CONTITUTIONAL PETITIONS UNDER THE CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN 1973
Contents
REGULARIZATION OF CONTRACTUAL EMPLOYEES
2021 SCMR 977
—–Art. 199 —- Civil Service —– Contractual employees seeking regularization in service —- Contract of employment expiring during pendency of Constitutional Petitions before the High Court— Effect—- Constitutional petitions filed by the contractual employees before the High Court would become infructuous — High Court lacked jurisdiction to revive or renew expired contracts—- Conferring a retrospective right upon the contractual employees when their contracts had already expired was ex facie erroneous, illegal and without jurisdiction —– Department was at liberty to dispense with the service of the Contractual employees in accordance with the terms and conditions of the contract which were accepted by the employees when they accepted contractual employment —–High Court could not could not have amended or altered the terms and conditions of the contract of the employees in exercise of its constitutional jurisdiction under Art.199 of the Constitution.
RIGHT OF EASEMENT
2021 SCMR 624
—Arts. 25 &199—- Right of easement —- Question of discrimination —-Respondent installed a petrol pump and was given access from the main road — sub sequentially the Access from the main road was denied by the Provincial Highway Department (petitioner –department) —-respondent filed constitutional petition, which was allowed with the observation that only the respondent ‘s petrol pump had been denied access from the main road , thus, the petitioner-department was directed to provide access points to the petrol pump from the main road in the shape of entry and exist ——-Held, that the according to the report of local commissioner, although some of the petrol pumps had been given access from the main road but at the same time there were petrol pumps, which had no direct approach (but access from service road), therefore, the question of discrimination did not arise — petition for leave to appeal was converted into appeal and allowed , impugned judgment of the High Court was set- aside with the observation that the respondent could approach the High Court of Competent Jurisdiction for redressal of his grievance in accordance with law.
Constitutional Jurisdiction, Freedom of Trade & Business
2021 SCMR 624
—–Arts. 18 &199 —Right of easement —-freedom of trade and business—- Scope —-Questions of fact raised in a constitutional petition before the High Court—-Respondent Installed a petrol Pump and was given access from the main road was denied by the provincial Highway Department (Petitioner – Department) —Respondent filed a constitutional petition, which was allowed with the observation that only the respondent’s petrol pump had been denied access from the main road , which was violation of Art. 18 of the Constitution , thus, the Petitioner- Department was directed to provide access points to the petrol pump from the main road in the shape of entry and exit — Held, that through Art.18 of the Constitution guaranteed every citizen the right of freedom of trade and business or profession but said right of the respondent had not been infringed in the present case, because although he had been denied access from the main road but he had access from the alternate route i.e service road, which was 360 feet away from the main road —- in these circumstances , existence of right of easement in respect of the respondents was a question of facts, which needed to be decided after the recording of evidence and the same could not have been done in the constitutional jurisdiction of High Court.
Jurisdiction of High Court
2021 SCMR 624
—-Arts. 199—— Constitutional Jurisdiction of the High Court — Scope — in cases based upon on factual Propositions, extraordinary writ jurisdiction of the High Court should not be exercised on the mere apprehension of the party—- Jurisdiction conferred on the High Court under Art. 199 of the constitution was an extraordinary relief and the same had to be exercised in aid of justice and not to interfere in jurisdiction of other statutory forums unless it was shown that the impugned order, action or inaction was in violation of any provision of law or without lawful authority or jurisdiction.
Alternate Remedy
2021 SCMR 624
—-Arts. 199 —- Constitutional jurisdiction of High Court —–Scope— Alternate remedy, availability of —- where the law and provide an adequate remedy, constitutional jurisdiction under Art. 199 of the constitution could not be exercised as the same was to be exercised in exceptional circumstances, which could justify invoking the said jurisdiction—propensity to bypass remedy provided under the relevant statute by resorting intent was not defeated.
JUDICIAL REVIEW
2021 SCMR 1376
—-Art. 199 ——Constitutional Jurisdiction of the High Court — Scope —-Jurisdiction of the High Court was to interpret the law, test its vires on the touchstone of the constitution and examine the legality of executive /administrative action in exercise of its powers of judicial review — Court was supposed to interpret the law and apply it in letter and spirit— Court could not go beyond what the law was , and what interpretation permitted — courts lacked jurisdiction to provide remedies which were otherwise not in the law or the constitution by inventing remedies of their own —- Reading provisions or interpreting existing provisions in a manner which had the effect of virtually adding new provisions constituted excessive and arbitrary exercise of jurisdiction and encroached upon the domain of the executive and legislative authority—-such modus operandi militated against the fundamental principle of trichotomy of power which was a corn stone of the constitution.
