PLCCS 2000 Judgments

P L C (C.S.) 30

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Syed Muhammad Zafar Babar, Member

MUHAMMAD ASLAM

Versus

WAPDA through Chairman, WAPDA and 2 others

Appeal No. 56 (L) of 1998, decided on 25th March, 1999.

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Limitation---Condonation of delay---Appellant, civil servant approached National Industrial Relations Commission without claiming relief from Service Tribunal and nothing was on record to show that he sought remedy before wrong forum in good faith---Appellant filed appeal before Service Tribunal after considerable delay alongwith application for condonation of delay---Validity---Where a person had sought remedy before a wrong forum, he was not entitled to condonation of delay unless he proved that he had sought remedy before wrong forum in good faith---Appellant having failed to explain delay reasonably and satisfactorily his appeal before Service Tribunal was dismissed being time-barred.

Ch. Riaz Ahmad for Appellant. Saeed Ahmad Bhatti for Respondent.

Date of hearing: 22nd March, 1999.

2000 P L C (C.S.) 33

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Abdul Hameed Khan Khattak, Members

ALI-UR-REHMAN

Versus

CANTONMENT EXECUTIVE OFFICER, KHARIAN CANTT--and another

Appeal No: 627 (R) of 1998, decided on 27th January, 1999.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4-Appeal ---Limitation---Delay---Condonation---Civil servant could bring Departmental Appeal within thirty days of passing of order against him and if said appeal would remain un-disposed of un-responded for ninety days, civil servant would have thirty days period at his disposal to come to Service Tribunal where appeal would succeed on merits and delay, if any, could be condoned.

1997 SCMR 1160 ref.

(b) Civil service---

----Dismissal from. Service---Civil servant working as Mali was directed to be present on Sunday for performing official duties, but he could not turn tip on Sunday due to heavy rain---Civil servant was dismissed from service on the ground that he was leader of all other Malis and that he had instigated all other Malis against the administration---No inquiry having been initiated against civil servant, mere whim of Authority that civil servant was a leader, could not take place of proof as surmises and whims could not take, place of proof.

(c) Criminal trial---

---- Acquittal by giving benefit of doubt---Effect---Acquittal would mean acquittal and there was no term as honorable acquittal or dishonorable acquittal ---Once a person was acquitted by Trial Court, said person would stand shorn of stigma of-any allegation and he would have to be deemed thereafter as innocent and having not committed any such crime---If acquittal of accused would not be assailed before higher forum acquittal earned by accused from Trial Court on whatsoever basis, would attain finality and Pandora box of allegations could not be re-opened or be made use of against accused.

Fazal Elahi Siddiqui for Appellant.

Mushtaq Hussain Bhatti alongwith Farrukh Masood, Cantonment Of D. R.

Date of hearing: 23rd January, 1999.

2000 P L C (C.S.) 39

[Federal Service Tribunal]

Before Muhammad Ayub Khan, and Abdul Hameed Khan Khattak, Members

MASHAL KHAN

Versus

GOVERNMENT OF PAKISTAN through Establishment Division, Islamabad and another

Appeal No. 314 (R) of 1997, decided on 22nd March, 1999.

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

--R. 8-B(7)---Appointment on acting charge basis---Right of regular promotion- --Appointment on acting charge basis would not confer any vested right for regular promotion to the post held on acting charge basis.

Manzoor Hussain v. Secretary, Establishment Division and others appeal No. 333 (R) of 1984; Mehr Sher Muhammad and others v. Federation of Pakistan Civil Appeals Nos. 946 to 948 of 1993; Salamat Ali

Baig and others v. Secretary. Establishment Division and others 1997 SCMR 1760 and Malik Sher Afzal v. Secretary, Establishment Division, Appeal

No. 210 (R) of 1995 ref.

Appellant in person.

M. Javaid Aziz Sandhu, Standing Counsel alongwith Pir M. Ishaq, D. A: S.

Abdul Rahim Bhatti for the Private Respondent No. 150.

Private Respondents Nos. 145, 210 and 230 in person.

Date of bearing: 22nd March, 1999.

2000 P L C (C.S.) 103

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Nasim Sabir Syed, Member

MUHAMMAD IQBAL

Versus

DIRECTOR-GENERAL, PAKISTAN AERONAUTICAL COMPLEX, KAMRA, DISTRICT ATTOCK and another

Appeals Nos.766-R to 789-R of 1997, decided on 25th March, 1998.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Federal Public Service Commission (Regularisation) Rules, 1978, R. 3---Appointment---Regularisation of services---Fifteen employees, out of whom thirteen were of Armed Forces Personnel, working equivalent to posts of B-16 in Armed Forces and other two were civilians, were recruited in B.P.S 16 without advertisement in the press and without approval of Federal Public Service Commission---Ministry of Defence was advised through a letter to revoke said irregular appointments forthwith and furnish, necessary requisition to Federal Public Service Commission---Ministry of Defence on receipt of said letter took up the matter for regularization of services of employees considering their level of experience, very high technical skill and humanitarian issue, but Authority concerned decided to revoke irregular appointments---Held, selection of employees was made by High Powered Committee on temporary basis but the posts were permanent and Department was persistently pressing for regularisation of employees being satisfied with their experience, skill and utility in factory---Thirteen Armed Forces Personnel who were equivalent to B-16 in Armed forces were excluded from appearance in test and interview before Federal Public Service Commission, could be regularised---Even otherwise all employees having been serving since long, principle of locus poenitentiae and doctrine of reasonable expectation had created a vested right in them after such a long service with devotion, experience and extra satisfaction of their superiors---Two civil employees were also directed by Service Tribunal to be regularized immediately expecially because services of such-like employees in two other projects under Ministry of Defence had already been regularised.

(b) Locus poenitentiae---

----Doctrine of locus poenitentiae and doctrine of reasonable expectation--­Application.

Nasir Saeed Sheikh for Appellant.

M. Aslam Uns, Federal Counsel for Respondent.

Date of hearing: 14th March, 1998.

2000 P L C (C.S.) 147

[Federal Service Tribunal]

Before Abdul Hameed Khan Khattak and Dr. Akhtar Hasan Khan, Members

Syed ZULFIQAR ALI SHAH

Versus

MANAGING DIRECTOR, DISTRIBUTION, WAPDA, LAHORE

Appeal No.287-P of 1998, decided on 20th April, 1999.

Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Competency---Principles of res judicata---Applicability--­Appellant was dismissed from service after issuing him show-cause notice and holding inquiry against him on ground of misconduct---Service Tribunal on appeal, converted dismissal order into removal from service---Order of conversion attained finality as none of the parties assailed the order in Supreme Court---Appellant in a criminal case registered against him having been acquitted, he moved Authority for his reinstatement, which request of appellant was turned down and he filed appeal against that order---Earlier order of Service Tribunal whereby dismissal order was converted into removal from service which had attained finality, could not be re-opened on any score---Appeal being hit by principles of res judicata, was dismissed with costs, in circumstances.

Appellant for person.

Syed Kazim Hussain Kazmi for Respondent.

Date of hearing: 20th April, 1999.

2000 P L C (C.S.) 149

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

M: SAFDAR KHATTAK

Versus

THE CHAIRMAN, PAKISTAN INTERNATIONAL AIRLINES, KARACHI and another

Appeal No. 331-P of 1997, decided on 12th March, 1999

(a) Civil service---

---- Pro forma promotion---Meaning and scope---Pro forma promotion was a defective promotion wherein an incumbent not for any fault on his part was denied promotion, inclusive of pending of departmental proceedings---If, however, the incumbent was subsequently considered and found fit in all respects he was allowed pro forma promotion, seniority, etc. with all benefits.

(b) Civil service---

---- Restoration of seniority as well as promotion---Withholding of financial benefits---Validity---Civil servant was allowed seniority as well as higher pay group, but simultaneously he stood bereft of financial benefits ---Validity--­Theory and practice must go together, but civil servant was theoretically allowed facility but practically he was deprived of its benefits without which said benefits had become meaningless---Civil servant was entitled to be allowed financial benefits in circumstances as his seniority and promotion had been restored.

A.V. Issacs v. Federation of Pakistan PLD 1967 Lah. 159; PLD 1970 SC 415; PLD 1973 Lah. 56; 1973 SCMR 304; 1990 SCMR 1692; 1993 PLC (C.S.) 1057; 1985 SCMR 1394; 1998 SCMR 2237; 1998 PLC (C.S.) 980; 1985 SCMR 1158; 1993 PLC (C.S.) 1404; PLD 1991 SC 1118 and 1998 SCMR 736 ref.

Riaz Ahmed Khan for Appellant. Mushtaq Hussain Bhatti for Respondents.

Date of hearing: 2nd March, 1999.

2000 P L C (C.S.) 223

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

ALI MURAD

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and others

Appeal No.520-R of 1997, decided on 14th April, 1998

Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

---R. 3(2)---Ante-dated appointment---Authority as per Four-Tier Formula in respect of teaching staff of Government Colleges granted Grade BP-18 to civil servants alongwith others from date of notification of enforcement of scheme under the formula---Civil servant claimed that he should have been granted Grade BP-18 from date of approval of said scheme---Scheme in question was made under R.. 3(2)Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 which had provided that scheme could not be framed earlier than 28-3-1996, which was date of enforcement of the scheme---Authority had to frame and enforce the scheme in consultation and assistance of other concerned departments including Establishment Division---Appointments under Four Tier Formula could not be made earlier than the date of enforcement of scheme---Contention of civil servant regarding ante-date appointment in BPS-18 with ,effect from approval of scheme instead of enforcement thereof, could not be accorded to.

Raja Muhammad Asghar Khan for Appellant.

M. Aslam Uns, Federal Counsel for Respondents

Date of hearing: 10th April, 1998.

2000 P L C (C.S.) 227

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

Dr. M. SARWAR

Versus

PAKISTAN AGRICULTURAL RESEARCH COUNCIL, ISLAMABAD

through Chairman and 2 others

Appeal No.727-R of 1997, decided on 15th April, 1998.

(a) Civil service---

---- Advance increments---Move-over---Entitlement----Civil servant falling under categories of technical employees being scientist; was appointed with advance increments considering his qualifications and other factors and he reached maximum of B-18---Benefit of advance increment and move-over from B-18 to B-19, subsequently was denied to civil servant on ground that he had not completed requisite tenure of seven years in B-17---Validity--­Professionals and technical incumbents including scientists could not be treated at par with their counterparts in identical pay scale, but such categories of persons needed more encouragement for over all development of country---Civil servant who was a scientist of high caliber and had rendered research work, was most suitable person for grant of advance increments and move-over.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Administration of justice---Appeal---Order appealed against was communicated to appellant after delay of about twenty days---Authorities Linder law were legally bound to supply copies of requisite order as early as possible for curbing delay in disposal of judicial matters on one hand and cultivating spirit of solidarity among citizens of State for further minimizing chances of unwarranted demonstration of conduct, detrimental to peace and good order.

Hafiz S.A. Rehman for Appellant.

Abdur Rashid Channar, Section Officer, Finance Division., Wazir Khan Niazi AD (Litigation), PARC.

Date of hearing: 4th April, 1998. .

2000 P L C (C.S.) 240

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

DR. EHSAN ALI

Versus

SECETARY, KASHMIR AFFAIRS AND NORTHERN AREAS

AND SAFRON DIVISION, ISLAMABAD and 5 others

Appeal No.269-R of 1998, decided on 5th December, 1998.

(a) Civil service---

---- Grant of four advance increments---Withdrawal and recovery of over­payment---Four advance increments allowed to civil servant were subsequently withdrawn with direction to recover overpayment made to civil servant as a result of said increments---Facility of four increments to civil servant was not based on any valid notification or order of Competent Authority and record did not disclose background under which payment of four advance increments was being made to civil servant---Active pursuit of facility. by civil servant for such a long time had indicated his mala fides to get undue benefit---Four advance increments illegally allowed to civil servant and obtained by civil servant with mala fide intention were rightly withdrawn by Competent Authority---Law and financial discipline must prevail in each and every department/organisation strictly in spirit of principle of Islam and law of land.

PLD 1969 SC 407; 1997 SCMR 15; 1991 SCMR 2330; 1995 PLC (C.S.) 1090 ref.

(b) Civil service---

-----Principle of locus poenitentiae---Application---Civil servant who had been receiving four advance increments, mala fide, for a long time and without any legal justification had claimed that as he was paid said advance increments since long, he had acquired a vested right under principle of locus poenitentiae to continue to receive said increments---Principle of locus poenitentiae no doubt would hold good, conditionally, in certain matters, but it was not absolute rule.

17LD 1992 SC 207 ref.

(c) Precedent---

---- Binding effect---Correct order/judgment/precedent, had to pie followed and honoured, but in no case, a wrong order/precedent needed to be acted upon.

Syed Kazim Hussain Kazmi for Appellant.

Javaid Aziz Sandhu, Standing Counsel for Respondent alongwith Pir M. Shah, L.O. and M. Ashraf Malik, A.A.O., AGPR, D.R.

Date of hearing: 17th November, 1998.

2000 P L C (C.S.) 270

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Abdul Hameed Khan Khattak, Members

MUHAMMAD RAMZAN

Versus

ADDITIONAL SUPERINTENDENT OF POLICE ISLAMABAD---and another

Appeal No.232-R of 1998, decided on 15th February, 1999.

Civil service--­

---- Reduction in rank---Summary proceedings---Major penalty of reduction in rank (from Sub-Inspector to Assistant Sub-Inspector of Police) was awarded to civil servant on certain allegations, only after issuing him show­ cause notice, but without holding any enquiry by appointing Enquiry Officer---Authority, while imposing penalty of reduction in rank to civil servant, had not specified duration of reduction period, which had rendered the order of Authority as defective---Authority in awarding penalty to civil servant had adopted summary procedure of enquiry---Validity---Ordinarily summary procedure of enquiry was to be adopted only where minor penalty was proposed to be awarded and if major penalty was to be executed, principles of natural justice required that a full dress discrete and detailed inquiry was conducted.

Raja Saifur Rehman for Appellant.

Shujjat Hussain Naqvi, PDSP, D.R. for Respondents.

Date of hearing: 11th February, 1999.

2000 P L C (C.S.) 276

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Abdul Hameed Khan Khattak, Members

Dr. Mrs. SADDIQA MALIK

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 4 others

Appeal No.728-R of 1998, decided on 25th March, 1999.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Non-impleading of necessary party---Appeal---Competency--­Appellant in memorandum of appeal had contended that six officers who were junior to appellant were promoted from B.P.S. 20 to B.P.S. 21 and he was ignored against which he made representation, which was turned down by Competent Authority---Said six officers, despite being necessary parties, were not impleaded as respondents in the appeal which was time-barred--­Appeal filed by appellant was liable to be dismissed for non-joinder of necessary parties.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Limitation--Appellant who claimed to be promoted from B.P.S. 20 to B.P.S. 21 had challenged in appeal promotions of respondents which were made 14 and 15 years before---Validity---Appellant could not legally be allowed to challenge orders of promotion of respondents after lapse of 14/15 years---Law would support vigilant and not indolent and limitation if allowed to commence, could not be stopped---Appeal was liable to be dismissed being hopelessly time-barred.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Maintainability---Doctrine of res judicata—­Applicability----Appellant earlier filed two appeals, first one was dismissed by Service Tribunal in limine as being time-barred and second one was dismissed as withdrawn by appellant---Appellant having not assailed order of dismissal of first appeal in Supreme Court, said order of dismissal had attained finality---Order dismissing appeal passed by Service Tribunal which had attained finality was binding on the parties and appellant could not be allowed to reopen or reagitate same in appeal as doctrine of res judicata would be applicable to the matter---Appeal filed by appellant was not maintainable being hit by principles of res judicata.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants Act (LXXI of 1973), S.22---Promotion---Fitness of civil servant for promotion---Jurisdiction of Service Tribunal---Eligibility of civil servant for promotion was a question with regard to which jurisdiction of Service Tribunal had not been barred as said question was relevant primarily to terms and conditions of service of civil servant---Service Tribunal, however, lacked jurisdiction to go into question of fitness of civil servant for promotion---Fitness would introduce an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of Competent Authority was not possible for that of a Service Tribunal or a Court---Question of fitness or suitability for promotion exclusively falls within jurisdiction of Competent Authority not shared by Court or Service Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification---No such a bar existed either in express words of S. 4 of Service Tribunals Act, 1973 or even by implication on question of eligibility and qualification.

(e) Civil service---

----Promotion---Entitlement---Civil servant had claimed that she being senior-most officer in the Department had become eligible for promotion from B. P.S.20 to B. P.S.21, but officers junior to her had been promoted and she had been superseded---Case of civil servant was considered thoroughly but Special Selection Committee did not recommend her for promotion on account of non-fulfilment of required threshold i.e. seventy marks in her Annual Confidential Report which was a qualification for promotion to B.P.S. 21 fixed by Government---Mere seniority of civil servant would not count in giving promotion, but many other relevant factors were also to be taken into consideration by Special Selection Committee--Civil servant, in the light of formula and rules as engrained in Finance Division's O.M., dated 7-4-1987, had to earn good/very good reports in Annual Confidential Reports for her promotion, but Annual Confidential Reports of civil servant ranging over last twenty-two years revealed that civil servant had secured fifteen average reports and seven good reports---Officer who was being considered for promotion to B.P.S.21 must have earned good/very good reports and no room was open for "average" 'report to be countenanced in any of such reports---Civil servant who had failed to get required number of good reports, was rightly not promoted to B.P.S.21.

Raja Muhammad Bashir and Khalid Abbas Khan for Appellant.

Muhammad Aslam Uns, Standing Counsel for Respondents Nos. 1 and 2

Muhammad Munir Piracha for Ministry of Science and Technology alongwith Ishaq Baig, Dy. Director (Admn.), Pakistan Science Foundation and Abdul Wakil, Section Officer, Ministry of Science and Technology, D.Rs.

Date of hearing: 20th March, 1999.

2000 P L C (C.S.) 283

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

MUHAMMAD IQBAL BHATTI

Versus

Dr. M. AKRAM SHEIKH, CHAIRMAN, STATE ENGINEERING

CORPORATION, MINISTRY OF INDUSTRIES AND PRODUCTION, GOVERNMENT OF PAKISTAN, SAEED PLAZA, BLUE AREA, ISLAMABAD and 2 others

Appeal No.384-L of 1997, decided on 3rd February, 1999.

Service Tribunals Act (LXX of 1973)--

----S. 4---Appeal---Competence---Appellant who wanted to resign under" voluntary separation scheme" filed application in that respect, but his application was dismissed as the same was filed after about two years from expiry of said scheme---Departmental appeal filed by appellant against dismissal of his application was time-barred---Appeal before Service Tribunal which also was belated had become incompetent.

PLD 1996 SC 845; 1979 SCMR 626 and PLD 1990 SC 951 ref.

Appellant in person.

Iqrar Hussain Dilawari for Respondents.

1999 P L C (C.S.) 287

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

SAIF ALI

Versus

NATIONAL BANK OF PAKISTAN through President and 2 others

Appeal No.982/L of 1998, decided on 3rd February, 1999.

(a) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A, 4 & 6---Removal from service---Appeal---Limitation---Appellant who was removed from service on allegation of misappropriating amount of Bank filed grievance petition before Labour Court, which Was dismissed and appellant filed appeal before Labour Appellate Tribunal---Pending appeal before Labour Appellate Tribunal, S. 2-A was inserted in Service Tribunals Act, 1973 whereunder appellant became civil servant---Effect---After insertion of S. 2-A in Service Tribunals Act, 1973 appeal filed by appellant before Labour Appellate Tribunal got abated ipso facto under operation of law---Appellant filed appeal before Service Tribunal under S. 4, Service Tribunals Act, 1973, after more than one year from abatement of appeal---Appeal was dismissed being time-barred, in circumstances.

PLD 1976 SC 195; PLD 1983 SC 385; 1985 SCMR 333; 1985 SCMR 890; 1975 SCMR 259; 1991 SCMR 1841; 1997 SCMR 1167; 1998 SCMR 307; 1998 SCMR 517 and 1998 SCMR 785 ref.

(b) Limitation-

---- Nature and importance---Limitation was most crucial and important point in judicial system wherein more than often default of one party conferred ipso facto right to the other and judicial forum while acting impartially, must keep even and firm scale of justice without any tilt in favour of one party against another for administration of ideal justice and maintaining rule of law.

Muhammad Ramzan Qadri for Appellant.

2000 P L C (C.S.) 291

[Federal Service Tribunal]

Before Abdul Hameed Khan Khattak and Akhtar Hasan Khan, Members

ABDUL AZIZ GORMANI

Versus

REGIONAL MANAGER AGRICULTURAL DEVELOPMENT

BANK OF PAKISTAN, D.G. KHAN and another

Appeal, No.44-P of 1999, decided on 14th April, 1999.

(a) Limitation---

----Condonation of delay---Doctrine of limitation was based on legal maxims that delay defeats equity; time and tide wait for none; and law helps the vigilant and not the indolent ---Litigations undergone before' incompetent forums, need not be condoned---Courts were not supposed to compromise on limitation specially when delay was contumacious as delay of each day was to be justified by party concerned.

PLD 1983 SC 385; 1975 SCMR 259; 1985 SCMR 333; 1985 SCMR 890; 1991 SCMR 1841; 1997 SCMR 1167; 1998 SCMR 307; 1998 SCMR 785; 1999 MLD 330; PLD 1988 SC 144; PLD 1995 SC 396; 1998 PLC (C.S.) 1007 and 1988 SCMR 1354 ref.

(b) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A, 4 & 6---Down gradation of civil servant---Appeal---Limitation-­-Penalty of down gradation by four stages lower imposed was reduced in Departmental appeal to one stage lower in time scale---Appellant initially challenged the penalty by petition before Labour Court under S. 25-A, Industrial Relations Ordinance, 1969, which was dismissed---Appellant invoked jurisdiction of Labour Appellate Tribunal by filing appeal---Pending appeal before Labour Appellate Tribunal, appellant became civil servant as a result of insertion of S. 2-A in Service Tribunals Act, 1973 and appeal filed before Labour Appellate Tribunal suo motu abated---Appeal filed by appellant before Service Tribunal long after expiry of ninety days from abatement of his appeal before Labour Appellate Tribunal, was time-barred and in absence of any plausible reason for condonation of delay, was liable to be dismissed on that ground.

PLD 1978 SC 195 ref.

Sadiq Muhammad Warraich for Appellant.

Mukhtar Ahmad Tarar for ADBP.

2000 P L C (C.S.) 405

[Federal Service Tribunal]

Before Noor Muhammad Magsi and Muhammad Ayub Khan, Members

PERVAIZ NASEER and 7 others

Versus

PIAC through Chairman, Pakistan International

Airlines Corporation, HQs. Karachi Airport, Karachi and 3 others

Appeals Nos. 719-R, 720-R, 722-R, 723-R, 739-R, 740-R, 742-R and 743-R of 1998, decided on 21st January, 1999.

Civil service--

---- Termination of services---Principles of natural justice ---Violation--­Services, of civil servants were duly confirmed and they rendered services in the Department for about twenty-three months to the entire satisfaction of administration---Services were however terminated without serving show-cause notice and without affording opportunity of hearing to the civil servants---Termination of service with immediate effect were made on ground that appointments were made in an irregular manner/way without invitation of applications through advertisement---Such termination, therefore was total negation of principles of audi alteram partem imbeded and traditions of Holy Prophet (p.b.u.h.) and Holy Qur'an---Orders of termination were set aside and reinstatement was ordered with back benefits.

1996 SCMR 413; 1990 SCMR. 2330; PLD 1965 SC 90; 1994 SCMR 2232; 1997 SCMR 1543; 1997 PLC (C.S.) 1146 and 1997 PLC (C.S.) 1014 ref.

Raja Muhammad Asghar Khan for Appellants. Anwar Kamal for Respondent.

Date of hearing: 22nd December, 1998.

2000 P L C (C.S.) 442

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

MUHAMMAD RAZIQ

Versus

SECRETARY, ESTABLISHMENT DIVISION and others

Appeal No. 179(R) of 1998, decided on 5th December, 1998.

Civil service---

---- Adverse remarks ---Expunction---Adverse remarks "not fit for promotion" given in A.C.R. of civil servant had been sought to be expunged---Civil servant who was appointed Section Officer, was promoted as Deputy Secretary and then as Joint Secretary in B-20 and during twenty-four years of his service right from his appointment to his promotion, not a single adverse remark had ever been given to him and he also never received any advice, warning or counselling during that period---Promotion to B-20 from post of Section Officer was possible only by dedication, devotion and sincerity to his job---Service record of civil servant throughout his service career reportedly was 'good'---Adverse remarks in question against civil servant were due to difference of opinion which arose between him and Reporting Officer on some official issue, but nothing was on record that civil servant had misconducted himself or used bad or impolite language during discussion on that issue---Adverse remarks given to civil servant simply on difference of opinion on certain issue, were not justified, reasonable and legally valid--­Adverse remarks recorded against civil servant were ordered to be expunged.

Tariq Mehmood Khokhar for Appellant.

Javaid Aziz Sandhu, Standing Counsel alongwith Mehboob Alam, S.O. Establishment

Division and Pir Muhammad Shah, DSA for Respondents.

Date of hearing 2oth, November 1998.

2000 P L C (C.S.) 484

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

MUMTAZ ALI CHANGEZI and another

Versus

PRESIDENT OF THE ISLAMIC REPUBLIC OF PAKISTAN

through Establishment Secretary and others

Appeals Nos. 653(R) and 673(R) of 1997, decided on 10th March, 1999.

(a) Civil service-

---- Enquiry into - conduct of civil servant---Procedure---Nature of such enquiry--- "Criminal trial" and "Departmental enquiry "---Distinction--­Enquiry into conduct of a civil servant was neither a criminal indictment nor even a quasi-criminal proceedings, but was mainly an administrative proceedings conducted by a domestic forum to examine fitness of a civil servant for service---Subject-matter of such proceedings was not civil rights and 'duties for criminal liabilities, but was simply the conduct of a civil servant which was to be properly reviewed in the interest of purity and honour of civil servant---Criminal trial and Departmental enquiry proceedings were independent of each other and different standard of evidence was required in both such proceedings---Result of one could not influence the other---Holding of Departmental enquiry did not have the effect of prejudicing the criminal trial---Acquittal from criminal case could be on technical ground or on the ground that all ingredients of the offence were not proved by evidence produced in the Court, but in Departmental proceedings even one of the ingredients, if proved, could be sufficient to record a conclusion that accused civil servant had mis-conducted himself or acted in grossly negligent way or had shown inefficiency in the discharge of his official duty.--Departmental proceedings on same facts could be started even if person concerned had been acquitted in criminal proceedings---Civil servant, in some cases, could not be criminally prosecuted on technical grounds, but that would not bar the Government from enquiring into the truth of the charge against him by means of a Departmental enquiry---No bar existed to proceed against a civil servant departmentally when he could not be criminally proceeded in a Court -of law for one reason or the other.

PLD 1980 SC (AJ&K) l; 1984 PLC (C.S.) 176; 1984 PLC (C.S.) 465; 1981 SCMR 1160; 1994 SCMR 962; 1995 SCMR 1025; 1997 SCMR 1073; 1984 PLC (C.S.) 1401; AIR 1961 SC 1623; 1980 PLC (C.S.) 401; 1984 PLC (C.S.) 455; PLD 1973 Note 36 at p. 46; 1980 SCMR 850 and AIR 1958 Cal. 49 ref.

(b) Civil service---

Initial or preliminary inquiry---When Department, before any departmental action was taken, collected some evidence to come to the conclusion whether or not regular enquiry was required, said proceedings could be termed as initial/preliminary inquiry or fact finding enquiry---Civil servant was not to be associated/joined in such an enquiry---After evidence was collected during said initial enquiry or fact finding enquiry, same was to be placed before Authorised Officer who, on examining material, would take up decision under R.5 of Government Servants (Efficiency and Discipline) Rules, 1973---Authorised Officer could drop enquiry if sufficient evidence was not collected.

(c) Criminal trial----

---- Charge, framing of---Charge was framed for the purpose of informing the accused as to what were the allegations against him, which he was required to meet---Every minor detail was not to be given in the charge, but it would be enough to mention the main allegation.

Abdul Ghafoor Mangi for Appellant (in Appeal No.653-R of 1997).

Syed Ijaz Hussain Shah for Appellant (in A.673-R of 1997).

M. Javed Aziz Sandhu for Respondents alongwith Zulfiqar Ahmed, Second Secretary, CBR, Faiz Ahmed, Assistant Collector of Customs, Quetta and Syed Zafar Ali, Deputy Superintendent.

Date of hearing: 31st August, 1998.

2000 P L C (C.S.) 549

[Federal Service Tribunal]

Before Nasim Sabir Syed and Muhammad Hayatullah Khan Sumbal, Members

MUHAMMAD IKRAM and 2 others

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS, HEADQUARTERS

OFFICE, LAHORE and 10 others

Appeal No. 136-L, 137-L and 138-L of 1997, decided on 5th September, 1997.

Civil service---

----Promotion---If promotees were promoted beyond the seniority fixed for them, it would not confer upon them any right of seniority which certainly would get adjusted when the fresh recruitments were made against the quota fixed for the direct recruits against which the promotees had been provisionally promoted.

PLD 1969 SC 407; PLD 1992 SC 147 and 1994 SCMR 2232 ref.

Hafiz Tariq Nasim for Appellants.

Mian Mahmood Hussain for Respondents Nos. 5 to 11.

Zafar Iqbal Chohan for the Railway Department with Hussain Ahmad Abdi, Deputy Director Admn. as DR.

Nemo for Secretary Establishment Division.

Date of hearing: 30th August, 1997.

2000 P L C (C.S.) 553

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman, Aftab Ahmed, Muhammad Raza Khan and Noor Muhammad Magsi, Members

Dr. HAFIZ AHMED KHAN and others

versus

TIE SECRETARY, ESTABLISHMENT DIVISION. and others

Appeals Nos. 180-R, 181-R, 185-R to 190-R of 1997, decided on 30th June, 1997.

(a) Civil Servants Ad (LXXI of 1973)---

----S. 8---Service Tribunals Act (LXX of 1973), S. 4---Seniority---Appellants being direct recruits demanded ante-dation of their appointment with effect from 1995 when their case was recommended by Public Service Commission for appointment as Associate Professors--Validity---Recommendations of Public Service Commission had to be finally implemented by the concerned Ministry---No law whatsoever existed to treat date of recommendation as date of appointment---Date for reckoning of seniority could not precede date of joining---Seniority had to be reckoned from date of joining in particular grade or post---Regular appointment would be treated from the date appointees take over assignment and not from any date prior thereto--­Process of selection was initiated in 1994; recommendations were finalized in 1995 and offers of appointments were issued in 1996---None of appellants having joined earlier than January, 1996, they could not be deemed to be batch of 1995; and thus were not entitled to reckon their seniority with effect from any date in 1995.

Fazal-i-Qadir v. Secretary, Establishment Division PLD 1988 SC 131 and 1993 SCMR 2258 ref.

(b) Mala fide--

---- Civil Service---Simple delay for implementation of recommendation by three months would not be sufficient to justify allegation of mala fide.

(c) Civil Servants Act (LXXI of 1973)---

----S. 8--Service Tribunals Act (LXX of 1973), S. 4---Civil servant---Direct recruits and promotees---Seniority inter se ---Promotees of the same year would take precedence of matter of seniority over those joining on initial recruitment in the same year irrespective of their date of promotion or joining.

Fazal-i-Qadir v. Secretary, Establishment Division PLD 1988 SC 131; Islamic Republic of Pakistan through Secretary, Ministry of Defence v. Muhammad Zafar and others 1986 SCMR 898; Mrs. Farhat Maqbool v. Secretary, Ministry of Education 1993 PLC (C.S.) 535 and ESTACODE, 1989 p.225 ref.

(d) Words and phrases---

----"Discrimination"---Connotation---Term "discrimination" would indicate distinctive treatment between two individuals or classes entitled to equal rights.

Raja Muhammad Asghar Khan for Appellants.

Khalid Abbas Khan, Standing Counsel for the Department alongwith M.M. Naqvi, AEA, Prof. Ijaz Ahmed and Ghayyur Abbas, D.R.

Bashir Ahmed Ansari for the Private Respondent, No.28 (in Appeals Nos. 188-R, 189-R and 190-R of 1997).

Fazal H. Choudhry for the Private Respondent No.3 (in Appeals Nos. 180-R, 181-R, 185-R, 186-R and 187-R of 1997).

Aminur Rehman Khan for the Private Respondents Nos. 5, 6, 8, 9, 21, 23 and 31 (in Appeals Nos. 188-R,'189-R and 190-R of 1997).

2000 P L C (C.S.) 563

[Federal Service Tribunal]

Before Abdul Razzaq A. Rahim, Chairman, Aftab Ahmed, Muhammad Raza Khan and

Noor Muhammad Magsi, Members

Dr. Sh. ALLEM MAHMUD

Versus

SECRETARY, ESTABLISHMENT DIVISION

and others

Appeal No. 263-R of 1997, decided on 25th July, 1997.

(a) Civil Servants Act (LXXI of 1973)-

----Ss. 2, 9 & 25---Promotion---Promotion of civil servant normally was made on the basis of "seniority-cum-fitness" for non-selection posts and on the basis of "selection on merits" for selection posts under S. 9 of Civil Servants Act, 1973---Senior position in B.P.S. 21 being selection post, in accordance with S. 9 of Civil Servants Act, 1973 a civil servant possessing such minimum qualification, as may be prescribed, would, be eligible for the higher post---If a civil servant had the prescribed minimum qualifications, he had a right to be promoted under the statute---Term "prescribed" used in S. 9 of Civil Servants Act, 1973, meant, prescribed by rules as per cl. (f) of sub­section (1) of S. 2 of Civil Servants Act, 1973---Rules ought to have provided that a particular minimum qualification was required for promotion to a particular post---Term "minimum qualification" as provided it Civil Servants (Appointment, Promotion and Transfer) Rules normally referred to educational qualifications coupled with prescribed training---Particular course if desired to be included as a part of minimum, qualifications required for promotion to the higher post, had to be approved and notified as a part of rules framed under S. 25 of Civil Servants Act, 1973.

(b) Civil Servants AM (LXXI of 1973)---

----Ss. 9 & 25---Promotion---Imposition of condition---Validity to---Civil servant had challenged conditions imposed on him whereby his promotion as Senior Joint Secretary in B.P.S. 21 was approved and notified, but was subjected to completion of course at Pakistan Administrative Staff College National Defence College (PASC/NDC)---No proof was available to the effect that Central Selection Board had deferred consideration of promotion of civil servant on ground of completion of course, rather Central Selection Board had recommended civil servant for promotion and Competent Authority had approved same---Condition of completing course having been imposed on civil servant while issuing notification regarding his promotion, thus, had no legal validity---Wide difference existed between concept of deferment for consideration and that of a conditional promotion---If consideration is deferred by Central Selection Board due to deficiency of training, case of civil servant neither is placed before Authority nor promotion is notified, civil servant in the case in hand was duly considered, recommended and approved for promotion---Imposition of any condition by any other Authority had no legal force because such condition had not been provided in any provision of law or 'rule and would amount to violation of statutory right of civil servant under S. 9 of Civil Servants Act, 1973--­Statutory rules under S. 25 of Civil Servants Act, 1973, carried a much higher value than subordinate legislation in the forth of administrative instructions or decisions, thus, since disputed training was not proved to have been prescribed in the rules as a "minimum qualification required for promotion" promotion of a civil servant could not be denied on any ground other than rules---Condition imposed for promotion of civil servant was also violative of S. 9 of Civil Servants Act, 1973---Condition annexed to promotion of civil servant was deleted and notification was modified accordingly.

(c) Civil service---

Promotion---Central Selection Board could not recommend a person for promotion with condition, but Central Selection Board had either to recommend a civil servant for promotion unconditionally or defer his consideration for promotion.

Appellant in person.

Ali Abid, Section Officer Establishment Division, D.R.

Date of hearing: 12th June, 1997.

2000 P L C (C.S.) 568

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

MUNIR AHMED

Versus

AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD and another

Appeals Nos.265-R, 266-R, 267-R and 268-R of 1997, decided on 16th June, 1-997.

(a) Service Tribunals Act (LXX of 1973)--

----S. 4---Appeal---Maintainability---Adverse remarks recorded in A.C.R. for the years 1993 to 1995 had been objected to contending that reports impugned in appeal were recorded as "average" and average reports could not be treated as "adverse" and that observation of "not yet fit for promotion" recorded in A.C.Rs. could be based on several considerations and could not be considered to be adverse to interest of civil servant---Both remarks "average" and "not fit for promotion" having been conveyed to civil servant in two separate letters by considering same as "adverse" preliminary objection about maintainability of appeals filed by civil servant, was repelled, in circumstances---Since civil servant had been recorded to be unfit for promotion whereas he was senior most officer in his cadre and was likely to be considered for promotion and that observation having also been considered to be "adverse" appeal against that observation, was also competent.

(b) Civil service--

---- Adverse remarks---Civil servant had challenged adverse remarks recorded in his A.C.Rs. for the years 1992 to 1995---A.C.Rs. showed the civil servant not only graded as "average" officer, but also was recorded "not yet fit for promotion"---Civil servant was serving under same Reporting Officer in same capacity---Report for the year 1991 recorded in September, 1992 stated that civil servant was considered by the same officer to be "fit for promotion" with almost "very good" grading in performance evaluation report, but just after three months, he was downgraded as an "average" and "not fit for promotion" ---Such 100 % reversal was not possible within a period of three months only in the performance and output of civil servant---Since remaining three A.C.Rs. of civil servant were more or less verbatim copies of A.C.R. of 1992, those reports were also not true evaluation of performance of civil servant---Evaluation of performance having been made by a colourable exercise of discretion, same could not be upheld---Adverse remarks which proved to be biased and unjustified, were expunged and civil servant was upgraded as "good" and "fit for promotion".

