" to "justice according to the law". The rationale or raison d'etre for this
momentum, quite easy to discern and comprehend, is that justice ought not to be
administered according to the whims, caprice or subjective standards of an i ndividual
Judge but it should be dispensed according to some codified or stipulated standards so as
to render the outcome consistent and reasonably predictable. Predictability of judicial
response to an action or inaction of a person is important because, by and large, people
living in a community adapt or mould their conduct keeping in view the law of the land
and a probable judicial reaction to their actions or inactions. Essence, therefore, is that,
proverbially speaking, justice should not vary with the size of the Chancellor's foot but a
person inviting a legal intervention into his conduct should be able to appreciate in
advance as to how he is likely to be treated by a Judge dealing with application of the
relevant law to that person's conduct. Unifor mity and standardization of judicial response
to similar legal situations cannot, thus, be overemphasized."
12. Yet in another case of "Dossani Travel Shop (Pvt.) Ltd. v. Messrs Travels Shop (Pvt.)
Ltd., (PLD 2014 SC 1), Hon'ble Supreme Court explained t he expression "justice under law" and
"justice in its generic sense" in the following words:
We judges are mere mortals but the functions we perform have divine attributes. By the
nature of our calling, we dispense justice under the law and provide relie f. However,
"justice" in its generic sense is a relative concept and unless regulated by law, the
dispensation, notwithstanding the noble intent would be rather subjective."
13. We seized of the similar matter pertaining to jurisdiction of High Court in such like
matters in a recent case of "Registrar High Court of Balochistan, Quetta v. Mazar Khan", [2014
PLC (C.S.) 1275], wherein after examining various provisions of the Constitution and relevant
law, we arrived at a conclusion that it was mandatory for the Court to decide at first instance
question of its jurisdiction and without deciding question of jurisdiction, the proceedings on
merits may ultimately prove a futile exercise. In this case, by extensive survey of case- law, we
were fortified in our vie w that jurisdiction of all other Courts including that of High Courts under
Article 199 of the Constitution was ousted to the extent jurisdiction vested in Service Tribunals
under Article 212 of the Constitution. It was further held in this case that the j urisdiction of the
Tribunal will extend even to cases involving vires of a particular service rule or a notification;
orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service
Tribunal and jurisdiction of Civil Courts inc luding High Court was ipso facto ousted as a result
of barring provisions of Article 212 of the Constitution and that even Constitutional issues could
be taken before Service Tribunal and dealt with in exercise of its exclusive jurisdiction.
14. Coming t o the next question, as to whether the Service Tribunal has been clothed with the
power to implement its orders/judgments? We affirm the view taken by a division bench of this
Court in the case of Niaz Muhammad (supra) and reiterate that when section 5 of the Balochistan
Service Tribunal Act 1974 ("the Act of 1974") conferred jurisdiction upon a tribunal to decide an
appeal, it also conferred the power to ensure that the decision was complied with. It is by now
settled that if the Tribunal's order has become final, then it is the duty of the respondents to
implement the same and in case of failure, this Court will be perfectly justified in issuing a writ
of mandamus to the respondents to comply with the Tribunal's order. However, in principal, we
feel, we sh ould not encourage filing of writ petitions of this kind, because we cannot convert the
High Court as an Executing Court for implementation of orders of the Tribunal. Further, the very
purpose of the constitution of the Tribunal will be defeated, if the Tr ibunal cannot enforce their
orders and on account of the same parties are compelled to approach the High Court leading to
multiplicity of litigation. Keeping these in mind, we proceed to consider the powers of the
Tribunal under the Act of 1974, to enforce its own orders and if the Tribunal is short of powers,
to consider whether this Court can confer authority on it to function effectively under the Act of
1974. In our view, Tribunal itself has to evolve a mechanism for implementation of its orders,
otherw ise the High Courts will be flooded with writ petitions filed for enforcing orders of the
Tribunal. Obviously, neither the Parliament, nor the Government desires the High Courts to be
converted as executing courts for enforcement of Tribunal's orders. Besi des saving the High
Courts, we also have to keep in mind the interest of the litigants, who, after getting favourable
orders from the Tribunals, should not be dragged to the High Courts for enforcing Tribunal's
orders and if done the undesirable consequenc es will be that fruits of litigation will be eaten up
in unnecessary further litigation in the High Courts. It may be noted that the Tribunal is clothed
with the powers to enforce its orders within the purview of section 5(2) of the Act of 1974,
which read s as under:
"5. Power of Tribunals. --- (1) A Tribunal may, on appeal confirm, set -aside, vary or
modify, the order appealed against.
(2) A Tribunal shall, for the purpose of deciding any appeal, be deemed to be a civil
court and shall have the same powers as are vested in such Court under the Code of Civil
Procedure, 1908 (Act V of 1908), including the powers of ---
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) Issuing comm ission for the examination of witnesses and documents.