2021 SCMR 775
—-Art. 199 — Judicial review —- Scope —– judicial review was the power of the court to examine the actions of the legislative , executive , and administrative arms of the government and to determine whether such actions were consistent with the constitution and the law —-Actions judged inconsistent were declared unconstitutional or unlawful and, therefore, rendered null and void— Court entrusted with the power to judicially review an executive action could only declared it to be right or wrong but could not take over the functions and belonged to another organ of the state .
DOMAIN OF EXECUTIVE LEGISLATURE
2021 SCMR 1376
—–Art. 199—Constitutional jurisdiction of High Court —-Scope — Civil service —- creation/abolishment of posts—- Domain of executive– policy making was not the domain of the High Court in the scheme of the constitution and, was the prerogative of the executive to ascertain on the basis of its needs, requirements, available resources and fiscal – space, which posts it wished to keep and which it wished to abolish.
JURISDICTION OF HIGH COURT
2021 SCMR 1376
—–Art. 199—Constitutional jurisdiction of High Court—scope — Discretionary jurisdiction under Art. 199 of the constitution under not be exercised in vacuum, it must be grounded on a valid basis of violation of specific and enforceable legal or constitutional right —such discretion must be exercised in a structured and calibrated manner with due regard to parameters put in place by the constitution as well as by the Supreme Court.
BAR OF JURISDICTION
2021 SCMR 1168
—-Arts.199 &212 (3) —- Baluchistan Service Tribunal Act(V of 1974), S. 3(2)— Issue of joint seniority list of Deputy Superintendent of Police (‘DSPs’) —-Matter relating to the terms and conditions of service —- Constitutional jurisdiction of High Court — Scope — Article 212 (2) of the constitution specifically placed on embargo on all other 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 were mala fide, ultra vires or coram non judice —Word ‘entertain’ used in Art 212(2) of the Constitution was of significant importance ;it meant that any petition or proceeding to the relating terms and conditions of service should not to be even entertained by the high court in its constitutional jurisdiction under Art. 199 of the Constitution—–Respondents being employees of provincial police Force were civil servant and the matter pertaining to issue of joint seniority lists specifically related to their terms and conditions of services, which particularly rested within the jurisdiction of Provincial Service Tribunal—Filing of the Constitutional petitions before the High Court, at a time when the provincial Service Tribunal was functional, was against the Constitutional mandate —-Constitutional petitions filed by the respondents were not maintainable before the High Court.
MAINTAINABILITY OF WRIT JURISDICTION
2021 SCMR 425
—-Art. 199— Constitutional petition before the High Court against an association/body —-Maintainability — Constitutional petition was only maintainable if the association /body performed public functions in connection with the affairs of the Federation, Provincial or Loc’’I Authority , as envisaged under Art. 199 of the constitution.
2021 SCMR 425
Art.199—- Constitutional petition before the High Court —-Maintainability —- Matter involving a factual dispute requiring a factual inquiry and an evident prob. —- such matter could not be resolved in constitutional jurisdiction of the High Court under Art. 199 of the Constitution.
FUNDAMENTAL RIGHTS GRANTED UNDER CONSTITUTION
2021 SCMR 425
Art.199 of Constitutional jurisdiction of the High Court —- Enforcement of Fundamental Rights under the constitution —- Scope— Fundamental Rights were by and large (very exceptional circumstances apart) enforceable against the state and not against private individual.
LEGISLATURE MANDATE
2021 SCMR 775
—–Art.199— Judicial overreach —– when judiciary encroached upon the domain of the executive , it was said to commit judicial overreach – which occurred when a court act beyond its jurisdiction and interfered in areas which fell within the executive and/or the Legislature’s mandate —— Through such interference the court violated the doctrine of separation of powers by taking on the executive functions upon itself — such judicial role imperiled the separation of powers, jeopardized the legitimacy —– Thus, it was imperative that the courts did not derogates from there constitutionally mandate oversight function of judicial review.