(c) Service Tribunals Act (LXX of 1973)--

----S. 4---Civil Servants Act (LXX of 1973), S. 22---Adverse remarks--­Validity---Civil servant aggrieved by adverse remarks in his A.C.R. had a right to file representation which had to be decided by the next higher Authority ---Distinction between representation, appeal and review petition---. Under S. 4 of Service Tribunals Act, 1973, as well as under. S. 22 of Civil Servants Act, 1973 possibility existed of filing a review on petition in cases where appeal was or was not maintainable, but law had provided that representation was to be made to the next higher Authority in cases where appeal was normally not competent---Civil _ servant had filed representation against adverse remarks conveyed to him in November, 1996 and instead of processing representation by the appropriate next higher Authority under law, representations were converted into review petitions in violation of statutory provisions and were passed on to the same officer and he did not feel the need of any modification of his earlier observations made in A.C.Rs. of civil servant---Conversion of representation into a review petition was unprecedented and had amounted to miscarriage of justice particularly when civil servant had already indicated his apprehension against said Reporting Officer prior to litigation of reports against civil servant and apprehensions of civil servant neither were whimsical nor imaginary but were well-founded and based on solid reasons---Reporting Officer, thus, could not have exercised un-prejudice and impartial mind in the light of such events--­Appellate order conveying rejection of representation, being without any legal basis was held void.

F.E. Siddiqui for Appellant.

Javaid Aziz Sindhu, Standing Counsel alongwith Zia-ur-Rehman, Accountant and Farid Khukhar, Assistant Accounts Officer, Office of A.G. of Pakistan, as D.R. for Respondent

Date of hearing: 6th June, 1997.

2000 P L C (C.S.) 575

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman, Aftab Ahmed, Muhammad Raza Khan and Noor Muhammad Magsi, Members

SHAKOOR ALI and 4 others

versus

THE SECRETARY, ESTABLISHMENT DIVISION and others

Appeals Nos.238(R), 239(R), 240(R), 241(R), 245(R) and 257(R) of 1997, decided on 21st July, 1997.

(a) Civil Servants Act (LXXI.of 1973)--

----S.8---Service Tribunals Act (LXX of 1973), S.4---Seniority inter se--­Seniority of one of respondents (civil servant) having been accepted and same having attained finality without any objection, other respondent being placed in similar conditions could not be treated discriminately.

(b) Civil Procedure Code (V of 1908)--

----S.11---Res judicata, principles of---Applicability---Principles of res judicata would be applicable to Courts and judicial forums and not to administrative departments.

(c) Civil Servants Act (LXXI of 1973)-

----S.8---Service Tribunals Act (LXX of 1973), S 4.---Seniority list--- Validity---No departmental appeal having been filed against promotions of respondents, plea for rectification of seniority list only, would be incompetent.

1994 PLC (C.S.) 1336 ref.

(d) Civil Servants Act (LXXI of 1973)---

----S.8---Service Tribunals Act (LXX of 1973), S.4---Seniority---Seniority in a cadre would be reckoned from date of regular officiation in particular post or grade.

G.S. Khan, Bar-at-Law for Appellants.

Khalid 'Abbas Khan, Federal Counsel alongwith Zafar Iqbal Hashmi, S.O., Sher Ahmed, AO (CPO NAs) and Ghyyur Abbas, Assistant,, Establishment Division, as D.Rs. for Respondent-Department

Date of hearing: 10th June, 1997.

2000 P L C (C.S.) 600

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman, Noor Muhammad Magsi, Muhamamd Ayub Khan, Syed Muhammad Zafar Babar and Syed Ekram Hussain Jafri, Members

HAMEED AKHTAR NIAZI

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 14 others

Appeal No. 124(L) of 1980, decided on 7th December, 1998.

(a) Civil service---

----"Next below rule"---Meaning and scope---"Next below rule" was a temporary expediency designed to protect Government servants from monetary loss and meant the temporary upgrading of posts---Rule originally intended that expediency should not last for more than six months in individual cases.

(b) Civil service--

---- Seniority, grant of---Status and duty of Establishment Division of the Government---Establishment Division was custodian of rights of all civil servants---Duty was cast upon the said Division to treat officers of all groups fairly, justly and equitably---Interests of all the civil servants were to be watched equally by Establishment Division---Seniority was to be given strictly in accordance with law, rules and "class" or "group" favouritism to be discouraged.

(c) Civil Servants Act (LXXI of 1973)---

-----S.8---Seniority, determination of---"Next below rule", applicability--­Seniority had to be determined according to S.8 of Civil Servants Act, 1973 which provides that seniority in a post, service or cadre to which a civil servant was promoted would take effect from date of his regular appointment to the post---Civil servants who were selected for promotion to a higher post in one batch, would on their appointment to the higher post, retain their inter se seniority as in the lower post---"Next below rule" was in direct conflict with provisions of S.8, Civil Servants Act, 1973---Previous rule, if any, which was in conflict with the provisions of Civil Servants Act, 1973, must yield to said Act.

(d) Civil service---

Promotion---Entitlement and effect---Civil. servant who was entitled to be promoted from a particular date and if for no fault of his own, was wrongly prevented from rendering service to the Federation in the higher post, he would be paid the arrears of the pay and allowance of higher post through pro forma promotion or up gradation arising from the ante-dated fixation of his seniority.

Syed Ali Muqtada Wahidi v. Secretary, Establishment Division and others 1984 PLC (C.S.) 546; Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf 1973 SCMR 304; Syed Sultan Shah v. Government of Balochistan and another 1985 SCMR 1394; Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118; Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi and 5 others 1996 SCMR 850 and Iftikharullah Malhi v. Chief Secretary and another 1998 SCMR 736 ref.

Babar Bilal for Appellant.

S.A.M. Wahidi (in person) and on behalf of Abdur Rashid Baloch and Khalid Amin (Petitioners).

Dr. Sh. Aleem Mahmood Muhammad Rafiq Asghar, Dr. Abdul Hameed Qureshi and Akbar Hayat Gandapur (Petitioners) in person.

M. Javed Aziz Sandhu, Federal Counsel for Respondent ­Department alongwith Mahboob Alam, Section Officer and Ghayyur Abbas, Assistant Establishment Division.

Nemo for the Private Respondents.

Date of hearing: 12th September, 1998.

2000 P L C (C.S.) 633

[Federal Service Tribunal]

Before Abdul Hameed Khan Khattak and Dr. Akhtar Hasan Khan, Members

DR. SHAHEEN AFZAL

Versus

MEMBER (ADMN.), CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD and 19 others

Appeal No.435-R of 1998, decided on 5th May, 1999.

Capital Development Authority Employees (Service) Regulations, 1992---

---Reglns. 6.03(b) & 6.06---Service Tribunals Act (LXX of 1973),. S. 4--­Seniority---Determination---Appeal---Appellant alongwith 2400 candidates applied for . 59 posts of Medical Officers (B-17) in pursuance of open advertisement---On recommendation of Departmental Selection Committee, first batch of 18 Medical Officers including appellant was appointed and posted---Remaining candidates out of 2400 continued to be selected from time to time by Departmental Selection Committee subsequent to selection of appellant and his other 17 batchmates---In earlier seniority list appellant was shown senior to some of his batchmates, but in revised seniority list he was shown junior to them---Appellant had challenged action of Authority claiming that his seniority be restored as per earlier seniority list in which he was shown senior and that he be considered for promotion from the date his juniors were promoted---Validity---Appellant as well as respondents were selected and appointed on score of one and the same advertisement, though appellant and his other 17 batchmates were selected earlier in time to respondents---If two or more persons were appointed through the same open advertisement, their inter se seniority would be determined in the order of merit assigned to them by Selection Authority .under Regln. 6.03(b) of Capital Development Authority Employees (Service) Regulations, 1992--Authority having rightly followed law governing seniority, revised seniority list in which appellant was shown junior to respondents, did not suffer from any legal infirmity.

Raja Muhammad Asghar Khan for Appellant. Raja Abdur Rashid for CDA. Zulfiqar Ahmed Piracha for Respondent No.3.

Date of hearing: 4th May, 1999.

2000 P L C (C.S.) 636

[Federal Service Tribunal]

Before Abdul Razzag A. Thahim, Chairman, Muhammad Raza Khan and Noor Muhammad Magsi, Members

ABDUL JABBAR MEMON and another

Versus

CAIRMAN, C.B.R., ISLAMABAD and 4 others

Appeals Nos. 151 and 152-K of 1996, decided on 17th June, 1997.

Civil Service----

Posting and repartition---Civil Servants who after passing C.S.S Examination working in Foreign Affairs. Were invited alongwith others for posting in Income Tax Group---Civil servants who were selected join the training and after successful training were posted against positions in Income Tax group where they worked successfully and appreciation letters were also issued them for their valuable service rendered by them in Income tax group---Despite all such factors civil servants in violation of commitment supported by re-confirmation of identical terms and conditions of service, were ordered to be repatriated to their parent group which was Ministry of Foreign Affairs discriminatively and in violation of their earlier commitment---Authority justifying repatriation of civil servants contending that appointments of civil servants in Income Tax Group were merely on deputation under S. 10 of Civil Servants Act, 1973---Held, it was an unusual case of discrimination as civil servants who had been kept away from their occupational Group for a considerable length of time had been singled out to be repatriated whereas selectees of other occupational groups had been repatriated---No proof was available to the effect that borrowing Department and lending Department had agreed for repatriation of civil servants and others---Such action was not a transfer simpliciter under S.10 of Civil Servants Art, 1973 as contended by Authority, but it amounted to violation of agreed terms and conditions of service and was also discrimination in nature because all transferees from other occupational groups had not been repatriated---Such discriminative order of Authority violating agreed terms coupled with promising prospects for regular induction in Income Tax Group, could not be upheld---Order of Authority was set aside and civil servants were -allowed to continue their services of Income Tax Group.

Masood Ahmad Abbasi for Appellants. Niaz Ahmad Khan, Standing Counsel for Respondents Nos. l and 2. Nemo for Respondents Nos.3, 4 and 5.

Date of hearing: 26th May, 1997.

2000 P L C (C.S.) 649

[Federal Service Tribunal]

Before Aftab Ahmad, Roshan Ali Mangi and Muhammad Raza Khan, Members

Raja LIAQAT ALI KHAN

Versus

AUDITOR-GENERAL OF PAKISTAN CONSTITUTION AVENUE, ISLAMABAD and another

Appeal No. 179-R of 1997, decided on 30th May, 1997.

Civil service­

---- Promotion on probation---Probation period could be for a specified time as prescribed by rules---Such prescribed period could be extended further and in accordance with the rules contained in the instructions of ESTACODE, initial period of probation could be one year which could be extended up to another period of one year---After expiry of said extended period if the performance of civil servant was not recorded as unsatisfactory and he was not reverted to his previous position, his probation period would be deemed to have been terminated---Civil servant was promoted as Divisional Accountant on probation with effect from specified date for two years and subject to passing of Departmental examination---Departmental examination was not held and at the expiry of said period of two years civil servant was not reverted to his previous post---Civil servant, thus, would be deemed to have been confirmed as "Divisional Accountant" after two years from his appointment on probation---Since -post of Divisional Accountant (B-13) meanwhile had been upgraded to B-16 as Divisional Accounts Officer, civil servant would be deemed to have been upgraded to B-16 as well.

Raja Sher Muhammad for Appellant.

Sh. Saeed Ahmad for Respondent.

Date of hearing: 16th May, 1997.

2000 P L C (C.S.) 656

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

Sahibzada K.A.K. AFFRIDI

Versus

CHAIRMAN, PAKISTAN INTERNATIONAL AIRLINES CORPORATION, ISLAMABAD and 3 others

Appeal No. 652-R of 1997, decided on 14th November, 1998.

(a) Service Tribunals Act (LXX of 1973)---

-----S. 4---Termination of services---Allegations of mala fides and conspiracy---Proof---Appellant had challenged his termination of service alleging that same was result of conspiracy between higher officers and their mala fide acts---Memorandum of appeal was not accompanied by any document containing summary of documentary or oral evidence in proof of allegations of conspiracy and mala fides---Allegations of mala fides and that of conspiracy should at least prima facie seem to exist---Mere allegation of mala fides without any proof or production of any substance which might lead to proof, could not be given credence---Appeal against order of termination was dismissed, in circumstances.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Termination of services---Appeal before Service Tribunal without filing Departmental appeal---Competence---Appellant, who had attained status of civil servant,, was legally bound under S: 4(1) of Service Tribunals Act, 1973 first to file Departmental- appeal against termination of his service---Appeal before Service Tribunal filed without filing departmental appeal was incompetent.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Termination of service ---Reinstatement---Appeal---Competence--­Employer Corporation did not have statutory rules---Appeal before Service Tribunal in which appellant had sought reinstatement into service, was totally misconceived---Appellant could not be granted relief prayed for as his only remedy was to make claim for damages.

Mrs. Anisa Rehman's case 1994 SCMR 2232; Habib Bank Ltd. and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; United Bank Ltd, and others v. Ahsan Akhtar and others 1998 SCMR 68; Principal, Cadet College Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; 1971 SCMR 568 and PLD 1981 SC 224 ref.

(d) Service Tribunals Act (LXX of 1973)---

----S. 4---Termination of service---Reinstatement---Services of appellant were terminated on one month's pay in lieu of notice---Appellant having accepted pay, he was legally estopped from claiming reinstatement, because he had accepted terms of termination without any protest when he received pay in lieu of notice.

Appellant in person.

Anwar Kamal for Respondent No. 1.

Dates of hearing: 1st and 26th October, 1998.

2000 P L C (C.S.) 662

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim; Chairman and Muhammad Raza Khan, Member

ABDUL REHMAN SHAIKH

Versus

PRINCIPAL, DAWOOD ENGINEERING COLLEGE, KARACHI

and 3 others

Appeal No. 20-K of 1996, decided on 8th September, 1996.

(a) Civil service--

----Deputation---Termination of---Civil servant who was appointed on deputation for a period of three years had claimed that as his deputation was for a period of three years, its premature termination was not warranted by law---Period of deputation though was fixed as three years extendable by a further period of two years, but thereby maximum limits of deputation period had been prescribed and not the minimum one---Neither there was any provision nor precedent that a deputionist could not be repatriated prior to the agreed period of three years---Deputation would not invest a right in the deputationist to demand his - retention by the borrowing Authority for the prescribed period rather it was a stop-gap arrangement to fill in certain vacancies by borrowed officers till the availability of regular ones--­Deputation was administrative arrangement between borrowing and lending Departments, deputationist, thus, had no say in the matter except that his terms with borrowing Department should not be less favourable than in the parent Department.

(b) Civil service---

----Deputation---Repatriation---Civil servant who was posted on deputation had contended that he should have been repatriated instead of being relieved---Contention was not acceptable because by passing order of relieve from duty it was intended that services of civil servant were no more required by borrowing Authority, thus, instead of fighting on technicalities, civil servant should have straightaway reported to his parent Department--­Order of relieving civil servant from duty amounted to repatriation which was legal and proper order.

Miss Naeema Khan's case PLD 1990 SC 612 ref.

Appellant in person.

Ata-ur-Rehman for Dawood Engineering College and Abdul Hildin Rahi. on behalf of Establishment Division.

Nemo for Ministry of Education.

Dates of hearing 2nd and 3rd September, 1996.

2000 P L C (C. S.) 667

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

Syed MATIULLAH SHAH

Versus

MANAGING DIRECTOR, PAK-AMERICAN FERTILIZERS LTD., ISKANDARABAD, MIANWALI and 2 others

Appeal No. 326-R of 1998; decided on 1st December, 1998.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4--Appeal---Limitation---Delay---Condonation---Departmental appeal was filed by civil servant after delay of twenty-three days from date, of relieving order and' appeal before Service Tribunal was also barred by nine days Appellant was legally bound to prove that his departmental appeal as well as appeal before Service Tribunal were within time, but he had failed to prove the same. In absence of any application for condonation of such delay, appeal was liable to be dismissed on ground of limitation.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Contract Act (IX of 1872), S.-62---Retirement under Golden Hand Shake Scheme---Appeal---Competency---Appellant who opted to be retired under Golden Hand Shake Scheme, was relieved from service after receiving money under that Scheme---After receipt of money under said Scheme, appellant was estopped to agitate and invoke service contract which had since been replaced by a contract under Golden Hand Shake Scheme whereby' offer made - by Authorities was accepted by appellant which duly stood implemented by receipt of entire dues payable to him thereunder---Appellant was left, with no cause of action when he pocketed due amount under said Scheme---Appeal by appellant was dismissed being misconceived.

Abdur Rahim Bhatti for Appellant.

Munib Zia and.Ijaz Rahim for PAFL alongwith Zafar Ali Chaudhri, Senior Manager, D.Rs.

Date of hearing: 17th November, 1998.

2000 P L C (C.S.) 672

[Federal Service Tribunal]

Before Roshan Ali Mangi and Noor Muhammad Magsi, Members

Ch. ABDUL LATIF and another

Versus

GENERAL OF PAKISTAN, ISLAMABAD and others

Appeals Nos. 6-Q and 7-Q of 1996, decided on 9th July, 1997

Civil Services---

----Seniority---Civil servant had alleged that in earlier two combined seniority lists issued in 1992 and 1993 respectively he was placed at the top of the list, but in combined seniority list issued in 1994 his name was relegated to 4th position and the names of alleged juniors jumped to Serial Nos. 1 to 3---Civil servant had also claimed that since date of appointment of three of his juniors were later than him-, his juniors could not be put over and above him---Disputed combined seniority list issued in 1994 was duly endorsed, to civil servant vide a, letter, but civil servant neither made any objection to that seniority list nor filed any Departmental appeal against same meaning thereby that he had accepted the position---Civil servant, thus, could not claim his seniority, in direct appeal before Service Tribunal which otherwise was time-barred and was filed without impleading opposing civil servants who allegedly were juniors to him---Even otherwise civil servant could not challenge seniority of opposing civil servants as ante-dation of opposing civil servants was made by Competent Authority in compliance of judgment of Service Tribunal which was upheld by Supreme Court---If civil servants who filed appeal before Tribunal without first exhausting Departmental remedy, had any grievance against opposing civil servants they should have approached Supreme Court against decision of Service Tribunal, but they did not do so---Decision of Service Tribunal, upheld by Supreme Court which had attained finality, could not be challenged.

Appellants in person.

Ziau-ul-Rehman, Accounts Officer, Auditor-General's Office, Islamabad and M. Aftab Mehmood, Dy. Secretary, Establishment Division, D.Rs.

Raja M. Afsar for4he Private Respondents Nos 3 and 5 (in Appeal No. 7(Q) of 1996).

Date of hearing: 2nd July, 1997.

2000 P L C (C.S.) 717

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan Member M. SALMAN FARUQUI

Versus

JAVED BURKI, AUTHORISED OFFICER, SECRETARY, MINISTRY OF WATER AND POWER, GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Appeal No. 504-R of 1998, decided on 30th June, 1999.

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 2(4), 3(b), 3(c) & 51(i)(iii)---Service Tribunals Act (LXX of 1973), S. 4---Dismissal from service---Charges of misconduct and corruption--­, Authorised Officer fixed date of hearing and conveyed it to civil servant--­Civil servant, instead of appearing before Authorised Officer to defend himself. left the country intentionally against rules and instructions--­Authorised Officer, after examining all material produced before him and applying his judicious mind, submitted his report holding civil servant guilty of charges. and recommended his dismissal from service---Competent Authority after examining entire proceedings before Authorised Officer and his recommendations, passed order of dismissal---Allegations against civil servant having stood proved in absence of any oral or documentary evidence in defence on behalf of civil servant, order of dismissal passed by Competent Authority against civil servant, could not be interfered with.

1993 SCMR 607 ref.

(b) Fundamental Rules---

----F.R. 67---Leaving place of duty without sanction of leave---Government servant could not leave his place of duty without sanction of his leave application---Officer against whom disciplinary action had been initiated or inquiry had been ordered, was not allowed to leave Pakistan---Fundamental Rule 67, had provided that leave could not be claimed as of right and an application for leave should not be anticipated as grant of leave--­Government servant who had applied for grant of leave, must wait for sanction of leave application and should not leave place of his duty before leave applied for was actually granted by Competent Authority ---Non­-compliance of such instructions' would warrant action on account of misconduct under SLAI of P. 721, ESTACODE, (1989 Edn)---By leaving Pakistan without sanction of leave ex-Pakistan by. Competent Authority, civil servant was guilty of misconduct.

(c) Civil service--

---- Departmental inquiry---Where civil servant deliberately (without sufficient cause) would not face Departmental inquiry, he must face consequence thereof.

(d) Government Servants (Efficiency and Discipline) Rules, 1973--

----Rr. 5(i)(iii) & 6---Inquiry---Where facts were disputed between the parties, Authorised Officer should normally entrust inquiry to inquiry Officer or Inquiry Committee---Where Authorised Officer once decided under R. 5(i) (iii) of Government Servants (Efficiency and Discipline) Rules, 1973 that it was not necessary to have an inquiry conducted through an Inquiry Officer or an Inquiry Committee, it was not deemed to be as final--­Authorised Officer could change that view if subsequent circumstance on additional evidence, so warranted-- -Rules also did not provide that decision of Authorised Officer under R.5(i)(iii) of said Rules would be unchangeable---Civil servant should face inquiry, produce evidence. in rebuttal and then urge for entrustment of inquiry to Inquiry Officer or Enquiry Committee---Inquiry Officer having not been appointed and charge having not been framed in the case, oral evidence was not required to be recorded in circumstances---Civil servant was entitled to right of cross­-examination of witnesses if those had been examined under R. 6(3) of Government Servants (Efficiency and Discipline) Rules, 1973---Where inquiry under said Rules was pending against civil servant, it was in his own interest to contest inquiry.

Faisal Arab for Appellant.

Syed Alamdar Raza alongwath Mehboob Alam, Section' Officer, Establishment Division.

2000 P L C (C.S.) 812

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

GUL DARAZ KHAN

Versus

CHAIRMAN, SUI SOUTHERN GAS COMPANY LIMITED KARACHI and another

Appeal No.519-R of 1998, decided on 7th December, 1998.

Service Tribunals Act (LXX of 1973)---

----S. 4---Dismissal from service---Appeal---Appellant serving as Superintendent was charge-sheeted and as a result of completion of Departmental proceedings was dismissed from service on charge of misappropriation of funds---Charge-sheet against appellant was based on basis of Test Audit Report emanating from Chief Manager, Incharge sent to Managing Director of employer Company---Evidence on record had fully established that appellant had obtained sanction for less amount but later on he had increased/altered same into excess amount fraudulently and thereby he misappropriated said excess amount---Appellant in order to camouflage/conceal his corrupt practice of forgery and deception, started poking nose in affairs of others by pointing out some of their irregularities simply to cover up his own corruption and to divert attention of Authorities to go scot free---Corruption being a serious charge under law of land as well as "Al-Quran" and Hadith of Holy Prophet (p.b.u.h.), appellant was rightly dismissed from service on basis of said allegations after holding enquiry against him.

Mushtaq H. Bhatti for Appellant.

Iqbal Afridi for Respondents.

Date of hearing: 20th November, 1998.

2000PLC(C.S.) 819

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Syed Muhammad Zafar Babar, Member

QAMAR-UD-DIN KHAN.

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD

Appeal No.261-L of 1998, decided on 25th January, 1999.

(a) Government Servants (Efficiency and Discipline) Rules, 1973--

----Rr. 2(4), 3 & 4(1)(b)(iv)---Government Servants (Conduct) Rules, 1964, Rr.3(1)(b), 11-A & 12--:Dismissal from service on ground of misconduct--­Civil servant was found guilty of misconduct and corruption arising out of his possessing of assets disproportionate to his known means of income, was dismissed from service after issuing him charge-sheets and affording him opportunity of hearing---Inquiry Officer submitted report to Authorised Officer in which civil servant was found guilty of all charges in the light of statements of prosecution witnesses and documentary evidence brought on file---Value of properties of civil servant was not less than three crores, but civil servant could not account for it and he also did not mention said properties in his Annual Declaration Forms---No material was on record from where it could be concluded that civil servant was victimised due to political reasons---Version of civil servant that his wife had earned much income through her business proved incorrect because no oral or documentary evidence had been produced in that regard---Civil servant, in circumstances, was rightly dismissed from service on charges against him.

(b) Government Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 4, 5 & 6---Franting of further charges---No legal bar existed against framing of further charges after framing of first charge as it would depend on nature of offence---If after framing of first charge, further evidence was collected which necessitated framing of second or third charge, such charges could legally be framed.

Dr. A. Basit for Appellant.

Mahboob Alam for Respondent.

Date of hearing: 26th November, 1998.

2000 P L C (C.S.) 830

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman, and Muhammad Raza Khan, Member

GHULAM MUSTAFA

Versus

PRESIDENT OF PAKISTAN, PRESIDENT'S SECRETARIAT, ISLAMABAD and 3 others

Appeal No.61-K of 1996, decided on 11th April, 1997.

(a) Interpretation of statutes-

---- Principles--:-Plain reading of provision, if unambiguous was to be adopted in its true sense without importing any extraneous provision or consideration.

(b) Civil service---

----Promotion---Earlier rules provided that 25% posts of Sub-Engineers were to be filled in by promotion of Diploma Engineers (B-I1) on basis of qualifying Departmental examination and completion of ten years' service--­Opposing civil servants, though were junior to civil servants, qualified required examination prior in time and were placed in B.P.S. 16 earlier than civil servants---Civil servants also qualified said examination later than opposing civil servants and were also allowed B.P.S. 16 seniority inter se--­Earlier rules for promotion to post of Assistant Executive Engineer B. P.S.17 were changed in 1994 and according to such changed rules 25 % posts of _ Assistant Executive Engineers B.P.S. 17 would be filled by promotion and that persons eligible for such promotion, would be Sub-Engineers/Assistant Engineers having 13 years' service in B-11 and above and having passed Departmental Examination---With effect from 23-1-1994 civil servants working as Sub-Engineers having 13 years' service in BPS-11 and above having qualified Departmental Examination, thus, were eligible under Rules (1994) to be considered for promotion to the posts of Assistant Executive Engineer, irrespective of any other consideration whether any one of such eligible persons was promoted to BPS-16 or was allowed selection grade in BPS-16 under earlier rules---Opposing civil servants who were junior to civil servants, were promoted to post of Assistant Executive Engineer in BPS-17 in 1996 on basis that they were promoted to B.P.S 16 earlier to civil servants---If rules framed in 1994 required that condition of eligibility for promotion would be based on the entire service rendered by a Sub-Engineer, preference should have been given to opposing civil servants who were juniors to civil servants in length of service, though were given promotion in BPS-16, prior to civil servants---Opposing civil servants who were senior in BPS-16 could have been promoted to BPS-17. prior to 1994 but with the amendment in rules effective from 23-1-1994, basic condition of eligibility for promotion to BPS-17 had been modified and based on total length of service---Promotion of opposing civil servants in BPS-17 in 1996 to post of Assistant Executive Engineer ignoring civil servants who were not only senior to opposing civil servants, but fulfilled all qualifications, was illegal---Civil servants deserved to be considered for promotion as Assistant Executive Engineers BPS-17 on the basis of their entire length of service in accordance with subsequent rules applicable to them.

Kanwar Mukhtar Ahmed for Appellant.

Niaz Ahmed Khan, Standing Counsel for Respondents Nos. 1 to 4.

Fazal Elahi Siddiqui for Respondents Nos. 6, 11, 13, 14, 17 and 20.

Remaining Private Respondents: Ex parte.

Date of hearing: 9th April, 1997.

2000 P L C (C.S.) 836

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Ekram Hussain Jafri, Members

M. JURAIL PIRZADA and others

Versus

MANAGING DIRECTOR, NATIONAL FILM DEVELOPMENT CORPORATION LTD. ISLAMABAD and others

Appeals Nos. 244, 245, 246, 247 and 248-K of 1998, decided on 20th October, 1998.

Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Civil Servants Act (LXXI of 1973), S. 11(2)---Termination of services---Services of employees were terminated giving them one month's notice pay but without giving them prior show-cause notice---Said termination was challenged by employees contending firstly that they being civil servants were entitled to show-cause notice under S. 11(2) of Civil Servants Act, 1973 and secondly that employer Corporation had ignored established principle of first in last out-as their juniors were still in service of Corporation---Corporation was not a statutory body, but it was public limited company having its own organizational manual pertaining to terms and conditions of service of its employees and all matters of its employees were being dealt with in accordance with said organizational manual at every stage---Terms and conditions of appointment of employees conveyed to them through written letter showed that their services were liable to be terminated by giving them one month's notice or one month's pay in lieu of notice on either side---Orders terminating services of employees, 'in circumstances, were quite legal and valid having been passed keeping in view organizational manual of Corporation in respect of terms and conditions of service of its employees specially when Corporation had given specific reasons for terminating services of employees.

PLD 1981 SC 612; 1991 SCMR 2330; PLD 1987 SC 304; PLD 1987 SC 447 and 1996 PLC (C.S.) 1029 ref.

Abrar Bukhari for Appellants.

Babar Ali for Respondents

Date of hearing: 14th October, 1998.

2000 P L C (C.S.) 843

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman, Muhammad Ismail, Aftab Ahmed and Roshan Ali Mangi. Members

MUHAMMAD ANWAR

Versus

SECRETARY, MINISTRY OF EDUCATION, GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Appeal No.25-R of 199(,, decided on 16th May, 1996

Civil service---

---- Daily allowance for overstay---Claim for---Civil servant who was posted abroad, stayed in the hotel initially for six days to avail of the journey time, but civil servant due to allegedly deplorable condition of the house in which his predecessor was residing did not occupy said house and as a result he had to stay in hotel till lie got suitable accommodation---Civil servant had claimed that he was entitled to grant of daily allowance for overstayed period of 12 days which he spent in getting free furnished suitable accommodation ---Embassy’s letter showed that by the time civil servant pined his post abroad situation with regard to availability of accommodation there was improved---As an economy measure and to curb general tendency on-part of officials concerned to stay in hotels deliberately in order to get additional daily allowance, Embassy, in public interest had decided as a matter of policy, not to pay daily allowance beyond six days' journey time to officials: under any circumstances and instead pay only the room rent of hotel as admissible under rules- --Provision of accommodation was the responsibility of mission abroad---Should an official refuse to accept accommodation arranged by Head of Mission, requirement of providing official accommodation having been met, consequences must be faced by civil servant himself, including disciplinary action for defying official orders---Civil servant was provided accommodation but he did not occupy same on ground that it was in deplorable condition, although his predecessor did not point out any defect---Civil servant, thus, was rightly not allowed daily allowance beyond period of six days which he availed of as joining time---Appeal against order of Authority disallowing daily allowance of 12 days of overstay otherwise being barred by time, was dismissed in circumstances-.

Sardar Liaqat Ali for Appellant.

Khalid Abbas Khan with M. Iqbal Ahmed for Respondents.

Date of hearing: 18th April 1996.

2000 P L C (C.S.) 847

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

Mian SYED BADSHAH

Versus

PRESIDENT, HABIB BANK LIMITED, KARACHI and others

Appeal No. 108-P of 1998, decided on 23rd November, 1998.

Civil service--

---- Retirement of Bank employee under voluntary Golden Hand Shake Scheme---Employee who joined Bank as probationer officer, was subsequently promoted as Vice-President and served for more than twenty­ five years---During service, voluntary 'Golden Hand Shake Scheme was announced whereunder employees who had rendered services for more than twenty-five years were granted two sorts of benefits: (a) old retirement benefits; (b) new retirement benefits and employees could give their option for any one category of benefits---Employee tendered his option for "New Retirement Benefits" and his option was duly forwarded to concerned Authorities and he was given an understanding that he would be relieved from his service under "New Retirement Benefit Scheme" for which he had given his option, but he was allowed benefits under "Old Retirement Benefits" which he had not opted---Employee when was informed about acceptance of Scheme under "Old Retirement Benefits" for which he had not given option, he withdrew his option under that Scheme by writing letter in that respect---Employee having tendered his option for New Retirement Benefits" which itself was offered by Authorities, there was no justification for Authorities to refuse acceptance of employee's option under "New Retirement Benefits"---Authorities could not be allowed to back out of their own offer which was readily accepted by employee, Bank Authorities were directed to afford "New Retirement Benefits" to appellant in circumstances.

Mian Fasihul Mulk for Appellant. Shahid Anwar Bajwa for Respondents.

Date of hearing: 4th November, 1998.

2000 P L C (C.S.) 853

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman and Muhammad Raza Khan, Member

MUHAMMAD ANWAR

Versus

DEPUTY INSPECTOR-GENERAL OF POLICE, LAHORE and 2 others

Appeal No. 138-K of 1996, decided on 11th April, 1997.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Limitation---Civil servant after rejection of his Departmental appeal against his dismissal, instead of filing appeal before Service Tribunal within 30 days of rejection of Departmental Appeal, filed review petition which was also rejected---Appeal before Service Tribunal was filed with delay of 40 days after expiry of prescribed period of 30 alongwith application for condonation of delay---Delay in filing appeal before Service Tribunal by civil servant who was a Police Official, was based on a genuine misconception about the authority vested to the superior officers to review cases and being a disciplined force, civil servant preferred to exhaust ultimate remedy prior to approaching Service Tribunal---Delay in filing appeal before Service Tribunal, in circumstances, was based on bona fide misconception which was condoned.

(b) Service Tribunals Act (LXX of 1973)-­

----S. 4---Police Rules, 1934, 8.16.24, para. VII---Government Servants (Efficiency and Discipline) Rules, 1973, R.6---Dismissal from service---Re­instatement---Civil servant who was constable in Railway Police was on duty at a time when goods train was reported to have been subjected to theft and he was associated with criminal case---When case was under trial before the Court, civil servant was subjected to disciplinary proceedings and was dismissed from service by Authority concerned and Departmental Appeal filed by civil servant against his dismissal order was also dismissed---Civil servant who later on was honourably acquitted, was entitled to be re-instated to position held by him---Civil servant otherwise was also entitled to be reinstated, because order dismissing civil servant was passed by same person who had conducted inquiry against civil servant.

(c) Civil service--

---- Dismissal from service---Enquiry proceedings---Procedure---Authorised Officer and Inquiry Officer, could not at all be allowed under any law to impose major penalty like dismissal from service on a civil servant in whose case he had himself conducted inquiry proceedings---Order of dismissal passed against civil servant, was set aside and he was ordered to be re­instated.

Syed Ali Haider for Appellant. Shabbir Ahmed Awan for Respondents.

Date of hearing: 10th April, 1997.

2000 P L C (C.S.) 857

[Federal Service Tribunal]

Before Noor Muhammad Magsi and Muhammad Ayub Khan, Members

KHALID NAVEED

Versus

MEMBER, ADMINISTRATION AND THE CHAIRMAN, PAKISTAN ATOMIC ENERGY COMMISSION, ISLAMABAD

Appeal No.20(Q) of 1997, decided on 8th December, 1998.

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4 & 6-A---Service Tribunals Act (LXX of 1973), S.4---Premature retirement---Departmental enquiry---Authenticity---Principle of natural justice---Violation---Civil servant initially was awarded penalty of with­holding of four increments but subsequently that penalty was converted into major penalty of "permanent retirement"---Onus was on Departmental Authority to show that enquiry against civil servant was conducted in accordance with Rules, but facts available on file had shown that civil servant was condemned unheard and his penalty was based on reports of a Fact Finding Committee, which could not be made a ground for condemnation of civil servant---Minor penalty of withholding of four annual increments awarded by Authorised Officer, was converted by Authority into major penalty of permanent retirement without serving civil servant with a show-cause notice as to why said minor penalty awarded to him by Authorised Officer, should not be enhanced---Validity---Under provisions of R.6-A of Government Servants (Efficiency and Discipline) Rules, 1973, no adverse order to the interest of civil servant could be passed without affording him opportunity of personal hearing if Authority intended to review penalty especially in case of enhancement of penalty---Order of Authority was set aside, in circumstances.

1993 SCMR 122 and PLD 1969 Pesh. 147 ref.

(b) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4 & 6-A---Service Tribunals Act (LXX of 19734, S.4---DApa-tmental enquiry---Nature and conduct of Departmental enquiry was not a confidential matter, but record must show involvement/association of accused civil servant in the matter---Enquiry proceedings were of judicial nature in which presence of accused civil servant was a must for the reason that Departmental Authority was the first stage of judicial proceedings which must be conducted strictly in accordance with requirements of law and not whimsically---Benefit would go to accused civil servant in case of doubtful proceedings---Examination of a witness must be in presence of accused civil servant and record must show presence of accused civil servant during enquiry proceedings---Issuance of a second or final show-cause notice was also a must and .in that respect no leniency could be shown for its dispensation---Departmental Authority would act as a first Court for its subordinates and was supposed to do as much justice as was required by legal forums/Courts.

PLD 1998 Lah. 1 and 1997 PLC (C.S.) 929 ref.

(c) Administration of justice---

----Principles---Every order whether judicial or administrative must be a speaking one---Authorities were legally bound to discharge their duties in all fields of activities, including disciplinary proceedings perfectly in accordance with law.

Abdur Rahim Bhatti for Appellant. Rao Fazal Akhtar and Ch. Ghulam Nabi for Respondent.

Date of hearing: 23rd November, 1998.

2000 P L C (C.S.) 947

[Federal Service Tribunal]

Before Jalal-ud-Din Akbarji, Chairman, Imtiaz Ali Khan and Nabi Bakhsh Bhatti, Members

NOSHERWAN KHAN

Versus

UNITED BANK LIMITED through President, Karachi and 2 others

Appeal No.983-L of 1999, decided on 10th February, 2000.

(a) Civil Servants Act (LXX of 1973)---

----S.2(1)(b)---Constitution of Pakistan (1973), Arts. 2-A, 212 & 260---Civil servant---Definition---"Service of Pakistan", meaning and scope---Persons rendering services in body corporate owned by Government or by private sector and if their rights were secured and guaranteed under law, then they could not be interchanged for the word "civil servant" or for that matter deemed to be a civil servant---Secured and guaranteed rights of workmen in a Corporation could not be made redundant or without any legal effect by deeming them to be civil servants---Definition of civil servant given in S.2(1)(b) of Civil Servants Act, 1973 was to be read in respect of employees of body corporate owned by Federal Government who were not workmen employed in body corporate owned by Government.

(b) Interpretation of statutes----

---- Interpretation should be objective, meaningful and to further the purpose and objectives of law without making any redundancy or void in any other law or in its own application.

(c) Service Tribunals Act (LXX of 1973)---

----S.4---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Constitution of Pakistan (1973), Arts. 2-A & 212---Civil servant---Definition---Jurisdiction of Service Tribunal ---Jurisdiction of Service Tribunal was exclusive, but limited to the matter relating to terms anal conditions of persons who were or had been in "service of Pakistan" including disciplinary matters---Employee of industrial or commercial establishment owned by Government or private body corporate or institution, was not in "service of Pakistan" and could not be deemed to be civil servant---Person would be deemed to be a civil servant who was defined as "civil servant" under S.2(1)(b) Civil Servants Act, 1973.