(3) No court -fee shall be payable for preferring an appeal, to, or filing, exhibiting or
recording any document in, or obtaining any document from, a tribunal."
15. A minute perusal of above provis ion of law leads us to conclude that since the Tribunal is
a Civil Court for the purpose of deciding any appeal regarding the terms and conditions of a
Civil Servant, therefore, it has all the powers of a Civil Court including those required to
implement its orders as provided under the provisions of the Code of Civil Procedure 1908
("C.P.C."). In case of the disobedience of its orders, the same can be enforced under the
applicable provisions of the Code.
16. It is worth mentioning that the Service Tribun als are given exhaustive and exclusive
jurisdiction to decide all service matters pertaining to serving, retired and dead civil personnel
represented by legal heirs claiming under them. It may be observed that there is nothing to
indicate in the Act of 1974 as to how and who should execute the orders of the Tribunal. In our
view, in the absence of any other authority prescribed under the Act of 1974 and the rules for
execution of the orders of the Tribunal, the authority to execute order of the Tribunal is the
Tribunal itself. The Service Tribunal being a Civil Court within the meaning of section 5(2) of
the Act of 1974 has very wide powers to pass any order regarding the terms and conditions of a
Civil Servant and may give such directions as may be necessar y or expedient to give effect to its
orders or to prevent abuse of its process or to secure the ends of justice.
17. Admittedly, refusal to enforce the Tribunal's orders could be brought within the scope of
interruption or disturbance of the proceedings of the Tribunal, because execution of orders of the
Tribunal being the duty of the Tribunal under section 5(2) of the Act of 1974 the proceedings of
the Tribunal continue until the orders are executed and implemented. Non -implementation of the
orders of th e Tribunal, that has become final, is certainly an obstruction or interference with the
course justice, and so much so is a criminal contempt, for which the Tribunal should be clothed
with the powers to initiate prosecution proceedings against the contemnor. By holding this view,
we are fortified by the dictum laid down in the case of "Ahmad Nawaz Khan v. Senior Accounts
Officer (Admn.), Pakistan Railways, Lahore" (1989 PLC (C.S.) 398), wherein it was observed
that:
"From these provisions it is abundantly clear that the Tribunal shall be deemed to be a
Civil Court for the purpose of deciding an appeal and shall have the same powers as are
vested in such Court under the Code of Civil Procedure, 1908. Certain powers have
specifically been mentioned, but they do not derogate anything from the generality of the
provisions immediately preceding in the enacting part of subsection; which are clearly
suggestive of the fact that the Tribunal's powers for deciding an appeal are commensurate
with the Civil Court's pow ers for decision of matters before it. The proceedings on
application for execution or implementation of the Tribunal's orders are undoubtedly one
of the steps in the proceedings of the main appeal. Therefore, what follows is that the
Tribunal has got the same powers as are vested in the Civil Court under the Code of Civil
Procedure, not only for the purpose of deciding an appeal, but also for the consequential
purpose of deciding the petition for implementation of its orders.
8. It is extremely difficult to believe that the Legislature while conferring
overwhelming, vast and exclusive powers of deciding an appeal, did not intend to bestow
the powers of implementation of the orders passed by it in final disposal of that appeal.
Any other interpretation of these provisions would lead us to a ridiculous results. We are
not prepared to believe that the legislature avoided the conferment of power of execution
of orders, thereby rendering the entire proceedings in an appeal under section 4 of the Act
only an exe rcise in futility. If the Tribunal do not have the powers to get its order
executed, all proceedings before it will be nothing more than wastage of time, and the
legislature could, by no means, be taken to have intended any such result. We are thus,
constr ained to hold that the powers conferred by section 5(2) of the Act on the Tribunal,
inter alia, include the powers of execution and implementation of its order."
18. Power of Service Tribunal to execute its own judgment is embodied in the maxim:
"Quando lex aliquid alicui concedit concedere videtur et id, sine quo res ipsa esse non potest
(whoever grants a thing is deemed also to grant that without which the grant itself would be of no
effect)", affirmed by the Hon'ble Lahore High Court in the case of "As ma Hafeez v. City Police
Officer, Gujranwala", [2012 PLC (C.S.) 1025] by holding as under:
"Section 5(2) declares that the Service Tribunal has all the powers of a Civil Court when
it decides an appeal. The meaning of "deciding any appeal" is not limited to bare
adjudication but will include the powers necessary to ensure that its decision is ex ecuted
in letter and spirit. To achieve this, the Tribunal has all the powers available to a civil
court to execute its orders/judgments and ensure its implementation. The rule is
embodied in the maxim Quando lex aliquid alicui concedit concedere videtur e t id, sine
quo res ipsa esse non potest. This maxim provides that whoever grants a thing is deemed
also to grant that without which the grant itself would be of no effect. N.S. Bindra in the
Interpretation of Statutes, Eighth Edition explains that whenever anything is authorized,
or required to be done by a statute and it was found impossible to do that which is
authorized, then the law will by necessary intendment provide the authorization to do that
what is required to be done. Therefore, where a statute confers jurisdiction, it also confers
by implication, the power of doing all such acts or applying such means as are essential
for its execution. Simply put the doctrine of implied power can be invoked when giving
interpretation to the jurisdiction conferr ed upon a tribunal under a statute. So when
section 5 of the Act confers the powers on the Service Tribunal to decide an appeal, it
also confers the power to ensure that its decision is complied with. If this interpretation is
not given to section 5 it would render the power of adjudication by the Tribunal as dead
letter because it would not have the power to enforce its decisions ..
