Writ jurisdiction extraordinary in scope: SC

Urges high courts to use this jurisdiction sparingly and not in every run-of-the-mill case


Hasnaat Malik May 24, 2021
A file photo of the Supreme Court of Pakistan. PHOTO: EXPRESS

ISLAMABAD:

he Supreme Court has urged the high courts to exercise their writ jurisdiction sparingly, noting that this jurisdiction is extraordinary in its scope.

"The jurisdiction conferred on the high courts under Article 199 is an extraordinary relief and the same has to be exercised in aid of justice and not to interfere in jurisdictions of other statutory forums.

“When the law has provided an adequate remedy, constitutional jurisdiction under Article 199 cannot be exercised as the same has to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction.

“It has time and again been said that the tendency to bypass remedy provided under relevant statutes by resorting to constitutional jurisdiction is to be discouraged so that legislative intent is not defeated.

“The same is meant to be exercised in extraordinary circumstances and not in run of the mill cases," said a seven-page order authored by Justice Sayyed Mazahar Ali Akbar.

Justice Naqavi was part of a three-judge bench – headed by Chief Justice of Pakistan Gulzar Ahmed – which heard an appeal against a Balochistan High Court (BHC) order directing the provincial police to issue a joint seniority list of deputy superintendents of police (DSPs) of all cadres/branches.

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The SC bench set aside the BHC ruling.

The written order said the questions involved in these appeals are twofold:

“[The first question is] whether in the given facts and circumstances of this case the constitutional petitions were maintainable before the BHC in view of the specific bar contained in Article 212(2).

“[The second question is] whether there should be a joint seniority list of the DSPs of all cadres/branches and the same is sustainable due to the requirement of classification, manner of selection, training procedure and identification through the same uniform and rank.”

The judgment said as far as the first question is concerned, there is no denial to this fact that the respondents being employees of Balochistan Police are civil servants and the matter pertaining to issuance of joint seniority lists specifically relates to their terms and conditions of service, which particularly rests within the jurisdiction of Balochistan Service Tribunal.

It said the BHC mainly assumed the jurisdiction on the grounds that at the time of passing of the impugned judgment, the Balochistan Service Tribunal was not functional. The SC noted that the service tribunal was not non-functional for an indefinite period.

“The earlier chairman of [the tribunal] remained performing his duties with effect from 06.12.2016 to 05.12.2019; thereafter the incumbent chairman was appointed on 05.05.2020 whereas constitutional petition No 334/2019 was filed on 01.04.2019 when the tribunal was operational.”

The court noted that constitutional petition No 246/2008 was initially filed on 11.05.2008 and after the judgment of this court dated 06.11.2018 the amended petition was filed on 24.09.2019.

“On these dates also, the tribunal was functional. Therefore, it can be safely said that the very institution of the constitutional petitions was against the constitutional mandate,” it added.

The court said it is an established principle of law that the courts assume their jurisdiction through particular law conferring a particular jurisdiction.

“Article 212(2) specifically places an embargo on all other courts except Service Tribunal to grant an injunction, make any order or ‘entertain’ any proceedings in respect of any matter relating to the terms and conditions of service even if they are mala fide, ultra vires or coram non judice," it said.

The court while reproducing Article 212 (2) noted that the word “entertain” used in Article 212(2) of the Constitution is of significant importance.

"This means that any petition or proceeding relating to the terms and conditions of service even should not be entertained by a high court in its constitutional jurisdiction under Article 199.

“In view of the facts and circumstances of this case, entertaining and then proceeding with the constitutional petitions amounts to defeating the express constitutional mandate under which the tribunal is vested with jurisdiction to deal with the matters of civil servants."

The second question before the Supreme Court was whether there should be a joint seniority list of the DSPs of all cadres or it has to be separated from each other depending upon the nature of work.

The judgment noted that it is a matter of common practice, which is prevalent in all four provinces and the Islamabad Capital Territory (ICT) , that seniority lists of the DSPs of the legal/prosecution branch are prepared separately as compared to the DSPs of other branches.

"Section 2(b) of the Balochistan Deputy Superintendents of Police Service Rules, 1978, speaks about different branches of the police. It says, “branch” means a branch of the department organized as a separate and self-contained unit such as General Branch, Prosecution Branch, Telecommunication Branch, Special Branch, Motor Transport Branch, Fingerprint Branch and Anti-Corruption Branch.”

“So, the very enactment, which deals with only the DSPs, admits about different branches.”

The court said the DSP Rules, 1978, Balochistan Police Act, 2011 and the Police Rules, 1934, are silent on the point as to whether there should be separate or joint seniority lists of DSPs.

“But the language used therein about the different branches of the police force and the fact that the mode of recruitment, nature of job, duties and training of legal/prosecution branch of the Balochistan Police is different than the other branches of the police, leaves no room to believe that the act of issuing separate seniority lists is well reasoned, in line with the practice followed in other provinces including the ICT and Gilgit-Baltistan (G-B) and in accordance with the intent of the law.

"So far as the law laid down by the SC in Gul Hassan Jatoi (2016 SCMR 1254) is concerned, the issuance of separate seniority lists up to the rank of DSPs does not in any manner bifurcate the compactness of the Police Force when it is established that beyond the rank of DSPs, the seniority list is again merged into one unit and as such supplement the words of this court ‘one indivisible body’," it said.

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