(d) Service Tribunals Act (LXX of 1973)---

----S.4---Civil Servants Act (LXXI .of 1973), S.2(b)---Constitution of Pakistan (1973), Arts. 212 & 260---Service of Pakistan---Employee in any Authority, Corporation, Body or Organization established by or under a Federal Law or which was owned or controlled by Federal Government or in which Federal Government had controlling shares, or interest, would be in "service of Pakistan" and holding a post under Authority, Corporate, Body or Organization would be deemed to be a civil servant for purpose of Service Tribunals Act, 1973---Such person could file appeal in Service Tribunal in respect of his terms and conditions of service including disciplinary matters.

Asmat Kamal Khan for Appellant

Farooq Zaman Qureshi, Mian Mahmood Hussain and Aurangzeb Mirza for respondent

Date of hearing 8th February, 2000.

2000 P L C (C.S.) 978

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

TOUFIQ BOKHARI

versus

THE SECRETARY, MINISTRY OF DEFENCE, RAWALPINDI and another

Appeal No.868-R of 1997, decided on 6th November, 1998.

(a) Interpretation of statutes---

---- General, provisions of law and special law---Applicability---General provision of law consisting of Act/Ordinance, Rules and Regulations, would yield to special law whether original or subordinate---Such principle would apply to general provisions contained in a statute itself or other statutes to a particular area and region so much so that in certain matters, specially in absence of specific provisions of law, local customs and usages were pressed into service---Any provision specifically made applicable to a particular Act, must be applied thereto and in that event provisions of general nature would not come into play.

(b) Interpretation of statutes---

----Limitation---Law relating to---Applicability---Law containing limitation must be acted upon but if no provision existed in that law regarding limitation, Limitation Act, 1908 which was of a general nature would come into play---Said principle could be stretched to any extent regarding applicability of statutes.

(c) Civil Service Regulations---

---- Reglns. 361 & 371-A---Pensionary benefits---Entitlement---Civil servant who was appointed on temporary basis was compulsorily retired from service on account of unauthorised absence from duty after rendering service for more than eleven years---If period of unauthorised absence from duty was deducted, total period of service of civil servant would come to nine years and sixteen days---Regulation, 371-A of Civil Service Regulations, provided that Government servant who had rendered more than five years' continuous temporary service would count said service for purpose of pension or gratuity excluding broken period of temporary service, if any, rendered previously---Civil servant who had rendered service tier more than nine years, could count his said temporary service for purposes of his pension---Civil servant, in circumstances, was entitled to pensionary benefits.

Abdur Rehman Saddiqui for Appellant.

Muhammad Aslam Uns, Standing Counsel for Respondents.

Date of hearing: 28th September, 1998.

2000 P L C (C.S.) 983

[Federal Service Tribunal]

Before Noor Muhammad Magsi and Syed Ekram Hussain Jafri, Members

LOUNG KHAN CHANNA

versus

Messrs UNITED BANK LTD, HEAD OFFICE, KARACHI and 3 others

Appeal No.2703-K of 1997, decided on 15th May, 1999.

(a) Service Tribunals Act (LXX of 1973)--

----Ss. 2-A & 4---Appeal---Maintainability---Appellant being employee of Bank which was one of the organizations of categories mentioned in S.2-A of Service Tribunals Act, 1973, was a civil servant---Service Tribunal, in circumstances, could very, competently entertain appeal filed by appellant for grievance relating to terms and conditions of his service.

(b) United Bank Limited (Staff) Service Rules, 1981---

----R. 39---Service Tribunals Act (LXX of 1973), Ss. 2-A & 4---Dismissal from service---Principle of natural justice---Violation---Civil servant was dismissed from service on allegations of unauthorised loans and unauthorised absence froth duty after issuing him show-cause notice, but holding ex parte inquiry proceedings and also without providing civil servant opportunity of personal hearing---Civil servant was neither provided statement of allegations with charge-sheet/first show-cause notice nor he was given final/second show-cause notice nor lie was given opportunity of personal hearing at any stage during proceedings or before imposition of major penalty of dismissal from service---Copy of ex parte inquiry report on basis of which civil servant was dismissed from service, was also not supplied to him---Civil servant, in circumstances, was condemned unheard---Order of dismissal passed against civil , servant in violation of principle of natural justice, was set aside.

Shabbir Ahmed Awan for Appellant.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 6th May, 1999.

2000 P L C (C.S.) 994

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

MUHAMMAD RAZIQ

versus

SECRETARY, ESTABLISHMENT DIVISION and others.

Appeal No. 179-R of 1998, decided on 5th December, 1998.

Service Tribunals Act (LXX of 1973)---

---S. 4---Adverse remarks ---Expunction---Civil servant promoted as Joint Secretary in B-20 in 1994 was given adverse remarks in year 1995 to the effect "not yet fit for promotion" and was immediately transferred from Establishment Division to Office of Attorney-General and was declared "below average" in column of "emotional stability "---Civil servant, during his entire service career, had never received any advice, warning or counselling and throughout his service career right from post of Section Officer to his promotion as Joint Secretary remained good in his service record---Promotion of civil servant from post of Section Officer to Joint Secretary in B-20 was due to his dedication, devotion and sincerity to his job---Said adverse remarks were given to civil servant simply on difference of opinion on certain matters---Difference of opinion was blessing but same was proved to be detrimental to civil servant by giving him adverse remarks---In absence of any allegation of misconduct or rude behaviour of civil servant, adverse remarks against him, were not justified---Adverse remarks against civil servant ordered to be expunged.

Tariq Mehmood Chokhar for Appellant.

Javed Aziz Sandhu, Standing Counsel alongwith Mehboob Alam, Section Officer, Establishment Division and Pir Muhammad Shah, DAS for Respondent.

Date of hearing: 20th November, 1998.

2000 P L C (C.S.) 999

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim; Chairman, Aftab Ahmed, Roshan Ali Mangi and Muhammad Raza Khan, Members

NASRULLAH KHAN NASIR and 13 others

versus

FEDERATION DIRECTORATE OF EDUCATION ISLAMABAD and 13 others

Appeals Nos. 77-R, 207-R, 208-R, 209-R, 213-R, 215-R, 220-R, 247-R, 249-R, 250-R, 260-R, 261-R, 273-R and 274-R of 1997, decided on 9th July, 1997.

Civil Servants Act (LXXI of 1973)--

----S. 12---Government Servants (Efficiency and Discipline) Rules, 1973, Rr. 4 & 5---Appointment, cancellation of---Civil servants were appointed by Competent Authority in accordance with prescribed manner as appointment letters were issued to them with the approval of the Competent Authority and said appointment letters showed that appointments were made on recommendations of the Departmental Selection Committee after interviewing and examining academic qualifications of civil servants---All such civil servants joined their duties in pursuance of appointment letters issued to them---Civil servants, thus, had got a vested right to continue with their services unless and until their appointments were terminated in accordance with law---Services of civil servants not only were withheld/ cancelled without assigning any reason, but were withheld/cancelled on the direction of Secretary Education who was not appointing Authority whereas appointment made by Authority could be terminated only by same Authority and not by anyone else---Order terminating services passed in violation to Civil Servants Act, 1973 and under Government Servants (Efficiency and Discipline) Rules, 1973 could not sustain, in circumstances.

Director, Social Welfare, N.-W.F.P. v. Saadullah Khan 1996 SCMR 1350; 1995 PLC (C.S.) 761; Vasdev v. Government of Sindh PLD 1965 Dacca 156; PLD 1976 SC 430; Muhammad Nawaz v. Federation of Pakistan 1992 SCMR 1420; Syed Mazhar Hussain Bukhari v. Secretary to Government of Punjab, Local Government and Rural Development

Department and others 1996 SCMR 59 and Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development PLD 1995 Sc: 530 ref.

Raja Muhammad Asghar Khan for Appellants (in Appeals Nos.'208, 209, 247, 249, 250 and 274-R of 1997).

Aminur Rehman for Appellant (in Appeals Nos.208, 209, 213, 220-R of 1997).

Appellants in person (in Appeals Nos.215-R arid 273-R of 1997).

Abdur Rashid Awan for Appellant (in Appeal No. 77-R of 1997).

Nasir Saeed Sheikh for Appellant (in Appeal No. 260-R of 1997).

S.A.M. Wahidi for Appellant (in Appeals Nos. 261-R and 207-R of 1997).

Khalid abbas Khan, Federal Counsel alongwith Muhammad

Shafique Aslam, Assistant Director, Federal Directorate of Education, D.R.

Nemo for the Ministry of Education.

Date of hearing: 20th June, 1997.

2000 P L C (C.S.) 1009

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

MURSHID AMIN KHATTAK

Versus

CHAIRMAN, NATIONAL HIGHWAY AUTHORITY and 23 others

Appeal No.87-R of 1998, decided on 20th October, 1998.

(a) Civil Servants Act (LXXI of 1973)---

----S. 8(4)---Civil Servants (Seniority) Rules, 1973, Rr. 4 & 6---Seniority--­Reckoning date---Seniority of civil servant would be reckoned from date of his regular appointment to grade/post.

(b) Civil service---

----Promotion---Recommendations of Departmental Selection Committee for promotion---Effect---Mere recommendations by Departmental Selection Committee for promotion of civil servant would carry no-legal weight unless order/notification, if any, in that respect was placed on record.

(c) National Highway Authority Employees Service Rules, 1995---

----Rr. 19 & 20---Seniority---Determination---Civil servant appointed on deputation in B-17 for a period of two years was confirmed after said period of two years and was regularly and permanently absorbed in the Department ---Deputationists, contract employees and work-charge casual employees were not to be shown on seniority list as per R. 19 of National Highway Authority Employees Service Rules---Civil servant, in circumstances, could not claim seniority from period prior to his regular and permanent absorption in the Department, but would be entitled to seniority after his permanent absorption.

Abdul Qadir Khattak for Appellant.

Sh. Iftikhar Hussain for National Highway Authority alongwith Altaf Hussain, Deputy Director, Departmental Representative.

Abdur Rahim Bhatti for Respondents Nos. 2 and 4.

Fazal Elahi Siddiqui for Respondent No.5.

Date of hearing: 9th September, 1998.

2000 P L C (C. S.) 1016

[Federal Service Tribunal]

Before Roshan Ali Mangi and Noor Muhammad Magsi, Members

Dr. ABDUL HAMEED QURESHI

Versus

SECRETRY, ESTABLISHMENT DIVISION, ISLAMABAD and others

Appeal No.235-R of 1997, decided on 21st July, 1997.

Service Tribunals Act (LXX of 1973)------

----S. 4, proviso (b)---Civil Servants Act (LXXI of 1973), S.22--­Promotion ---Civil servant who was Joint Secretary was aggrieved of Notification whereby Joint Secretaries were promoted from BPS-20 to BPS-21, but civil servant was not included in that Notification---"Overall assessment" of civil servant was 74 instead of minimum threshold of 75, then he was short of one point as against opposing civil servants who were promoted and had 75 marks in overall rating or more than that---No single example was quoted where threshold was less than 75 marks --- No discrimination, thus, was found as was alleged by civil servant in promoting opposing civil servant---Even otherwise appeal of civil servant against promotion was also hit by proviso (b) to S. 4 of Service Tribunals Act, 1973 read with S. 22 of Civil. Servants Act, 1973, whereby no appeal or representation would lie on matters relating to determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade, which had ousted the jurisdiction of Service Tribunal.

Appellant in person

Date of hearing: 10th July, 1997.

2000 P L C (C.S.) 1019

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

SARDAR MUHAMMAD

Versus

THE AUDITOR-GENERAL OF PAKISTAN, ISLAMABAD and 3 others

Appeal No. 17-P of 1997, decided on 5th November, 1998.

(a) Government Servants (Efficiency and Discipline) Rules, 1973--- -

----Rr. 5, 6 & 7---Departmental Enquiry---Powers of Enquiry Officer--­Scope--- Procedure---Enquiry Officer, was not supposed to express his views regarding imposition of penalty, but was supposed simply to record enquiry proceedings and to submit his report before Authorised Officer---Authorised Officer was authorised to award minor penalty if he considered that case deserved for imposition of such penalty, otherwise in event of imposition of major penalty, Authorised Officer would forward proceedings to Competent Authority for appropriate order.

(b) Service Tribunals Act (LXX of 1973)--- .

----Ss. 4 & 5---Government Servants (Efficiency and Discipline) Rules, 1973, R. 4(1)(b)(i)(iii)---Penalty of stoppages of increments and reduction in pay was converted into removal from service---Penalties of stoppage of two increments with cumulative effect and penalty of reduction in pay were imposed on civil servant after charge-sheeting him and holding enquiry against him on allegation of making over-payment to staff---High powered Committee which conducted thorough probe into the matter, had concluded that said overpayment to staff was result of fraud and corruption in which huge amount was misappropriated by civil servant in connivance with others---Charges pf misappropriation, fraud, misconduct and inefficiency having stood proved against civil servant, Service Tribunal empowered under S.5 of Service Tribunals Act, 1973, converted said two penalties imposed on civil servant into removal from service.

Sheikh Riazul Haq for Appellant.

Javaid Aziz Sandhu, Standing Counsel for Respondents alongwith M. Israr, A.O. and Manzoor Abbas, A.O., Departmental Representatives.

Date of hearing: 2nd October, 1998.

2000 P L C (C.S.) 1024

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman, Aftab Ahmed, Muhammad Raza Khan and Noor Muhammad Magsi, Members

MUHAMMAD SHARIF

Versus

SECRETARY, MINISTRY OF FOREIGN AFFAIRS, ISLAMABAD, and 2 others

Appeal No. 184(R) of 1997, decided on 30th June, 1997.

(a) Service Tribunals Act (LXX of 1973)---

----Ss. 4, 5 & 7---Appeal---Limitation---Civil servant who was re-employed after his retirement from service on medical grounds, had filed appeal before Tribunal, despite no order either original or appellate was in field from which he could be deemed to have been aggrieved---If civil servant was aggrieved from order of his re-employment, even then he should have filed appeal/representation within a period of 30 days thereof, thus, representation filed by him after 5 months of that order, was also barred by time---If appeal to Service Tribunal was filed beyond the prescribed period of 30 days from appellate orders. the Tribunal could look into grounds mentioned in application for condonation of delay to examine whether any justification existed for each day of delay---Service Tribunal could not condone delay in filing Departmental appeal because such appeal representation was not filed before same, thus, S.7 of Service Tribunals Act, 1973 would not be applicable to departmental appeal/representation---Appeal before Tribunal having been filed by civil servant within 120 days from date of filing Departmental representation, question of condonation of delay would not arise.

(b) civil service regulations--

----Art. 519---"Re-employment" and "Reinstatement"---Connotation--­Distinction---With the. reinstatement in service a person was entitled to continue previous position held by him prior to happening of a particular event, whereas the term, "re-employment" denoted that a person was employed afresh---Re-instatement was a right of civil servant if so permissible by law, but re-employment was not a right of civil servant and it was the discretion of the employer department to re-employ a civil servant or not---Civil servant who was retired from service on medical grounds could demand under Art.519 of Civil Service Regulations, his re-employment and at the most by taking benefit of that Article, civil servant could ask for the counting of the previous service rendered by him prior to his invalidation on medical ground, but the Civil Service Regulations did not authorise a civil servant to demand continuation of service with all consequential benefits, of fixation of pay, seniority etc. like the benefits permissible at the stage of reinstatement in service---Prayer of civil servant for conversion of fresh appointment into reinstatement on basis of Art. 519, Civil Service Regulations, thus, was misconceived.

Abdur Rahim Bhatti for Appellant.

Mir Afzal, SO Ministry of Foreign Affairs and Ghayyur Abbas on behalf of the Establishment Division.

Date of hearing: 4th June, 1997.

2000 P L C (C.S,) 1222

[Federal Service Tribunal]

Before Roshan Ali Mangi, Muhammad Raza Khan and Noor Muhammad Magsi, Members

BASHIRUDDIN AHMED MEMON

versus

THE SECRETARY, MINISTRY OF WORKS and 5 others

Appeals Nos. 139(K) and 546/8 of 1996, decided on 1st August, 1997

Per Roshan Ali Mangi, Noor Muhammad Magsi agreeing--[Majority view]---

Civil Servants (Seniority) Rules, 1993---

----R. 3---Civil Servants Act (LXXI of 1973), S. 8---Service Tribunals Act (LXX of -1973), S. 4---Merger of two cadres at the level of Superintending Engineers comprising Civil Engineers and Electrical/Mechanical Engineers for promotion to post of Chief Engineer-=-Seniority list of both cadres prepared and circulated---Validity---Appellants (Civil Engineers) agitated that merger of two cadres was illegal on account of officers included therein belonged to two different cadres---Seniority' of officers of two cadres was also against Civil Servants (Seniority) Rules, 1993 according to which seniority had to be reckoned from regular officiation in particular cadre or post---Seniority of officers of two cadres should have been counted from the date when they were promoted in their own cadre---One cader, thus, could not be merged into another cadre, and thereby to count seniority from the date of promotion---Seniority of officers of two cadres in combined seniority list was, thus, in violation of Civil Servants (Seniority) Rules, 1993---Just to accommodate Electrical Engineers against posts meant for Civil Engineers combined seniority list was prepared and Departmental Rules were framed, which action seemed to be mala fide---Departmental Rules whereby combined seniority list of two different cadres was prepared was declared to be, ultra vires ab initio, mala fide and to harm major group of officers i.e. Civil Engineers---Authority was directed to re-draw seniority list on the basis of separate cadres.

Per Muhammad Raza Khan, Member, Contra.---

Manzoor Ali Khan for Appellant (in Appeal No. 139(K) of 1996).

Sajjad Haider. Bhatti, Section Officer, M/o Works, M.B. Khattak, Joint Amin. Officer, Pak PWD and Zakaullah Jan, Section Officer, Establishment Division, Departmental Representative for Appellants (in Appeal No. 139(K) of 1996). .

Respondent No.5 in person (in Appeal No. 139(K) of 1996).

Nemo for Respondent No.6 (in Appeal No. 139(K) of 1996)

F. E. Siddiqi for Appellant (in. Appeal No. 546/R of 1996).

Khalid Abbas Khan, Standing Counsel alongwith Sajjad Haider Bhatti, Section Officer, Ministry of Works, Amir Ahmed, Deputy Director, FPSC. Zakaullah Jan, Section Officer, Establishment Division and M.B. Khattak, Joint Administrative Officer, Pak. PWD, Departmental Representatives for Respondent (in Appeal No.546/R of 1996).

Date of hearing: 29th April, 1997.

2000 P L C (C.S.) 1234

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Raza Khan, Member

GHULAM HAIDER

versus

SECRETARY, WORK DIVISION, ISLAMABAD and another

Appeal No.272-R of 1997, decided on 22nd August, 1997

Service Tribunals Act (LXX of 1973)---

----S.4,--Pakistan Allocation Rules, 1993, R.10(1)---Application for self­ hiring of own house---Rejection---Appeal---Civil servant's application for self-hiring his own-house, having finally been rejected, civil servant had challenged rejection order in appeal before Tribunal---Civil servant Who had claimed that he was entitled under Pakistan Allocation Rules, 1993 to get house on self-hiring basis, had fully proved that he fulfilled all three prerequisites of R.10(1) of Pakistan Allocation Rules, 1993---Civil servant was a. Federal Government Servant, posted at Islamabad, he owned a house within Islamabad and he was otherwise eligible for allotment of accommodation from the Estate Office Pool---All three prerequisites contained in R.10(1) of Pakistan Allocation Rules, 1993 being available in case of civil servant, he was entitled for self-hiring of house as claimed by him---Issue of hiring of accommodation, self-hiring of personal houses and allied matters had become the vested rights of civil servants and such matters had been considered to be included in terms and conditions of service of civil servant---Such vested rights and guaranteed terms and conditions of service, could not be denied or refused just on the request of a particular Department or on an instruction from another one---No one could be divested of their rights, guaranteed by the Statutes or the Statutory Rules, merely by such instructions---Civil servant having satisfied requirements of S.10(1) of Pakistan Allocation Rules, 1993, any instruction issued in violation of such Rules, would be illegal and void---Appeal filed by civil servant against original and appellate order of Authority, was accepted and orders of Authority were set aside allowing civil servant self-hiring of his house as per his request.

Appellant in person.

Muhammad Aslam Uns for Respondents.

Date of hearing: 19th August, 1997.

2000 P L C (C. S.) 1240

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman and Muhammad Raza, Khan, Member

NAZ HASSAN TUIIERANI

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others.

Appeal No.36-K of 1997, decided on 26th May, 1997.

(a) Service Tribunals Act (LXX of 1973)---

----S.4---Appeal---Competency---Departmental appeal could be filed within 30 days of the original order---Representation filed by civil servant after more than two years of impugned order, certainly was barred by time but Competent Authority did not care to reject departmental appeal, representation on ground of limitation---Authority, thus, would be deemed to have condoned delay---Issue of limitation could not, thus, be raised by Authority in appeal filed by civil servant before Tribunal---Departments appeal filed by civil servant having not been rejected on point of limitation, Tribunal could not dismiss appeal of civil servant on point of limitation and Authority was estopped to raise issue of limitation at appellate stage.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Res judicata, principles of---Applicability---Appeal filed by civil servant, was challenged on question of res judicata alleging that same cause of action was subject-matter of litigation in earlier appeal filed by civil servant---Civil servant, in earlier appeal had challenged the original order and it was not decided on merits, rather it was dismissed on the legal ground of maintainability to exhaust departmental remedy, whereas present appeal was primarily based on a new cause of action---Fresh appeal having new ground and in compliance with the spirit of the earlier judgment by removing the legal infirmity in earlier appeal, case was not disposed of on merits, ingredients required to attract the principle of res judicata were not available---Appeal was maintainable in circumstances.

Anwar Muhammad v. General Manager, Pakistan Railways 1995 SCMR 950 ref.

(c) Civil service---

---- Appointment in one group of service---Reversion---Civil servant after passing competitive examination held by Federal Public Service Commission, was allocated Accounts Group and civil servant joined Academy for Training, but during his training his group was, changed---On representation of civil servant his group was changed, but thereafter civil servant again was reverted to his original group without any justification and notice and in violation of principles of natural justice---Valuable rights having accrued to civil servant during past more than six years, such rights could not be withdrawn to the prejudice of civil servant without any fault on his part---Order changing groups of service to which civil servant was forced to work against his choice, was set aside with direction that civil servant should be allowed to work in Service Group for which he was entitled to in his own pay and scale.

M.M. Aqil Awan for Appellant.

Niaz Ahmed Khan, Standing Counsel alongwith Abdul Hakim Rahi on behalf of the Establishment Division.

Date of hearing: 8th April, 1997.

2000 P L C (C. S ) 1246

[Federal Service Tribunal]

Before Aftab Ahmed, Roshan Ali Mangi and Muhammad Raza Khan, Members

AURANGZEB KHAN TORU

versus

THE NATIONAL INSTITUTE OIP HEALTH, ISLAMABAD through Executive Director, NIH, Islamabad and others

Appeal No.356-R of 1997, decided on 25th September, 1997.

(a) Civil service-

---- Appointment on current charge basis---Transfer---Civil servant who joined as Management Officer in BPS-18 and later on was redesignated as Deputy Director, was allowed to work on current charge basis against post of Director BPS-19---Civil servant who held current charge for few days, was transferred and was posted to his previous post of Deputy Director---Civil servant had challenged such transfer and claimed to be promoted to post of Director---Authority contended that Recruitment Rules for appointment to post of Director BPS-19 having not so far been framed it could not be said that which of Officers were eligible for promotion/appointment to said post of Director---With such factual position, contention of civil servant that he was eligible for appointment/promotion to post of Director, was untenable--­Even otherwise current charge appointment to a post would not confer any right for regular promotion to said post---Civil servant who had been given current charge appointment, in absence of any recruitment rules for promotion/appointment to the post, by no stretch of imagination could claim or could be considered to have been regularly promoted to said post.

(b) Civil service---

---- Current charge appointment---"Looking after the posts"--.-Concept--­Current charge appointments were to be made only as transitional measures for a period of two to six months---Civil servant who was holding post of Director on current charge basis, merely was to look after that post and "looking after a post" was entirely alien concept in service matter---Such person neither -was holding post on regular, ad hoc, current charge, acting charge or additional charge basis---Neither was concept of "looking after a post" on gratis basis nor was any concept of mere "adjustment" of civil servant against any other post without job descriptions and capabilities to perform service in interest of public or organization---Such autocratic type administrative orders were unjustified and uncalled for.

Tanvir Bashir Ansari for Appellant.

Dr. G.S Khan alongwith Dr. Nisar Ahmed Sheikh, Director (Admin.) for Respondents Nos. l and 3.

Respondent No.2: Ex parte.

Date of hearing: 20th August, 1997.

2000 P L C (C. S) 1252

[Federal Service Tribunal]

Before Roshan Ali Mangi and Noor Muhammad Magsi, Members

MUHAMMAD YASIN KALWAR

versus

INSPECTOR-GENERAL OF POLICE, ISLAMABAD and another

Appeal No.396-R of 1997, decided on 20th September, 1997.

(a) Civil service---

--- Dismissal from' service- --Criminal case was registered against civil servant who was Inspector/S.H.O. Police Station on allegations that he illegally raided on house of complainant and took huge amount in Dollars from him---Pending criminal case against civil servant, he was dismissed from service after issuing him show-cause notice and adopting summary procedure against him---Show-cause notice issued to civil servant revealed that allegation levelled against civil servant did not appear to have .been established---Authorities did not submit any material to prove that civil servant's guilt was established nor they could submit any statement of civil servant's confession to establish allegation against him---Inquiry which otherwise was conducted behind the back of civil servant without affording him opportunity of personal hearing; was of preliminary nature or merely a fact-finding inquiry and major penalty of dismissal from service could not be imposed on basis of such inquiry especially when facts were being disputed by civil servant and no allegation had been proved against him in concrete term---Full-fledged inquiry in circumstances was essential and civil servant should have been afforded opportunity of cross-examination of prosecution witnesses---Facts and circumstances of the case did not warrant resorting to summary trial of civil servant as no material evidence could be, established in such procedure---No record on which allegation was based was provided to him nor report of alleged inquiry was given to civil servant---Order of dismissal passed against civil servant which appeared to have been passed with mala fide intention and without adopting proper proceeding, was set aside and civil servant was ordered to be reinstated with all back benefits.

1997 PLC (C.S.) 817; 1980 SCMR 850; 1997 PLC (C.S.) 873 and 1997 PLC (C.S.) 817 ref.

(b) Government Servants (Efficiency and Discipline) Rule, -1973

----R. 5---Inquiry'proceedings---Authorised Officer had discretion to decide whether a regular inquiry should be held or not, but discretion should be exercised fairly and reasonable and not arbitrarily or capriciously with the object to deny civil servant right of fair defence---If charge was found on admitted documents/facts, no full-fledged inquiry was required, but if charge was based on disputed questions of fact, a civil servant could not be denied a regular inquiry as the same could not be resolved without recording evidence and providing opportunity to the parties to cross-examine witnesses---In such a matter if findings of fact were recorded without recording any evidence, same would be based on surmises and conjectures which would have no evidentiary value as to warrant imposition of any punishment on civil servant concerned.

(c) Administration of justice---

----Justice should not only be done, but should appear to have been done

Sh. Riazul Haq for Appellant. Shujaat Hussain Naqvi, PDSP (Legal), D.R

2000 P L C (C.S.) 1307

[Federal Service Tribunal]

Before Muhammad Raza Khan, Noor Muhammad Magsi and Ch, M. Ashraf, Members

RAZI AHMED SIDDIQUI

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman/ Managing Director, PIA

Appeal No.70-K of 1998, decided on 23rd June, 1998.

Civil service--

----Demotion---Civil servant who was originally appointed as Sales Assistant, was subsequently redesignated as Flight Steward---Civil servant later on was promoted to ~ post of Briefing Officer and after successfully completing initial probation period was confirmed on that post ---Civil servant was served with a show-cause notice which he replied, but Authority considering reply of civil servant to be unsatisfactory demoted civil servant from post of Briefing Officer---Validity---Civil servant on whom penalty of demotion was imposed, had a right to approach judicial forum for redressal of his grievance especially when such penalty was imposed on him without any charge of misconduct or indiscipline or even inefficiency---Order of demotion passed by incompetent Authority simply on direction of other Authority without applying independent mind, could not sustain---Order of demotion of civil servant suffering from several irregularities and illegalities, was set aside with direction that civil servant should be re-instated to his position prior to his demotion with back benefits.

M.A. Samdani for Appellant.

Masood A. Khan for Respondent.

Date of hearing: 22nd June, 1998:

2000 P L C (C.S.) 1320

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

SIBGHAT ULLAH KHAN

versus

THE SECRETARY, MINISTRY OF PETROLEUM AND

NATURAL RESOURCES, ISLAMABAD and 5 others

Appeal No.256-K of 1998, decided on 1st July, 1998.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal---Limitation---Civil servant had not agitated promotion of co-civil servants for about 15 years---When after 15 years civil servant was also promoted, he filed Departmental appeal after more than 2 months from his promotion in which he claimed right of antedation of his promotion from date when co-civil servants were promoted---Departmental appeal which otherwise was time-barred having been rejected, civil servant instead of filing appeal before Service Tribunal, filed another Departmental appeal, which was withheld by Department---Civil servant filed appeal before Service Tribunal after about 3 months from rejection of first Departmental appeal and after about 2 months from withholding of second Departmental Appeal---First Departmental Appeal. which itself was barred by time was dismissed and' no occasion was left for filing second Departmental Appeal before next higher Authority, because only one Departmental Appeal had been provided in law---Departmental Appeal being belated and incompetent, all further steps, would also become incompetent---Appeal filed by civil servant before Service Tribunal, beyond prescribed period of limitation without justifying such delay, was not maintainable and was liable to be dismissed on that ground.

(b) Civil service--

---- Antidated promotion---Question of seniority and antedation of promotion were interlinked---If seniority of a person was not challenged and after passage of several years persons who had been promoted to senior posts had got their right to said posts, .they could not be relegated to junior position thereafter.

Appellant in person.

Niaz Ahmed Khan, Standing Counsel alongwith S. Tariq Mehmood Jafri, D.D. Departmental Representative for Respondent.

Private Respondent in person.

Date of hearing: 1st July, 1998.

2000 P L C (C.S.) 1324

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

S. SALAHUDDIN

versus

THE CHAIRMAN, CENTRAL BOARD OF REVENUE and another

Appeal No.20-R of 1998, decided on 9th May, 1998

Civil service--

----Pro forma promotion---Back benefits---Entitlement---Civil servant appointed as Inspector BPS-12 was not -considered by Departmental Promotion Committed for promotion as Superintendent BPS-14 on account of his involvement in criminal case whereas his juniors were promoted during that period---Subsequently when civil servant was exonerated from charge against him, his case of promotion was duly processed and he was promoted as Superintendent to BPS-14 and his original seniority was also restored to him, but he was not given full relief of his pro forma promotion from date his juniors were promoted and was not allowed pay, allowances and other consequential reliefs and back benefits---Validity---Pay, allowances and back benefits could not be refused to civil servant because he was not at fault at any time when his promotion case was deferred due to criminal cases ,against him in which he was acquitted and case against him proved false--­Civil servant who, after his exoneration, was restored to his original position and was promoted to BPS-14 and his seniority was also restored, was entitled to all back benefits.

PLD 1973 Lah. 56; 1985 SCMR 1394; 1973 SCMR 304; 1989 PLC (C.S.) 609 and 1993 PLC (C.S.) 1057 ref.

Abdul Rahim Bhatti for Appellant. M. Javed Aziz Sandhu for Respondents

Date of hearing: 30th April, 1998.

2000 P L C (C.S.) 1330

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

JAVED IRFAN and others

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Government of Pakistan, Islamabad and 2 others

Appeals Nos. 46-K, 53-K, 54-K, 58-K and 62-K of 1998, decided on 6th July, 1998.

Banking Companies Ordinance (LVII of 1962)---

----S. 47(5)---Amalgamation of Bank---Entitlement of retained employee of Bank to facilities---M Bank having been amalgamated -with N Bank, civil servants who were retained employees of defendant M Bank claimed all benefits admissible to employee of transferee Bank N right from effective date of amalgamation of M Bank where they were previously working--­Claim of civil servants that they were entitled to all benefits admissible to employees of transferee Bank right from effective date of amalgamation was misconceived, because according to provisions of Banking Companies Ordinance, 1962, civil servants being retained employees were entitled for period of three years from effective date of amalgamation to remuneration and terms and conditions as were applicable to them in previous Bank and they could not be in any case subjected to any terms. and conditions less favourable to them than those they were enjoying prior to said date--­Transferee Bank, however, within a period of three years for effective date, was under obligation to extend civil servants (retained employees) terms and conditions of employees of corresponding rank and status of transferee Bank subject to scrutiny of their qualification and experience---Retained employees were to retain their previous terms and conditions whereafter they were to be treated at par with employees of transferee Bank.

Kanwar Mukhtar for Appellants.

Gulzar Ahmed for Respondents.

S.M. Raza Zahid Section Officer, Ministry of Finance and M. Shibli for State Bank of Pakistan.

Date of hearing: 2nd July, 1998.

2000 P L C (C. S.) 1340

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

S. KHADIM HUSSAIN and 2 others

versus

THE DEPUTY POSTMASTER GENERAL, M.S.T. SOUTH REGION, KARACHI and others

Appeals Nos.294, 295 and 296-K of 1998, decided on 22nd July, 1998.

Service Tribunals Act (LXX of 1973)---

----S. 4---Termination of services and recovery of amount paid as salary--­Appeal---Limitation---Civil servants who initially were appointed on daily wages, were later on regularised and were also allowed advance increments for better education---Services of civil servants were terminated without issuing them show-cause notice and without providing them opportunity of hearing on ground of certain irregularities in appointment of civil servants, but civil servants were not at all responsible for alleged irregularities---Such action had been taken against civil servants without show-cause notice or any opportunity of hearing, even salary paid for period from regularization of their services and up to termination of their services in which civil servants had actually worked, had been ordered to be recovered from civil servants--­Order of recovery of paid salary which was in any case a gross violation of doctrine of locus poenitentiae, was void order which could not be upheld--­Order to that extent was set aside, but appeals against order of termination of services being barred by time and no application for condonation of such delay having been filed, appeals filed by civil servants, were dismissed.

Rana Liaquat for Appellants.

Khalid Mahmood for Respondents alongwith M. Tahir Ather, A.S. Sukkar and Ahmed Mehmood, A.S. Quetta, Departmental Representatives.

Date of hearing: 8th July, 1998.

2000 PLC (C.S.) 1370

[Federal Service Tribunal]

Before Aftab Ahmed and Dr. Akhtar Hasan Khan, Members

MUHAMMAD NISAR KHAN

versus

HABIB BANK LIMITED through President and another

Appeal No, 147(P) of 1999, decided on 18th July, 2000.

Civil service-----

---- Retirement under voluntary Golden Hand Shake Scheme---Entitlement to its benefits---Option tendered by civil servant for his retirement from service under voluntary Golden Hand Shake Scheme was accepted by Authority and civil servant was retired from his duties giving him his dues calculated under old retirement scheme---Civil servant dissatisfied with, calculation of dues under old retirement scheme had claimed that he should have been considered under new relevant scheme/benefit which was more attractive and beneficial to him---Voluntary Golden Hand Shake Scheme had stipulated two separate kinds of benefits to civil servant, firstly under old scheme and secondly under- new scheme and civil servant had to give option for any of the said schemes---Civil servant had never opted for new retirement scheme despite he was provided number of chances to change his option--­Civil servant, who did not opt for new retirement benefits which he could do, had to remain in old scheme and his request for change of option after retirement could not be acceded to especially when he did not opt to change same when chances were provided to him to change his option---Civil servant was rightly given benefits under old retirement scheme in circumstances.

Abdur Rehman Siddiqui for Appellant.

Shahid Anwar Bajwa for Respondent No. 1.

Date of hearing: 10th July, 2000.

2000 P L C (C.S.) 46

[Karachi High Court]

Before Saiyed Saeed Ashhad and Sabihuddin Ahmed, JJ

GUL MUHAMMAD HAJANO

Versus

FEDERATION OF PAKISTAN and others

Constitutional Petitions Nos.D-1558, D-1803, -1489, 1992, 1804 of 1995 and 127 of 1992,. decided on 12th July, 1999.

(a) Sindh Civil Servants Act (XIV of 1973)---

----S. 8---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 13---Seniority---Determination---Seniority of a civil servant under provisions of S. 8, Sindh Civil Servants Act, 1973 is to be reckoned from date of his regular appointment to a post in the grade---If civil servant was not considered for promotion on his turn for no fault of his, he ought not be prejudiced by earlier promotion of his juniors and in the higher grade civil servant would be treated senior to his immediate junior in the lower grade as provided under R. 13, Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975---Said rule was designed to prevent chaos that could arise through decisions reconsidering seniority of civil servants and to ensure that instead of claiming mechanical promotion on account of some mistake of the Department, a civil servant must first establish his fitness for promotion and then after being promoted, claim benefit of seniority denied through mistake.

Iqan Ahmad Khurram v. Government of Pakistan PLD 1980 SC 153; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129 and Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 ref.

(b) Sindh Civil Servants Act (XIV of 1973)---

----S. 10---Posting of civil servant---Civil servant was required to serve anywhere in Pakistan under S. 10, Sindh Civil Servants Act, 1973 and he could not claim a right to be posted at the Station of his own choice as a consequence of his promotion to a higher rank.

(c) Constitution of Pakistan (1973)---

----Art. 199(i)(b)(ii)---Civil service---Writ of quo warranto---Constitutional petition, questioning holding of a public office by an unqualified person, could be maintained by way of one for quo warranto in terms of Art. l99(i)(b)(ii) of Constitution of Pakistan (1973) at the instance of any person (as distinguished from an aggrieved party)---When such petition was filed by private person (and not a law officer of the State), heavy burden lay on petitioner to show that respondent lacked qualifications for office.

Masudul Hassan v. Khadim Hussain PLD 1963 SC 203; Islamic Republic of Pakistan v. Israrul Hassan PLD 1981 SC 531 and Aslam Waraich v. Secretary, Planning and Development Division 1991 SCMR 2330 ref.