7. There is also another reason why constitutional jurisdiction cannot be used to
enforce or implement the judgment of the service tribunal. Article 212 of the Constitution
provides that Administrative Courts or Tribunal shall have exclusive jurisdiction with
respect to matters relating to the terms and conditions of service for persons in the service
of Pakistan. Subsection ( 2) of Article 212 says that no other court shall grant any
injunction, make any order or entertain any proceeding in respect of any matter to which
the exclusive jurisdiction of Administrative Court or the Tribunal extends. It has recently
been held by the Hon'ble Supreme Court of Pakistan in an unreported judgment passed in
Civil Appeal No.428- L of 2010 titled "The Chief Secretary, Government of Punjab,
Lahore and another v. Sara Bani and another" which reads as under: --
"a matter relating to her terms and conditions of service could only approach the Tribunal
for redressal of her grievance on whatever grounds available to her including mala fides,
but could not approach the High Court as the prohibition/ bar contained in the Article was
absolute."
As the bar is absolute for any court including the High Court under Article 199 of the
Constitution for adjudicating upon the terms and conditions of service, then such bar will
also extend to executing the order/judgment of the Service Tribunal. As such Artic le 199
cannot be invoked for executing a decision that it is not competent to adjudicate upon. "
19. Reference may also be made to the case of "Ch. Sadiq Ali (Retd.) Assistant
Engineer/S.D.O., P.W.D. v. The Chief Secretary, Azad Jammu and Kashmir Governm ent", [PLD
1996 Supreme Court (AJ&K) 29], Hon'ble Supreme Court of Azad Jammu and Kashmir held as
under:
"It is an accepted principle of law that when a jurisdiction is conferred on a Court or
Tribunal to pass an order the power to have the order impleme nted is implicit in that
jurisdiction."
In the case of "Zahooruddin Sheikh v. Pakistan Atomic Energy Commission through
Chairman, Islamabad", [2007 PLC (C.S.) 959], the aforesaid principle was reaffirmed as
under:
"Once a judgment is issued in favour of a civil servant, his terms and conditions as
infringed by an order of the authority in question stand addressed to the extent as
ordained in the judgment concerned. There is, therefore, no denying the fact that if the
judgment is not implemented and leav e to appeal is either not filed or declined, there is
no escape route for the Department but to implement the judgment in letter and spirit. In
the event of department not complying with the directions contained in a particular
judgment after having exhaus ted the legal remedies available, the department has no
other alternative except to implement the judgment in the interest of the supremacy of
rule of law."
20. If any further elaboration is needed on the point, reference may be made to the case of
"Sh. Riaz-ul-Haq v. Federation of Pakistan through Ministry of Law", (PLD 2013 SC 501),
wherein Hon'ble Supreme Court, discussed in extenso the question as to whether or not the
Service Tribunals, Federal and Provincial, are judicial forums/Courts exercising ju dicial power
and are performing their functions within the meaning of Article 175 of the Constitution, which
deals with the establishment and jurisdiction of the Courts? It would be appropriate to refer to the
following observations made in the said case:
"34. Firstly, it is to be examined whether Service Tribunals established under Article
212(1)(a) of the Constitution read with Federal or Provincial Legislation, fall within the
definition of a court, under Article 175 of the Constitution.
35. It is to be noted that the word 'Court' has not been defined in any legal instrument,
therefore, we have to refer to its dictionary meanings, which are as under: -
Corpus Juris Secundum; vol. 21
Generally, a court is a body in the government to which the public administration of
justice is delegated, being a tribunal officially assembled under authority of law, at the
appropriate time and place, for the administration of justice, through which the State
enforces it sovereign rights and powers, and consisting in its jurisdiction and functions
and not its title or name.
The court exists as a forum to hear and resolve suits and controversies raised by parties
who have invoked its authority.
