When Writ Petition Is Maintainable in Service Matters Despite Article 212 Bar in Pakistan ?

When Writ Petition Is Maintainable in Service Matters Despite Article 212 Bar in Pakistan”

FAQ:

“Writ Jurisdiction in Service Matters in Pakistan: Exceptions to Article 212 Explained”
“Article 212 vs. Article 199: When Can You File a Writ Petition in Service Cases?”
“Maintainability of Writ Petitions in Service Matters Under Pakistani Law”
“Writ Petitions in Service Matters: Circumstances Where Article 212 Does Not Apply”
“Can Civil Servants File Writ Petitions in Pakistan? Exceptions to Article 212”
“Writ Petitions and Service Tribunals in Pakistan: Complete Guide with Case Law”
“Filing a Writ in Service Matters: Legal Exceptions to Article 212 in Pakistan”

1. Introduction

In Pakistan, service matters typically fall under the jurisdiction of administrative forums and service tribunals. However, under certain circumstances, a writ petition under Article 199 of the Constitution of Pakistan, 1973, is maintainable in the High Courts, despite the apparent bar imposed by Article 212(2). This legal framework has evolved through judicial interpretation, balancing the exclusive jurisdiction of the Service Tribunals with the constitutional mandate of judicial review vested in High Courts.

This article aims to explore:

The general rule of exclusion of writ jurisdiction in service matters.
The exceptions where writ petitions are maintainable.
Judicial interpretations and leading case law.
Specific situations where writ petitions lie despite the existence of a service tribunal.
Recommendations and concluding remarks.

2. Constitutional and Statutory Provisions

2.1 Article 199 – Writ Jurisdiction of High Courts

Article 199 empowers the High Courts to issue writs in appropriate cases where:

A person performs functions in connection with the affairs of the Federation, a Province, or a local authority.
There is a violation of fundamental rights.
There is lack of jurisdiction, mala fide intent, or violation of the law.

2.2 Article 212 – Establishment of Administrative Courts and Tribunals

Article 212(2) reads:

“Notwithstanding anything hereinbefore contained, where any law provides for the establishment of an Administrative Court or Tribunal to deal with matters relating to the terms and conditions of persons who are or have been in the service of Pakistan… no other court shall grant an injunction, make any order or entertain any proceedings in respect of any such matter.”

The constitutional scheme reflects a bar on ordinary civil courts and High Courts, once a tribunal is competent to deal with such matters.

2.3 Service Tribunals Act, 1973

Under the Service Tribunals Act, the Service Tribunals are vested with exclusive jurisdiction in matters relating to terms and conditions of service of civil servants.

3. General Rule: Writ is Barred Where Service Tribunals Have Jurisdiction

Where a civil servant raises a dispute relating to terms and conditions of service, promotion, seniority, disciplinary proceedings, or retirement, the proper forum is the Service Tribunal. The High Court does not entertain such cases owing to the bar under Article 212(2).

The leading case law affirming this principle includes:

The Supreme Court held that once a special tribunal is created under a constitutional mandate, the jurisdiction of ordinary courts is barred in respect of matters assigned to such tribunals.

4. Exceptions to the Bar Under Article 212(2)

Despite the general bar, the judiciary has carved out several exceptions where writ petitions are maintainable in service matters.

4.1 Where the Aggrieved Person is Not a “Civil Servant”

A person not falling under the definition of “civil servant” under Section 2(b) of the Civil Servants Act, 1973, may invoke writ jurisdiction.

Held that where a person is not a civil servant, the Service Tribunal has no jurisdiction. Writ petition lies.

Possible Situations:

Contract employees.
Daily wagers.
Employees of autonomous bodies.
Employees not governed by Civil Servants Act, 1973.

4.2 Recruitment Process / Appointment Disputes Before Entry into Service

If the matter pertains to initial recruitment or selection and the petitioner has not yet entered service, the person is not yet a civil servant. Thus, Service Tribunal has no jurisdiction, and the writ is maintainable.

A person denied appointment despite merit list recommendation may invoke writ jurisdiction.
Writ was held maintainable where the petitioner was recommended by FPSC but not appointed.