(d) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

-----R. 8-A---Appointments on acting charge and current charge basis---When a post was required to be filled through promotion and the most senior civil servant eligible for promotion did not possess specified length of service, appointments of eligible persons could be made on acting charge basis after obtaining approval of appropriate Departmental Promotion Committee/Selection Board---Appointment on acting charge basis would be made for vacancies lasting for more than six months and for vacancies likely to last for less than six months, appointments on current charge basis could be made---An appointment of an officer in a lower scale to a higher post on current charge basis in his own, pay scale without being formally promoted by its very nature, was only provided for as a stop-gap arrangement and should not under any circumstances last for more than six months.

Pakistan Railways v. Zafarullah 1997 SCMR 1730 ref.

(e) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Arts. 199 & 212---Appointment--?Administration of justice---Writ of quo warranto---Constitutional and legal system of Pakistan attached foremost importance to transparency and fairness in administration of matters relating to appointment and career building of civil servants who were required to perform sensitive public duties strictly in accordance with law and there was no room for "spoils system" in the jurisprudence---Executive direction in matters relating to service conditions, was strictly controlled by law and statutory rules and every order, passed by a Departmental Authority relating to terms and conditions of a civil servant was appealable to a high level independent Judicial Tribunals and therefrom to Supreme Court on a point of law---When competent and senior officers were ignored for promotion and Authorities after bypassing the duly constituted Promotion 'Committees/Selection Board, would appoint junior officers to enjoy supervisory authority and perquisites of .higher posts for indefinite duration, an element of arbitrariness would be introduced which was not warranted by law---Such appointments if continued beyond a reasonable time, if not justiciable before Service Tribunal, could attract jurisdiction of High Court under Art, 199 of Constitution of Pakistan (1973) including writ of, quo warranto directing incumbent to lay down his office.

In re: Abdul Jabbar Memon 1996 SCMR 1349 and Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324 ref.

Petitioner in person. Muhammad Saleem Samo, Addl. A.-G. for Respondents.

Date of hearing: 4th March, 1999.

2000 P L C (C.S.) 73

[Karachi High Court]

Before Shabbir Ahmed, J

K.M.C

Versus

MANZOOR HUSSAIN SHAH and another

Revision Application No. 4 of 1996, decided on 21st April, 1999, (a) Sindh Service Tribunals Act (XV of 1973)---

-----Ss,3(b), 3(e) & 3(d) [as inserted by Sindh Service Tribunals (Amendment) Act (XXXI of 1994)---Respondent filed a civil suit against the order of his compulsory retirement from the service---Trial Court decreed the suit and the petitioner preferred an appeal against such order before the lower Appellate Court---During the pendency of the appeal an amendment was inserted in Sindh Service Tribunals Act, 1973, as a result of which the lower Appellate Court concluded that the appeal stood abated---Contention of the petitioner was that the suit also stood abated---Validity---Abatement terminated the proceedings without adjudication and final determination of rights of parties---Contention of the petitioner regarding abatement of the suit was not a correct approach as the effect of decree was not extinguished by virtue of filing of an appeal or its abatement---No jurisdictional illegality or material irregularity was pointed out in the order of the lower Appellate Court---No case was made out for interference.

(b) Sindh Service Tribunals Act (XV of 1973)--

----Ss. 3-F, proviso & 6, proviso---Term "aggrieved party "---Meaning and implication---Such term embraces an aggrieved party---Where appeal filed by Corporation stands abated by operation of law then the Corporation will be deemed to be an aggrieved party---Where appeal filed by employee abates, he will be the aggrieved party---When abatement takes place, the right of appeal to Service Tribunal automatically accrues contemporaneously.

(c) Interpretation of statutes---

---- Extending application of main statutes to other territories---Date of enforcement --Where a statute is extended to a territory or a class of persons, who were originally not covered by such statute then the date of commencement given in the original statute is synchronized with the date on which the said statute is extended to new territories and persons.

(d) Civil Procedure Code (V of 1908)---

----S. 115---Revision al jurisdiction, exercise of---High Court may interfere in such jurisdiction under S. 115, C.P.C. where the subordinate Court has exercised jurisdiction not vested in it, or has failed to exercise the jurisdiction vested in it, or has acted in exercise of jurisdiction illegally, or with material irregularity.

Manzoor Ahmed for Applicant.

S. Abid Zuberi for Respondent.

Date of hearing: 7th April, 1999.

2000 P L C (C.S) 88

[Karachi High Court]

Before Ikram Ahmed Ansari, J

Syed FARIDUDDIN

Versus

KARACHI DEVELOPMENT AUTHORITY through Director-General

Revision Application No. 15 of 1996, decided on 24th August, 1998.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Civil Procedure Code (V of 1908), S. 115---Suit for declaration, mandatory/permanent injunction---Dispute over date of birth--­Plaintiff/petitioner who was born and educated in India, had passed his Matriculation Examination from India---According to "Fasli Calendar" which was in vogue in the relevant part of India date of birth of plaintiff/petitioner was 6th day, of December, 1944 Fasli, which if converted into Christian Calendar- corresponded as 10-11-1934---Plaintiff/petitioner served for about 38 years, but question of his date of birth was never raised by defendant/respondent and after about 38 years, defendant/respondent informed plaintiff/petitioner that his date of birth was 2-11-1931 and not the one as claimed by plaintiff/petitioner and that he was to be retired from service with effect from 1-11-1991 as by that date he would attain age of superannuation of 60 years---Plaintiff/petitioner filed suit for declaration, mandatory/permanent injunction against order of defendant-Authority and Trial Court decreed suit holding that date of birth as claimed by plaintiff/petitioner was correct, but in appeal filed by defendant/respondent Appellate Court below set aside judgment and decree passed by Trial Court---Expert Authority after comparing "Fasli Caleridar" with Christian Calendar, had certified that date as claimed by plaintiff/petitioner was correct Trial Court had given, detailed judgment discussing issues framed in the matter, but Appellate Court had passed a cursory judgment without discussing issues on matter, in their appropriate perspective---When plaintiff/petitioner had adduced sufficient evidence and explained his date of birth and nothing was available in rebuttal, claim of plaintiff with regard to his date of birth was to be accepted as true and he was entitled for relief claimed---Judgment of Appellate Court being devoid of any reasoning and based on mere assumption, was set aside by High Court.

Ch. Muhammad Lateef v. University of Punjab 1997 CLC 262 and Mst. Aisha v. Mst. Fatima and others 1991 CLC 1499 ref.

B.M. Bangash for Applicant.

Muhammad Ikram for Respondent.

Date of hearing: 23rd April, 1998.

2000 P L C (C.S.) 184

[Karachi High Court]

Before Sarmad Jalal Osmany, J

ALI AHMED BUGTI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Government of Pakistan, Pakistan Secretariat, Islamabad and 4 others

Suit No.223 and Civil Miscellaneous Application No. 1310 of 1999, decided on 16th April, 1999.

(a) Service Tribunals Act (LXX of 1973)----

----S. 4---Constitution of Pakistan (1973), Art. 212---Civil service--­Jurisdiction of Civil Courts---Validity---Where Service Tribunal does not have the jurisdiction to adjudicate upon a particular type of grievance, jurisdiction of Civil Courts remains intact.

I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041 and Dr. Ahmed Salman Warts v. Nadeem Akhtar and others PLD 1997 SC 382 rel.

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Suspension---A'hether relates to terms and conditions of service--­Order of suspension concerns the terms and conditions of service.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Arts. 4, 14 & 212---Civil service---Suspension of civil servant---Order of suspension was assailed in a civil suit---Validity---Plaintiff, a civil servant, was suspended on 12-10-1998---Neither any, charge-sheet was issued to the plaintiff, nor any inquiry was made in the matter as per Rules---Effect---Action of the Authorities was a blatant violation of Fundamental Rights of the plaintiff, as enshrined in Arts. 4 & 14 of the Constitution, to enjoy the protection of law and the inviolability of dignity of man---Case of the plaintiff was remanded to the Authorities for a decision under the Rules---Where the issues involved in the suit were only legal, same could be decided accordingly---Plaintiff was reinstated in circumstances.

I.A. Sharwani and others v. Government of Pakistan and others 1991 SCMR 1041; Muhammad Azhar v. General Manager (Operation), Power, WAPDA PLD 1990 Lah. 352; Abdul Bari and 2 others v. Government of Pakistan PLD 1991 Kar. 290; Wali Ahmed Khan v. Government of Sindh and others 1982 PLC (C.S.) 1; Abdul Razzak v. Federation of Pakistan and 2 others 1992 PLC (C.S.) 203; Khawaja Mahmood Ahmad v. Ministry of Education 1992 PLC (C.S.) 554; Utility Stores Corporation of Pakistan Limited v. Punjab Labour Appellate Tribunal and others PLD 1987 SC 447; M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691; Chairman, District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258; Dr. Ahmed Salman Waris v. Nadeem Akhtar and others PLD 1997 SC 382 and Muhammad Saleh Khokhar v. Engineer-in-Chief; Pakistan Army 1985 SCMR 63 ref.

Khawaja Sharful Islam for Plaintiff.

Fariduddin for Defendants Nos. 2 to 5.

Dates of hearing: 16th April, 11th, 12th and 15th October, 1999.

2000 P L C (C.S.) 189

[Karachi]

Before Saiyed Saeed Ashhad and S. Ahmed Sarwana, J

NAZRUL HASSAN SIDDIQUI and others

Versus

FEDERATION OF PAKISTAN and others

Civil Petitions Nos.D-1980 and D-1986 of 1997, decided on 12th January 1999.

(a) Service Tribunals Act (LXX of 1973)---

----S. 2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997)]---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition ---Maintainability---Termination of service---Issue of termination of service of employees fell within purview of terms and conditions of service after incorporation of S. 2-A in Service Tribunals Act, 1973 by Service Tribunals (Amendment) Act, 1997---Employees, therefore, were not entitled to invoke Constitutional jurisdiction of High Court for redressal of their grievance in view of Art. 212-A, Constitution of Pakistan (1973).

United Bank Limited and others v. Ahsan Akhter and others 1998 SCMR 68; Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; Ghulam Mustafa Khairati v. Federation of Pakistan 1998 PLC (C.S.) 1078; S. Aftab Ahmed v. Karachi Electric Supply Corporation, C.P. No. 1305-K of 1997; Sayed Sagheer Ahmed Naqvi v. Province of Sindh and another 1996 SCMR 1165; I.A. Sherwani and others v. Government of Pakistan and others 1991 SCMR 1041; Humayoon Saifullah Khan v. Federation of Pakistan and others PLD 1990 SC 599; Ekhan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Abdul Bari v. Government of Pakistan and 2 others PLD 1980 Kar. 290; Iqan. Ahmed Khurram v. Government of Pakistan and others PLD 1979 Kar. 610; Fazel Ellahi Aijaz v. Government of Punjab and others PLD 1977 Lah. 549; Muhammad Hashim Khan and others v. Province of Balochistan and others PLD 1976 Quetta 59; Pir Sabir Shah v. Shad Muhammad Khan and another PLD 1995 SC 66; Abdul Bari v. Government of Pakistan and others PLD 1981 Kar. 290; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Waris Meah v. The State and another PLD 1957 SC 157; Javed Iqbal Khawaja and another v. Azad State of Jammu and Kashmir 1994 PLC (C.S.) 1448; Government of Balochistan v. Azizullah Memon PLD 1993 SC 341; Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 and Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416 ref.

(b) Constitution of Pakistan (1973)---

-----Art. 199---Constitutional jurisdiction, invocation of---Person invoking Constitutional jurisdiction of High Court had to establish firstly that he was an aggrieved party as defined in c1. (1)(a) of Art. 199 of the Constitution of Pakistan; secondly that relief sought by him was one which he was legally entitled to seek under any provision of law, rules or regulations and thirdly for seeking relief prayed by him, no other forum or remedy was available to him.

Ms. Tehnyat Farooq for Petitioner (in C.P. No.D-1980 of 1997).

Naimur Rehman, Dy. A.-G. and Makhdoom Ali Khan for Respondents Nos.3-and 4 (in C.P. No.D-1980 of 1997).

Ms. Tehnyat Farooq for Petitioner (in C.P. No.D-1986 of 1997).

Naimur Rehman, Dy. A.-G. and Makhdoom Ali Khan for Respondents Nos.3 and 4 (in C.P. No.D-1986 of 1997).

Date of hearing: 15th October, 1998.

2000 PLC (C.S) 206

[Karachi High Court]

Before Amanullah Abbasi and Dr. Ghous Muhammad, JJ

Mian MUHAMMAD MOHSIN RAZA

Versus

Miss RIFAT SHEIKH, FIRST SENIOR CIVIL JUDGE and others

Service Appeal No. 13 of 1993, decided on 1st February, 1999.

(a) Civil service---

----Seniority list---Value---Seniority list is only a consequential order of the original order/notification determining the seniority.

(b) Sindh Service Tribunals Act (XV of 1973)--

----S. 4---"Order"---Implication---Word "order" as used in S.4 of Sindh Service Tribunals 1973, is used in a wider sense to include any communication which adversely affects a civil servant:

Muhammad Anis Qureshi v. Secretary, Ministry of Communication 1986 PLC (C.S.) 664 rel.

(c) Sindh Service Tribunals Act (XV of 1973)---

----S. 4---Appeal---Seniority list---Appellant was ignored from being promoted, whereagainst neither a departmental representation was made nor an appeal was preferred, only seniority list was challenged in appeal--­Validity---When a seniority list only gave a consequential effect to seniority already determined through an earlier order or notification the aggrieved person had to challenge the latter and mere challenge to the seniority list was of no avail---Where the seniority list by itself was the first determination of seniority the cause of action to the aggrieved person arose from the date/communication of the seniority list as nothing earlier existed to be challenged---Departmental representation as also the appeal being time­barred was dismissed.

Malik Naeem Hasan v. Lahore High Court 1995 PLC (C. S.) 1173; Mian Khalid Masud v. Chief Secretary 1992 PLC (C.S.) 760; Government of Punjab v. Ehsanul Haq Sethi PLD 1986 SC 684; Syed Afzal Ahmed Hyderi v. Secretary, Establishment Division 1985 PLC (C.S.) 521; Muhammad Sadiq Khokhar v. Engineer-in-Chief, Joint Staff HQ 1987 PLC (C.S.) 398; Javed Dastagir Mirza v. Additional Chief Secretary 1992 PLC (C.S.) 1036; Rauf Ahmed v. Secretary to Government of Punjab 1984 PLC (C.S.) 287 and Muhammad Ramzan Chaudhry v. S.A. Naeem 1983 PLC (C.S.) 218 ref. Saleemullah v. Government of Pakistan through Secretary, Establishment Division, Islamabad 1995 SCMR 1865 rel.

(d) Limitation Act (IX of 1908)---

----S.3---Duty of the Court to notice the point of limitation even if such plea is not raised.

Hakim Muhammad Buta v. Habib Ahmed PLD 1985 SC 153 rel.

(e) Sindh Service Tribunals Act (XV of 1973)---

----S. 4---Appeal---Dismissal of appeal as time-barred---Direction by the Tribunal could be given in such time-barred appeal though the same was dismissed as time-barred.

Muhammad Fazal Khan v. Azad Government 1986 PLC (C.S.) 710 rel.

M.M. Aqil Awan and Khalid Javed for Appellant.

Syedain Zaidi, A.A.-G for the State.

Nemo for Respondents Nos. l to 5.

Muhammad Arif Kureshi for Respondent No.6.

Date of hearing: 1st June, 1998.

2000 P L C (C.S.) 225

[Karachi High Court]

Before Sabiuddin Ahmed and Wahid Bux Brohi, JJ

Miss FARZANA QADIR

Versus

PROVINCE OF SINDH through Secretary, Ministry of Health, Government of Sindh Secretariat, Karachi and another

Constitutional Petition No. D-139 of 1999, heard on 25th May, 1999

(a) Civil service---

----Appointment---Recommendation of Public Service Commission---Where posts, under statutory rules, are required to be filled on recommendations of Public Service Commission, the advice of Commission confers a vested right upon the nominated candidate.

(b) Constitution of Pakistan (1973)---

----Art. 199---Civil service---Constitutional petition---Competency--­Candidate was recommended by Public Service Commission for her appointment---Department did not comply with recommendation of Public Service Commission and required the commission to review its earlier recommendation---Validity---Department was unable to assign any reason or point out any defect in original recommendation of Commission--­Recommendation of Public Service Commission had created a legitimate expectation in the candidate to be appointed---Department was directed to appoint the candidate---Constitutional petition was allowed accordingly.

Muhammad Frooque v. Province of Sindh 1986 CLC 1408 and Manthar Ali Jatoi v. Government of Sindh 1988 PLC (C.S.) 344 ref.

Kamaluddin for Appellant. Miss Khan Malik, A.A.-G. for Respondents

Date of hearing: 25th May, 1999.

2000 P L C (C.S.) 349

[Karachi]

Before Rana Bhagwan Das and Mushir Alam, JJ

Mir GHULAM ABID KHAN

Versus

PAKISTAN through Secretary and another

Constitutional Petition No. D-70 of 1986, decided on 7th October, 1999.

(a) Constitution of Pakistan (1973)---

----Part II, Chap.2 [Arts. 29 to 40], Arts.274 & 199---Constitutional petition---Principles of Policy----Liabilities and obligations of Government--­Applicability---Stopping of he hereditary political pension---Such pension was granted in favour of grandfather of petitioner which continued to be paid by the successive Governments from time to time and as such remained to be the duty and Constitutional obligation of the Federal Government---Such obligation and commitment must be honored to consolidate public confidence in the commitments made by the Government and the same could not be ignored and overlooked--- Non-fulfilment of liabilities and obligations

of the Government was violative of the fundamental Principles of Policy guaranteed under the Constitution.

(b) General Clauses Act (X of 1897)---

----S. 21-- Locus poenitentiae, principle of---Limitations on the power exercised Competent Authority---Scope---Provisions of S.21, General Clauses Act, 1897, postulate that an Authority which passes an order is competent to vary, rescind or cancel the order passed by that Authority but such power is not absolute as the same is subject to certain limitations--­Where the older sought to be varied, rescinded or cancelled is communicated to other party and subsequent to that communication that party acts upon such order, a very valuable right accrues to that party---Authority passing such order Becomes functus officio to vary, rescind or cancel its earlier order as the law does not allow "volte face" to the Authority in circumstances.

(c) Constitution of Pakistan (1973)---

------Arts. 199 & 274---Constitutional petition---Liabilities and obligations of Government---Stopping of hereditary political pension---Such pension was granted in favour of grandfather of the petitioner and the same continued by the successive Governments---Stoppage of payment of such pension--­Validity---Where the Government felt the sanction accorded by the President was-not required to be implemented it was incumbent upon the Government to refer back the case to the Sanctioning Authority for review of the sanction if so permitted by law and the circumstances---Without adopting such course Government declined implementation of lawful Presidential Order---Act of the Government withholding political pension to the petitioner was without lawful authority and of no legal effect in circumstances.

Pakistan v Muhammad Himayatullah PLID 1969 SC 407; Muhammad Nawaz v. Secretary, Irrigation and Power PLD 1973 Quetta 14; Muhammad Aslam Khaki v. Vice-Chancellor, Go al University, D.I. Khan PLD 1980 Pes.h. 128 and Muneeb Nazir Shah v. Azad Kashmir Government PLD 1985 Azad J&K 17 ref.

S. Ali Aslam Jafri for Petitioner.

Abdul Ghani Shaikh, Dy.A.-G. for Respondent No. l.

Zawar Hussain Jafri, Addl. A.-G. for respondent No.2.

Date of hearing: 22nd September, 199 .

2000 P 1, C (C.S.) 392

[Karachi High Court]

Before Amanullah Abbasi and Dr. Ghous Muhammad, JJ

MUHAMMAD SAGHEER RANA, V-ADDITIONAL

DISTRICT AND SESSIONS JUDGE, LARKANA

Versus

HIGH COURT OF SINDH, KARACHI through Registrar

Service Appeal No. 11 of 1997, decided on 16 zit September, 1999.

(a) Civil service---

---- Taking actions against members of subordinate judiciary on account of corruption and misconduct----Factors to be taken into consideration--­Foremost factors to be taken into consideration were general reputation, being reputed to be corrupt; complaints or specific allegations by Advocates and the litigants and merits of judgments and orders passed by the officer--­Regard must also be had to the periodical reports of all Sessions Judges under whom particular Judge had worked---Comments given by the Judges of superior Courts upon judgments/orders by Judges of Subordinate Courts under appeal/revision must also be given weight.

(b) Civil sere ice--

---- Adverse remarks ---Expunction of---Delay in communication of adverse remakrs--- Effect---Civil servant against whom adverse remarks viz. "his integrity is doubtful" were recorded in his ACR was not completely unblemished---Other allegations against civil servant had also been levelled in the past and there had been ample counseling and warnings issued against the civil servant on different occasions---Adverse remarks against civil servant, in circumstances, were though not wholly unjustified, but were communicated to civil servant after considerable delay of more than one year without giving any reasonable explanation of such inordinate delay---Delay being fatal, adverse remarks against civil servant were ordered to be expunged.

Muhammad Munawwar v. I.-G. Police 1991 PLC (C:S.) 543; Kamaluddin Memon v. Chief Secretary, Government of Sindh 1991 PLC (C.S.) 1027; Syed Ali Ashraf Shah Gillani v. Azad Government of the State of J&K 1994 PLC (C.S.) 129; Nazeer Ahmed v. S.S.P., Rawalpindi 1988 PLC (C.S.) 424; Ch. Saeed Ahmed v. Federation of Pakistan 1996 SCMR 256 and Director, Small Industries Department, Quetta v. Hantedullah Khan 1995 SCMR 768 ref.

Abrar Bukhari for Appellant.

Munib Ahmed Khan, Addl. A.-G. and Sayedain Zaidi, A.A.-G. for Respondent.

Dates of hearing: 14th December, 1998 and 10th September, 1999.

2000 P L C (C.S.) 456

[Karachi High Court]

Before Nazim Hussain Siddiqui, C.J. and Ghulam Rabbani, J

Prof. ZAHEER-UL-HASSAN JARCHAVI

Versus

GOVERNMENT OF SINDH and others

Constitutional Petition No.D-1594 of 1997, decided on 11th November, 1999.

Sindh Service Tribunals Act (I of 1973)---

----S.4(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Civil service---Appointment to a particular post or promotion on a higher post or grade---Civil servant assailed the order of the Department for not appointing him to a specific post---Validity---Only relevant Authority could determine as to where a person was to be posted and the question of fitness of a person was a subjective evaluation on the basis of objective criteria---Not a vested right of a person to claim posting against a particular post---Civil servant could be posted against any post of same grade--­Seniority was not enough for filling in a particular post---Personal characteristics might be a dominating factor for such posting---Issue of posting to a particular post was not justiciable ---Constitutional petition was dismissed in limine.

Miari Abdul Malik v. Dr. Sabir Zameer Siddiqui ands 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC,153; Muttaqi Hussain Rizvi v. Province of Sindh and another PLD 1978 Kar. 703; Legal Thesaurus, Regular Edn. by William C. Burton; Black's Law Dictionary and Stroud's Judicial Dictionary ref..

Abdul Sattar Mughal for Petitioner.

Iqbal Raad, A.-G., Sindh for Respondents.

Date of hearing: 13th April, 1999.

2000 P L C (C.S.) 459

[Karachi High Court]

Before Nazim Hussain Siddiqui, C.J. and Ghulam Rabbahi, J

INAM ALI BHUTTO and others

Versus

SUI SOUTHERN GAS COMPANY LIMITED and others

Constitutional Petitions Nos.D-2185, 2321 of 1996; D-547, 1368, 1369, 2161, 2265, 2306 of 1997, D-98, 864, 867, 868, 869, 909, 914, 941, 1242 and 1764 of 1998, decided on 11 the November, 1999.

(a) Service Tribunals Act (LXX of 1973)---

---S.2-A---Civil Servants Act (LXXI of 1973), S.2-B---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability--­Employees of Public Limited Company--- Termination of services--­Relationship of master and servant---Applicability --- Contention by the employees was that their services could not be terminated on payment of one month's pay in advance---Validity---Employees were appointed on the basis of an assignment and such appointment was without any commitment to provide any employment at any stage and the employees never protested against the same---Company was a public limited company and the same was managed by the Board :f Directors elected under the provisions of the Companies Ordinance, 1984 and its Articles of Association---Where the Service Rules were not statutory Rules, the relationship between the company and its employees was that of master and servant---Where there was a relationship of master and servant, the master commanded the latter and possessed the absolute power of hire and fire---Rules framed company for the benefit of its employees were not statutory Rules and principle of relationship of master and servant conferred unfettered power on the company of hire and fire---Employee's petition being not maintainable was dismissed in limine.

Lt.-Col. Shujauddin Ahmed v. Oil and Gas Development Corporation 1971 SCMR 566; Chairman of East Pakistan Development Corporation v. Rustam Ali PLD 1966 SC 848; Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah PLD 1959 SC (Pak.) 210; Zainul Abedin v. Multan Central Cooperative Bank Limited PLD 1966 SC 455; Shahid Khalil v. PIAC, Karachi 1971 SCMR 568; A George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146; Muhammad Yousuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Anwar Hussain v. The Agricultural Development Bank of Pakistan and others 1992 SCMR 1112; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. through its President, Karachi and 2 others 1995 SCMR 453; 1996 SCMR 1349; Al-Jehad's case PLD 1996 SC 324 and Salahuddin and 2 others v. Federal Sugar Mill and Distillery Limited PLD 1975 SC 244 ref.

(b) Constitution of Pakistan (1973)----

----Arts. 2A, 3, 4, 37 & 38---Violation of Fundamental Rights and Principles of Policy--- Termination of service by a public limited company---Service Rules of such company were not statutory, Rules----Effect---Provisions of Arts. 2A, 3, 4. 37 & 38 of the Constitution were not attracted to the case of such employees---To keep or not to keep the employees in service was the sole discretion of such company and the same was not controlled by any provision of any law or the Constitution---Employees could neither insist for their employment nor there was any violation of Fundamental Rights in circumstances.

(c) Civil Servants Act (LXXI of 1973)---

----S.2-B---Civil servants, status of---Employees of a company not governed by any statutory Rules---Contention by employees was that a substantial change in terms and conditions of their service be brought and they be treated like civil servants or the employees of a statutory Corporation--­Validity---Employees would be governed by the terms and conditions of service which they had accepted and could not unilaterally innovate the terms and conditions.

1996 SCMR 1349 ref.

Abdul Mujeeb Pirzada, Syed Sami Ahmed, Abdul Ghafoor Mangi and Rasool Bux Unar for Petitioners.

Chaudhary M. Jamil for Respondent No. 1.

Choudhry Iqbal Ahmed, Standing Counsel for the Remaining Respondents.

Date of hearing: 7th October, 1999.

2000 P L C (C.S.) 806

[Karachi High-Court]

Before Shabbir Ahmed, J

WALI AHMED KHAN

Versus

KARACHI DEVELOPMENT AUTHORITY through Chairman and 2 others

Suit No. 177 of 1994 and Civil Miscellaneous Application No. 8500 of 1999, decided on 1st February 2000.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212---Service Tribunal, jurisdiction of---Service Tribunal, is a forum to hear appeals only---Tribunal has exclusive jurisdiction to entertain the matter enumerated in Art. 212 of the Constitution to the ouster of all other Courts.

(b) Jurisdiction---

----Question of---Effect---Where the Legislature has ousted jurisdiction of a forum specifically, such forum is devoid of having. any jurisdiction in the matter even in a case where action of executive authority is challenged on the ground of same being mala fide, ultra vires or coram non judice.

Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 and State v. Zia-ur-Rehman PLD 1973 SC 49 ref.

(c) Service Tribunals Act (LXX of 1973)---

----Ss. 2-A & 4---Matters relating to terms and conditions of service of employees of authority, corporation, body or organization controlled by Federal Government---Only forum for adjudication of such disputes has been changed and Service Tribunals have exclusive jurisdiction to entertain such cases as provided under S.4 of Service Tribunals Act, 1973.

(d) Service Tribunals Act (LXX of 1973)---

----Ss. 2A & 6---Civil Procedure Code (V of 1908), O. VII, R.11----­Abatement of civil suit---Terms and conditions of service---Plaintiff was employee of Karachi Development Authority and gradation list on which his retirement was based was assailed in civil suit---Contention of the defendant Authority was that after insertion of S.2-A in Service Tribunals Act, 1973, suit stood abated---Validity---Pending proceedings in the shape of suits, appeals and applications stood abated under the provisions of S. 6 of Service Tribunals Act, 1973---Where the suit was pending at the time of insertion of S.2-A in Service Tribunals Act, 1973, the suit stood abated by operation of law with effect from the date of insertion of S.2-A in the statute.

Niazy Abdul Khaliq for Plaintiff. Muhammad Anwar Tariq for Defendant No. 1

Zia Qureshi for Defendant No.2.

2000 P L C (C.S.) 905

[Karachi High Court]

Berore Rana Bhagwan Das and Mushir Alam, JJ

Dr. MOULA BUX and others

Versus

GOVERNMENT OF SINDH and others

Constitutional Petition No D-164 of 1998, decided on 12th January, 2000.

(a) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

---R.9---Sindh Public Service Commission (Functions) Rules, 1990, R.5--- Rules of Business, R.35(i)---Transfer---Discretion, exercise of---Civil servants were selected as "Assistant Commissioner" in B.P.S. 17 in pursuance of advertisement after due selection process---Civil servants were posted to serve in respective fields of "Assistant Commissioners" on regular basis after getting appropriate training in the Academy and also field training---Civil servants who had right to serve in relevant field of Assistant Commissioners, were suddenly removed by the Authority without approval of Competent Authority who in case of civil servants, was Chief Minister and transferred civil servants to serve as 'officers on special duty'-­Validity---If Authority had felt that civil servants were not fit and suitable to hold office of Assistant 'Commissioners, their services could be utilized against equivalent posts in B.P.S. 17 as they were liable to serve anywhere throughout the province. in any Government Department, but civil servants were forced to sit idle as Officers on Special Duty---Depriving civil servants of their right to serve in their respective field for which they were trained, amounted to gross maladministrationy, which was not without malice---Public power was a sacred trust in the hands of public functionaries which must be exercised in larger public interest and not otherwise--If, power or discretion was conferred upon an Authority, it was always expected that said functionary would exercise the discretion in larger interests of public at large and not for personal or extraneous interest---Administrative action should be just and fair and not perverse and arbitrary--.-Act of Authority transferring civil servants, which otherwise was act of discrimination and not based on larger public interest as expected of public functionaries, was declared illegal having been passed without any lawful authority.

Zahir Akhtar v. Government of Punjab PLD 1995 SC 530; Eastern Express Ltd. v. Western India Skin Exporters PLD 1958 (W.P.) Kar. 355; M. Imamuddin v. Bashir Ahmad 1989 CLC 2309; Ziauddin Siddiqi v. Mrs. Rana Sultana 1990 CLC 645; Tyeb v. Alpha Insurance Co. Ltd. 1990 CLC 428; Muhammad Afzal v. Secretary Education 1992 PLC (C.S.) 117; Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Asif Ali Khoja v. Government of Sindh 1997 PLC (C.S.) 776 ref.

(b) Qanun-e-Shahadat (10 of 1984)--

----Art. 129--Evidence in possession of party---Withholding. of---Effect--­Evidence which was in possession of a party and was withheld, would-give presumption that had the same been produced before-Court or Tribunal, it would have been unfavourable to him.

M.L. Shahani for Petitioner.

Zawar Hussain Jafri. Addl. A.-G. with Section Officer Nazir

Date-of hearing: 12th January, 2000.

2000 P L C (C.S.) 1061

[Karachi]

Before Sahibuddin Ahmed and Ghulam Rabbani, JJ

JALALUDDIN and 10 others

versus

BOARD OF TRUSTEES OF THE PORT OF KARACHI and 72 others

Constitutional Petition No. D-1286 of 1996, decided on 10th December, 1999.

(a) Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition- --Promotion---Terms and conditions of service---Eligibility and fitness for promotion--- When a person considered himself qualified for promotion and was wrongly ignored would be a case of eligibility pertaining to terms and conditions of service justiciable before Service Tribunal---Only when any person had alleged that he was fit to be promoted. but was wrongly denied the promotion, matter fell outside purview of Service Tribunal under proviso (b) to S.4 of Service Tribunals Act, 1973---Ouster of jurisdiction could nut be readily inferred, but proviso to S.4, Service Tribunals Act, 1973 ousting jurisdiction of exclusive forum in service matters must be strictly construed.

(b) Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Promotion---Right of---Civil servant had no legal right to be promoted against particular post even though he had a legal right to be so considered for promotion if found qualified and eligible under applicable Rules--To the posts required to be filled on seniority-cum-fitness basis a junior would be promoted only if senior was considered, but was found unfit---Where a person claimed violation of his legal rights in relation to terms and conditions of his service, Service Tribunal had plenary powers to grant redress and only where subjective element of fitness was involved, its jurisdiction was ousted.

(c) Service Tribunals Act (LXX of 1973)---

----Ss. 4 & 6---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Regularization of ad hoc appointment with retrospective effect--­Jurisdiction of Service Tribunal---Petitioners in their Constitutional petition had objected to retrospective regularization of service of respondents who were appointed on ad hoc basis---Petitioners were not aggrieved by appointment of respondents but only fact of giving retrospective effect to said appointment had been objected to which was founded upon a pure question of law based oil interpretation of applicable rules, binding precedents and general principle of law---No element of subjective assessment of personal capabilities of individuals was involved---Matter was not excluded from purview of jurisdiction of Service Tribunals, in circumstances.

Ahsanullah Memon v. Government of Sindh 1993 PLC (C.S.) 937; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Mian Abdul Malik v. Dr. Sabiar Zamir Siddiqui 1991 SCMR 1129; Muhammad Anees v. Abdul Haseeb PLD 1994 SC 539 and Syed Muhammad Afzal Farooq v. Secretary, Establishment Division 1998 PLC (C.S) 1175 ref.

Manzoor Ali Khan for Petitioners.

Arif Khan for Respondent No.1.

Abdul Hafeez Lakho for Respondents Nos.3, 4, 5, 7, 8, 9, 11, 12, 13, 14, 15, 17, 18, 19, 20, 22, 23, 24, 25, 26, 28, 29, 31, 33,.35, 36, 37, 39 to 49, 51 to 56, 57, 58, 59, 60, 62, 64, 65, 68, 69, 70 and 73.

Sulleman Habibullah for Respondents Nos.30, 32, 34 and 35. Notice Raja Qureshi, A.-G. on Court's Notice).

Date of hearing: 24th November, 1999.

2000 P L C (C.S.) 1135

[Karachi High Court]

Before Subihuddin Ahmed and Anwar Zaheer Jamali, JJ

S.M.ISMAIL NAQVI and 238 others

versus

FEDERATION OF PAKISTAN

through Secretary, Ministry of Defence, Government of Pakistan and another

Constitutional Petition No. D-1914 of 1998, heard on 15th February, 2000.

(a) Service Tribunals Act (LXX of 1973)---

----S. 2-A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997)]---Employees of P.I.A. Corporation---Status---Provision of S.2-A of Service Tribunals Act, 1973 in any case covers employee of an authority or corporation or organization established under a Federal Law---Pakistan International Airlines Corporation is established under P.I.A. Corporation Act, 1956 and employees of the. Corporation are covered under the provisions of S. 2-A of Service Tribunals Act, 1973.

Printing Corporation of Pakistan v. Province of Sindh PLD 1990 SC 452 distinguished.

(b) Service Tribunals Act (LXX of 1973)---

----S.- 2-A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997)]---Constitution of Pakistan (1973), Arts. 199 & 260---Constitutional petition ---Vires of S. 2-A of Service Tribunals Act, 1973---Whether employees of P.I.A.- Corporation were holders of civil posts in connection with the affairs of. Federation--- Service wider the Corporation having been declared to be service of Pakistan for a limited purpose under the provisions of S.2-A of Service Tribunals Act, 1973 and such declaration having been made under an Act of Parliament, examination of such question was unnecessary---Legislature by enacting S. 2--A of Service Tribunals Act, 1973 had intended to place actions - of P.I.A. Corporation subject to supervisory control of an independent quasi judicial Tribunal having authority to nullify them, in case these actions were found to be illegal--­Classification was perfectly rational and was in the interest of employees.

(c) Service Tribunals Act (LXX of 1973)---

----S. 2-A [as inserted by Service Tribunals (Amendment) Act (XVII of 1977)]---Employees of P.I.A: Corporation---Change of forum for redressal of grievance of such employees---Validity---Effect of S.2-A of Service Tribunals Act, 1973---Such employees were deemed to be civil servants only for the purpose of Service Tribunals Act, 1973, which meant that the forum for redressal of grievance had been altered---No person had a vested right in any forum.

United Bank Limited v. Shamim Muhammad Khan PLD 1999 SC 990 ref.

(d) Service Tribunals Act (LXX of 1973)--

----S. 2-A [as inserted by Service Tribunals Act (XVII of 1973)] & S. 5(1)--­Pakistan International Airlines Corporation Act (XIX of 1956)---Rules of Pakistan International Airlines Corporation---Status---Termination of service of employees of Corporation--- Rules of Pakistan International Airlines are non-statutory and the employee cannot seek enforcement of the rules through ordinary Courts and at the best cwt claim damages for unlawful termination---On the other hand once the employees have become civil servants for the purpose of Service Tribunals Act, 1973 Service Tribunal can, on appeal, confirm, set aside, vary or modify the order appealed against in terms of S. 5(1) of Service Tribunals Act, 1973.

United Bank Limited v. Shamim Muhammad Khan PLD 1999 SC 990; Riazuddin v. Pakistan International Airlines PLD 1992 SC. 531 and Arshad v. Miss Naima Khan PLD 1990 SC 612 ref.

(e) Service Tribunals Act (LXX of 1973)--

----S. 5(l)--Terms and conditions of service---Awarding of monetary relief by Service Tribunal---Scope---Where Authority competent to make an order in respect of terms and conditions of employees, unlawfully refuses to pay what the employees are entitled to receive under the terms and conditions of their employment, there is no reason to assume that such illegality cannot be rectified under the vast amplitude of powers under S.5(1) of Service Tribunals Act, 1973, available to the Tribunal.