The term 'court' may include a Judge and a jury, ......... may include a Tribunal presided
over by a police judge, or by a justice or justices of the peace, or various other tribunals.
Halsbury's Laws of England, 4th Edition Vo1.10:
Originally the term 'Court' meant, among other things, the Sovereign's place. It has
acquir ed the meanings of the place where justice is administered and, further, has come to
mean the persons who exercise judicial functions under authority derived either directly
or indirectly from the sovereign...... A Tribunal may be a court in the strict sense of the
term even though the chief part of its duty is not judicial.
The Oxford Companion to Law by David M. Walker:
A court was originally the King's or a great lord's place or mansion... ...A court is
accordingly a person or group of persons having authority to hear and administer disputes
in accordance with rules of law. Tribunals or adjudicators who exercise adjudicative
functions by virtue of contract or of the voluntary submission of persons to their
decisions.
Words and Phrases Legally Define d (1969 Edition, Vol. I, p. 367)
The terms 'Court' originally meant the sovereign's palace; it acquired the meaning of the
place where justice is administered and has come to mean the person who exercises
judicial functions.
The Major Law Lexicon, 4th Edition, 2010:
"Court" includes all Judges and Magistrates and all persons, except arbitrators, legally
authorized to take evidence. The "Court" means the person or persons before whom a
legal proceeding is held or taken. "Court" means a civil, criminal or revenue Court and
includes any tribunal or any other authority constituted under any law for the time being
in force, to exercise judicial or quasi -judicial functions.
Black's Law Dictionary:
An organ of government, belonging to the judicial department, whose function is the
application of the laws to controversies brought before it and the public administration of
justice.
Ballentine's Law Dictionary:
Court is the organ of the Government, consisting of one person, or of several persons
called upon and authorized to administer justice. . .
..
36. Under section 5(2) of the STA, 1973, the Tribunal is deemed to be a civil Court
having all the powers which are vested in the civil Court as such it has the power to grant
temporary injunction, mandatory or prohibitory, under Order XXXIX, Rules 1 and 2,
C.P.C. during the pendency of the appeal before it and has also the power of the appellate
Court under Order XLI, Rule 5 to stay the execution/operation of the decree or order. In
terms of sectio n 5(1) ibid, the Tribunal can set aside, vary or modify the order in an
appeal before it, of course, after full and final hearing of the appeal. Thus, the tribunal
performs the judicial function."
21. In the aforesaid judgments, references have also been made to the following cases:
(i) "Imran Raza Zaidi v. Government of Punjab", (1996 SCMR 645);
(ii) "Tariq Transport Company v. The Sargodha -Bhera Bus Service", (PLD 1958 SC
437);
(iii) "Muhammad Hashim Khan v. Province of Balochistan" (PLD 1976 Quet ta 59);
(iv) Iftikhar Ahmad v. Muslim Commercial Bank Ltd." (PLD 1984 Lahore 69);
(v) "Mehram Ali and others v. Federation of Pakistan," (PLD 1998 SC 1445), and
(vi) "Messrs Ranyal Textiles v. Sindh Labour Court", (PLD 2010 Karachi 27)
22. In spite of the above legal position, due to absence of clear mechanism to enforce the
order of the Tribunal in the Act of 1974, there is a misconception among the legal fraternity and
civil servants regarding the powers of the Tribunal. As such, we feel i t our duty to express our
opinion that the Act of 1974, needs amendment to cloth the Tribunal with specific powers to
implement its orders/judgments and to initiate contempt proceedings. As pointed out by Mr.
Mazhar Ilyas Nagi, the following amendments have been made by the Federal Government as
well as the Provincial Governments of Punjab, Khyber Pakhtunkhwa and Sindh, empowering the
Service Tribunals to execute its judgments and orders:
(a) In the Service Tribunals Act, 1973 (Act LXX of 1973), in S.5 a new subsection
(3) has been inserted vide Service Tribunals (Amendment) Act, 2014 (IV of 2014),
Gazette of Pakistan Extraordinary, p.68, dated 17 -6-2014, which reads as under: -
[(3) A Tribunal shall have the power to execute its decisions in accordance w ith the
procedure as may be prescribed.]
(b) By operation aforementioned amendment, a new S.4- A has also been inserted in
the In the Service Tribunals Act, 1973 (Act LXX of 1973), which reads as under: -
[4-A. Review.
(1) A Tribunal shall have the pow er to review its final order on a review petition filed
by an aggrieved party within thirty days of the order on the following grounds, namely: -
(i) discovery of new and important matter or evidence which, after exercise of due
diligence, was not within knowledge of the petitioner or could not be produced by him at
the time when the order was passed;
(ii) on account of some mistake or error apparent on the face of record; or
(iii) for any other sufficient cause.
(2) The Tribunal shall decide the review petition within thirty days.