EQUALITY OF CITIZEN
2021 SCMR 747
—Art. 25 —Equality of Citizens — Scope — ‘Reasonable/ permissible classification ‘ and intelligible differentia
—-Art.25 & 38(e)— Dis-Proportionality in salary of various classes of employees —-Discrimination —–Scope —-Employees of High Court (BPS 17 to BPS 19) drawing special judicial allowance—- Ad-hoc relief allowance of 5%, entitlement to — provincial Government Vide the impugned notification provide 5% ad-hoc relief allowance to employees of BPS 17 to BPS 19 but the same was not made available to those employees of the provincial Government who were already drawing special allowances including special judicial allowance, subject matter of issue in dispute— Respondents being employees of the BPS 17 to BPS 19 of the High Court were already drawing special judicial allowance, therefore, they were denied 5% ad-hoc relief allowance—- Constitutionality— Through the impugned notification , the relief of 5% was denied to those employees of BPS 17 to BPS 19, who were already drawing special allowances in the name of Health Special Allowances, Special Judicial Allowance, Schedule post allowance —– Technical Allowance, Prisons Allowance, and prosecution Allowance—- Reason for such classification as furnished by the Provincial Government/ appellant was due to finical; impediment the employees from BPS-17 and above , being officers were in receipt of more salary then those employees from BPS 1 to BPS 16, which in common parlance was called dis-proportionality in the salary of the employees—Article 38€ of the Constitution made it mandatory for the Government that it shall , reduce disparity in the income and earnings in individuals, including persons in the various classes of the service of Pakistan—in the way, it was the duty of the Government to remove the dis-proportionality in the salaries of various classes of employees who were in service of Pakistan — in the present case, intelligible differentia existed between the two sets of employees and such difference was logical and lucid and could not be termed as artificial or arbitrary — Impugned notification was impliedly in consonance with the spirit of the Constitution, therefore , the High Court ought to have refrained from interfering in it —- impugned notification was declared to be legal and rightly issued in accordance with law.
POLICY DECISION OF COMPETENT AUTHORITY
2021 SCMR 1230
–Arts. 199 & 185 Policy decisions of a competent authority….. Noninterference by superior courts…..scope…. courts role was not to be interfere in policy decision, unless it was manifest that , such policy decisions were the outcome of arbitrary exercise of power, mala fide, were patently illegal or manifestly unreasonable.
……Arts. 184 & 185…. Judgments/orders of the Supreme Court ….. Scope…. When there was a categorical pronouncement of the Supreme Court, which was specific in nature, the same could not be expended and extended to change its meaning, scope and applicability.
LIMITATION PERIOD FOR CIVIL APPEAL FOR FINANCIAL CLAIM
2021 SCMR 1230
…..S. 4….. Limitation (Act IX OF 1908), Ss. 3 & 4 ….. Service appeal involving a financial claim from an employee…..limitation ….condonation of delay ….scope …..principle that where a claim involved a financial matter or payment of dues, it constituted a recurring cause of action and thus impediment of limitation in filing service appeal would not be applicable, and any delay in filing the same was to be condoned … Held, that said principle applied only where the claim was found to be valid and entitlement of the litigant had been established in judicial proceedings before a court of law of competent jurisdiction ….only in such circumstances, courts had in appropriate cases, condonation of delay could not be granted merely on the ground that a financial claim had been raised, irrespective of its merit legality and validity.
EXCLUSIVE JURISDICTION OF TRIBUNALS
2021 SCMR 1554
—Arts. 199 and 212….. matter relating to the terms and conditions of exclusive jurisdiction of administrative tribunal and ouster of jurisdiction of High Court ,,, Scope ….any petition relating to terms and conditions of service was to be dealt with by administrative courts and tribunals specifically established for its adjudication in pursuance of Art. 212 of the Constitution …..As a general principle, the framers of the constitution while inserting the said provision had ousted the jurisdiction of other courts including the High Court under Art. 199 of the Constitution …..However there were certain exceptions depending upon the facts and circumstances of each case… constitutional jurisdiction was always considered as extraordinary , which was to be exercised in extraordinary circumstances, if so warranted, hence, the constitutional jurisdiction could not be curtailed stricto-sensu, leaving some room for its application where safe administration of justice and fair play was required…. Superior court while exercising constitutional jurisdiction must satisfy themselves that they may not interfere or infringe the jurisdiction of any other statutory forum in any manner when an equal efficacious/adequate remedy was available under the statue of the redressal of the grievances of the litigants.
WRIT OF QUO-WARRANTO, SCOPE AND PURPOSE
2021 SCMR 1979
—Art. 199 (1) (b) (ii) Writ of quo warranto…. Scope and purpose …. Writ of quo warranto was issued by the court to judicially review situation against a person when he assumed an office for which he had no entitlement…. Writ of quo warranto was an effective measures to prevent people from taking over public offences when they did not qualify for the same.
—Art. 199 (1)(b)(ii) Writ of quo warranto….scope…No prohibition existed in law as to who could file a writ of quo warranto, however, the power of issue such writ was discretionary and nobody could claim that the court has bound to issue this writ.