(f) Service Tribunals Act (LXX of 1973)---

----S. 5(1)-,--Constitution of Pakistan (1973), Art. 212---Terms and conditions of service- --Exclusion of jurisdiction of other fora in terms of Art.212 of the Constitution---Scope---Such bar applied only to the extent to which a Service Tribunal has jurisdiction to grant, relief.

I.A. Sherwani v. Islamic Republic of Pakistan 1991 SCMR 1041 ref.

(g) Constitution of Pakistan (1973)--

----Art. 199---Constitutional jurisdiction of High Court---Scope---Settling of monetary claims---High Court in exercise of Constitutional jurisdiction is not an appropriate forum for settling monetary claims.

Akmal Waseem for Petitioners.

Amir Malik for Respondents.

Date of hearing: 15th February, 2000.

2000 P L C (C.S.) 1140

[Karachi High Court]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

MUHAMMAD ANWAR QURESHI

versus

THE DIRECTOR OF SETTLEMENT, SURVEY & LAND RECORDS, SINDH, THANDI SARAK, HYDERABAD and 2 others

Constitutional Petition No. D-1475 of 1993, heard on 24th August, 1999.

Constitution of Pakistan (1973)---

----Art. 199---Civil service---Termination of service-- -Constitutional petition ---Maintainability---Laches---Petitioner who went on eight days' casual leave was involved in a criminal case and was convicted and sentenced for one year R.I.--Services of petitioner were terminated on account of said conviction---Petitioner after about nine years filed Constitutional petition against termination of service praying that his conviction and termination be declared as illegal---Petitioner who filed Constitutional petition after lapse of about nine years, failed to explain such inordinate laches despite opportunity was afforded to him to explain the same---Constitutional petition was dismissed being hopelessly barred by time.

Petitioner in person. Ainuddin, A.A.-G. for the State.

Date of hearing: 24th August, 1999.

2000 P L C (C.S.) 1151

[Karachi High Court]

Before Ali Muhammad Baloch and Zahid Kurban Alavi, JJ

S. BAQAR ZAHEER RIZVI

versus

SECRETARY HOUSING AND WORKS DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and 3 others

Constitutional Petition No.D-311 of 1,995, decided on 17th April, 1999.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction, exercise of---Scope---Factual controversy--- Where a mattes requires evidence, the same cannot be adverted to in Constitutional petition:

(b) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212---Jurisdiction of Service Tribunal--- Promotion---Eligibility---Matter related to term of service---

Failure to promote a civil servant to a specific post for which the civil servant had the required qualification---Validity---Eligibility to promotion was a term of service and jurisdiction of Service Tribunal was not barred--­Civil servant having minimum qualification prescribed for Promotion to higher post had a vested right -to be considered for promotion---Where a civil servant was promoted and such civil servant did not possess the required qualification as against other civil servant having the required qualification who was left out and was not considered by the Departmental Promotion Committee, jurisdiction of Service Tribunal was ousted in such a situation.

(c) Service Tribunals Act (LXX of 1973)--

----S. 4(l)(b)---Civil Servants Act (LXXI of 1973), S.22(2) --- Constitution of Pakistan (1973), Art.212---Service Tribunal, jurisdiction of---Eligibility to promotion--- Validity---Eligibility was not always a term of service, which could only be challenged before Service Tribunal.

(d) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional 'petition---Maintainability---Eligibility to promotion--- Jurisdiction of Courts---Scope---Dispute as to promotion or otherwise fitness of a person having requisite eligibility for a post-­Jurisdiction of 'Service Tribunal was excluded and jurisdiction of High Courts was not barred under ' the provisions of Art. 199 -of the Constitution---Constitutional petition, thus, was - maintainable in circumstances.

Mutaqui Hussain Razvi v. Government of Sindh and others PLD 1978 Kar. 703; Mujeebullah Ejaz v. Director-General, Telephony and Telegraphs Department and 2 others PLD 1980 Quetta 58; Muhammad Anis and others v. Abdul Haseen and others PLD 1994 SC 539; 1991 SCMR 1121 and Syed Afzal Muhammad Farooq v. Secretary, Establishment Government of Pakistan and 2 others 1998 PLC (C.S.) 1175 ref.

(e) Service Tribunals Act (LXX of 1973)---

----S. 4---Seniority; change in---Acquiring a degree or any other qualification prior in time to a colleague who otherwise was senior in service ---Effect--­Seniority on .the basis of initial appointment in the service could not be changed on the basis of acquiring such degree or qualification---As long as civil servant continued to hold a particular post/cadre, his seniority remained intact in the same post or cadre over his colleagues and such was a question of fact.

Nazar Akbar for Petitioner.

Syed Tariq Ali, Standing Counsel for Respondent No. 1.

Kanwar Mukhtiar Ahmed for Respondents Nos.2 and 4.

Farough Naseem for Respondent No.3.

Date of hearing: 14th December, 1998.

2000 P L C (C.S.) 1172

[Karachi High Court]

Before Muhammad Roshan Essani and S.A. Rabbani, JJ

MOINUL ISLAM

versus

GOVERNMENT OF SINDH through Secretary, Home Department and 2 others

Civil Petition No.D-1055 of 1999, decided on 24th May, 2000, (a) Civil service---

---- Rescission of illegal or irregular order---Authority making order had a jurisdiction to rescind the illegal or irregular order---Illegal or irregular action could be corrected at any time, but such jurisdiction could not be exercise arbitrarily and without recourse to the legal procedure---Rescission of order/action must be in accordance with the procedure provided. by law and after a show-cause notice to the person to be affected, more particularly in case when the rescission was based on the conduct of the person to be affected---Show-cause notice was necessary under the principle of natural justice even if it was not provided for by the relevant law.

Ehsanullah v. Zila Council, Gujranwala and others 1999 PLC (C.S.) 190 ref.

(b) Civil service---

----Promotion---Withdrawal of order of promotion---Promotion order of civil servant had been withdrawn without issuing a show-cause notice 'on the ground that civil servant was holding American nationality also which fact he did not disclose to the Department---Charge of having dual nationality was not relevant to promotion---If such person could be employed by the Government, he was also entitled to the promotion despite his dual nationality.

Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukbari PILD 1997 SC 351 ref.

(c) Civil service---

---- Promotion ---Withdrawal of notification of promotion---Notification whereby civil servant, a police official was promoted, was subsequently withdrawn by another Notification issued by Secretary to the Government--­Withdrawal of the notification. had been challenged by civil servant through Constitutional petition---Authority had contended that withdrawal of promotion was lawfully ordered by Governor who was Competent Authority by virtue of Proclamation of Emergency under Art-.232 of Constitution of Pakistan and order of withdrawal could only be reviewed by Government, itself---Contention. of Authority was repelled because as per Notification issued by Government Authority to award punishment of reduction in rank of civil servant rested in Inspector-General of Police---Authority given by law was to be exercised according to law and by the person so authorized---Order withdrawing Notification of promotion was coram non judice, in circumstances.

(d) Sindh Service Tribunals Act (XV of 1973)---

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Maintainability---Promotion---Withdrawal of order of promotion--- Notification whereby civil servant was promoted, was subsequently withdrawn by incompetent Authority with immediate effect on ground that disciplinary proceedings were pending against him---Constitutional petition. by civil servant against withdrawal of notification was objected to on the ground that matter of disciplinary action against civil servant related to terms and conditions of service and Service Tribunal had exclusive jurisdiction in the matter and Constitutional petition was barred under Art.212 of Constitution of Pakistan (1973)---Validity---Notification withdrawing order of promotion of civil servant, being not final order appeal against the same before Service Tribunal was barred under S..4 of the Sindh Service Tribunals Act, 1973---Since no other remedy was provided by law; Constitutional petition filed by civil servant was maintainable:

Shabbir Ahmed Awan for Petitioner.

Ch. Muhammad Rafiq, A.A.-G. for Respondents.

Date of hearing: 18th May, 2000.

2000 P L C (C. S.) 1

[Lahore High Court]

Before Ghulam Mahmood Qureshi, J.

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and 3 others

Versus

SENIOR CIVIL JUDGE, OKARA, DISTRICT OKARA and 2 others

Writ Petition No. 1733 of 1999, decided on 8th February, 1999.

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Transfer of civil servant---Interim injunction---Jurisdiction of Civil Court--- Bar---Civil Court granted ad interim injunction against transfer order of a civil servant---Matter of transfer of civil servant related to terms and conditions of service which fell within the exclusive jurisdiction of Service Tribunal---Ad interim injunction granted by Civil Court suspending transfer order, was without lawful authority and of no legal value.

Zahid Akhtar v. Secretary, Government of Punjab Local Government and Rural Development Department PLD 1995 SC 530; Ikhlaq Ahmad v. Secretary, Government of Punjab 1998 SCMR 516 and Mst. Nahid Akram v. The Province of Punjab and others 1998 SCMR 222 ref.

Umar Alvi for Petitioners.

Syed Manzoor Hussain Gillani for Respondents.

Sh. Anwar-ul-Haq, Deputy Attorney-General (on Court's Notice).

2000 P L C (C.S.) 19

[Lahore High Court]

Before M. Javed Buttar, J

ABDUL GHAFOOR SHAHEEN

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others

Civil Revision No.495 of 1999, decided on 19th April, 1999.

Specific Relief Act (I of 1877)---

----S.42---Petitioner claimed that his date of birth as recorded in his Service Record and on educational certificates/degrees be declared as incorrect and correct date of birth in all the relevant record be incorporated ---Validity--­Petitioner had not brought on record any evidence to show that entries in the Matriculation Certificate and Service Record were incorrect---Petitioner had, thus, failed to prove that long standing entries of his date of birth were incorrect.

Shahid Hussain Kadri for Petitioner.

2000 P L C (C.S.) 58

[Lahore High Court]

Before Ahmad Nawaz Malik, J

MUHAMMAD AZAM ISHTIAQ

Versus

SUI NOTHERN GAS PIPELINES LIMITED

Writ Petition No.23319 of 1996, decided on 25th June, 1997.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Master and servant---Constitutional petition against company limited by shares---Maintainability---Petitioner was not allowed to join service in respondent-Company---Terms and conditions of the employees were not governed by any statute and relationship amongst them was that of master and servant---Constitutional petition against the company was not maintainable.

Lt.-Col. 5hujauddin Ahmed v. Oil and Gas Development Corporation 1971 SCMR 566 rel.

Zahid Hussain Khan for Petitioner. M. Saleem Baig for Respondent.

2000 P L C (C.S.) 84

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ARSHAD ALI KHAN

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF

PAKISTAN, ISLAMABAD and 3 others

Writ Petition No.4349 of 1999, decided on 8th July, 1999.

(a) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Interpretation of statutes---Legislation and amendment of laws---Powers of Courts---Legislature has to legislate and amend laws and it was for the Courts to interpret said laws to make them practicable---Superior Courts had only power to interpret law and had no power whatsoever to enact the same---Each organ of the State is independent and has no authority whatsoever to usurp power of the other---Prerogative of Government to formulate policies---Such policies were determined generally with reference to domestic needs; their priorities and multitudes of other factors of which Government was the sole arbitrator in exercise of its executive Authority which were binding on subordinate Authorities, as a matter of duty and High Court had no jurisdiction to take role of Legislature or policy-making

I.A. Sherwani's case 1991 SCMR 1041; Federation of Pakistan v. Sh. Abdul Aziz 1998 SCMR 91; Khalid Mehmood Wattoo's case 1998 SCMR 2280; Imtiaz Hussain Qazami's case PLD 1996 Lab. 499; Hafiz Mazhar Hussain's case PLJ 1998 Lah. 985; Zia-ur Rehman's case PLD 1993 SC 473; Government of Pakistan v. Zameer Ahmad Khan PLD 1975 SC 667 and Zameer Ahmad Khan v. Government of Pakistan 1978 SCMR 327 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Civil Procedure Code (V of 1908), O.I, R. 8---Constitutional petition--- Maintainability---Constitutional petition filed in representative capacity without fulfilling requirement of-O.I, R. 8, C.P.C. was liable to be dismissed.

PLD 1973 Lah. 500 ref.

(c) Service Tribunals Act (LXX of 1973)----

----Ss. 2-A & 4---Constitution of Pakistan (1973), Arts. 25 & 199--­Constitutional petition---Maintainability---Petitioner in his Constitutional petition filed in representative capacity had prayed that act of Government by which it had increased salary of one class of persons, but had denied the same to other classes of persons equally placed, should be declared unjust, unfair, discriminatory and violative of Constitution of Pakistan (1973)--­Petitioner had also prayed that Authorities could be ordered to increase salary of all other employees of Government institutions---Matter agitated in Constitutional petition being related to terms and conditions of service of petitioner, same could not be raised in Constitutional petition under Art. 199 of the Constitution after addition of S. 2-A in Service Tribunals Act, 1973--­Constitutional petition was dismissed being not maintainable.

1999 SCMR 894; 1998 SCMR 1603 and loan Ahmed Khurram's case PLD 1980 SC 153 ref.

Sarfraz Ali Khan for Petitioner. Sher Zaman, Deputy Attorney-General for Pakistan Ghulam Haider Al-Ghazali, Addl. A.-G.

2000 P L C (C.S.) 93

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, Karamat Nazir Bhandari, and Mian Saqib Nisar, JJ

IJAZ AHMED and others

Versus

REGISTRAR, HIGH COURT

Infra-Court Appeal No. 10 of 1998, decided on 1st April, 1999.

High Court Establishment (Appointment and Conditions of Service) Rules, 1974---

----Cl. (20)---Law Reforms Ordinance (XII of 1972), S.3---Intra-Courc Appeal--- Competency---Appellants, without first availing remedy of appear before Appellate Authority, filed Constitutional petition which was dismissed and appellant had filed Intra-Court Appeal against the said judgment---Contention was that appellant could not file appeal before Appellate Authority as representation filed by .him before Competent Authority had not been disposed of---Contention was repelled in view of the fact that proviso to S.3, Law Reforms Ordinance, 1972, had clearly provided that if application before High Court arose out of any proceedings in which law applicable had provided for at least one appeal or (revision or one review) Intra-Court Appeal would not be competent---Irrespective of the fact, whether appellant could not file Departmental appeal due to non ­disposal of their representation, Intra-Court Appeal filed by them, was not competent.

M.A. Zafar for Appellants. Rana Muhammad Arif, Addl. A.-G. for Respondent.

Date of hearing: 1st April, f999.

2000 P L C (C.S.)-95

[Lahore High Court]

Before Tassaduq Hussain Jilani, J

Hafiz GHULAM MOHAYUDDIN

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No. 23606 of 1998, decided on 27th September, 1999.

(a) Punjab Education Department (School Education) Recruitment Rules, 1974---

----Sched., Serial Nos. 7 & 8---Punjab Civil Servants Act (VIII of 1974)--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Appointment on contract basis---Provincial Government made appointments of school teachers on contract basis, without making any amendment in existing relevant Rules---Validity---No provision for appointment of school teachers of any category or of physical education teachers, junior clerks, Naib-Qasid or Security Guards on contract basis being available in Punjab Education Department (School Education) Recruitment Rues, 1974 any letter permitting such appointments, without having amended the Rules was ultra vires of Punjab Education Department (School Education) Recruitment Rules, 1974 and the same could not have a binding; effect.

(b) Punjab Education Department (School Education) Recruitment Rules, 1974-----

----Sched., Srl. Nos. 7 & 8---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Recruitment Committee---Presence of Members of National and Provincial Assemblies in the Recruitment Committees for recruiting school teachers on contract basis in Government Schools--­Validity---Such members of both the Assemblies enjoy an exalted position in society, by virtue of their representative capacity and are entitled to respect---Such members, however, have no power to interfere in the recruitment of teachers---Any attempt to vest them with such a power was not only violative of the mandate of their office but was also derogatory to the existing Recruitment Rules.

Munawar Khan v. Niaz Muhammad and others 1993 SCMR 1287 ref.

(c) Punjab Education Department (School Education) Recruitment Rules, 1974---

----Sched., Srl. Nos. 7 & 8---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Recruitment of Secondary School Teachers---Filling of total posts from fresh candidates---Validity---Provisions of Punjab Education Department (School Education) Recruitment Rules, 1974 provided that fifty per cent of the posts of the Secondary School Teachers would be filled from amongst in-service teachers possessing prescribed qualification---Such in-service teachers who had a legitimate expectancy of applying against the reserved quota were likely to be adversely affected by filling of total posts from fresh candidates---Any such policy of the Government was violative of the provisions of existing Rules and the same was not sustainable---Where quota was fixed in Punjab Education Department (School Education) Recruitment Rules, 1974, the Government could not make recruitment arbitrarily in disregard to such a quota.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction, exercise of---Scope---Matters falling in the policy-making domain of Government---High Court ordinarily would not interfere in such a domain---Where, however, any provision of the Constitution or law was violated by a Government policy, a challenge could be thrown to such an Order and an inaction on the part of the Court may tantamount to abdication of its function- as a Constitutional Court if High Court did not strike down that act/order to the extent of its ultra vires---Where any vested right of an individual, which was duly recognised by law, was affected, High Court would interfere in such circumstances.

(e) Punjab Education Department (School Education) Recruitment Rules, 1974---

----Sched., Sri. Nos. 7 & 8---SO(S-N) 2/103/98 dated 1-10-1998--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Appointments of secondary school teachers on contract basis---Department made appointments on the posts of teachers who while in service refused to serve in the far-flung areas---Substantive posts were converted into contract posts---Validity---Contract appointments could be made against validly created posts and where provision had been made in the Rules vesting an Authority to make such recruitment---Where the Department had no authority in law to arbitrarily dispense with the Rules on the subject and convert substantive posts into contract posts, such an order/letter of the Department was set aside by High Court.

Hafiz Abdul Rehman Ansari for Petitioner. Ghulam Haider Al-Ghazali, Addl. A.-G., Punjab for Respondent.

Date of hearing: 20th September, 1999.

2000 P L C (C. S.) 109

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

ALTAF HUSSAIN HALLI and another

Versus

PROVINCE OF PUNJAB and another

Writ Petition No.5725 of 1999, decided on 15th April, 1999.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

-----R. 7(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Civil service---Taking performance evaluation examination--­Validity---Petitioners appointed as English. Teachers in a regular manner were asked to take performance evaluation examination during course of their service---Petitioners were trained teachers and had also done B.Ed., M.Ed. and no parameters were prescribed for said examination as there was no provision for holding said examination---Authority contended that exercise of taking performance evaluation examination was being undertaken at the instance of World Bank---Validity---Contention was repelled because it was duty of Authority before undertaking said exercise to satisfy legal requirements and also that whether it was of any use to the nation--­Authority could not ,superimpose terms and conditions in utter disregard of law and rules, but it had to act and perform its duties strictly in accordance with law and rules---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 whereunder services of petitioners were governed, having not provided examination, Notification whereby petitioners were asked to take performance evaluation examination, was set aside by High Court in exercise of Constitutional jurisdiction.

Water and Power Development Authority v. Irtiqua Rasool Hashmi and another 1987 .SCMR 359; Director of Education (Schools), Lahore Region, Lahore and others v. Muhammad Abbas 1998 SCMR 215 and Federation of Pakistan through Secretary, Establishment Division, Islamabad and 2 others v. Rafique and others 1997 SCMR 1344 ref.

Mrs. Nasira Iqbal and Syed Zahid Hussain Bokhari (in Writ Petition No. 6332 of 1999) for Petitioners.

Ch. Ali Muhammad Tariq Shakoor, Naseer Ahmad Bhutta (in Writ Petition No. 6144 of 1999), Hafiz Abdul Rehman Ansari and Mahmood Ahmad Qazi (in Writ Petition No. 6097 of 1999) for Respondents.

Rana Muhammad Arif, Addl. A.-G

2000 P LC (C.S.) 112

[Lahore High Court]

Before Amir Alam Khan, J

MUHAMMAD ISMAIL and others

Versus

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB and another

Writ Petition No. 6592 of 1997, decided on 29th April, 1999.

(a) Constitution of Pakistan (1973)---

----Art. 199---Civil service---Appointment---Petitioners' response to advertisement applied for respective posts---Testimonials of petitioners as to ha their qualifications were scrutinized and after interview by Selection Committee petitioners were selected as per merit list displayed on notice board---Merit list was displayed before issuance of notification whereby ban was imposed on new recruitment---Authority neither issued appointment letters to petitioners nor they were allowed to join respective posts because of ban on new recruitment---Right having been created in favour of petitioners by display of .merit , list no locus poenitentiae was left with Authority to retract its steps---Once the list was displayed it had been made public thereby creating right in favour of petitioners and the power of Authority to retract its steps had been taken away by law---Ban on new recruitment subsequent to selection of petitioners could not take away rights of petitioners which had already accrued to them---Said ban at best could be applied prospectively, and not retrospectively- --High Court accepting Constitutional petition directed Authority to issue appointment letters to the petitioners forthwith for posts they had applied for.

Board of Intermediate and Secondary Education, Multan v. Baqir Ali Tatari and another I.C.A. No.144 of 1997; Asghar Ali v. Board of Intermediate and Secondary Education, Lahore W.P. No.328 of 1998 and Jaffar Khan v. Settlement Commissioner and another PLD 1974 Kar. 7 ref.

(b) Administration of justice---

----Principles---Authority passing or making order, no doubt had the power to recall, modify or cancel said order, but said power was subject to exception that where order had taken legal effect and in pursuance thereof certain rights had been created in favour of any individual, such order could not be withdrawn or rescinded to the detriment of those rights.

Malik Saeed Afzal Agral, Malik Munsif Awan, Muhammad Sohail Dar and Abdul Wahid Ch. for Petitioners.

Ghulam Haider Al-Ghazali, Addl. A.--G. for Respondents.

Dates of hearing: 22nd to 24th February; 2nd, 4th and 8th March, 1999.

2000 P L C (C.S.) 119

[Lahore High Court]

Before Malik Muhammad Qayyum, J

FAZAL KARIM, READER LAHORE HIGH COURT, LAHORE and 5 others

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Chairman

Writ Petition No. 12420 of 1999, heard on 16th September, 1999.

(a) Punjab Judicial Service Rules, 1994---

----R.7(1)(a)(ii)---Expression "practised the profession of law" and "any"--­Connotation--- Expression "practised the profession of law" has to include any period of Government service by a member of the establishment of Supreme Court or High Court or Courts subordinate to it---Nothing existed in the explanation or in the Rules itself to indicate that the performance of two years' service must be there after a person had qualified his law examination---Use of word "any", is significant and lends support to the contention that any period of Government service even before the person had obtained- law degree will be sufficient for the purpose of explanation.

Inamur Rehman v. Federation of Pakistan and others 1992 SCMR 563 ref.

(b) Punjab Judicial Service Rules, 1994---

----R.7(1)(a)(ii)---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Eligibility to apply for the post of Civil Judge-cum-Judicial Magistrate---Whether two years of Government service by a member of the establishment of Supreme Court, or High Court or Courts subordinate to it, before passing the law examination, would be deemed to be a period spent in practising the profession of law---Any member of such establishment who had rendered two years' service even before having obtained the degree of law was eligible to apply for such posts.

Muzamil Akhtar Shabir and Muqtedir Akhtar Shabir for Appellants.

Musthaq Mohal for Respondent.

Date of hearing: 16th September, 1999.

2000 P L C (C.S.) 123

[Lahore High Court]

Before Tanvir Ahmad Khan, J

Dr. AMANUL HAQ

Versus

GOVERNMENT OF PUNJAB

Writ Petition No.395 of 1997, decided on 21st May, 1999.

(a) Constitution of Pakistan (1973)---.

----Arts. 212 & 199---Constitutional petition---Maintainability---Pro forma promotion--- Jurisdiction of Service Tribunal---Person aggrieved in respect of his promotion, was not provided any right of appeal to Service Tribunal--­Case of petitioner being not hit by Art.212 of the Constitution, Constitutional petition before High- Court against such order was maintainable.

Muhammad Raeese Azam v. Government of Balochistan through Secretary, S&GAD Department 1995 PLC (C.S.) 151 fol.

Ch. Yar Muhammad Durrajana v. Government of the Punjab and another 1992 PLC (C.S.) 95 ref.

(b) Constitution of Pakistan (1973)---

----Arts.199 & 212---Constitutional petition---Service matter---Case for pro forma promotion of the petitioner was rejected because of minor penalty of censure---Petitioner was craving to get his case considered for promotion in its proper perspective for the last more than one decade---Twice the case of the petitioner was deferred on account of pendency of inquiries and third time his case was rejected because of amendment in Service Rules of the Department---High Court directed to place the case of the petitioner before the Provincial Selection Board for its decision in accordance with law and Rules.

Muhammad Anwar v. The Secretary Establishment Division, Rawalpindi and 2 others PLD 1992 SC 144; Secretary to Government of the Punjab, Education Department, Lahore and another v. Saeed Ahmed Khan PLD 1994 SC 219; Capt. Sarfraz Ahmad Mufti v. Government of the Punjab and others 1991 SCMR 1637; Muhammad Raeese Azam v. Government of Balochistan through Chief Secretary, S&GAD Department 1995 PLC (C.S. 151; Ch. Yar Muhammad Durrajana v. Government of the Punjab and another 1992 PLC (C.S.) 95; M.A. Rafique v. Managing Director (Power), WAPDA and 7 others 1990 SCMR 927; Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others 1990 SCMR 1321; Government of N.W.F.P Health and Social Welfare Department v. Dr. Sh. Muzaffar Iqbal and others 1990 SCMR 1524 and Pakistan Broadcasting Corporation through D.G.H.Q. and another v. Nasir-ud-Din 1997 PLC (C.S.) 931 ref.

Hafiz Tariq Naseem for Petitioner.

Fauzi War, A.A.-G with Nizam Akhtar Warraich, Dy. Secretary, (Establishment), Health Department and M. Naeem Ghous, Under-Secretary, Health Department.

Date of hearing: 21st May, 1999.

2000 P L C (C. S.) 145

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry and Faqir Muhammad Khokhar, JJ

EJAZ RAHIM

Versus

FEDERATION OF PAKISTAN and 2 others

Writ Petition No. 13425 of 1998, decided on 20th July, 1998.

Service Tribunals Act (LXX of 1973)---

----S. 4---Government Servants (Efficiency and Discipline) Rules, 1973, R.6(a)---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition--- Maintainability---Dispute relating to terms and conditions of service---Jurisdiction of Service Tribunal---Dispute essentially was relatable to terms and conditions of service of petitioner/civil servant for which Service Tribunal was appropriate forum even in respect of interlocutory orders, but petitioner/civil servant approached the High Court by filing Constitutional petition without waiting for a reasonable time for decision on his representation before Departmental Authority---Validity---All questions of law and facts could be taken before Service Tribunal if order was passed by Departmental Authority and bar of Art. 212, Constitution of Pakistan (1973) was squarely attracted to a disciplinary matter---No jurisdictional defect was pointed out as to lack of competence in the Departmental Authorities to take proceedings in the case---Petitioner/civil servant having failed to point out that matter did not fall within jurisdiction of Service Tribunal, Constitutional petition filed by him, was dismissed being not maintainable.

Muhammad Yasin v. Government of Pakistan PLD 1980 SC 22 and I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041 ref.

Dr. A. Basit for Petitioner.

Kh. Saeed-uz-Zafar, Dy. A.-G. for Respondents.

2000 P L C (C. S.) 180

[Lahore High Court]

Before M. Javed Buttar, J

GENERAL MANAGER, OPTICAL FIBRE SYSTEM TELECOMM

COMPANY LTD., PTC, HEADQUARTERS, ISLAMABAD and 2 others

versus

ABDUL RASHEED KHAN, MEMBER NIRC, ISLAMABAD and anothers

Writ Petitions Nos. 12310, 905, 906, 12689, 13881 to 13884 of 1999, heard on 7th October, 1999.

(a) Service Tribunals Act (LXX of 1973)--

-----Ss.2 & 2-A---Civil Servants Act (LXXI of 1973), S.2(b)---"Civil servant"--- Definition---Service under statutory Corporations etc. to be Service of Pakistan---Right of appeal before Service Tribunal to the employees of such Corporations---Persons who belonged to the category of the persons who were declared as "civil servants" under S.2-A of Service Tribunals Act, 1973, for the purpose of availing of the remedy before the Service Tribunal, could not become "civil servants" within the meaning of Civil Servants Act, 1973, in the absence of a corresponding amendment in the Civil Servants Act, 1973.

Divisional Engineer Phones, Phones Divisions, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208 and 1999 SCMR 1526 fol.

(b) Civil Servants Act (LXXI of 1973)--

----S. 2(b)-----Constitution of Pakistan (1973), Arts. 199 & 212--­Constitutional petition---Quashing of proceedings before National Industrial Relations Commission- --Ad hoc/temporary/daily wages/contingency employees of a Statutory Corporation--- Remedy of appeal before Service Tribunal---Validity---Such employees being not civil servants because of the absence of the corresponding amendment in the Civil Servants Act, 1973 and employees having been taken into employment by the Corporations after the creation of the same as Statutory Corporation, such employees had no remedy of appeal before Service Tribunal and bar of Art.212 of the Constitution was not attracted in such case---Proceedings of the employees before National Industrial Relations Commission were not quashed in circumstances..

Syed Aftab Ahmed and others v. KESC and others 1999 SCMR 197 ref.

Divisional Engineer Phones, Phones Divisions, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208 and 1999 SCMR 1526 fol.

Gorsi Muhammad Din Ch. for Petitioner Nemo for Respondents.

Date of hearing: 7th October, 1999.

2000 P L C (C. S.) 204

[Lahore]

Before Sh. Abdur Razzaq, J

NOOR MUHAMMAD

Versus

GOVERNMENT OF PUNJAB through Secretary Education, Punjab Lahore and 3 others

Writ Petition No. 10696 of 1998, decided on 3rd December, 1998.

Constitution of Pakistan (1973)---

----Arts.199 & 212(2) --Constitutional petition---Civil service---Postings and transfers of civil servant---Interest of petitioner had been safeguarded in all transfer orders passed by authority with an interval of 6 to 8 days---Petitioner figured in all the transfer orders and his counterpart had been changing in each such order---Effect---Instructions and directions of Supreme Court in case of Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 were to be complied with by the Authorities dealing with matters pertaining to postings and transfers of civil servants---High Court desired the compliance of Supreme Court's directions and instructions as contained in PLD 1995 SC 530.

Zahid Akhtar v. Government of Punjab PLD 1995 SC 530 fol.

Wajahat Hussain Khan Langah for Petitioner.

Mian Abbas Ahmad for Respondent No.4.

Respondents Nos.2 and 3 in person.

2000 P L C (C.S.) 231

[Lahore High Court]

Before Sh. Amjad Ali, J

Dr. MUNIR A. ABROO

Versus

FEDERATION OF PAKISTAN and others

Writ Petition No. 1047 of 1998, decided on 4th February, 1999

(a) Service Tribunals Act (LXX of 1973)---

----Ss.2-A & 4---Constitution of Pakistan (1973), Arts.199 & 212(2)--­Constitutional petition---Maintainability---Petitioner aggrieved of appointment of respondent as Deputy Permanent Delegate of Pakistan to UNESCO had assailed the said appointment- --Contention of respondent was that matter involved related to terms and conditions of service of parties, controversy could only be resolved by Service Tribunal---Petitioner had not sought his appointment to the post to which respondent was appointed, but had challenged only the process and method in which 'unqualified person was appointed to the said post---Educational qualifications, age, experience and guidelines were specifically laid down and process for selection of said post was also duly prescribed, but in the appointment of respondent all such points were not taken into consideration--- Matter, in circumstances, did not relate to terms and conditions of service---Petitioner having challenged appointment of an unqualified person to a post made in violation of approved guidelines, petition in the nature of quo warranto was, therefore, rightly moved by petitioner---Objection of respondent that quo warranto could not be issued because respondent had not yet taken charge of said office, was without force as order of appointment had already been issued to respondent and he was only restrained from taking charge of said office because of stay order issued by the High Court.

Khalid Mehmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; The Government of N.-W.F.P. v. Muhammad Said Khan and another PLD 1973 SC 514; Munawwar Khan v Nzaz Muhammad and 7 others 1993 SCMR 1287; Abdul Rashid v. Riaz ud Din and others 1995 SCMR 999; In re: Abdul Jabbar Memon and others 1996 SCMR 1349; Obaidullah and another v. Habibullah and others PLD 1997 SC 835; Muhammad Jawad Ali v. Vice-Chancellor, Islmia University, Bahawalpur and 2 others 1998 PLC (C.S.) 549; Dr. Ahmad Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Abdul Shukoor v. Printing Corporation of Pakistan (Pvt.) Ltd. and 4 others 1999 PLC (C.S.) 114; Tariq Javed v. Director-General F.I.A., Islamabad and 3 others 1997 PLC (C.S.) 273; Muhammad Afzal and another v. Government of Balochistan through Secretary, Service and General Administration Department, Quetta and 4 others 1995 PLC (C.S.) 567 and Mrs. Saeeda Burkhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another PLD 1988 Lah. 553 ref.

(b) Civil service---

----Appointment---Departmental instructions and guidelines---Nature--­Departmental instructions or guidelines with regard to appointment to a particular post, in absence of any rules to the contrary, had a force of law and had to be followed and could not be ignored simply in name of administrative expediency.

Dr. G.S. Khan, Bar-at-Law for Petitioner.

Ch. Afrasiab Khan, Standing Counsel for Respondents.

Hafiz S.A. Rehman for Respondent No.5.

2000 P L C (C.S.) 360

[Lahore High Court]

Before Karamat Nazir Bhandari, J

MUNIR HUSSAIN, JUNIOR CLERK/CHAIRMAN, ACTION

COMMITTEE, EMPLOYEES WELFARE ASSOCIATION, BOARD OF

INTERMEDIATE AND SECONDARY EDUCATION' FAISALABAD and 46 others

Versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD through Chairman and another

Writ Petition No.6496 of 1996, decided on 12th January, 2000.

Civil Services-------

----Termination of service---Services of civil servants who were appointed on ad hoc basis 'for a period of six months, were terminated simply by stating that their "services were no more required"---Contention of civil servants were that they could only be terminated, if there was retrenchment in the Department and that ho hearing had been provided to them before termination of their services---Held, it was only for permanent employees who could be discharged provided retrenchment of posts had taken place--­Civil servants were not permanent, but they being ad hoc employees no retrenchment of post was necessary 'in their case---Hearing of civil servants before termination of their services, was not called for as they were not being thrown out on any charge inviting stigma on their character and performance---Termination order of civil servants passed against them during probation period and in accordance with terms and conditions of appointment letter, could not be interfered with, in circumstance.

Board of Intermediate and Secondary Education, Sargodha v. Abdur Rehman 1988 SCMR 1711; Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350; Abdul Rashid v. Riazuddin and others 1995 SCMR 999 and Nazir Ahmad Rana v. Chairman, Board of Intermediate and Secondary Education and others 1988 SCMR 1172 ref.

Malik Noor Muhammad Awan for Petitioners. Dr. M. Mohy-ud-Din Qazi for Respondents.

Dates of hearing: 23rd November; 15th, 16th and 22nd December, 1999.

2000 P L C (C.S.) 366

[Lahore High Court]

Before Tanvir Ahmad Khan, J

ASGHAR ALI and another

Versus

SECRETARY, LOCAL GOVERNMENT AND

RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 4 others

Writ Petition No.4911 of 1995, heard on 28th June, 1999.

Municipal Committees Service Rules, 1969---

----R.13-A---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Termination of service---Civil servants, who were duly appointed on open merits after due publication had not only successfully cleared their training with colorful marks, but also had performed their duties with full dedication without providing any occasion for complaint for about four years---Services of, civil servants were terminated simply on ground that they were appointed during period when there was ban on appointments--­Validity---Held, even if conceded that civil servants were appointed during the period of ban they were not to be blamed for the same---Valuable right ; accrued to civil servants had been taken away without providing them any opportunity of hearing---Order terminating services of civil servants, who had been appointed on permanent basis, passed by Authority in a mechanical manner without applying independent judicious mind, was set aside by High Court in exercise of its Constitutional jurisdiction.

Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Faruki PLD 1969 SC 407 and Mian Ijaz Iqbal and others v. Faisalabad Chamber of Commerce and another PLD 1983 Lah. 1 ref.

Ali Ahmad Awan for Petitioners. Arif Chaudhry and Fouzi Zafar, A.A.-G. fcr Respondents.

2000 P L C (C.S.) 373

[Lahore High Court]

Before Mian Nazir Akhtar, J

Mst. RASOOLAN BIBI and another

Versus

PROVINCE OF PUNJAB through Secretary Education, Civil Secretariat, Lahore and 2 others

Writ Petition No. 18176 of 1996, heard on 21st December, 1999.

Constitution of Pakistan (1973)--

----Art.199---Civil service---Appointment---Entitlement---Petitioners who submitted applications for appointment as P.T.C. teachers within due date, were interviewed by Competent Authority and were selected for the posts--­Competent Authority despite said selection, neither issued appointment letters to petitioners nor did the needful in that respect and instead posts were filled in by persons who were lower in merit list--­Selection of petitioners was made before imposition of ban on fresh appointment---High Court directed the Competent Authority to appoint petitioners on said posts and to pay them salaries from date of their appointments on said posts.

Zafar Iqbal Chaudhry for Petitioners.

Ch. Muhammad Ashraf, A.A.-G. with Nausheen Zehra, Dy.D.E.O and Shama Zia, S.O., Education Department for Respondents.

Date of hearing: 21st December, 1999.

2000 P L C (C.S.) 380

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

Dr. MUNIR AHMAD, SENIOR ENGINEER, FARM MACHINERY INSTITUTE, NATIONAL

AGRICULTURE RESEARCH CENTRE, ISLAMABAD

Versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary, Lahore and 3 others

Writ Petition No.8742 of 1994, heard on 17th December, 1999.

Civil service---

---- Termination of service---Civil servant was appointed on recommendation of Public Service Commission---Services of civil servant were terminated as Public Service Commission withdrew recommendation in favour of civil servant on allegation that Civil Servant had made misstatement in order to get certain period included in his experience and without said period civil servant did not complete requisite/three years service which was a qualification for the post---Civil servant in fact had not made any mis-statement as alleged by Public Service Commission but had requisite experience---Order cancelling/withdrawing recommendation and consequence termination of service of civil servant, was set aside, in circumstances.

Dr. Munir Ahmed v. The Punjab Public Service Commission and 3 others 1992 PLC (C.S.) 992 ref.

Raza Hussain Shamsi for Petitioner.