(3) The Tribunal may confirm, set aside, vary or modify the judgment or order under
review.]
(c) In the Punjab [Service] Tribunals Act, 1974 (Act IX of 1974), S.11 has been
substituted by promulgation of Punjab Service Tribunals (Amendment) Act (XVII of
2013) dated 21st August, 2013 came into force w.e.f. 22 July, 2013 and now reads as
under: -
[11. Rules. The Government may, by notification in the official Gazette, make rules
for carrying out the purposes of this Act, including the rules for purposes of
implementation of the decisions of the Tribunal.
(d) In the Province of Sindh, Provincial legislature has enacted Sindh Service
Tribunals (Amendment) Act, 2011 (V of 2012) [PLD 2012 Sindh Statutes 18] whereby in
S.5 a new subsection (3) has been added which reads as under: -
"(d) execution of its decisions."
(e) In the [Khyber Pakhtunkhwa] Service Tribunals Act, 1974 (Act I of 1974), in S.7,
subsection (2) a new clause (d) has been added vide North- West Service Tribu nals
(Amendment) Act, 2010, (IV of 2010), Notification No.PA/N.- W.F.P./Bill/2010/ 7787,
dated 26- 2-2010, Published in Gazette of N. -W.F.P., Extraordinary, 26th February, 2010
[PLD Unreported 2010 N.- W.F.P. Statutes 53]. New clause (d) reads as under: -
"(d) execution of its decision."
23. From the above, it may be observed that the Majlis -e-Shoora (Parliament) and Provincial
legislatures of Punjab, Khyber Pakhtunkhwa and Sindh have conferred powers on the respective
Service Tribunals, by appropriate legi slation, to execute its judgments/orders but it is disturbing
to note that Provincial Assembly of Balochistan has shown indifference in this respect. Under the
circumstances, there is a need to remove the disparity in powers of the Service Tribunals,
funct ioning at Federal and Provincial level, established under one and the same Article 212 of
the Constitution.
24. It may be observed that, the Constitution has granted some meaningful safeguards to civil
servants so that they may work fearlessly, maintaini ng their high reputation, prestige, honesty
and the integrity of their service. Fathers of the Constitution of 1973 were also fully conscious of
the bureaucratic bottle -necks and attitude of rigidity on the part of public functionaries. It was
felt necessa ry to provide a tangible judicial forum from where a civil servant, dealt with
arbitrarily and otherwise than in accordance with law, could get redressed his grievances relating
terms and conditions of his service. For this purpose, Article 212 was incorporated in the
Constitution that provided for the establishment of Tribunals to exercise exclusive jurisdiction in
respect of matters relating to the terms and conditions of persons who are or have been in the
service of Pakistan, including disciplinary matt ers by means of appropriate legislation. Proviso
appended with Article 212(2) of the Constitution 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, a t the request of that Assembly made in the form of a resolution, Majlis -e-
Shoora (Parliament) by law extends the provisions to such a Court or Tribunal. Provincial
Assembly for the Balochistan, in the form of resolution, made such request that the provisions of
clause (2) of Article 212 of the Constitution of the Islamic Republic of Pakistan be extended to
the Service Tribunal established under Act of Assembly. It may be recalled that Majlis -e-Shoora
(Parliament) had already promulgated the Provincial Servi ce Tribunals (Extension of Provisions
of the Constitution) Act, 1974 (Act XXXII of 1974). Balochistan Assembly had also
promulgated the Balochistan Service Tribunals Act, 1974 (Act V of 1974) and thereafter Majlis -
e-Shoora (Parliament) promulgated the Provincial Service Tribunals (Extension of Provisions of
the Constitution) (Amendment) Act, 1976 (XXXIV of 1976) whereby word "Balochistan" was
inserted in the Preamble and S.2 of the XXXIV of 1976.
25. Object of establishment of Balochistan Service Tribunal is manifest from the preamble of
Act V of 1974, reproduced under:
"Whereas it is expedient to provide for the establishment of Administrative Tribunals, to
be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters
relating to the terms and conditions of service of civil servants, and for matters connected
therewith or ancillary thereto;"
The underlying object of incorporation of Article 212 in the Constitution and establishment of
Service Tribunals by legislation was to provide an efficacious, expeditious and inexpensive
remedy to civil servants for redressal of their grievances arising ou t of violation of terms and
conditions of service of their service. Establishment of Service Tribunal aimed at prevention of
intrusions into or inroad on the terms and conditions of civil servants by the departmental
authorities. Unlike the Constitutional jurisdiction of the High Court under Article 199 of the
Constitution confined to question of law without venturing upon resolution of factual
controversies, it lies within the jurisdiction of the Service Tribunal and, indeed, it is its
obligation, to decide all questions of law and fact sought to be raised by the petitioner.