Possible Situations:

Denial of appointment despite recommendation by the Selection Board/FPSC.
Non-issuance of appointment letter after final selection.
Arbitrary cancellation of merit list.
Appointment of less meritorious candidate.

4.3 Matters Involving Violation of Fundamental Rights

Where the issue involves discrimination, right to life, equality before law, or other fundamental rights, writ jurisdiction is not barred.

A public employee may invoke writ jurisdiction if there is infringement of fundamental rights, e.g., being treated differently than similarly situated persons.

Possible Situations:

Discriminatory denial of promotion.
Violation of right to be heard (Article 10A).
Unlawful dismissal without inquiry.

4.4 Allegation of Mala Fide, Corruption, or Lack of Jurisdiction

Where action of the authority is without lawful authority, in excess of jurisdiction, or tainted with mala fide intent, the High Court can exercise writ jurisdiction.

Held that mala fide exercise of power can be challenged through writ even in service matters.
Arbitrary and politically motivated non-appointment declared justiciable through writ.

Possible Situations:

Appointment/promotion made to favor blue-eyed candidates.
Victimization or political interference.
Bypassing due process.

4.5 Employees of Statutory Bodies Having No Service Tribunal

If a person is employed by a statutory body, and no tribunal exists for redress, High Court may entertain a writ.

If rules of the organization have statutory effect, writ jurisdiction applies.

Possible Situations:

Employees of universities, PIA, WAPDA, OGDCL, etc.
Removal without adopting proper procedure.

4.6 Violation of Rules Having Statutory Effect

Where a rule or regulation has the force of law, its violation invites writ jurisdiction, even in service matters.

Violation of rules framed under statutory authority is amenable to writ.

Possible Situations:

Promotion rules ignored.
Selection procedure not followed as per statutory rules.
Rules arbitrarily amended to exclude certain candidates.

4.7 Where No Alternate Remedy is Available

If the Service Tribunal lacks jurisdiction, or alternate remedy is not equally efficacious, High Court may entertain a writ petition.

High Court can assume jurisdiction where alternate remedy is illusory or ineffective.

Possible Situations:

Tribunal dysfunctional or excessively delayed.
Tribunal refuses jurisdiction.
Urgent relief required.

5. Practical Scenarios Where Writ May Lie

Situation	Writ Maintainable?	Reason
FPSC recommends candidate but appointment not issued	Yes	Not yet a civil servant
Civil servant dismissed without inquiry	Yes	Violation of fundamental rights
Contract employee terminated arbitrarily	Yes	Not covered under Civil Servants Act
Regular employee denied promotion	No (Generally)	Within Service Tribunal’s domain
Dismissal on political basis or mala fide	Yes	Allegation of mala fide
OGDCL employee dismissed without notice	Yes	Not civil servant; writ lies
Dispute over seniority or pension	No	Falls within exclusive tribunal domain
Government bypasses merit list	Yes	Violation of equality / arbitrary action
Inquiry officer not competent	Yes	Action without lawful authority
Teacher in public university removed without notice	Yes	Statutory body; if rules violated

7. Conclusion

Although Article 212 seemingly bars the High Courts from entertaining service matters, it does not oust the jurisdiction in all cases. Courts have consistently held that Article 212 is not a blanket bar, and High Courts retain constitutional jurisdiction under Article 199 in exceptional and justified circumstances.

Maintaining the rule of law, ensuring fairness, and preventing abuse of power require that writ petitions be allowed in cases involving:

Non-civil servants,
Appointment irregularities,
Violation of statutory rules,
Fundamental rights breaches,
Corruption or mala fide exercise of power.

While the Service Tribunals play an important role in adjudicating service disputes, judicial review under the Constitution remains a cornerstone of legality and justice.

Written by: Asadullah Hassan Hashmi

LLM-ITL (Medalist)

Contacts: 0332-7516974 / 0332-0074848

Office: Flat no. 4, Block-D-7, FGEHA. Apartments, Opposite Federal Judicial Complex, Sector G-11/4, Islamabad

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