Mushtaq Ahmed Mohal and Ch. Mushtaq Masood for Respondent No. 1.

Addl. A.-G. for Respondent No.2.

Ch. Mushtaq Masood for Respondent No.3.

Respondent No.4 in person.

Dates of hearing: 10th, 15th and 17th December, 1999.

2000 P L C (C.S.) 385

[Lahore High Court]

Before Jawwad S. Khawaja, J

Dr. GHULAM MUSTAFA CHAUDHRY

Versus

Dr. MUHAMMAD ASHIQ KHAN DURRANI, VICE-CHANCELLOR, B.Z. UNIVERSITY, MULTAN and 2 others

Writ Petition No.8220 of 1999, decided on 12th November, 1999.

(a) Bahauddin Zakariya University Act (III of 1975)---

----Ss. 22, 26, 51 & 52---Constitution of Pakistan (1973), Art.199--­Compuslory retirement of employee---Constitutional petition---Vice­ Chancellor of the University, in exercise of power of Syndicate under Vice­ Chancellor's Delegated (Administrative) Powers had ordered compulsory retirement of employee---Such order was passed pursuant to a show-cause notice delivered to the clerk of a department other than department of employee---Vice-Chancellor considering that final show-cause notice had been served on employee, thus, affording him opportunity of being heard and that employee having failed to appear despite service of notice on him, proceeded against him ex parte and passed order of compulsory retirement on the very day---Validity---Vice-Chancellor being delegatee of powers of Syndicate was not competent to pass such order against employee---Order otherwise passed without affording opportunity of hearing to employee was set aside by High Court, in exercise of its Constitutional jurisdiction.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 and Islamia University, Bahawalpur v. Dr. Muhammad Khan Malik PLD 1993 Lah. 141 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction---Availability of alternate remedy--­Effect--- Availability of an alternate remedy, would not per se bar exercise of Constitutional jurisdiction by High Court---Constitutional jurisdiction could in appropriate cases, be exercised by High Court even where alternate remedy was available.

S.M. Latif Khan and Pervez Aftab for Petitioner.

Malik Muhammad Rafiq Rajwa and M. Siddiqui Kamyana for Respondents.

Dates of hearing: 11th and 12th November, 1999,

2000 PLC (C.S.) 390

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

Ch. MUHAMMAD SAFDAR

Versus

PRESIDENT, PLATINUM BANK LTD. and others

Writ Petition No. 15262 of 1999, decided on 12th August, 1999.

(a) Constitution of Pakistan (1973)-----------

-------Art 199---Constitutional petition ---Maintainability----Master and servant---petitioner had prayed that charge-sheet issued to him by employer being barred limitation, suspension and inquiry proceedings were illegal and incompetent and, thus, should be set aside---Relationship between petitioner and employer being that of master and servant, Constitutional petition, held, was not competent.

Raziuddin v. Chairman, PIA Corporation PLD 19 92 SC 531; Government of N.-W.F.P. v. LA. Sherwani and another PLD 199 4 SC 72; M.H. Mirza's cue 1994 SCMR 1024; Mrs. Anisa Rehman's case 1994 SCMR 2232 and Ch. Sardar Ali's case 1992 SCMR 1093 ref.

(b) Constitution of Pakistan (1973)---

-------Ant 199---Constitutional declaration jurisdiction, exercise of---Direction or under Art.199 of Constitution of Pakistan (1973) could only be issued to a person performing within territorial jurisdiction of High Court, functions in connection with affairs of the Federation, a Province of a local Authority---Such direction or declaration could not be issued to a private person whether natural or legal.

Abdul Sattar and 10 others v. Member, Board of Revenue (Colonies) and others NLR 1981 SCJ 478 and Smt. Vidya Verma v. Dr. Shiv Narian Verma PLD 1956 SC (Ind.) 141 ref.

Ch. Abdul Rashid for Petitioner.

2000PLC(C.S.) 418

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

EHSANUL HAQUE, Personal Assistant, University Wing, Education Department, Civil Secretariat, Lahore

Versus

THE CHIEF SECRETARY, GOVERNMENT OF THE

PUNJAB, CIVIL SECRETARIAT, LAHORE and 4 others

Second Amended Writ Petition No. 5409 of 1995, heard on 11th November, 1999.

Punjab Service Tribunals Act (IX of 1974)----

----S.4---Punjab Civil Servants Act (VIII of 1974), S.23---Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Promotion--­Eligibility---Questions of eligibility which were within exclusive jurisdiction of Service ' Tribunal, could not be made subject-matter of Constitutional petition.

Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar PLD 1997 SC 382; Muhammad Aslam Khan v. Government of Pakistan PLD 1993 Kar. 41; S. Irshad ur Rehman v. Government of Pakistan through Chairman, C.B.R. 1993 PLC (C.S.) 39; Khaliq uz Zaman Chaudhry, Civil Judge 1st Class, Lahore v. Government of Punjab 1993 PLC (C.S.) 1322; Dr. Mrs. Zahida Mir v. The Punjab Public Service Commission, Lahore through Secretary 1992 PLC (C.S.) 1010; Ishfaq Hussain Rana v. Government of the Punjab 1993 SCMR 1326; Aish Muhammad v. Pakistan 1985 SCMR 774; Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Miss Sobia Hadi v. The Principal, K.E. Medical College/Chairman, Admission Board of the Medical College of Punjab, Lahore PLD 1993 Lah. 673; Province of Punjab v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 ref. '

Muhammad Saleem Shahnazi for Petitioner.

Rana Muhammad Arif, Add1.A.G for Respondents Nos. l and 2.

Masood Abid Naqvi for Respondent No.3.

Syed Zafar Ali for Respondent No.4.

Kh. Haris Ahmed for Respondent No.5.

Date of hearing: 11th November, 1999.

2000 P L C (C.S.) 421

[Lahore High Court]

Before Ali Nawaz Chowhan, J

MUKHTAR AHMED, SENIOR INSPECTOR INCOME-TAX and 14 others

versus

FEDERATION OF PAKISTAN, ESTABLISHMENT DIVISION

through Secretary, Islamabad and 2 others

Writ Petition No.352-S of 1997, heard on 13th October, 1999.

Civil service---

---- Constitutional petition---Promotion of Income-tax Inspector as Income fax Officer on non-selection basis---Department had invited applications for vacancies of Income Tax Officers---Petitioners who were working in the Department as Senior Income Tax Inspectors sought direction from the Central Board of Revenue and Federal Public Service Commission to the effect that petitioners be considered for purposes of promotion as Income Tax Officers---Validity---Counsel for the Department/respondent had assured the High Court .that vacancies would be filled according to the notifications, whereby 50% of the posts would be filled by promotion---Constitutional petition was disposed of accordingly in view of the assurance of the standing counsel of the respondent-Department.

Aqa Asif Jaffery for Petitioners. Ch. Saghir Ahmed, Standing Counsel for Respondents.

Date of hearing: 13th October, 1999.

2000 P L C (C.S.) 453

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD AYAZ SOHAIL

Versus

DIRECTOR, ANTI-CORRUPTION, PUNJAB, LAHORE and others

Writ Petition No.2637 of 1999, decided on 14th December, 1999.

Constitution of Pakistan (1973)---

----Art.199---Contitutional petition---Civil service---Appointment in Government Department---Ban on employment---Validity---Petitioner applied for a post of process-server, in response to an advertisement and he was placed at serial number one in the waiting list---One of the selected candidates resigned from the post---Department did not appoint the petitioner to such vacant post on the ground of ban on employment---Validity---When the post was available there was no ban on employment---Post was lying vacant and the same was to be filled by giving first opportunity to the petitioner as he was first in the waiting list of selected candidates for that post---Period of service of the person who resigned was less than one month---Department was directed to appoint the petitioner for that post in circumstances.

Ch. Muhammad Khalid Ayaz for Petitioner.

Muhammad Siddique, Deputy Director, Anti-Corruption/Law Officer for Respondents.

Dates of hearing: 8th and 14th December, 1999.

2000 P L C (C.S.) 467

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

Mst. BASHIRAN BIBI and another

Versus

GOVERNMENT OF PUNJAB through Secretary of Communication

and Buildings, Lahore and 3 others

Writ Petition No. 1822 of 1999, heard on 13th October, 1999.

(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R.17-A---Notification No.S.O.R.III, 2-42/92, dated 28-8-1994---Benefit to children of Government servants---One child of Government servant, who dies while in service or is declared invalidated/incapacitated for further service, is provided a job against a post in B.S.1 to B.S. 5 in that Department under the provisions of R.17-A, Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 vide Notification No.S.O.R.III, 2-42/92, dated 28-8-1994.

(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

-----R. 17-A---Notification No.S.O.R.III, 2-42/92, dated 28-8-1994---Benefit to children of Government servants---Distinction between male or female Government servants or male or female children of such Government servants---No distinction was provided of gender and the benefit under Notification No.S.O.R.III, 2-42/92, dated 28-8-1994 is to be availed by a child of a Government servant whether male or female.

(c) Constitution of Pakistan (1973)---

----Art.25---"Equal protection of law"---Connotation---Equal protection of law as envisaged by Art.25 of the Constitution, means that no person or class of persons be denied same protection of law, which is enjoyed by person or other class of persons in like circumstances in respect of their life, liberty, property or pursuit of happiness---Persons similarly situated, or in similar circumstances are to be treated in the same manner.

(d) Constitution of Pakistan (1973)---

----Art.27---Discrimination on the basis of sex alone---Such discrimination is prohibited under the provision of Art. 27 of the Constitution.

Mussarat Uzma Usmani and another v. Government of Punjab through Secretary Health, Lahore and another PLD 1987 Lah. 178 and Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295 ref.

(e) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R. 17-A---Constitution of Pakistan (1973), Arts. 25, 27 & 199--­Constitutional petition--- Mother of petitioner was working as a Government servant and was declared permanently incapacitated for further service--­Refusal to appoint petitioner as sweepers in place of her mother ---Validity--­Petitioner applied for the vacancy, under R. 17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as she was physically fit to work---Department refused such appointment on the ground that such benefit could not be extended to a daughter of the Government servant--­Validity---Department was under legal obligation to provide the petitioner such job---Refusal of the Department was a violation of Arts.25 & 27 of the Constitution and the same was illegal and without lawful authority--­Department was directed to provide job of sweepers to the petitioner in circumstances.

Abdul Aziz Khan Niazi for Petitioners.

Khadim Nadeem Malik, Addl. A.G., Punjab for Respondents.

Date of hearing: 13th October, 1999

2000 P L C (C.S.) 480

[Lahore High Court]

Before Ali Nawaz Chowhan, J

Rana MUHAMMAD SHAM

Versus

CHIEF ENGINEER, IRRIGATION and others

Writ Petition No.8638 of 1998, decided on 26th November, 1999.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Refund of salary--­Petitioner was re-employed after his retirement from the army by the Employing Authorities---Petitioner was retired from service and was directed to refund the salary drawn beyond the age of superannuation for which he had worked---Contention by Authorities was that petitioner did not provide his correct age, so he was paid such salary beyond the age of superannuation---Validity---Information regarding age of the petitioner was available with the Authorities at the time of re-employment, therefore, mala fides for suppression of the correct age could not, be attributed to the petitioner---Where the age was already available on record, there was no need of asking the same from the petitioner---Authorities were, thus, estopped through their own conduct in making deductions from the dues of the past salary of the petitioner paid for the work he had performed---Order of Authorities qua the deduction of amount already paid as salary to the petitioner was of no consequence.

Engineer-in-Chief v. Jalal-ud-Din PLD 1992 SC 207 for.

Athar Rehman Khan for Petitioner.

Muhammad Ramzan, Superintendent o/o Chief Engineer, Irrigation, Multan for Respondents.

2000 P L C (C.S.) 582

[Lahore High Court]

Before Syed Jamshed Ali, J TAHIR LATIF SHEIKH

Versus

FEDERATION OF PAKISTAN and another

Writ Petition No. 1942 of 1999, decided on 25th June, 1999.

(a) Civil service--

----Promotion---Entitlement---Promotion of civil servant to B.S.21 recommended by Central Selection Board, was duly approved by Prime Minister, but despite said approval Authorities did not issue notification for promotion of the civil servant---Promotion was withheld by Authorities for want of vacancy and on account of certain allegations against civil servant--­Both grounds for withholding promotion of civil servant were incorrect and baseless, because civil servant was promoted against five clear vacancies to which four officers were promoted including two recommended against permanent vacancies and two recommended against temporary vacancies, but civil servant who was entitled to be promoted, instead, was appointed as OSD---Complaint on basis of which civil servant was made OSD had not been placed on record by Authorities---Allegation against civil servant on basis of which his promotion was withheld was based on anonymous complaint---Inquiry into said complaint was held by Director (Inquiries) of Central Board of Revenue who had recommended that no further action was required on the complaint---Civil servant could not -be deprived of his promotion duly approved by Competent Authority only on basis of a complaint truth of which was .yet to be established----Establishment Division or Central Board of Revenue had no authority to withhold implementation of recommendation of Central Selection Board, duly approved by Prime Minister who was Competent Authority---Civil---servant who was not found guilty of any charge wasentitled to serve in higher post and receive benefits attached to the post- to which he was found fit to be promoted.

Asad Allah Rasheed v. Haji Muhammad Muneer and others 1998 SCMR 212.9; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 and N.A. Qureshi v. Government of the Punjab and 2 -others PLD 1982 Lah. 242 ref.

(b) Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973); Arts. 199 & 212---Promotion--­Withholding of---Constitutional petition---Maintainability of---Civil servant in his Constitutional petition had agitated withholding of his promotion and -had prayed implementation of recommendation of Central Selection Board approved by - Competent Authority with regard 'to his promotion--­Constitutional petition was resisted contending that it wars barred under Art. 212 of Constitution of Pakistan (1973)---Validity---Petitioner had only sought implementation of recommendation and order of Central Section Board and Prime Minister who was Competent Authority and there was no order against which civil servant could agitate matter before Service Tribunal---Service Tribunal having limited Jurisdiction could not entertain all legitimate grievances of civil servants-- -Unless jurisdiction of Service Tribunal was extended to the matter, jurisdiction of High Court under Art. 199, Constitution of Pakistan (1973), could not be abridged or curtailed---Objection as to - jurisdiction of High Court to entertain Constitutional petition, -was repelled, in circumstances.

(c) Jurisdiction—

Jurisdiction of superior Courts---Ouster of---Ouster of jurisdiction of superior Courts, was not to be lightly inferred and in case of doubt, it was to be resolved in favour of jurisdiction, father than its ouster.

Abdul Sattar Goraya for Petitioner.

Ch. Saghir Ahmad, Standing Counsel for Government alongwith G.M. Riaz. Second Secretary C.B.R. for Respondents Nos. l and 2.

2000 P L C (C.S.) 587

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ARSHAD KHAN

versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

Writ Petition No.4349 of 1999, heard on 8th July, 1999.

(a) Administration of justice-

----- Principle---Powers of Legislature and Courts---Legislature has to legislate and amend the law and it was for the Courts to interpret such laws as to make them practicable---Superior Courts had power only to interpret law and had no power whatsoever to enact laws---Each of the organ of State was independent of each other and had no authority to usurp power of other organ of the State---Prerogative of Government was to formulate the policies and said policies were determined with reference to domestic needs--­Decision taken by Government fell within realm of policy-making and said policy decisions were binding on subordinate Authorities as a matter of duty and High Court had no jurisdiction to play role of Legislature or policy­maker.

I.A. Sherwani's case 1991 SCMR 1041; Federation of Pakistan v. Sh. Abdul "z 1998 SCMR 91; Khalid Mehmood Wattoo's case 1998 SCMR 2280; Imtiaz Hussain Qazami's case PLD 1996 Lab. 499; Hafiz Mazhar Hussain's case PLJ 1998 Lah. 985; Zia-ur-Rehman's case PLD 1993 SC 473; Government of Pakistan v. Zameer Ahmad Khan PLD 1975 SC 667; Zameer Ahmed Khan v. Government of Pakistan 1978 SCMR 327 and F.B. Ali's case PLD 1975 SC 506 ref.

(b) Service Tribunals Act (LXX of 1973)---

----S.2-A---Civil Procedure Code (V of 1908), O.I.R. 8---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition--­Maintainability---Constitutional petition filed in representative capacity without fulfilling requirement of O.I.R. 8, C.P.C. would be liable to be dismissed---Such Constitutional petition relating to terms and conditions of civil servant was also not maintainable under law.

PLD 1973 Lah. 500; 1999 SCMR 894; 1998 SCMR 1603 and Iqan Ahmad Khurram's case PLD 1980 SC 153 ref.

Sarfraz Ali Khan for Petitioner. Sher Zaman, Dy. A.-G. for Pakistan, Ghulam Haider Al-Ghazali, Addl. A.-G.

2000 PLC (C.S.) 591

[Lahore High Court]

Before Karamat Nazir Bhandari, J

Dr. ZAFAR ALI CHAUDHRY, ASSOCIATE PROFESSOR PHYSIOLOGY DEPARTMENT, K.E.MEDICAL COLLEGE, LAHORE

versus

PUNJAB PUBLIC SERVICE COMMISSION, LAHORE through Secretary and others

Writ Petitions Nos.4764 and 1203 of 1998/BWP decided on 16th August, 1999.

Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

----Ss. 14, 15, 19 & 24---Constitution of Pakistan (1973), Art. 199--­Constitutional petition---Civil service---Appointment---Petitioner who was the only candidate holding qualification for appointment as Professor of Physiology, was ignored and instead respondent not holding required degree was recommended by Public Service .Commission for appointment to the post ---Respondent had succeeded to supersede the petitioner on basis of letter/certificate of equivalence of his degree issued on his application by Pakistan Medical and Dental Council---Public Service Commission initially rejected application of respondent on ground that he was not holding the required degree or its equivalent degree, but on receiving letter/certificate of equivalence from Pakistan Medical and Dental Council, Commission referred the letter./certificate to Government for ascertaining its value, but Public Service Commission without waiting for reply from Government finalized its recommendation in favour of the respondent---Validity---Certificate/letter of equivalence of degree of respondent to degree of petitioner, issued by Pakistan Medical and Dental Council, was not valid in law and Public Service Commission had also no authority to equate the degree of respondent to degree of petitioner because Council was only entitled to register additional qualification of candidates, but could not itself adjudge a comparative merit or worth of registered additional qualification---Power of equating and assessing comparative worth of additional qualification, rested with Administrative Department of Government and not the Public Service Commission and Council---Exercise of equivalence done by Council by issuing letter/certificate in favour of respondent was without lawful authority--- Public Service Commission in acting upon said letter/certificate of Council, without waiting for reply of Government, also had acted illegally and without lawful authority--­Recommendations of Public Service Commission were declared to be illegal, in circumstances.

Pakistan Medical and Dental Council v. Dr. Zeb-un-Nisa 1991 SCMR 516 ref.

Ch. Ghulam Hussain for Petitioner.

Muhammad Amin Lone, Asstt. A.-G. for Public Service Commission with A.R. Dy. Director (Legal Punjab Pak.).

N.A. Butt for Respondent No.3.

M. Nawaz Kasuri for Respondent No.4. Pervez I. Mir for Respondent No.5.

Dates of hearing: 28th May and 7th July, 1999.

2000 P L C (C.S.) 597

[Lahore High Court]

Before Syed Jamshed Ali, J

Mst. AZIZ FATIMA

Versus

PROVINCE OF PUNJAB through its CHIEF SECRETARY and others.

Writ Petitions Nos.7450 of 1996 and 3948 of 1992 and 9320 of 1997 decided on 8th April, 1999.

Punjab Education Department (School Education) Rules, 1987---

----R.7---Constitution of Pakistan (1973), Arts. 25, 27, 199 & 212(2)--­Constitutional petition---Civil service---Appointment---Civil servants were Elementary School Teachers and their services were governed by Punjab Education Department (School Education) Rules, 1987---Grievance of civil servants, who were next to be promoted to posts of Secondary School Teachers, was that under the Rules, scheme for recruitment to posts of Secondary School Teachers was that 50% of posts were to be filled by initial recruitment while remaining 50% were reserved for in-service school teachers, but contrary to said Rules, vacant posts of Secondary School Teachers, some times were being filled through method of appointment by transfer---Authorities had undertaken to ensure that in future all vacancies of Secondary School Teachers would be filled in strictly in accordance with said Rules from elementary school teachers of the District in which vacancies would occur---Civil servants being satisfied with the undertaking Constitutional petition was disposed of accordingly.

Khaliq-uz-Zaman Chaudhry, Civil Judge, 1st Class, Lahore and others v. Government of Punjab 1993 PLC (C.S:) 1322 and Federation of Pakistan through Secretary, Government of Pakistan, Establishment Division, Islamabad and 2 others v. Abdul Rashid 1995 SCMR 1053 ref.

Syed Ijaz Hussain Karbalai and Muhatftiad Amin Malik for Petitioner.

Tahir Haider Wasti, Asstt. A.-G. for Respondents Nos. 1 to 6. Syed Murtaza Ali Zaidi for Respondents Nos. 7 to 10.

Date of hearing: 8th April, 1999.

2000 P L C (C.S.) 678

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry and Syed Zahid Hussain, JJ

MUHAMMAD ANWAR HUSSAIN

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA and 2 others

Writ Petition No.23674 of 1998, decided on 7th December, 1999

Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss.10(4), 20 & 21---Constitution of Pakistan (1973), Art. 199---Dismissal from service---Constitutional petition---Maintainability---Employee was dismissed from service as a result of disciplinary proceedings against him--­Departmental appeal filed by the employee was dismissed---Rules and Regulations framed by employer Board governing terms and conditions of its employees, under Ss.20 & 21 of Punjab Board of Intermediate and Secondary Education Act, 1976 subject to approval of Government and other limitation being not statutory rules, but being entirely within discretion of the Board without any outside interference, order dismissing employee from service, could not be interfered with in Constitutional petition---Employee having failed to make out a case for interference in Constitutional jurisdiction of High Court, Constitutional petition was dismissed being not maintainable.

Karachi Development Authority v. Wali Ahmed Khan 1991 SCMR 2434; Munir Latif Raja v. The Multan Development Authority 1995 PLC (C.S.) 898; The Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural DeNelopment Bank of Pakistan PLD 1984 SC 194; United Bank Limited v. Ahsan Akhtar 1998 SCMR 68; Mrs. M.N. Arshad v. Mrs. Naeema Khan PLD 1990 SC 612; Imam Bakhsh Tatari v. Board of Intermediate 1986 PLC (C.S.) 12 and National Bank of Pakistan v. Punjab Labour Appellate Tribunal 1993 SCMR 105 ref.

Malik Noor Muhammad Awan, Hadaytullah and S. Naim-ul-Hassan Sherazi for Petitioner.

Sh. Shahid Waheed and Rana Muhammad Arif, Addl. A.-G. for Respondents.

Dates of hearing: 2nd and 3rd November, 1999

2000 P L C (C.S.) 684

[Lahore High Court]

Before Mian Allah Nawaz and Dr. Munir Ahmad Mughal, JJ

Capt. (Retd.) M. MAZHAR HAMEED

Versus

ABDUL SATTAR and 4 others

Intra-Court Appeal No. 1087 of 1999 in Writ Petition No. 14484 of 1994, decided on 19th January, 2000.

(a) Punjab Small Industries Corporation Act (XV of 1973)---

----S.15---Punjab Small Industries Corporation Service and Recruitment Rules, 1976, R.22---Law Reforms Ordinance (XII of 1972), S.3---Intra­Court Appeal---Relaxation of rules for recruitment---Appellant was appointed as Regional Director of the Corporation by Managing Director after relaxing the rules for such appointment---High Court, under its Constitutional jurisdiction, declared such appointments as illegal and same was set aside---Validity---Qualifications for the post was Degree of Master of Arts either in Administration or Economics or B.Sc. Engineering from a recognised University for non-technical post---Appointee was appointed to a post which was to be fulfilled by initial recruitment and by relaxing the rules he was appointed over the head of other persons who were qualified to be so appointed---Appointment was made without affording opportunity to persons who were concerned to compete for such appointment---Decision rendered by Managing Director was in aid of favouritism and the same was rightly struck down by the High Court---Decision of High Court was eminently just and did not suffer from any jurisdictional or factual error calling for interference in Intra-Court Appeal.

Muhammad Iqbal Khokhar and 3 others v. Government of Punjab, Lahore and 2 others PLD 1991 SC 35 ref.

(b) Punjab Small Industries Corporation Service and Recruitment Rules, 1976---

----R.22---Recruitment---Relaxation of rules---Object---Where the Recruitment Board or authorised officer comes to the conclusion that strict application of rule will cause undue hardship to individual concerned, such Recruitment Board or authorised person is vested with powers to relax the rules under the provisions of R.22 of Punjab Small Industries Corporation Service and Recruitment Rules, 1976---Such power falls in the sphere of discretionary jurisdiction.

(c) Discretion---

------ Discretion of Judge"---Connotation---Judicial discretion---Discretion of a Judge is the law of tyrants; it is always unknown, it is different in different men; it is casual, and depends on constitution, temper and passion and at the best it is often caprice and in the worst it is every vice, folly and passion to which human nature can be liable.

State v. Cummings 36 MO 263 ref.

Nazeer Ahmed Ghazi for Appellant.

Naveed Rasool Mirza, Sh. Munur Ahmed and Ch. Abdul Wahid for Respondents.

Dates of hearing: 17th and 18th January, 2000.

2000 P L C (C.S.) 784

[Lahore High Court]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

Qazi AKHTAR ALI

Versus

DIRECTOR OF AGRICULTURE (ECONOMICS AND MARKETING) PUNJAB AGRICULTURE HOUSE, LAHORE and another

Writ Petition No. 19271 of 1996, heard on 1st March, 2000.

(a) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 16---Employees of Market Committee---Status as civil servants—­Validity ---Employees of Market Committee cannot be said to be employees of Provincial Government nor can they be said to be holding a. post in connection with the affairs of the Province.

(b) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

---S. 16(3)---Employees of Market Committee---Transfer from one Committee to other Committee anywhere in the Province---Status of civil servants to such employees---Nature---Validity---Employee of one Market Committee can be transferred to another Market Committee under S. 16(3) of Punjab Agricultural Produce Markets Ordinance, 1978---Such transfer order does not confer the status of civil servants upon the employees of Market Committee.

(c) Punjab Agricultural Produce Markets Ordinance (XXIII of 1978)---

----S. 16---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Employee of market committee ---Withholding of monthly salary of such employees---Employee of market committee was transferred to another market committee and Civil Court suspended the order of such transfer--­Pursuant to the order of the Court market committee cancelled the transfer order-- -Employee was allowed to join his duty but he was not paid his monthly salary---Validity---Employee was entitled to receive his salary from the committee and refusal to payment of salary amounted to forced labour which was violative of the Constitution as also the Islamic Injunctions and social justice---Committee was directed to pay the salary to the employee.

(d) Constitution of Pakistan (1973)--

---Art. 3 & Chap. 2, Part. 11 [Arts. 29 to 40)---Principles of policy ---Non-payment of salary to employee for work done---Validity---Such act is violative of principles of policy contained in Chap. 2, Part 11 of the Constitution---Article 3 of the Constitution casts duty on the State to eliminate all forms of exploitation.

Akhtar Masood Khan for Petitioner.

Nemo for Respondents.

Date of hearing: 1st March, 2000.

2000 P L C (C.S.) 787

[Lahore High Court]

Before Syed Jamshed Ali, J

PROVINCE OF THE PUNJAB through-Secretary to Government of the Punjab, Local Government and Rural Development Department/Chairman, Punjab Rural Government Board, Lahore

Versus

Syed 1RSHAD HUSSAIN BUKHARI and another

Civil Revisions Nos. 286-D and 467-D of 1997, decided on 15th March, 2000.

(a) Specific Relief Act (I of 1877)---

----S. 42---Constitution of Pakistan (1973), Art, 212---Punjab Service Tribunals Act (IX of 1974), S.4---Suit for declaration---Plaintiff had prayed for two reliefs in his suit, firstly, correction of his date of birth and secondly an injunction to restrain defendant Authority from passing any adverse order against him on basis of impugned entry of his date of birth---Plaintiff through his second prayer, wanted to continue in service beyond age of superannuation ---Second part of plaint being related to terms and conditions of service of plaintiff, no relief to that extent could be allowed to plaintiff by Civil Court because jurisdiction of Civil Court was barred to that extent by virtue of Art. 212 of Constitution of Pakistan, (1973)---Civil. Court, however, had jurisdiction to the extent of first prayer of plaintiff regarding correction of his date of birth.

Muhammad Siddique v. Yahya Khan 1994 CLC 1374; Abdul Ghafoor Shaheen v. Board of Intermediate and Secondary Education, Lahore and another 1995 PLC (C.S.) 1154; Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah. 702; Mehreen Zaibun Nisa v. Land Commissioner, Multan and others M,D 1975 SC 397; Malik Ghulam Haider v. Province of Punjab PLD 1981 Lah. 433; Government of the Punjab through Secretary, Department of Education, Lahore v. Prof. Mst. Jamida Malik and another 1991 MLD 824; Mst. Nazir Begum v. Province of Punjab and others 1996 PLC (C.S.) 908; Feroze Din and another v. Master Muhammad Sher Khan 1979 CLC 742; Mst. Iqbal Begum v. Farooq Inayat and others PLD 1993 Lah. 183; Sarfraz Khan v. Federation of Pakistan 1986 SCMR 1950; M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633; Water and Power Development Authority through Chairman, Lahore and others v. Muhammad Nawaz Khan and others 1998 SCMR 640; Inspector-General, Pakistan Railway Police and others v. Muhammad Saeed Khan NLR 1985 Service 2 and Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 22'others PLD 1981 SC 147 ref.

(b) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art. 212--- Bar of jurisdiction--­Extent---Departmental Authority---Appeal against order of Departmental Authority---Bar of jurisdiction contemplated in Art.212 of Constitution of Pakistan (1973) was not absolute and would only apply in respect of a matter to which jurisdiction of Service Tribunal extended---University being not Departmental Authority in relation to terms and conditions of service of civil servant, would not be amenable to jurisdiction of Service Tribunal.

Government of the Punjab and others v. Saleem Hussain Gardezi 1985 SCMR 443 ref.

Dr. M. Mohy-ud-Din Qazi for Petitioner.

Irfan Masood Sheikh for Respondent No. 1.

Shahid Saeed for Respondent No.2.

Dates of hearing: 2nd and 3rd February, 2000.

2000PLC(C.S.) 796

[Lahore High Court]

Before Maulvi Anwar-ul-Haq and Naseem Sikandar, JJ

MUHAMMAD ASHRAF

Versus

DIRECTOR-GENERAL, MULTAN DEVELOPMENT AUTHORITY, MULTAN and another

Intra-Court Appeal No. 2 of 1992 in Writ Petition No.849 of 1988, decided on 7th December, 1999.

(a) Punjab Civil Service (Efficiency and Discipline) Rules, 1975---

----Adoption of Punjab Civil Service (Efficiency and Discipline) Rules, 1975 by Multan Development Authority, would not constitute such rules to have statutory warrant.

Munir Latif Raja v. The Multan Development Authority and others 1995 PLC (C.S) 898 and Chairman, WAPDA and others v. Syed Jameel Ahmad 1993 SCMR 346 ref.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition-- Maintainability--Jurisdictional bar enacted in legislative measures---Rule of master and servant---Where jurisdictional bars have been enacted, against superior judiciary, in legislative measures, such bars and fetters, if within the legislative and Constitutional bonds, may take effect with exception of an action which was mala fide; an action which was without jurisdiction and an action which was coram non judice---Where relationship between the parties was governed by the rule of master and servant, action adverse to the servant falling with such three exceptions would not be exempted from scrutiny of High Court--­Constitutional petition, therefore, was maintainable.

Farooq Ahmad. Khan Leghari v. Federation of Pakistan PLD 1999 SC 57 and Karachi Development Authority and another v. Wali Ahmad Khan and others 1991 SCMR 2434 ref.

(c) Master and servant--

---- Law of master and servant, is a notion of English common law and does not emanate from any Constitutional provision or even a statute or some injunctions o? Holy Qur'an or Sunnah of the Holy Prophet (p.b.u.h.).

(d) Constitution of Pakistan (1973)---

----Art. 2A---Resort to rule of common law of England----Scope---Resort to rule of English Common Law could not be taken in view of Art. 2A of the Constitution of Pakistan.

Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 ref.

(e) Constitution of Pakistan (1973)--

----Art. 199--Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Termination of service---Appellant was employee of Multan Development Authority and was terminated from service summarily--­Constitutional petition filed by the appellant was dismissed by High Court--­Contention of the appellant was that act of terminating his service by the Authority was based upon mala fides---Validity---Although mala fides basically was a question of fact, yet it was not difficult to record the finding that the act of summary termination of service of the appellant on the part of Authority was motivated by mala fides and as such was coram non judice--­Termination order of the appellant passed by the Authority was void and without lawful authority and the same was set aside.

Appellant in person.

Malik Muhammad Ameen for Respondents.

Date of hearing: 23rd November, 1999.

2000 P L C (C.S.) 864

[Lahore High Court]

Before Tassaduq Hussain Jilani, J

MUHAMMAD MASOOD JOYA

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No. 5555 of 1998, decided on 19th October, 1998.

Civil service---

----Pension---Withholding of---Civil servant who retired on attaining age of superannuation, his pension was not released on ground that some enquiry was pending against him---Instructions issued by Government of West Pakistan Services and General Administration Department S.(XIII) No.S (R) 58/7-47/65/SC XII, dated 1-2-1967" and through letter dated 17-9-1982 "No.S.O.(8)-F-12/82, Government of Punjab Services, General Administration and Information Department (Secret Section)", which were mandatory in nature, had stipulated that if inquiry against civil servant was not concluded within a year of his retirement, pension and gratuity of said civil servant must be sanctioned---No justification, thus existed, in circumstances to withhold pension of civil servant when one and half years had lapsed since his retirement---Authority was directed to release pension and gratuity of civil servant within thirty days.

Ch. Muhammad Shafique for Petitioner. Khadim Nadeem Malik, Addl. A.-G. for Respondents.

Dates of hearing: 14th and 19th October, 1998.

2000 P L C (C.S.) 866

[Lahore High Court]

Before Karamat Nazir Bhandari. J

MUHAMMAD GHOUS

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

Writ Petition No. 15329 of 1995, decided on 20th May, 1999

Federal Public Service Commission Ordinance (XLV of 1977)---

----S. 10---Constitution of Pakistan (1973), Art, 199---Constitutional petition-Competitive examination---Relaxation of upper age of candidate--­Sealed packet containing result of, petitioner/Candidate of competitive examination of two years was opened in the Court in presence of ail parties which had shown that petitioner had failed in aggregate in both examinations and representative of Federal Public Service Commission had stated that said result would be communicated to the petitioner---Petitioner having failed to clear examinations, question whether petitioner was entitled to relaxation of upper age, had become immaterial.

Kh. Abrar Majal for Petitioner.

Sh. Anwar-ul-Haq,,Dy. A.-G.

Qureshi Muhammad Nawaz Shah, Deputy Director, FPSC, Islamabad.

2000 P L C (C.S.) 867

[Lahore High Court]

Before M. Javed Buttar, J

Mst. MUQQADAS AKHTAR and another

Versus

PROVINCE OF PUNJAB through Secretary, Education Department, Government of Punjab, Lahore and another

Writ Petitions Nos: 10063 of 1998, 13325, 13324, 13323, 13322, -13321, -11438, 25636, 24773, 24709, 24223,17935, 13761,19880;-19491, 20541, 20517, 20294, 20246, 18747, 18299, 18686, 18685, 17984, 17983, 19483, 19484, 19256, 13486, 12969, 13339, 10911, 10727„ 12268, 13487, 13724, 10982,10753, 10621, 10908, 13582,.11715, 13553,18982, 19923, 25418, 12810, 13743, 13326, 13327, 13328, 13511, 11334, 13564, 12976, 19458, 11313,23368, 13347, 10761, 23334,20592, 11431, 12119, 24228,23643, 19588, 23860, 12968, 11432,23089,24022, 11096,20835, 23368, 18912, 19588, and 19080 of 1998, 1548, 856, 857, 5704, 1800, and 1063 of 1999, decided on 20th April, 1999.

(a) Civil service---

----Appointment---Cancellation---Appointments of civil servants as P.T.C. Teachers were subsequently cancelled by Authority after about four years of appointments simply on the ground that approval of appointment of civil servants had been found bogus---Civil servants who had been getting their salaries from the Department for the last, four years, their appointments had been cancelled without holding any enquiry in regard to genuineness or non-­genuineness of their appointment and even without giving their names in the cancellation order ---Validity---No-order which did not name civil servants whose services were being cancelled or terminated could be said to be an order in the eye of law---Civil servants, in circumstances, were declared to be in service and action of school authorities, stopping civil servants from performing their duties as P.T.C. Teachers on basis of said cancellation order, were also declared to be without lawful authority.

(b) Punjab Service Tribunals Act (ER of 1974)--

----S. 4---Constitution of Pakistan (1973), Arts. 199 & 212(2) Constitutional petition---Appointment, cancellation of---Bar of jurisdiction contained in Art. 212 of the Constitution, whether applicable---Civil servants who were appointed as P.T.C. Teachers, their appointments were cancelled after about four years on ground that approval of appointments of civil servants had been found bogus---Civil servants whose appointments were cancelled without giving their names in the cancellation order had invoked Constitutional jurisdiction against cancellation of their appointments--­Contention of Authorities that petitions suffered from jurisdictional defect due to bar as contained in Art.212(2) of Constitution of Pakistan (1973) was repelled---When order cancelling/terminating appointments/services of civil servants by name was not in existence, civil servants `could not approach Punjab Service Tribunal in an appeal against a non-existing order---Bar as contained in Art.. 212(2) of. Constitution of Pakistan (1973) in regard to jurisdiction of High Court, was not attracted in circumstances.

Ch. Muhammad Rafiq Warraich for Petitioner.

Ashtar Ausaf Ali, A.-G., Punjab with Naeem Sadiq for Respondents.

Date of hearing: 20th April, 1999.

2000 P L C (C.S.) 872

[Lahore High Court]

Before Sh. Amjad Ali, J

FAZALE MUQEEM

Versus

G.M., SUI NORTHERN GAS and others

Writ Petition No. 481 of 1997, decided on 4th February, 1999.