26. It is also worth mentioning that the superior Courts have repeatedly reiterated that good
governance is largely dependent upon the upright, honest and strong bureaucracy, particul arly in
written constitution, wherein important role of implementation has been assigned to the
bureaucracy. Civil service is the backbone of our administration. The purity of administration to
a large extent depends upon the purity of the services. Honest y, efficiency and incorruptibility
are the sterling qualities in all fields of life including the administration and services. According
to Article 4 of the Constitution, word "law" is of wider import and in itself mandatorily cast the
duty upon every publ ic functionary to act in the matter justly, fairly and without arbitrariness.
We need not stress here that a tamed and subservient bureaucracy can neither be helpful to
government, nor it is expected to inspire public confidence in the administration. Viol ation of
public fiduciary duties, cannot be condoned, because doing so will lead to an erosion of the basis
of the state's legal authority and rule of law.
27. As observed earlier, the Constitution of 1973 has granted some meaningful safeguards to
civil servants so that they work fearlessly, maintaining their high reputation, prestige, honesty
and the integrity of their service, however, we are afraid that in spite of having such important
role in our democratic system, they are facing cumbersome procedur e provided in section 4 of
the Act of 1974. It may be observed that it provides a remedy of appeal to civil servants
aggrieved of any final order passed by the departmental authorities within thirty days from
passing of such order. Other pre -requisites of filing appeal before the Tribunal are: firstly, that
appellant must be proved to be a civil servant on the date when original or at least appellate order
had been passed; secondly, that appellant must have exhausted departmental remedy of appeal
and without availing such remedy, appeal before the Tribunal would not be competent; thirdly, if
a departmental appeal had been filed but period of 90 days had not elapsed and departmental
appeal had not been decided, in such a situation, also appeal would be premat ure and
incompetent. A perusal of S.4 of the Balochistan Service Tribunals Act, 1974 shows that remedy
provided to civil servants has been barred, limited, abridged, curtailed or subjected to conditions.
On the other hand it may be noted that departmental authorities have seldom shown any
seriousness in processing statutory departmental appeals preferred by civil servants. Such
indifference of departmental authorities in deciding departmental appeals preferred by civil
servants came under the consideration of Hon'ble Supreme Court in the case of "Secretary,
Ministry of Education, Government of Pakistan, Islamabad v. Muhammad Azam Ch.", (2009
SCMR 194+2009 PLC (C.S.) 539), wherein it was observed as under:
"The object and purpose of the departmental appeal is to provide a tangible forum to the
appellant for redressal of his grievance before he was obliged to approach the Tribunal
for adjudication of his claim. Obviously the requirement of filing a departmental appeal
prior to approaching the Tribunal is not to create a hurdle in the way of a bona fide
litigant but to facilitate him to avoid unnecessary expense and effort in pursuing his
appeal in a legal forum. We observed that while much furore is raised for filing of the
mandatory departmental appeal, a vas t majority of Government departments do not take
the departmental appeal with any seriousness. More often than not the departmental
appeals remain unactioned. It can never be the intention of the legislature to make the
filing of departmental appeal as a h urdle in the way of an appellant. Invariably the
requirement of the departmental appeal is used as stumbling block for the appellant rather
than facilitating him in the pursuit of his relief. "
28. There is yet another hurdle in the way of availing remed y before the Tribunal that is
limitation. As repeatedly held by superior courts, limitation cannot not be taken lightly, as in
service matters such question, being not a mere technicality, should be considered seriously and
applied strictly. Before going i nto the merits of case, the party has to cross the barrier of
limitation and in case an appeal is time -barred, the Tribunal has to see first the grounds advanced
for condonation of delay. There is logic behind strict application of law of limitation in ser vice
matters that firstly, public interest requires that there should be an end to litigation and that law
of limitation provides an element of certainty in the conduct of human affairs and statutes of
limitation and prescription are thus statutes of peace and repose; secondly, that law does not
support a sluggish person, who sleeps over his rights and that law would lull a person who slept
over his right and the Courts must not exercise their inherent power in favour of such a person
and thirdly inter alia , that limitation would create right in favour of the other party that cannot be
taken away by condonation of delay. In a recent case of "Cap. (R) Mukhtiar Ahmed Shaikh v.
Federation of Pakistan through Secretary Ministry of Law, Islamabad", (PLD 2014 Fede ral
Shariat Court 23), limitation provided in section 4 of the Service Tribunals Act, 1973 was
challenged before the Federal Shariat Court, but the petition was dismissed by holding that:
"By way of limitation for filing an appeal, as substantive right c ould not be usurped nor it
got extinguished. Limitation prevented a claimant from knocking at the doors of a court,
and without limitation a floodgate of matters piled up during past years would open,
when evidence of the same would have been destroyed or lost and no record or evidence
would be available for the courts to decide the same. Judges always stood in need for
evidence, which might not remain available indefinitely. Plea challenging proviso (a) to
S.4(1) and Ss.6 and 7 of Service Tribunals Act, 1973 on point of limitation was
misconceived and said provisions were not repugnant to Injunctions of Islam."
