๐๐ง ๐๐ฉ๐ฉ๐๐๐ฅ ๐๐ซ๐จ๐ฆย ๐ ๐๐๐๐ข๐ฌ๐ข๐จ๐ง ๐จ๐ ๐ ๐๐ซ๐จ๐ฏ๐ข๐ง๐๐ข๐๐ฅ ๐๐ซ๐ข๐๐ฎ๐ง๐๐ฅ ๐๐ฌ๐ญ๐๐๐ฅ๐ข๐ฌ๐ก๐๐ ๐/๐ ๐๐๐ ๐จ๐ ๐ญ๐ก๐ ๐๐จ๐ง๐ฌ๐ญ๐ข๐ญ๐ฎ๐ญ๐ข๐จ๐ง ๐๐ข๐๐ฌ ๐ญ๐จ ๐ญ๐ก๐ ๐๐ฎ๐ฉ๐ซ๐๐ฆ๐ ๐๐จ๐ฎ๐ซ๐ญ: ๐๐
A five-member bench of the Supreme Court has unanimously held in a very recent case that an appeal from a decree or order of a service or an administrative tribunal established by a provincial assembly under Article 212 (1)ย is maintainable before the Supreme Court under sub-clause 3 of Article 212 of the Constitution. The Court has revisited its earlier view in Gomal Medical College, Medical Teaching Institution, D.I. Khan v. Muhammad Armaghan Khan, (PLD 2023 SC 190), which had held that proviso to sub-clause 2 of Article 212 is a bridge between sub-clause 3 and 1 of the same, and unless a resolution has been passed by the provincial assembly followed by the Act of the Parliament as required by the said proviso, sub-clause 3 cannot be made applicable to a provincial tribunal, which means that an appeal will not lie to the Supreme Court from a provincial tribunal if the proviso is not activated. This was the view of the division bench of the SC in the Gomal case which had read the sub-clause 2 as a jurisdiction clause not an ouster clause.
The five-member in a recent case not only revisited the ratio of the Gomal case but has also held that the proviso to sub-clause 2 is applicable to the said sub-clause and sub-clause 3 is a stand alone clause which confers jurisdiction upon the SC to hear appeals arising from an order or a judgment of a tribunal, whether federal or a provincial.
The Court has also held that if the said proviso is not activated through the mechanism mentioned therein, it at best means that a litigant has multiple forums to redress his grievance, like a civil court under section 9 of the Code of Civil Procedure, a High Court under Article 199 of the Constitution and the tribunal itself as well. Once a remedy under any forumย other than the tribunal established by the province is availed by a litigant in a province, an appeal would not lie to the SC.
However, Honorable Justice Ayesha Malik has appended her additional note. She has agreed to the extent of the merits of the case but she has dissented with regard to the reasoning of the bench.
c.p._167_p_2022