Service Tribunals Act (LXX of 1973)--

----Ss: 2A & 4---Constitution of Pakistan (1973), Arts. 199 & 212--­Constitutional petition---Maintainability---Appointment of civil servant as Management Trainee, was terminated without notice on ground that his performance was not satisfactory---Validity---Employees of Company having become civil servants on insertion of S.2A in Service Tribunals Act, 1973 they were eligible to bring their service disputes before Service Tribunal--­Remedy of appeal under S.4, Service Tribunals Act, 1973 having been made available to civil servant, Constitutional petition was barred under Art. 212 of Constitution of Pakistan (1973) and was not maintainable.

Malik Rab Nawaz.Noon for Petitioner.

Nasir Iqbal Haider for Respondents.

2000 P L C (C. S.) 874

[Lahore High Court]

Before Mian Allah Nawaz and Nasim Sikandar, JJ

I-G. POLICE, PUNJAB and others

Versus

YOUSUF HAROON and others

Intra-Court Appeals Nos.1287, 1361 and 1363 of 1998, decided on 14th June,. 1999.

(a) Constitution of Pakistan (1973)---

----Art. 25---Equality of citizens---Doctrine of equality, as contained in Art.25 of Constitution of Pakistan (1973) has enshrined golden rules of Islam which mandate that every citizen, no matter how high so ever he was, must be accorded equal treatment with similarly situated persons, which meant that similarly situated people should be treated equally---Article 25, however, would not prohibit treatment to citizens by State on basis of reasonable classification.

1993 CLC 945; PLD 1991 SC 4; 1995 SCMR 1249 and PLD 1992 Kar. 39 ref.

(b) Police Rules, 1934---

----Rr.12.15 '& 12.16---Law Reforms Ordinance (XII of 1972). S. 3--­ Appointment of Police Inspectors---Medical standard---Relaxation of --Candidates applied for appointment of Inspectors of Police in response to advertisement---Candidates were recommended to be appointed to post of Inspectors, after written/oral test and interview---On complaint against candidates to the effect that they had manipulated their entry in examination after securing false certificate with regard to prescribed physical standard from Medical Officer, a Board was constituted comprising Deputy Inspector-General of Police, Superintendent of Police and Medical Superintendent to enquire into the matter---Candidates were examined by the said Board and were found deficient in height and chest and Board referred its findings to Government for necessary action---Such action. of Board was challenged by candidates before High Court in Constitutional petition, which was accepted by High Court---Contention of respondents/candidates in intra­ Court appeal was that under Rr.12.15, 12.16 & 12.17 of Police Rules, 1934 it was function of the Health Officer to measure height/chest of candidates and was outside the power of Police Authorities to do so ---Validity--­ Rule 12.16 of Police Rules, 1934 had empowered Superintendent of Police to reject candidate whose standard of physique and intelligence was unsatisfactory and was not according to the standard prescribed by 8.12.15 of Police Rules, 1934---Police Authority having been conferred full discretion assess physical standards of candidates, Medical Officers were not the only Authority to measure height and- chest of candidates and Competent Authority was not bound to accept opinion of the Medical Officer---Competent Authority was authorised to finally weigh/adjudge physical standard of candidates required for their appointment---Role of Health Authority/Medical Officer was of facilitative nature---Board duly constituted, had rightly found that candidates did not have required height and were not qualified to be appointed as Inspectors---Competent Authority, though could relax required standared of height and measure of chest of candidate under 8.12.15 of Police Rules, 1934, but such power was strictly circumscribed to special castes and classes which could supply desirable recruits whose height did not come up to prescribed standard.-

PLD 1975 SC 506; PLD 1976 SC 57; PLD 1990 SC 899 and 1991 SCMR-1041 ref

(c) Police Rules, 1934---

Rr. 12.15 & 12.16---Appointment of Police Inspectors---Medical standard---Relaxation of---Discretionary jurisdiction of Administrative/Authority---Exercise of---Power of relaxation of prescribed medical standard of candidates fell within domain - of discretionary jurisdiction of Administrative Authorities---Discretionary jurisdiction was the power of Administrative Authority/Judicial Authority to adopt a way or decide a matter according to his own segacy or prudence- and opinion--­Competent Authority having competently declined to exercise power to relax medical standard prescribed by rules and having decided to deal with candidates with equal treatment, High Court declined interference.

State v. Cummings 36 MO 263 ref.

Ashtar Ausaf Ali, A.-G. for Appellant.

M.D. Chaudhary for Respondent No. 1.

Malik Muhamamd Azam Rasool for the Remaining Respondents.

Dates of hearing: 22nd April; 3rd, 5th, 10th and 13th May, 1999.

2000 P L C (C.S.) 890

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

SARD MEHMOOD

Versus

ASSISTANT COMMISSIONER and others

Writ Petition No. 10042 of 1997, decided on 29th September, 1999

(a) Punjab Civil Servants Act (VIB of 1974)--

----Ss. 2(d)(g)(i) (j) & 4---Land Record Manual, para. 3.11(3)---Constitution of Pakistan (1973), Arts. 4, 18 & 199--Constitutional petition--­Appointment---Validity---Petitioner. passed examination for Patwaris and in merit list his name was mentioned prior to respondents, but despite that respondents were appointed under the direction of Revenue Minister while the petitioner was ignored ---Appointments as per provisions of Ss.2(d)(g) (i) (j) BSc 4 of Civil Servants Act, 1974, were to be made in the prescribed manner by the Governor or by person authorised by him in this behalf and Minister had no authority to give direction to Competent Authority to make appointment---Appointment order passed on the direction of Revenue Minister was in violation of para.3.11(3) of Land Record Manual and was repugnant to Arts. 4 & 18, Constitution of Pakistan (1973), and such illegal order could not be perpetuated.

PLD 1964 SC 829; PLD 1973 SC 49; PLD 1992 SC 207; 1993 SCMR 1287; 1995 SCMR 999 and 1996 SCMR 1349 ref.

(b) Constitution of Pakistan (1973)---

----Preamble, Arts. 240(b), 241 & 242---Trichotomy system of Constitution---Scheme of Constitution of Pakistan is based on trichotomy in which, judiciary has right to interpret law, Legislature to legislate and executive to implement ---Trichotomy of power which is already delicately balanced in Constitution cannot be disturbed as same has granted powers to each organ to decide matters in its allotted sphere---Subject of "appointment of services of Province" is specifically mentioned in Part XII of Constitution of Pakistan (1973) especially in Art. 240(b) thereof.

(c) Constitution of Pakistan (1973)--

----Preamble, Arts. 2A, 4, 5(2), 37, 38 & 240---Scheme of the Constitution---Constitution of a country is a kind of social contract which would bind people, society and a State---Honest commitment to the goals set out in Constitution would ensure promotion of nationhood and stability -of system---Scheme of Constitution of Pakistan (1973) has set up role of each and every organ which has to function independently, freely without interference by any other organ of the State---Such principle coupled with Arts. 2A; 4, 5(2), 37 & 38 of Constitution of Pakistan (1973) lead to irresistible conclusion that each organ should have to remain within its own sphere---All organs should work as compliment of each other to bring harmony, mental understanding and respect instead of creating hindrances, hatred and usurping the rights of others---Each organ must work within its limits prescribed by Constitution and law.

AIR 1965 SC 1293; Dr. Shamim's case 1997 CLC 308; Muhammad Khan's case 1969 SCMR 306; Suleman's case 1970 SCMR 574; Khiali Khan's case PLD 1997 SC 304; S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367; Ghulam Mohi­ud-Din v. Chief Settlement Commissioner and others PLD 1964 SC 829 and I.A. Sherwani's case 1991 SCMR 1041 ref.

(d) Constitution of Pakistan (1973)--

----Art. 199---Constitutional jurisdiction of High Court---Constitutional jurisdiction being equitable jurisdiction, same could not be exercised it favour of a person who had come to Court with gross negligence.

Ch. Muhammad Anwar Bhinder for Petitioner.

Muhammad Nawaz Bhatti, Addl. A.-G. for Respondents Nos. l

Nemo for Respondents Nos. 4, 7, 9 and 11. Mian Muhammad Ilyas for Respondents Nos. 8 to 12. Sardar Nazar Hussain Dogar for Respondent No. 10.

Date of hearing: 29th September, 1999.

2000PLC(C.S.) 918

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ABDUL RAZZAQ

Versus

DIRECTOR-GENERAL and others

Writ Petition No. 23061 of 1998, decided on 18th March, 1999.

Service Tribunals Act (LXX of 1973)--

----S. 4---Constitution of Pakistan (1973), Arts. 2A, 4, 199 & 212--­Constitutional petition---Maintainability---Insertion of Art 2A in the Constitution---Effect---Release of salary---Application for---Five months' salary of civil servant having been stopped by Authority, he filed application for its release---Authority having failed to decide the application within reasonable time, civil servant filed Constitutional petition before High Court for redressal of his grievance---Contention of the Authority, was that application, for release of salary was not filed by civil servant through proper channel and that Constitutional petition was not maintainable by virtue of Art. 212 of Constitution of Pakistan (1973), read with S.4 of Service Tribunals Act, 1973---Validity---Objection of Authority had no force as High Court had ample powers to give direction to public functionaries to act in accordance with law as envisaged by Art. 4 of Constitution of Pakistan (1973) and in presence of said Art. 4, powers of High Court had not been taken away by Art. 212 of the Constitution to give direction to public functionaries to act in accordance with law---Duty and obligation of public functionaries to act in accordance with law---Objection that application was not filed through proper channel, had no force because after addition of Art. 2A in the Constitution of Pakistan (1973), Courts were expected to decide cases on merits instead of technicalities---High Court, in circumstances, directed the Authority to decide application of civil servant strictly in accordance with law within a specified period.

PLD 1981 SC 612 and PLD 1989 SC 532 ref

Akbar Munir for Petitioner

Sh. Anwar-ul-Haq, Deputy Attorney-General. .

2000 P L C (C.S.) 924

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

MUZZAFAR ALI KHAN, ADDITIONAL DIRECTOR-GENERAL (HORTICULTURAL) L.D.A., LAHORE

Versus

LAHORE DEVELOPMENT AUTHORITY through Director-General and 3 others

Writ Petition No. 21786 of 1996, decided on 5th July, 1999.

Civil service---

---- Permanent absorption of deputationist---Repatriation---Civil servant who was permanent employee of Agriculture Department was sent on deputation to Lahore Development Authority where he was permanently absorbed--­Civil servant was subsequently repatriated to Agriculture Department without issuing him show-cause notice and opportunity of hearing---Validity---Civil servant who was permanently absorbed in the transferee Department after he was sent on deputation, had vested right to continue in transferee Department and was entitled to hearing and issuance of show-cause notice before ordering his repatriation in the Department from where he was sent on deputation---Order of repatriation passed mechanically without hearing civil servant was set aside being without jurisdiction and void.

Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 PLC (C.S.) 1127; Mian Muhammad v. The Chairman, L.D.A. and others Petition No.2880-S of 1991; Raja Muhammad Nawaz v. Government of the Punjab 1981 SCMR 523; Shahbaz v. The Crown PLD 1955 FC 46; Lt.-Col. G.L. Battacharya v. The State PLD 1964 SC 503; Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and State v. Muhammad Ismail 1980 SCMR 268 ref.

M.A. Zafar for Petitioner. Azmat Saeed for Respondents.

Date of hearing: 5th July 1999.

2000 P L C (C.S.) 957

[Lahore High Court]

Before Mumtaz Ali Mirza, J

MUHAMMAD TUFAIL and others

versus

GOVERNMENT OF PAKISTAN and another

Constitutional Petitions Nos.307 to 328, 331, 332 of 1988 and 573 of 1989, decided on 21st May, 1999..

(a) Service Tribunals Act (LXX of 1973)-

----S.4---Constitution of Pakistan (1973), Arts 199 & 212---Constitutional petition---Termination of service---Validity---Petitioners who were employed as Family Planning Officers, their services were terminated by Competent Authority---Constitutional petition by petitioners against such order--­Maintainability---Orders of termination being related to terms and conditions of service, could be challenged before Service Tribunal alone under S.4, Service Tribunals Act, 1973 in view of bar contained in Art.212 of the Constitution of Pakistan 0973)---Contention of petitioners that as Federal Public Service Commission had been impleaded- as party to the Constitutional petitions and that action of Federal Public Service Commission could not be brought under challenge before Service Tribunal, their Constitutional petitions were competent, was repelled as jurisdiction of a Court could not be conferred or taken away by nature and character of parties impleaded before it, but in fact, it was the order impugned which was determining factor for deciding forum of jurisdiction---Once it was clear that order was an order of termination of service and related to a civil servant and to the terms and conditions of service, for examining legality and propriety of such order impleading of Federal Public Service Commission was not at all necessary---By impleading Federal Public Service Commission as a party, petitioner could not confer jurisdiction of High Court in respect of an order which was otherwise beyond jurisdiction of High Court keeping in view mandate of Art.212 of Constitution of Pakistan (1973)---High Court remanded case to Service Tribunal to decide the same at the earliest in accordance with law.

Miss Rukhsana Ijaz v. Secretary, Education Department and others 1997 SCMR 167 = 1997 PLC (C.S.) 121; Ayyaz Anjum v. Government of Punjab and others 1997 SCMR 169 = 1997 PLC (C.S.) 123; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170 = 1997 PLC (C.S.) 124; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Dr. Ahmud Salman Waris v. Dr. Naeem Akhtar and others PLD 1997 SC 382 and Muhammad Anees and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

(b) Constitution of Pakistan (1973)----

----Art.199---Termination of services---Constitutional jurisdiction, exercise of---Petitioners whose services were terminated had contended that High Court should hold an inquiry into the fact as to whether directions contained in order passed by Supreme Court on basis of undertaking given before it by and on behalf of Department and Federal Public Service Commission, had or had not been complied with by Department and the Commission---Such a determination, could not be made by High Court, without holding elaborate inquiry into disputed questions of fact as raised by petitioners and denied by Department and Commission, while exercising Constitutional jurisdiction---Constitutional petition, therefore, was not maintainable.

Federation of Pakistan and others v. Aftab Ahmad Khan Sherpao and others PLD 1992 SC 723 ref.

Dr. Khalid Ranjha, Hafiz S.A. Rehman and Sardar Zaheer Ahmad Khan for Petitioners.

Ch. Afrasiab Khan, Standing Counsel and Qazi Ahmad Naeem Qureshi, Federal Counsel for the Government.

Date of hearing: 5th May, 1999.

2000 P L C (C.S.) 969

[Lahore High Court]

Before Ali Nawaz Chowhan, J

MUHAMMAD SALEEM

versus

REGIONAL COMMISSIONER, INCOME-TAX and others

Writ Petition No. 1232 of 2000, decided on 24th February, 2000.

(a) Civil service--

---- Appointment in higher position---Withdrawal of appointment---Civil servant serving as Income-Tax Inspector was appointed by Competent Authority as Special Officer on basis of his A.C.Rs., his performance and his eligibility for promotion to the post of Income-tax Officer (BS-16)---Such appointment subsequently was recalled with immediate effect without giving any reason and without affording civil servant an opportunity of being heard­--Civil servant who was duly appointed by Competent Authority, deserved opportunity of being heard before passing of the recall orders of Appointing Authority so that if anything was found adverse to civil servant including any misstatement which he might have made, he should have had a fair opportunity of explaining his conduct and his position---Contention of the Authority was that advancement to the post of Special Officer would not mean any promotion of civil servant and that recall order would never be read adverse to the interest of civil servant---Contention was repelled because even if post of Special Officer did not carry any higher grade, but said post had created some prestige, and criteria had been fixed where selected persons were to be posted against advanced promotion and it would be taken as an advancement in some sense of the term---Civil servant having been granted said advancement, could only be removed after being heard, but he had been condemned unheard---Rule of natural justice having been violated in the case of civil servant, recall order was held to be not sustainable with the direction that civil -servant ought to be heard immediately by Competent Authority and to pass fresh order keeping in view service record of civil servant.

(b) Administration of justice-­

---- Basis of system of administration of justice---Present system of administration was based on plural legal philosophy; on the English Common Law the Anglo-Saxon Corpus Juris and Islamic Jurisprudence, both were going side by side---Pakistan, in fact, had become a laboratory where principles of both said legal philosophies were being tested---So far both philosophies had taught people to obey laws of God.

Syed Aqa Asaf Jaffary for Petitioner.

Ch. Saghir Ahmad, Standing Counsel for Respondents

Date of hearing: 24th February, 2000.

2000 P C (C.S.) 973

[Lahore High Court)

Before Ch. Ijaz Ahmad, J

SHAH NAWAZ and others

versus

LAHORE DEVELOPMENT AUTHORITY and others

Writ Petition No.7030 of 1994, decided on 5th May, 1999

Lahore Development Authority (Appointment and Conditions of Service) Regulations, 1978--

----Constitution of Pakistan (1973), Arts. 4, 25 & 199---Seniority--­Representation against seniority list---Delay in decision on such representation---Constitutional petition---Maintainability---Petitioners diploma-holders in Mechanical Engineer, were appointed as Overseer and were subsequently promoted to Sub-Divisional Officers (BPS-17) on regular basis---Respondents holding Degree of B.SC./Civil/Mechnical were directly recruited as Junior Engineers (BS-17) on various dates---Petitioners were senior as they were appointed in BS-17 before recruitment of respondents--­Authority prepared two seniority lists, one of Diploma Engineers and the other that of Graduate Engineers---Petitioners being aggrieved by said seniority lists preferred representations before the Authority, but said representations having not been decided despite considerable period had passed, petitioners filed Constitutional petition against the list--- Maintainability of the Constitutional petitions was assailed, by the Authority on ground that relations of petitioners and Authority was that of master and servant---Validity---Inherent right of petitioners was that their representations must be decided by respondent-Authority in accordance with law within reasonable time, but the Authority had failed to do so---Public functionaries were obliged to redress grievances of citizens as envisaged by Art.4 of Constitution of Pakistan (1973) without fear, favour and nepotism and to act within framework of law and Constitution a d treat all persons equally as envisaged by Art. 25 of Constitution of Pakistan (1973)---High Court having ample powers to give directions to public functionaries to act in accordance with law by virtue of Art. 4 of Constitution of Pakistan, (1973), directed the Authority to decide representation of petitioners strictly in accordance with law within specified period.

Abdul Shafiq's case 1992 PLC (C.S.) 1214; PLD 1982 SC 120; Muhammad Sadiq's case PLD 1996 SC 182; Fida Hussain's case PLD 1995 SC 701; Pakistan Development Engineers. Federation's case 1994 SCMR 1807; Muhammad Munawar Qureshi's case 1997 PLC (C.S.) 1099; Pakistan Engineering Council's case 1998 SCMR 811; Zahid Akhtar's case PLD 1995 SC 530; I.A. Sherwani's case 1991 SCMR 1041; Maqbool Elahi's case 1997­PLC (C.S.) 1146 and PLD 1981 SC 612 ref.

Hamid Khan for Petitioners.

Mahboob Ahmad Kh. and Ch. Muhammad Saleem for Respondents.

Date of hearing: 5th May, 1999.

2000 P L C (C.S.) 1040

[Lahore High Court]

Before Ihsan-ul-Haq Chaduhry, J

BOOTA MASIH

Versus

GOVERNMENT OF PUNJAB

Writ Petition No. 11158 of 1999, heard on 25th June, 1999.

Constitution of Pakistan (1973)----

----Arts. 199 & 212---Constitutional petition---- Maintainability---Civil service---Question of terms and conditions of service--- Validity—Pettioner was without posting and was not getting salary after transfer---Such a question being not related to terms and conditions of service, bar of a Art. 212 of Constitution of Pakistan (1973) was not applicable--- Constitutional petition was maintainable in circumstances.

Muhammad Nawaz Watto for Petitioner.

Muhammad Arif, Addl. A.-G for Respondent.

Date of hearing: 25th June, 1999.

2000 P L C (C.S.) 1049

[Lahore High Court]

Before Sheikh Abdur Razzaq, J

WAHEED HASSAN and others

Versus

PAKISTAN RAILWAY and others

Writ Petition No. 1114 of 1997, decided on 21st May, 1999.

Service Tribunals Act (LXX of 1973)---

----S. 2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997)]--- Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition--- Maintainability---Employees of, Pakistan Railways---Petitioners were junior/senior clerks and electrical chargemen employed in Pakistan Railways---Pakistan Railways was an organization controlled by 'the Federal Government and petitioners were not excluded from definition of "civil servant" as enumerated under S.2-A, Service Tribunals Act, 1973--­Jurisdiction of High Court stood barred under Art. 212, Constitution of Pakistan (1973)---constitutional petition was not maintainable in circumstances.

Khalid Mahmood v. Government of Punjab and others 1998 SCMR 2280 ref

Sardar Asmatullah khan for Petitioners.

Hafiz S.A. Rehman for Respondents.

Date of hearing: 21st May, 1999.

2000 P L C (C.S.) 1068

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD IBAD RANA

versus

GOVERNMENT OF THE PUNJAB and another

Writ Petition No.282 of 2000, decided on 26th April, 2000.

Board of Intermediate and Secondary Education Act (XIII of 1976)---

----S. 12(5)(6)---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.18---Constitution of Pakistan (1973), Art.199---Constitutional petition---Enhancement of penalty of stoppage of increments---Petitioner who was proceeded against under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, was penalized by stoppage of three increments by Competent Authority---Competent Authority on basis of direction of Controlling Authority, which was Government of Punjab, issued show-cause notice to petitioner for enhancement of penalty earlier imposed on him and petitioner had challenged said notice contending that notice was wholly without lawful authority---Contention of petitioner was that Controlling Authority had no jurisdiction to direct re-opening of the matter and that under said Rules only Government could enhance punishment---Petitioner, who was servant of the Board, was not governed by any statutory Rules because relationship between him and the Board was that of master and servant and mere adoption of statutory Rules would not convert the relation into statutory relation---Direction of. Government whereunder show-cause notice was issued to petitioners was fully covered by subsections (5) & (6) of S.12 of Board of Intermediate and Secondary Education Act, 1976 and same could not be interfered with in Constitutional petition.

The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275 and Hamid Mukhtar Piracha v. Faisalabad Development Authority, Faisalabad 1984 PSC 42 ref.

Malik Noor Muhammad Awan for Appellant. Dr. M. Mohi-ud-Din Qazi for Respondents.

Date of hearing: 26th April, 2000.

2000 P L C (C.S.) 1070

[Lahore High Court]

Before Maulvi Anwarul Haq, J

MUHAMMAD MUNSIF and others

versus

GOVERNMENT OF THE PUNJAB, DEPARTMENT OF COMMUNICATION AND WORKS, LAHORE through Secretary and others

Writ Petition No.3370-S of 1996, decided on 10th November, 1999.

Civil service----------

----Promotion---Departmental Promotion Committee approved civil servant for promotion to Assistant Engineer/Sub-Divisional Officer (B.S. 17) subject to production of satisfactory A.C.F. and verification of B.Sc. Engineering degree which was complied with by civil servants---Such recommendations were subsequently withdrawn by Departmental Promotion Committee off ground that civil servants were not registered as Professional Engineers with Pakistan Engineering Council---Provisions of Pakistan Engineering Council Act, 1975 being not applicable to civil servants, approval/recommendation for promotion could not be withdrawn on said ground when civil servants had fulfilled all conditions necessary for their promotion---Civil servants would be deemed to have beets recommended by Departmental Promotion Committee.

Fida Hussain v. The Secretary to the Kashmir Affairs and Northern Affairs Division, Islamabad Suo Motu Review Petition No.3 of 1995 ref.

Syed Aqa Asif Jafari for Petitioners. Khadim Nadim Malik, Addl. A.-G. .for Respondents

Date of hearing: 10th November, 1999.

2000 P L C (C.S.) 1072

[Lahore High Court]

Before Karamat Nazir Bhandari, J

MUHAMMAD JHANGIR

versus

SECRETARY, AUQAF DEPARTMENT OF THE PUNJAB and another

Writ Petition No. 15556 of 1998, decided on 16th August, 1999.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----Rr 4, 15, 16 & 18----Constitution of Pakistan (1973), Art.199--­Constitutional petition---Imposition of -minor penalty of censure was converted into major penalty of dismissal from service---Civil servant was proceeded against for offence of theft and imposed minor penalty of censure---Review---Penalty of dismissal from service was imposed after issuing show-cause notice in view of seriousness of the offence ---Validity--­Authority was fully empowered to call for record and examine proceedings before any subordinate Authority under R.18 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 arid was empowered under R.15 of said Rules to enhance penalty already imposed on civil servants after observing certain formalities; like prior information to accused/civil servant and affording reasonable opportunity to him to show cause against proposed action---Authority having observed all such formalities before enhancing the penalty, order passed by Authority in exercise of its revisional powers legitimately and competently, could not be interfered with by High Court in exercise of its Constitutional jurisdiction.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PL.D 1973 SC 236 ref.

Muhammad Hussain Awan for Appellant.

Raja Muhammad Arif for Respondents.

Muhammad Amin Lone, Asstt. A.-G., Punjab.

Date of hearing: 2nd July, 1999.

2000 P L C (C.S.) 1079

[Lahore High Court]

Before Malik Muhammad Qayyum and Syed Zahid Hussain, JJ

ZIA-UL-HAQ ANJUM and 7 others

versus

CHIEF ADMINISTRATOR, AUQAF and 2 others

Writ Petition No. 15098 of 1999, decided on 11th May, 2000

Civil service----

---- Termination of service---Services of civil servants were terminated on completion of project---Validity---Contention of civil servants was that they were permanent regular employees, letter of appointment showed a specific stipulation that appointment of civil servants was purely temporary and would stand terminated automatically after completion of project without any notice if not required otherwise---Project having been completed, services of civil servants had rightly been terminated according to terms of appointment---Contention of civil servants that their appointment should be treated as permanent on regular basis, was not tenable in view of the nature and conditions of their appointment---Length of service, which was purely of temporary nature, could not automatically result into a regular appointment or on permanent basis---Tenor of appointment order would govern situation as to nature of appointment.

Maulvi Ghulam Rasool v. Administrator Auqaf, Sindh and another 1976 SCMR 73 and Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156 ref.

Arif Chaudhry for Petitioner. Muhammad Arif Raja for Respondents.

Date of hearing: 11th May, 2000

2000 P L C (C.S.) 1082

[Lahore High Court]

Before Raja Muhammad Sabir, J

CHIEF ENGINEER, A.E.B

versus

COMMISSIONER FOR WORKMEN'S COMPENSATION AUTHORITY

Writ Petition No.2108 of 1997, heard on 15th May, 2000

(a) Payment of Wages Act (IV of 1936)------

----S.15(2)---West Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17(1B)(1C)---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Payment of compensation---Jurisdiction of Authority under Payment of Wages Act, 1936--- Respondent who was Assistant Lineman with the Employers (WAPDA) filed application under 5.15(2)- of Payment of Wages Act, 1936 for payment of ten times' compensation and Authority under Payment of Wages Act allowed four times' compensation to the respondent---Respondent being Assistant Lineman would be a civil servant for purpose of Service Tribunals Act, 1973 and notwithstanding applicability of provisions of S.15(2) of Payment of Wages Act, 1936 matters or grievances of respondent with regard to terms and conditions of service were to be taken before Service Tribunal which by virtue of provisions of S.17(1B)(1C) of West Pakistan Water and Power Development Authority Act, 1958 had exclusive jurisdiction---Authority under Payment of Wages Act, 1936 had no jurisdiction to entertain application of respondent for grant of compensation---Order of Authority under Payment of Wages Act, 1936 being without jurisdiction, employer had rightly filed Constitutional petition against said order instead of appeal before the Labour Court--High Court would not invariably decline to exercise its jurisdiction on ground that an alternate remedy by way of appeal or otherwise was available to the petitioner as mere availability of alternate remedy would not debar High Court from exercising its jurisdiction---High Court, in cases of total lack or abuse of jurisdiction, in general, would not hesitate much in entertaining Constitutional petition, though an alternate remedy could well be available---Order passed by Authority under Payment of Wages Act, 1936 being without jurisdiction, was nullity in eyes of law---Constitutional petition could not be refused on mere ground that right of appeal had not been availed by petitioner.

WAPDA v. Muhammad Naeem 1997 SCMR 1128; WAPDA v. Muhammad Zubair and others 1997 PLC (C.S) 189; Waseem Ahmad Khan v. WAPDA and 3 others 1997 SCMR 2000; WAPDA v. Muhammad Arshad Qureshi 1986 SCMR 18; Muhammad Akram Khan v. Payment of Wages Act Authority/Compensation Commissioner, Faisalabad and another NLR 1982 Labour 129 and Hyderi Ship Breaking Industries Ltd. v. Sindh Government and others NLR 1982 Tax 65 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court---Scope---Alternate remedy available with petitioner---Effect---High Court would not invariably decline to exercise its jurisdiction on ground that an alternate remedy by way of appeal or otherwise was available to the petitioners as mere availability of alternate remedy would not debar High Court from exercising its jurisdiction---High Court, in cases of total lack or abuse of jurisdiction, in general, would not hesitate much in entertaining Constitutional petition, though an alternate remedy could well be available.

S.M. Masud for Petitioner. Ch. Muhammad Bashir for Respondent.

Date of hearing: 15th May, 2000.

2000 P L C (C.;1.) 1092

[Lahore High Court]

Before Malik Muhammad Qayyum, J

Mrs. SURRYIA ANEES, PRINCIPAL, NISHTAR COLLEGE FOR GIRLS, LAHORE

versus

SECRETARY, GOVERNMENT OF THE PUNJAB, LABOUR DEPARTMENT, LAHORE and 2 others

Writ Petition No.24285 of 1996, decided on 28th October, 1999.

Service Tribunals Act (LXX of 1973)---

----S. 2-A---Constitution of Pakistan (1973), Arts. 199 & 212---Seniority--­Constitutional petition---Competency of---Petitioner/civil servant in her Constitutional petition had challenged seniority list prepared by Department in which she was shown junior to co-civil servants---Dispute raised in Constitutional petition pertained to terms and conditions of service of petitioner who being employee of educational institution set up under Federal law was civil servant ---Cons1tutional petition filed by petitioner/civil servant was not maintainable as matter could be decided by Service Tribunal only under Art. 212 of the Constitution.

Petitioner in person.

Mian Shahid Iqbal for Respondent No. 1.

Ali Ahmed Awan for Respondent No.3.

Zaka-ur-Rehman Awan for Respondents Nos.7 and 8.

Date of hearing: 281h October, 1999.

2000 P L C (C.S.) 1093

[Lahore High Court]

Before Ch. Ijaz Ahmad and Muhammad Zafar Yasin, JJ

Dr. MUHAMMAD RASHID CHAUDHRY

versus

CHAIRMAN, SHEIKH ZAYED HOSPITAL AND

POST­ GRADUATE MEDICAL INSTITUTE, LAHORE and 3 others

Intro-Court Appeal No.428 and Civil Miscellaneous Application No. 1254 of 1999, decided on 11th April. 2000.

(a) Pakistan Medical and Dental Council Regulations, 1985---

----Regln.15---Constitution of Pakistan (1973), Art.199---Constitutional petition--- Maintainability---Issuance of eligibility certificate ---Revocation--­Vires of show-cause notice---Eligibility certificate issued in favour of petitioner for the post of Associate Professor of Cardiology, was subsequently revoked by Pakistan Medical and Dental Council and show cause notice was issued to petitioner requiring him to explain as to why he should not be posted back as Assistant Professor of Medicines and why further appropriate disciplinary action should not be taken against him--­Validity---Constitutional petition, was not maintainable to the extent of challenging vires of show-cause notice as the Authority issuing said notice was well within its right to agitate the matter/vires of notice by filing reply before Competent Departmental Authority or before higher Authority in accordance with service laws applicable to it.

Shagufta Begum's case PLD 1989 SC 360 and Abdul Waheed's case PLD 1989 SC 508 ref.

(b) Pakistan Medical and Dental Council Regulations, 1985--

---Relgn.15---Constitution of Pakistan (1973), Art.2A---Eligibility certificate--- Revocation---Principles of natural justice---Violation of--­Eligibility certificate issued was revoked by the Authority without first hearing the concerned person---Validity---Said certificate could be revoked after providing personal hearing to the person---Public functionaries after addition of Art.2A in the Constitution of Pakistan, could not pass any order without providing personal hearing to the concerned person as same was in violation of Injunctions of Islam which governed administration of justice--­Notice as well as opportunity of hearing were of absolute necessity in case of liability with penal or quasi-penal consequences and/or deprivation of basic rights---Order revoking eligibility certificate passed without hearing appellant and without applying independent mind by Authority, was declared illegal in Intro-Court appeal.

Pakistan and others v. Public-at-large and others PLD 1987 SC 304; Blyth v. Blyth 1966 AER 524; Angland v. Payne 1994 N.Z.L.R. 610; Khawaja Sharif's case PLD 1988 Lah. 725; Haji Saif Ullzah's case PLD 1989 SC 166 and Abdul A'la Maudoodi's case PLD 1964 SC 673 ref.

(c) Natural justice, principles of-----

----Applicability---Legislature knew the rules of natural justice and where it did not prescribe any rule different from rule of natural justice, it would mean that rules of natural justice were followed.

(d) Locus poenitentiae, principle of----

----Applicability---If order passed by Authority had been given effect to or had been acted upon, same could not be withdrawn subsequently to the detriment of affected person, but in case order had been obtained by misrepresentation or by fraud, said principle was not attracted in arriving at that conclusion.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalal ud Din PLD 1992 SC 207 ref.

Ch. Muhammad Ashraf for Appellant.

Syed Zafar Ali for Applicant.

Pervais I Mir for Respondent.

Syed Ibrar Hussain Shah, Advocate, Law Officer for Respondents Nos. l and 2.

Ghulam Mustafa, Asstt. Secretary, PMDA.

Date of hearing: 11th April, 2000.

2000 P L C (C.S) 1127

[Lahore High Court]

Before Ali Nawaz Chowhan, J

MUHAMMAD IQBAL and 11 others

versus

SUPERINTENDENT OF POLICE, KHANEWAL and another

Writ Petition No.7219 of 1999. heard on 10th February. 2000

Police Rules, 1934---

----Rr. 13.1 & 13.7---Constitution of Pakistan (1973), Art. 199---Violation of principle of natural justice---Effect---Deletion of names from promotion list---Constitutional petition---Confirmed Police Constables were enlisted in promotion list after their examination---Superintendent of Police who had drawn said list, forwarded same to Deputy Inspector-General of Police for approval as required under 8.13.7 of Police Rules, 1934---Deputy Inspector­-General of Police annulled entire examination result holding that examination was not properly conducted---Deputy Inspector-General' of Police deleted names of Constables from said list without affording them opportunity of hearing---Validity---Inclusion of names of constables in promotion list had given rise to an, expectation for promotion to higher grade which had created vested right in their favour--­Deputy Inspector-General of Police as Controlling Authority could review promotion list sent to him for approved, but he had no authority to pass any adverse order through deletion of successful candidates from the list even on ground of corrupt examination result without affording opportunity of, hearing to the persons enlisted---Principle of natural justice having been violated order of Deputy Inspector-General of Police was declared illegal and not sustainable in law by High Court in exercise of its Constitutional jurisdiction.

Ashraf Ahmed Qureshi's case 1992 PLC (C.S.) .898; Iftikhar Ahmed and others' case 1989 CLC 66; Ghulam Mustafa v. Islamic Republic of Pakistan and another 1982 CLC 1665 and Dr. Umar Ali v. N.-W.F.P. and 2 others 1984 PLC (C.S.) 1569 ref.

Syed Aqa Asaf Jaffary for Petitioner. Tahir Haider Wasti, Addl. A.-G. for Respondent.

Date of hearing: 10th February, 2000.

2000 P L C (C.S.) 1142

[Lahore High Court]

Before M. Javed Buttar, J

MUNICIPAL COMMITTEE, PASROOR through Chairman and others

versus

COMPENSATION COMMISSIONER/AUTHORITY, SIALKOT and 4 others

Writ Petitions Nos. 12349 to 12352 of 1997, decided on 4th October, 1999.

(a) Payment of Wages Act (IV of 1936)--

----S. 17---Industrial Relations Ordinance (XXIII of 1969), S. 38(3-a)--- Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Maintainability---Award made by Authority under Payment of Wages Act, 1936 in favour of employees---Validity---- Petitioner had remedy of appeal under S.17 of Payment of Wages Act, 1936 before Labour Court and on failing thereof a further remedy of revision under S.38(3-a) of Industrial Relations Ordinance, 1969 before Labour Appellate Tribunal---Petitioner having failed to avail alternate; adequate and efficacious remedies,' available to him, Constitutional petition filed by him was not maintainable.

Town Committee, Ghakar Mandi, Gujranwala v. Authority Under the Payment of Wages Act and 57 others 1998 SCMR 1382; Ghafoor Textile Mills Ltd., Karachi v. Fazal Imam and another PLD 1981 Kar. 534 and I.C.I. Pakistan Ltd. v. Punjab Labour Court and others 1999 PLC 13 ref.

(b) Payment of Wages Act (IV of 1936)---

----Ss. 15 & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Claim of wages---Power of authority to entertain time-barred application--- Petitioner (employer) had contended that since claim of employees was time-barred, Authority had no jurisdiction to award decree in their favour---Contention of employer was repelled because Authority was empowered to entertain even a time-barred application for settling a claim for wages---Authority also had jurisdiction. to decide question of limitation--­Finding on .question of limitation being not without jurisdiction or in excess of jurisdiction, same would not warrant interference by High Court in exercise of Constitutional jurisdiction.

Divisional Superintendent, Pakistan Railways, Karachi v. Sindh Labour Court No.V, Karachi and 2 others 1988 PLC 648 ref. .

Malik Muhammad Azam Rasool, Advocate..

Ghulam Haider AI-Ghazali, Addl. A.-G.

Abdul Latif Chaudbry for Respondents Nos. 2 to 5.

2000 P L C (C.S.) 1148

[Lahore High Court]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

AHMAD SHUJA, SUPERINTENDENT and 160 others

versus

GOVERNMENT OF PUNJAB

through Secretary, Finance Department, Civil Secretariat, Lahore and another.

Writ Petition No. 9111 of 1991, decided on 7th February 2000.