29. What has been discussed above is not a mere discussion on academic questions. Courts of
law render their judgments not for academic discussion and the purpose of aforesaid discussion
is to set out the Constitutional and statutory developments in Pakistan that led to establishment of
Service Tribunals and its jurisdiction/powers. These Tribunals setup by the Constitution have
been so established not just as a means of securing bread and butter for the members of the
Tribunals or of the Bar. Purpose to establish Service Tribunals was to provide forum with
exclusive jurisdiction to class of civil servants for redressal of grievances arising out of s ervice
matters and on other hand to decrease work load on regular Civil Courts including High Courts.
Any matter pertaining to the terms and conditions of service of a civil servant or disciplinary
matter cannot be entertained by any Court including High C ourt.
30. Now the question arises that if a civil servant, after patiently complying with the
cumbersome procedure laid down in S.4 of the Balochistan Service Tribunals Act, 1974,
succeeds in getting some relief, can he be left at the mercy of department al authorities either to
implement the judgment/order passed by the Tribunal or not. The answer to this question must be
a big NO. It could not have been the intention of fathers of Constitution of 1973 and legislature
while incorporating Article 212 in th e Constitution and establishment of Service Tribunals by
promulgation of Acts. Judicial system would be reduced to a clap trap if the Departmental
Authorities are left free to implement or not to implement a judgment of the Tribunal. Nobody
should be penal ized by inaction of public functionaries. In view of Article 4 of the Constitution
public functionaries must act in accordance with law which was their paramount duty as said
functionaries receive salaries from public exchequer to discharge their duties in accordance with
the Constitution and law. It may be noted that under Article 212(3) of the Constitution,
judgment/order of the Service Tribunal can be challenged before the Supreme Court by filing a
petition for grant of leave to appeal. Government is not under any obligation to straightaway
implement the judgment of Service Tribunal, but it must act promptly and invoke the appellate
jurisdiction of Supreme Court, if so advised. It must also be borne in mind that if operation of
judgment of the Tribunal is not suspended by Supreme Court, mere grant of leave to appeal
cannot defeat implementation process of the judgment/order passed by Service Tribunal.
Reference in this regard can be made to the following cases:
(i) "Chairman/Managing Director P.I.A.C. v. Nisar Ahmed Bhutto" 2005 SCMR 57.
(ii) "Abdul Hafeez Abbasi v. Managing Director, Pakistan International Airlines
Corporation, Karachi" 2002 PLC (C.S.) 1083 [S.C.].
(iii) "Masood Ahmed Changwani v. Secretary, Establishment Division, Islamabad"
[1999 P LC (C.S.) 443];
(iv) "Azkar Ahmed v. Secretary, Ministry of Information and Technology (IT and
Telecom Division), Islamabad" 2012 PLC (C.S.) 1101 [Lahore], and
(v) "Muhammad Ayub Rizvi v. Education Secretary" 1982 PLC (C.S.) 242
31. Now adverting to the amendments brought by the Majlis -e-Shoora (Parliament) and
Provincial legislatures of Punjab, Khyber Pakhtunkhwa and Sindh in the respective Tribunals
Acts whereby powers have been conferred on the respective Service Tribunals to execu te its
judgments/ orders. Details of such amendments have already been discussed in opening
paragraphs of the judgment. Arguments advanced at the bar were in favour and against the
proposition as to whether can High Court, in exercise of its Constitutional jurisdiction under
Article 199 of the Constitution, issue directions to legislate on a particular subject. On this
question, we are fortified by the judgments passed by Hon'ble Supreme Court in Human Rights
Cases Nos.8340, 9504- G, 13936- G, 13635- P and 14306- G to 14309- G of 2009 (Applications by
Tariq Aziz -ud-Din and others) [2010 SCMR 1301=2011 PLC (C.S.) 1130 [S.C.], wherein
Hon'ble Supreme Court seriously viewed the promotion of civil servants from Basic Scales -21
and 22 in the absence of any Rules and observed as under:
"It would be in all fairness and to streamline the procedure of promotion to the selection
grade from BS -21 to BS -22 and also to avoid unjustness, arbitrariness etc. the rules shall
be framed by the competent authority as early as could be possible."
32. It may also be relevant to mention that consequent upon such observations of honourable
Supreme Court, Government of Pakistan has framed Rules namely the Civil Servants (Promotion
to the Post of Secretary, BS -22 and Equivalent) Rules, 2010 [S.R.O.798 (1)/2010, dated 16- 8-
2010. Gazette of Pakistan, Extraordinary, Part II, 16th August, 2010; PLD Unreported 2010
Federal Statutes 684].
33. In case of Sh. Riaz -ul-Haq (supra), Hon'ble Supreme Court issued directions to the
Federal and the P rovincial Governments to make appropriate legislation to free the Tribunal
from the administrative or financial control of the Executive and to make provision for
appointment of the Chairman/Member of a Tribunal in consultation with the concerned Chief
Justice. Relevant paragraph of the said judgment is as under:
"71. The Service Tribunals both Federal and Provincial perform vital judicial functions
by adjudicating upon issues pertaining to the terms and conditions of Civil Servants,
therefore, it is impe rative that appropriate legislation action be taken post -haste.
Consequently, to avoid denial of access to justice to them, the Federal and the Provincial
Governments through their respective Law Secretaries are hereby allowed 30 days' time
to give effect to the above conclusions/findings and implement this judgment forthwith
by making fresh appointments of Chairmen/Members of the Tribunals, following the
observations made hereinabove. If no steps are taken within the stipulated time, either
through tempora ry or permanent legislation, the provisions of the legislation which have
been declared void under Article 8 of the Constitution shall seize to have effect. As a
consequence whereof the incumbent Chairman/Members of the Tribunals, whose cases
are not cover ed under the above -said proposed provisions, shall also seize to hold said
positions, as the case may be. Similarly, independent budgetary allocation for annual
expenditures of the Service Tribunals shall be provided for in accordance with the
Constitution , enabling the Tribunals to function independently."
34. We are also mindful of the principle of trichotomy of power that is one of the
foundational values of the Constitution whereunder all the three organs of the State, namely the
legislature, executiv e and judiciary are required to perform their functions and exercise their
powers within their allotted sphere. Such organs are exclusive in themselves with regard to
respective domain or jurisdiction, and cannot make inroad or transgress spheres of each other.
However, the Constitution makes it the exclusive power/responsibility of the Judiciary to ensure
the sustenance of system of "separation of powers" based on checks and balances. This is legal
obligation assigned to the Judiciary. It is called upon to enforce the Constitution and safeguard
the Fundamental Rights and freedom of individuals. The Judiciary in Pakistan is independent. It
claims and has always claimed that it has the right to interpret the Constitution and any
legislative instrument and to say as to what a particular provision of the Constitution or a
legislative instrument means or does not mean, even if that particular provision is a provision
seeking to oust the jurisdiction of the Court. By virtue of Articles 4 and 5(2) of the Constituti on,
the Executive authorities are bound to obey the command of the Constitution and to act in
accordance with law a and decide the issues after application of mind with reasons as per law
laid down by the Court in various pronouncements. [Federation of Pakistan through Secretary,
Establishment Division v. Tariq Pirzada (1999 SCMR 2744)]. It is also a settled law that even
Chief Executive of the country is not above the Constitution [Ch. Zahur Ilahi v. Mr. Zulfikar Ali
Bhutto (PLD 1975 SC 383)]. If there sti ll remains any doubt, let us clarify that those executive
functionaries who continue to ignore the Constitution and the law, do so at their own peril.
35. In the above background, we decline to issue directions for implementation of the
judgment/orders passed by the Balochistan Service Tribunal purportedly in favour of the
petitioner and dismiss the petition. Although we have declined the prayer clause of the petition,
yet since the Service Tribunal, being the creation of the Constitution and this Court being the
custodian of the Constitution, would not allow the institution like Service Tribunal to remain
idle, useless and helpless, therefore, we direct the Chief Secretary, Government of Balochistan to
give serious consideration to expediency of bringing appropriate amendments in the Balochistan
Service Tribunal Act, 1974 in the light of (Federal) Service Tribunals (Amendment) Act, 2014
(IV of 2014), Gazette of Pakistan Extraordinary, p.68, dated 17th June 2014 (supra) so that
Balochistan Service Tribunal may also be vested with power to review and execute its own
judgments/orders though we are of the considered view that, even if no amendment is brought in
the said Act, the Tribunal is a Civil Court for all intents and purposes and enjoys plenary and
ample powers to get implemented its own judgments/orders by invoking various provisions of
Code of Civil Procedure, 1908 pertaining to "execution of decree" and "civil imprisonment" etc.
36. Before parting with the judgment, we would like to record our deep a ppreciation for
extremely valuable assistance provided by Mr. Mazhar Ilyas Nagi, learned Amicus Curiae, who
did not only provide assistance on the question of law, but also searched a number of judgments.
It is extremely rare that such good assistance is p rovided by the Amicus Curiae. In our
considered view, he has discharged his obligation towards the profession in an exemplary
manner.
Petition is, accordingly, disposed of as above.
MH/51/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,
let us know.