(a) Punjab Secretariat Allowance (Withdrawal) Act (I of 1998)---

----S. -2---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Grant of Secretariat Allowance---Withdrawal of---Petitioners who were employees of Secretariat Office of Advocate-General, Punjab had prayed for payment of Secretariat Allowance granted by Government to its employees ---Pending the Constitutional petition, Punjab Secretariat Allowance (Withdrawal) Act, 1998 was promulgated which had abolished Secretariat Allowance with retrospective effect in the sense that letter whereby Secretariat Allowance was granted was deemed to have never been issued--­Subsection (2) of S. 2 of the said Act had further provided that letter granting Secretariat Allowance would be deemed not to have created any right in favour of any person nor Government would have any liability to pay Secretariat Allowance on basis of said letter---Petitioners in view of said enactment, could not claim payment of -any Secretariat Allowance.

(b) Interpretation of statutes----

---- Past and closed transactions---Re-opening of---Past and closed transactions should not be allowed to be re-opened.

(c) Interpretation of statutes---

---- Statute though was presumed to be prospective in nature and as far as possible should be interpreted in a manner which would not result in destructive of vested eight, but Legislature was competent to legislate retrospectively and while doing so, it could take away vested right provided language used by Legislature was clear, unambiguous and explicit.

Haider Automobile Ltd. v. Pakistan PLD 1969 SC 623 ref.

Dr. A. Basit for Petitioners.

Ghulam Haider Al.-Ghazali, Addl. A.-G. assisted by Ijaz Ahmad

Date of hearing: 30th September, 1999.

2000 P L C (C.S.) 1165

[Lahore High Court]

Before Tanvir Ahmad Khan, J

Qazi MUHAMMAD ANWAR BARLAS

versus

FEDERATION OF PAKISTAN

through Secretary Cabinet Secretariat Establishment Division, Islamabad and another

Writ Petition No. 13038 of 1994, heard on 1st March, 2000.

(a) Constitution of Pakistan (1973)---

----Arts. 199 & 270-A---Provisional Constitution Order (1 of 1981), Art. 13-A---Removal from Service (Special Provisions) Regulation (M.L.R. No.58)---Constitutional jurisdiction of High Court---Vines of action taken under M.L.R. No.58 and the actions protected by Art.13-A of Provisional Constitution Order, 1 of 1981---Jurisdiction of, superior Courts ---Ouster--­Extent---Jurisdiction of superior Courts to go into the vires of such actions had not been completely ousted under the provision of Art.270-A of the Constitution.

Federation of Pakistan v. Malik Ghulam Mustafa Khan PLD 1989 SC 26 ref.

(b) Constitution of Pakistan (1973)---

----Art.199---Improper Acquisition of Property (Special Committee) Ordinance (IX of 1969), S.5---Removal from Service (Special Provisions) Regulation (M.L.R. No.58), para. 3---Constitutional petition---Civil service---Reinstatement---Compliance of order of Service Tribunal--­Petitioner was dismissed from service by Military Authorities on the basis of inquiry conducted under S.5 of Improper Acquisition of Property (Special Committee) Ordinance, 1969---Federal Service Tribunal set aside the order of dismissal but the Authorities did not reinstate the petitioner under the garb of para. 3 of M.L.R. 58---Proceedings conducted by the Military Tribunal did not at all conform to the provisions of M.L.R. 58---Petitioner was not given fair chance to meet the allegations levelled against him and no witness was allowed to participate in the proceedings in support of his defence--­Validity---Where the Military Tribunal already had a secret list which was earlier prepared by the Martial Law Authorities wherein even the punishment proposed to be given to the petitioner was mentioned, the whole exercise in the presence of such a list was mala fide ---Mala fide action being no action under law and no sanctity whatsoever, being attached to same, High Court directed the Authorities to implement the order of Service Tribunal reinstating the petitioner.

S.A. Rizvi v. Islamic Republic of Pakistan and others 1992 SCMR 1309; Federation of Pakistan through Secretary, Establishment Division, Islamabad v. Sh. Abdul Aziz 1998 SCMR 91; Federation of Pakistan and others v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; M. Yasmin Qureshi v. Islamic Republic of Pakistan and others PLD 1980 SC 22; Islamic Republic of Pakistan v. S.A. Rizvi 1992 SCMR 1309; Abdul Rauf v. Abdul Harneed Khan PLD 1965 SC 671; Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151 and State v. Ziaur 1ehman PLD 1973 SC 49 ref.

(c) Constitution of Pakistan (1973)---

----Art.199---Constitutional petition---Lathes---Effect---Petitioner, a Government servant was dismissed from service, he rushed to every available forum for the redressal of his grievance--Service Tribunal reinstated the petitioner into service---Petitioner trade several representations before the Authorities for implementation of the order of the Service Tribunal but to no avail---Effect---Where the petitioner was vigilant for availing the relief, doctrine of laches would not be attracted.

S.A. Rizvi v. Islamic Republic of Pakistan through Secretary, Establishment Division and 2 others 1991 MLD 1834 ref.

(d) Constitution of Pakistan (1973)----

----Arts. 199 & 212---Constitutional petition---Civil service--.-Bar placed by Art. 212 of the Constitution on the Constitutional jurisdiction of High Court---Scope---Petitioner had gone twice before the Federal Service Tribunal and ultimately succeeded in obtaining the final order of his reinstatement into service---Order of the Service Tribunal had not been implemented in spite of passage of two decades ---Dismissal of the petitioner from the service was a result of action taken under M.L.R. 58---Such action was totally mala fide and was a smoke screen simply to give a colour of validity to a pre-determined decision---Case of the petitioner was identical to that of Sheikh Abdul Aziz and others (1998 SCMR 91)---Petition was allowed accordingly.

Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 distinguished.

Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Sheikh Abdul Aziz 1998 SCMR 91 fol.

Muhammad Rashid Bhatty for Petitioner. Khawaja Saeed-uz-Zafar, Dy.-A.-G. for Respondents

Date of hearing: 1st March, 2000.

2000 P L C (C.S.) 1214

[Lahore, High Court]

Before Sh. Amjad Ali, J

MAQSOOD AHMED TOOR and others

versus

FEDERATION OF PAKISTAN and another

Writ Petitions Nos. 1427 of 1997 and 1064 of 1999, heard on 24th May, 1999., (a) Interpretation of statutes---

----Principles---Subordinate legislation, including rules, notifications and instructions, could not override provision of main statute---Even a beneficial notification could not be inconsistent with the provisions of main statute.

(b) Pakistan Postal Services Corporation Ordinance (XIII of 1995)---

----Ss. 5 & 34---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan (1973), Art. 199---Status as civil servant ---Determination--­Eligibility to allotment of plot for civil servants---Petitioners were employees of Pakistan Post Office Department but after promulgation of Pakistan Postal Services Corporation Ordinance, 1995 when said Department was converted into a Corporation, petitioners had become employees of Pakistan Postal Services Corporation---President of Pakistan through notifications subsequently issued dissolved Pakistan Postal Service Corporation whereby Corporation was reverted into its status quo ante as it existed before promulgation of Pakistan Postal Services Corporation Ordinance, 1992 and petitioners had retained status of civil servants---During existence of said Ordinance, a scheme for allotment of plots was floated for allotment to civil servants and petitioners claimed themselves to be eligible for said allotment being civil servants---Validity---Petitioners were though civil servants but after promulgation of Pakistan Postal Services Corporation Ordinance, 1995 which remained in force at the time when scheme for allotment of plots was floated, petitioners had become employees of Corporation who retained said status even at the time when was in field---Petitioners who at time were employees of Corporation were not civil servants and were not eligible for allotments plots which was meant for civil servants---Administrative subsequently issued by President of Pakistan even if beneficial could not be given retrospective effect.

Salahuddin and 2 others v. Frontier Sugar Mills and . Ltd., Takht Bhai and 10 others PLD 1975 SC 244; Collector of Karachi and others v. Messrs New Electronics (Pvt.) Limited and PLD 1994 SC 363; Government of Punjab v. Zia Ullah Khan and 2 others 1992 SCMR 602; Muhammad Akhtar Hussain and 4 others v. Government of West Pakistan .and 454 others PLD 1970 SC 146; Messrs Army Welfare Sugar Mills Ltd. and others v: Federation of Pakistan and others 1992 SCMR 1652; Khan Faiz Ullah Khan v. Government of Pakistan and another PLD 1974 SC 291; Muhammad Suleman and another v. Abdul Ghani PLD 1978 SC 190 and Taj Mahal Hotel Ltd. and others v. Karachi Water and Sewerage Board and others 1997 SCMR 503 ref.

(c) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction, exercise of---Decision of Authority below not suffering from any legal infirmity, would not warrant interference of High Court in exercise of its Constitutional jurisdiction.

Abdur Rashid Awan for Petitioner. Ch. Afrasiab Khan, Standing Counsel for Respondent No. 1. Khalil-ur-Rehman Abbasi for Respondent No.2.

Date of hearing: 24th May, 1999.

2000 P L C (C.S:) 1260

[Lahore High Court]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

Mst. AZIZ FATIMA

versus.

PUNJAB PUBLIC SERVICE COMMISSION and 4 others

Intra-Court Appeal No.429 of 2000, decided on 8th June, 2000.

(a) Civil service--

---Reversion-----Civil servant was appointed on recommendations of Public Service Commission, but subsequently when the Commission found that civil servant had secured selection on basis of bogus degree, proceedings were initiated against him and after issuing show-cause notice and hearing him, Commission, withdrew its recommendation on allegation of furnishing wrong information, whereupon Authority reverted the civil servant from post---Constitutional petition filed before High Court against the reversion was dismissed being incompetent---Validity---Order withdrawing recommendations of Public Service Commission and reverting appointment of civil servant, were passed after providing personal hearing to civil servant and after applying independent mind - by the Commission and Authorities---Civil servant who was found guilty. of offence had failed to bring on record any material against the Commission and Authorities to show any malice---Civil servant was rightly reverted in circumstances.

Dr. Muhammad Suleman Waris's case PLD 1997 SC 382; Muhammad Himayatullah Farukhi's case PLD 1969 SC 407; Saeed Ahmad Khan's case PLD 1974 SC 151; Amanullah Khan's case PLD 1990 SC 1092 and Saeed Nawaz's case PLD 1981 Lah. 371 ref.

Akhtar Mir's case 1984 SCMR 433 ref.

(b) Locus poenitentiae, principle of---

----Applicability---if order was illegal, then perpetual rights could not be gained on basis of such illegal order and principle of locus poenitentiae would not be attracted in that case.

Jalal-ud-Din's case PLD 1992 SC 207 ref.

(c) Constitution of Pakistan (1973)---

----Art.199---Constitutional jurisdiction of High Court---Scope---High Court had no jurisdiction to substitute its own finding in place of finding of Tribunal below while exercising power under Art.199 of Constitution of Pakistan (1973).

Mussaduq's case PLD 1973 Lah. 600; Ghulam Rasool's case PLD 1971 SC 376 and Mirza Irraz Baig's case 1992 SCMR 2430 ref.

(d) Administration of justice-

---- He who had sought equity, must come with clean hands.

Ghulam Mustafa's case 1983 SCMR 196; Nawabzada Ronaq Ali's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.

Muhammad Iqbal Khan Khichi for Appellant. Ch. Ijaz Ahmad, Addl. A.-G.

2000 P L C (C.S.) 1266

[Lahore High Court]

Before Ch. Ijaz Ahmad and Muhammad Zafar Yasin, JJ

M. ISMAIL SHAHID, NAIB-TEHSILDAR, LAHORE CANTT., LAHORE

versus

SENIOR MEMBER (REVENUE), BOARD OF REVENUE, SECRETARY TO THE GOVERNMENT OF THE PUNJAB REVENUE DEPARTMENT, LAHORE and 2 others

Intra-Court Appeals Nos.273, 274 and 275 of 2000 in Writ Petition No.2207 of 2000, decided on 20th April, 2000.

Punjab Civil Servants Act (VIII of 1974)----

----S.21---Promotion---In order to fill up vacancies of 'B' Class Naib­ Tehsildars from quota of 12 % by promotion through selection, Divisional, Selection/Promotion Committee, recommended selection of candidates for promotion of said post---Candidates on said recommendation, were appointed ---Persons who were also candidates for said posts but having been ignored by Divisional Selection Committee, had filed representation under S.21 of Punjab Civil Servants Act, 1974 before Senior Member (Revenue), Board of Revenue/Secretary who accepted same and remanded matter back to Commissioner for fresh decision---Appointees had challenged said representation contending that no representation was competent relating to determination of fitness of persons to hold a particular post or to be promoted---Validity---Case of both the parties fell under same category in which word "promotion' had been mentioned by Competent Authority which revealed that matter related to terms and conditions of service of appointees and others---Non-appointees, in circumstances, were well within their right to file representation under S.21 of Punjab Civil Servants Act, 1974.

1. Faqir Muhammad v. Secretary to Government of Agriculture Department and others 1987 SCMR 882; 1992 SCMR 365; Lal and others v: Commissioner, Lahore Division and others 1984 SCMR 623; I.A. Sherwani's case 1991 SCMR 1041 Ahmad Salman Warts v. Nadeem and 5 others PLD 1997 SC 382; Rana Muhammad Asif v The Secretary to Government of Punjab and others 1994 PLC (C.S ) 1331; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Nasir Khan v The District and Sessions Judge and others 1998 PLC (C.S.) 254; Iqbalt Ahmad Khan v The Commissioner, D.I. Khan and others 1996 PLC ,C.S) 212; S. Irshad-ur-Rehman v. Government of Pakistan .through Chairman and others 1993 PLC (C.S.) 39; Ashfaq Ahmed Qureshi v. Province of Punjab and others 1992 PLC (C.S.) 898; Muhammad Yar Buttar and 4 others v. Board of Governors 1999 SCMR 819; Abid Mahmood v, Government of Pakistan and 241 others 1996 PLC (C.S ) 1061, Muhammad Haroon v. District Food Controller 1'-80 SCMR 720, Mst. Karim Bibi and others v. Hussain Bux and another P.-.D 1984 SC 344 and Muhammad Abdullah v. Deputy Settlement Commissioner Central I, Lahore PLD 1985 SC 107 ref.

M S. Baqir for Appellant

2000 P L C (C. S.) 1276

[Lahore High Court]

Before Maulvi Anwarul Haq and Nasim Sikandar, JJ

THE DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, MULTAN

versus

PUNJAB LABOUR APPELLATE TRIBUNAL, LAHORE and others

Writ Petition No. 1398 of 1978, heard on 21st March, 2000.

Payment of Wages Act (IV of 1936)---

----Ss.15 & 17---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Application by employee under S.15 of Payment of Wages Act, 1936 for recovery of overtime dues having been accepted by Commissioner, employer filed appeal against order of Commissioner before Labour Court under S.17 of the said Act---Contention of employee was that employer in filing appeal had not complied with provisions under S.17(1)(a) of Payment of Wages Act, 1936,as employer, instead of depositing decretal amount in cash, had submitted cross-cheque for the said amount---Proviso to S.17(1)(a) of Payment of Wages Act, 1936 did not contemplate deposit of decretal amount in cash---Finding of Labour Appellate Tribunal that cheque was not an "amount" as mentioned in proviso to the said section was not correct interpretation of the provision of law nor it reflected correct factual situation---Right of appeal could not be taken away on far-fetched technicalities nor a party could be shut out on basis of conjectures and surmises---Deposit of decretal amount though was a condition precedent for filing of appeal, but a cross-cheque issued for that purpose could not be thrown away on taking the view that it could not be taken to be the "amount" payable under the direction appealed against--­Order of Labour Appellate Tribunal was set aside by High Court; in circumstances.

Gulzar Ahmad Alvi for Petitioner.

Nemo for Respondents. .

Date of hearing: 21st March, 2000.

2000 P L C (C.S.) 1297

[Lahore High Court]

Before M. Javed Buttar and Syed Zahid Hussain, JJ

GHULAM HUSSAIN and 12 others

versus

DISTRICT EDUCATION OFFICER (E.E.) (M), DISTRICT TOBA TEK SINGH and 5 others

Intra-Court Appeal No.908 and Writ Petition No.5535 of 1997, heard on 16th October, 1999.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R.4---Civil service---Appointment---Cancellation---Appointment of civil servants and their subsequent adjustment in their Home Markaz was called in question in Constitutional petition which was allowed by High Court declaring appointments of civil servants to be without lawful authority and ab initio void---Validity---Evidence on record had proved that civil servants were appointed by Competent Authority after observation of all formalities and not by order of Minister concerned as alleged by respondents---Record shad also shown that civil servants were fully qualified to be appointed for respective posts and it was nobody's case that they did not have merits to be appointed---Initial irregularities, in appointment, if any, having been rectified by Competent Authority, even before institution of Constitutional petition by respondents, cancellation of appointments of appellants, declaring ab initio void, through issuance of a writ, was not warranted---Order of High Court passed in Constitutional petition was set aside by High Court in Intra­-Court appeal.

Noor Muhaminad Awan for Appellants.

Muhammad Zaheer Butt for Respondent No.5.

Aftab Raheem for Respondent No.6.

Date of hearing: 26th October, 1999.

2000 P L C (C.S.) 1343

[Lahore High Court]

Before M. Javed Butter and Sheikh Abdul Razzaq, JJ

MUHAMMAD TARIQ SHARIF

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Women Development Social, Welfare and Special Education, Islamabad and 3 others

Intra-Court Appeal No.26 of 2000, decided on 31st May, 2000

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Law Reforms Ordinance (XII of 1972), S.3---Promotion---Constitutional petition.--­Competency---Civil servant through Constitutional petition had alleged that he being employee of National Training Centre for Disabled Persons, his service was to be governed by National Training Centre for Disabled Persons Recruitments Rules, 1988 notified under S.R.O. 1194, dated 22-12-1988 and hat he had not been given promotion to B.P.S.19 as Director according to he rules---Matter raised in the Constitutional petition was purely a matter elating to terms and conditions of service of petitioner which could be urged through appeal under S.4 of Service Tribunals Act, 1973, before service Tribunal---Constitutional petition, in circumstances was incompetent.

Afnan Karim Kundi for Appellant.

Qazi Ahmad Naeem Qureshi for Respondents.

2000 P L C (C.S.) 1348

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

JAVED IQBAL BAJWA

versus

CHAIRMAN, PUNJAB LOCAL GOVERNMENT BOARD, SECRETARY TO GOVERNMENT OF THE PUNJAB, LOCAL GOVERNMENT AND RURAL DEVELOPMENT PUNJAB, LAHORE and 2 others

Writ Petition No.556 of 2000, heard on 27th June, 2000:

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 21---Constitution of Pakistan (1973); Art.199---Constitutional petition--- Maintainability---Petitioner/civil servant who was taken on deputation for three years, was repatriated to his parent Department prior to expiry of said period--- Validity---Deputation order contained terms and conditions to the effect that civil servant would not seek extension in deputation; that he would not apply for absorption in transferee department and that he would not resort to Courts for abovesaid purpose---Petitioner had filed a Constitutional petition on the same subject at an earlier occasion which fact was concealed by him in the present petition---Petitioner, in circumstances had not approached the High Court with clean hands--- Petitioner having no vested right to continue on deputation Constitutional petition was not competent in circumstances.

Nawabzada Ronaq Ali's case PLD 1973 SC 236; Rana Muhammad Arshad's case 1998 SCMR 1462; Zahid Akhtar's case PLD 1995 SC 530; Pakistan v. Fazal-ur-Rehman' PLD 1959 SC 82; Pakistan v. Moazzam Hussain Khan and another PLD 1959 SC 13; Sh. Abdur-Rahim's case PLD 1964 Lah. 376; Abdul Khaliq Anjum's case 1998 PLC (C.S.) 839; Government of Punjab v. Prof. M.A. Saeed C.P. No.427-L of 1991; G.M. Malik's case 1990 CLC 1783; Wali Muhammad's case PLD 1974 SC 106; Khadim Hussain's case 1973 SCMR 127; Abdur Rashid's case 1969 SCMR 141; Army Welfare's case 1992 SCMR 1652 and Jalal-ud-Din's case PLD. 1992 SC 207 ref.

(b) Administration of justice-

---- Allegation of malice---General allegations of malice was not sustainable id of law.

Saeed Ahmed Khan's case PLD 1974 SC 151 and Aman-Ullah's case PLD 1990 SC 1092 ref.

Muhammad Yousaf Asim for Petitioner.

Dr. M. Mohyud Din Qazi for Respondents.

Date of hearing: 27th June, 2000.

2000 P L C (C.S.) 1355

[Lahore High Court]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

ARSHAD AHMAD KHAN

versus

THE CHAIRMAN, BANK OF PUNJAB, LAHORE and 2 others

Writ Petition No.7655 of 2000, decided on 28th July, 2000.

(a) Bank of Punjab Act (XII of 1989)----

----S.25---Constitution of Pakistan (1973) Art.199---Termination of service of Bank employee---Constitutional petition---Maintainability---Services of petitioners having been terminated by Bank, they had filed Constitutional petitions against such termination---Board of Directors of the Bank framed service Bye-laws under powers conferred on the Board under S.25 of Batik of Punjab Act, 1989, but Bye-laws did not receive formal approval of the Government which was necessary---Service Bye-laws could not be considered statutory rules---Unless a particular service or employment was governed by statutory rules, no Constitutional petition could be maintained to re-instate a servant who allegedly was wrongfully dismissed or removed from service--­Constitutional petition thus was not maintainable.

(b) Bank of Punjab Act (XII of 1989)----

----S.25---Service Bye-laws---Status---Board of Directors of Batik under powers conferred under S.25 of Bank of Punjab Act, 1989 framed Bye-laws regarding recruitment and terms and conditions of employment of officers of the Bank, but the Bye-laws did not receive formal approval of Government which was necessary for making the Bye-laws as statutory rules---Bye-laws would not have force of statutory rules or regulations in absence of approval of Government which was necessary to give said bye-laws status of statutory rules.

Mrs. Anisa Rehman v. Pakistan International Airlines Corporation, and another 1994 SCMR 2232; A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; Anwar Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194; Shahid Khalil v. PIAC 1971 SCMR 568; Raziuddin v. Chairman, PIAC PLD 1992 SC 531; KDA and another v. Wall Ahmad Khan and' others 1991 SCMR 2434; ADBP and 2 others v. Muhammad Sharif 1998 SCMR 597; Muhammad Umar Malik v. Muslim Commercial Bank 1995 SCMR 453 and Habib Bank Limited v. Zia-ul-­Hassan Kazmi 1998 SCMR 60 ref.

Zahid Malik for Petitioner.

Ali Sibtain Fazli, Imran Aziz Khan, Naser Ahmed and Muhammad Asif Piracha for Respondents.

Date of hearing: 3rd July, 2000.

2000 P L C (C.S.) 1360

[Lahore High Court]

Before Dr. Munir Ahmad Mughal, J

ASIF PETER

versus

DIRECTOR-GENERAL, MDA, MULTAN and other

Writ Petition No.3329 of 1998, decided on 2nd November, 1998

Punjab Development of Cities Act (XIX of 1976)---

----Ss.4, 7, 9 & 44---West Pakistan General Clauses Act (XI of 1956), S.2(55)---Service Tribunals Act (LXX of 1973), S.2-A---Constitution of Pakistan (1973), Art. 199---Removal from service---Constitutional petition--­ Maintainability of---Authority contended that petitioner was a civil servant and matter of his removal from service related to terms and conditions of service and that High Court in exercise of its Constitutional jurisdiction had no jurisdiction in presence of alternate efficacious remedy of appeal before Appellate Authority---Petitioner who was employee of the Authority which was a "statutory authority" could not be considered a civil servant--­ Constitutional petition filed by petitioner was maintainable in view of specified allegation of violation of statutory rules under which he had been given right to be heard before imposing on him 'penalty of removal from service---Petitioner was removed from service without holding any inquiry required by law and without conveying him of said decision---Petitioner having been condemned unheard which was a clear violation of statutory' rules governing petitioner and principle of natural justice High Court accepted Constitutional petition, set aside order of his removal from service declaring the same to be illegal and without lawful authority.

Muhammad Saeed Ahmad Khan and 2 others v. Secretary to Government of the Punjab, Housing and Physical Planning Department and 3 others PLD 1983 Lah. 206; Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170 and Mst. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 ref.

Muhammad Ameer Bhatti for Petitioner.

Mehr Muhammad Naeem Arshad and Khadim Nadeem Malik, Addl. A.-G. for Respondents Nos. 1 and 2.

Respondent No.3 in person.

Date of hearing: 2nd November, 1998.

2000 P L C (C.S.) 1369

[Lahore High Court]

Before Ihsan-ul-Haq Chaudhry, J

Ch. IKRAMULLAH KHAN

versus

WATER AND POWER DERELOPMENT AUTHORITY and others

Writ Petition No. 6716 of 1998, heard on 12th May, 1998, Constitution of Pakistan (1973)--

----Art. 199---Transfer of civil servant---Constitutional petition--­Maintainability---Civil servant was transferred and appointed as O.S.D.--- Validity---Transfer and posting of civil servant as O.S.D. was a matter of terms and conditions of service and action against civil servant was taken on account of serious allegations---Civil servant, who had no vested right to remain posted at a particular place or post, his Constitutional petition was dismissed being meritless.

Pakistan v. Muazzam 'Hussain Khan and another PLD 1959 SC 13 ref.

Irfan Qadir for Petitioner.

Aurangzeb for Respondent No. 1. Sher Zaman, Dy. A.-G. for Respondents Nos.2 to 6.

Date of hearing: 12th May, 1998.

2000 P L C (C.S.) 1373

[Lahore High Court]

Before Karamat Nazir Bhandari, J

MUHAMMAD KHALIQ

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, FAISALABAD and another

Writ Petition No. 20095 of 1998, heard on 12th November, 1999.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4---Constitution of Pakistan (19'73), Arts.13 & 199---Misconduct--­Order of withholding of increment of one year---Civil servant alongwith co­-official was proceeded against on charge of misconduct and was imposed minor penalty of withholding of annual increments for one year and that order had attained finality ---Co-official who was imposed major penalty of removal from service, filed Constitutional petition against said order and case was remanded to be decided afresh---Authority constituted Enquiry Committee to make fresh enquiry into the matter which re-opened the case of civil servant as well and summoned him---Civil servant challenged the order of Enquiry Committee in Constitutional petition---Validity---Civil servant having been punished once by imposition of minor penalty -and that action having attained finality, by no principle of law same matter could be re­opened for purpose of imposing a higher penalty even on the ground that discovery of fresh material had pointed to the grave misconduct of civil servant---Initiation of fresh proceedings against civil servant on same facts and charges, was declared to be illegal by High Court.

The Director-General (Field), Agricultural Development Bank, Lahore and another v. Haji Abdul Rehman 1989 SCMR 1224 ref.

Malik Noor Muhammad Awan for Petitioner. Dr. M. Mohy-ud-Din Qazi for Respondents.

Date of hearing: 12t1f November, 1999.

2000 P L C (C.S.) 127

[Peshawar High Court]

Before Mrs. Khalida Rachid, J

FARHAD ALI SHAH

Versus

ADMINISTRATOR, TOWN COMMITTEE, SWABI and 2 others

Writ Petition No. 125 of 1999, decided on 21st October, 1999.

Civil service---

---- Entitlement to get additional charge of Branch Office---Competency---Petitioner appointed as Octroi Moharrir was given Selection Grade BPS-7 and subsequently was moved over to BPS-8---Upon retirement of Octroi Inspector and Superintendent, civil servant was directed to take over charge of Taxation Branch in his own pay and scale---When other person was directed to take over charge of supervision of main office of Taxation 3ranch, civil servant approached High Court by filing Constitutional petition or declaration of said order as illegal, void and without lawful authority Civil servant also prayed for issuance of direction to Authority to hand over o him additional charge of Taxation Branch of main office ---Validity--­Civil servant could not explain as to how his vested right had been violated by not appointing him as Supervisor of Taxation Branch, whereas it was within absolute discretion of Competent Authority to hand over additional charge of any branch to any officer of Department proficient enough to its satisfaction---Constitutional petition was Dismissed with cost being not competent.

Fazal Illahi Khan for Petitioner.

2000 P L C (C.S.) 129

[Peshawar high Court]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

Syed ZAFFAR ALI SHAH and 44 others

Versus

GOVERNMENT OF N.-W.F.P. through Secretary Education, N.-W.F:P., Peshawar and 2 others

Writ Petitions Nos.75 and 76 of 1999, decided on 15th September, 1999.

(a) University Grants Commission Act (XXIII of 1974)---

----S. 13(d)---Equivalence Committee---Determining the equivalence of degrees, diplomas and certificates awarded by various Universities and Institutions of the world for the purpose of employment and admissions in Pakistan---Procedure---Such Committee decides each and every case on its merits---Equivalence is determined keeping in view duration of stay, intensity of the course, contents of the course and examination standards etc. ---Decisions of the Equivalence Committee are independent and weightage is given to its decision by all the Departments, Universities and Colleges.

(b) West Pakistan Education Department Subordinate Regional Service (Administrative Branch) (Men's Section) Rules, 1962---

----West Pakistan Education Department Subordinate Regional Service (Teaching and Administrative Branch) (Women's Section) Rules, 1965--­Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Appointment of Senior English Teachers---Exclusion of qualification of M.A. (Education) for such appointment---Preference given to the B.Ed. qualified person over M.A. (Education)---Validity---Degree of M .A. (Education) was equivalent to M.Ed. and B.Ed. qualification was a lesser qualification than M.A. (Education)---Omission to include M.A. (Education) for the post of Senior English Teachers was not reasonable and justified--­Candidates who were holders of M.A. (Education) degrees were entitled to apply, contest/compete in the ensuring tests and interviews for the posts of Senior English Teachers.

Haji Ghulam Basit and Abdul Rauf Khan Jadoon for Appellants.

Qazi Muhammad Ghazanfar, A.A.-G. for Respondents.

Date of hearing: 23rd June, 1999.

2000 P L C (C.S.) 166

[Peshawar High Court]

Before Mian Muhammad Ajmal and Malik Hamid Saeed, JJ

AMIN-UD-DIN AHMAD, PROJECT DIRECTOR, KOHAT

DEVELOPMENT AUTHORITY and 5 others

Versus

AFZAL SHAH, DIRECTOR (TECHNICAL), PROVINCIAL

URBAN DEVELOPMENT BOARD, C&W SECRETARIAT, PESHAWAR and 3 others

Writ Petition No.686 of 1995, decided on 6th July, 1999.

(a) Qanun-e-Shahadat (10 of 1984)---

----Art. 114---Limitation Act (IX of 1908), S. 3---Illegal act---Principle of estoppel ---Application---Illegal acts would remain illegal and would not become legal with efflux of time---Principle of estoppel or limitation, would not apply to illegal acts.

(b) North-West Frontier Province Civil Servants (Regularisation of Ad hoc Service) Act (VII of 1988)---

----S. 4---North-West Frontier Province Civil Servants Act (XVIII of 1973), S. 8(4)---Constitution of Pakistan (1973), Art. 199---Seniority--­Constitutional petition ---Maintainability---Principle of res judicata--­Applicability---Earlier Constitutional petition which sought issuance of writ of quo warranto was withdrawn---Petitioners in fresh Constitutional petition were not the petitioners in the earlier Constitutional petition and cause of action also had accrued to them later---Withdrawal of earlier Constitutional petition, would not make fresh Constitutional petition res judicata and petitioners could not be restrained from questioning the senior,4y of respondent.

(c) North-West Frontier Province Civil Servants (Regularisation of Ad hoc Service) Act (VII of 1988)---

----S. 4---North-West Frontier Province Civil Servants Act (XVIII of 1973), S. 8(4)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Seniority--- Determination---Petitioners initially recruited as Assistant Directors in BPS-17, were promoted to post of Deputy Director in BPS-18 whereas respondent was appointed subsequent to appointment of petitioners as Deputy Director in BPS-18 on ad hoc basis for six months which period was extended for another six months and thereafter, neither extension was granted to respondent nor he was freshly appointed--­Respondent despite being junior to petitioners and despite not being a regular employee at relevant time, was given seniority over petitioners as per tentative seniority list issued by the Authorities---North-West Frontier Province Civil Servants (Regularisation of Ad hoc Service) Act, 1988, had provided regularisation of services of ad hoc civil servants with prospective effect, but respondent who at relevant time was not even a civil servant had been regularised with retrospective effect which was outside the domain of said Act---Respondent who was subsequently regularised with retrospective effect would remain junior to petitioners who were in service on regular basis prior to respondent---Petitioners who were senior to respondent were entitled to be considered for promotion to post of Director in BPS-19 under relevant law and rules.

Jehanzeb Rahim for Petitioners.

Muhammad Sardar Khan and Sabahuddin Khattak for Respondents Nos. 2 and 4.

Date of hearing: 27th May, 1999.

2000 P L C (C.S) 263

[Peshawar High Court]

Before Sardar Muhammad Rata Khan and Muhammad Azam Khan, JJ

MUHAMMAD SALEEM, VICE-PRINCIPAL CADIT

COLLEGE, RAZMAK

Versus

CHAIRMAN, BOARD OF GOVERNORS, CADET COLLEGE, RAZMAK (GOVERNOR N.-W.F.P.) through Secretary, Education, Government of N.W.F.P. and 4 others

Writ Petition No.907 of 1993, decided on 20th May, 1999.

(a) Razmak Cadet College Regulation (II of 1977)---

----Para. 14---Razmak Cadet College Employees (Service) Rules, 1992, Rr.4 & 6---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Appointment of Principal---Advertisement for initial recruitment of Principal---Vice-Principal, who was eligible for the post of Principal by promotion under the Rules, having been recommended several times by the Board of Governors, claimed that he was entitled to be so appointed by promotion under the Rules---Validity---Perusal of R.4 of Razmak Cadet College Employees (Service) Rules, 1992 clearly indicated that the appointment of Principal of College had to be made by promotion and under R.7 the person who was to be so promoted, was the Vice-Principal with twelve years of service in B.P.S.17---Method of appointment has been made mandatory by the use of word "shall"---Petitioner was the Vice-Principal for a long time and had completely fulfilled the conditions of eligibility--- Respondents were directed to fill the post of Principal by promoting the petitioners who had all along been eligible for such promotion not as a matter of bounty but as a matter of right under Rr.4 &. 6, Razmak Cadet College Employees (Service) Rules, 1.992.

(b) Razmak Cadet College Employees (Service) Rules, 1992---

----R.3(a)---Appointment, of Principal---Recommendations of the Selection Board---Value---Chairman was bound to appoint the person as Principal recommended by the Selection Board.

(c) Razmak Cadet College Employees (Service) Rules, 1992---

----Rr. 1(d), (r), 4 & 6---Appointment of Principal---Initial appointment--­Appointment by promotion---Age limit---Column 6 of the Appendix to the Rules clearly defined that the maximum age limit of 45 years would be relevant and pertained to the initial appointment and it had nothing to do with appointment of Principal by promotion---If there was no person available for promotion under R. 4 of the Razmak Cadet College Employees (Service) Rules, 1992, then the post of Principal may be filled by initial appointment and in that case the maximum age limit shall be 45 years as per Appendix.

(d) Razmak Cadet College Employees (Service) Rules, 1992---

----S.4, proviso---Appointment of Principal---Appointment by promotion--­Initial appointment---Proviso to R.4 of the Rules means that initial appointment could only be resorted to when the circumstances were such that appointment by promotion could not be made---Word "failing promotion" did not mean that the appointing Authority disagrees to the promotion but it referred to a failure of the availability of an incumbent fit to be promoted as such under the requirements of R.6 of the Razmak Cadet College Employees (Service) Rules, 1992---Word "fail" certainly laid down that the act of initial appointment could only be resorted to when the act of appointment by promotion could not be performed.

Qazi Muhammad Anwar for Petitioner.

Khawaja Azhar Rashid, Asstt. A.-G. for Respondents.

Dates of hearing: 19th and 20th May, 1999.

2000 P L C (C.S.) 426

[Peshawar High Court]

Before Nasirul Mulk and Muhammad Azam Khan, JJ

NAZIR MUHAMMAD SHAH, DISTRICT SUPERINTENDENT, POST OFFICES, DIR, BUTKHELA

Versus

DIRECTOR-GENERAL, PAKISAN POST OFFICES, ISLAMABAD and another

Writ Petition No. 1436 and Civil Miscellaneous No. 1695 of 1999, decided on 6th October, 1999.

Constitution of Pakistan (1973)---

----Arts. 199 & 212(2)---Constitutional petition---Civil service---Exercise of Constitutional jurisdiction by High Court in matters related to terms and conditions of service--- Legality---Petitioner was an employee of Federal Government and was posted and transferred to different stations on almost seven occasions within a period of three and a half years---Jurisdiction of High Court to interfere---Where matter related to terms and conditions of service, High Court could not allow any relief in view of express provisions of Art.212(2) of the Constitution, as such matters fell within the exclusive jurisdiction of the Service Tribunal---Petition was dismissed in limine.

Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others 1997 SCMR 167 and Ayyaz Anjum v, Government of Punjab, Housing and Physical Planning Department through Secretary and others 1997 SCMR 169 rel.

Muhammad Latif for Petitioner.

2000 P L C (C.S.) 428

[Peshawar High Court]

Before Mian Muhammad Ajmal and Muhammad Azam Khan, JJ

Mian SHAUKAT SHAM and 25 others

Versus

N.-W.F.P. PROVINCIAL URBAN DEVELOPMENT BOARD, PESHAWAR through Chairman and 2 others

Amended Writ Petition No. 880 of 1995, decided on 30th September, 1999.

(a) Constitution of Pakistan (1973)----

----Art. 199---Constitutional petition---Civil service---Termination of service--- Appointments of petitioners were made on purely temporary basis and for a period so long as the project continued---Conditions in the appointment letters that the services would automatically terminate if the project was not extended or was reduced in size and the petitioners would have no right to be absorbed in service, had been accepted by the petitioners by giving an undertaking separately to the Authorities---No relief, thus, could be granted to the petitioners and the petition was dismissed in circumstances.

(b) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service---Temporary appointment, converting of into a regular appointment ---Validity--­Appointments of the petitioners were made only for a fixed period---With the expiry of such period, their right to continue in service came to an end, as those appointments were not for indefinite duration, or conditioned by the regular appointment of some other incumbent---Temporary appointment of the petitioners had no effect to convert the nature of such appointment into a regular appointment---.Petitioners were not entitled to any such protection against termination of their services where afflux of time fixed in the appointment letters itself would bring an end to such appointment---Petitions were. dismissed accordingly.

Muhammad Anwar and Riaz Ahmed Khan for Petitioner.

Said Rehman Khan and M. Manzoor Hussain, A.A.G. for Respondent.

Dates of hearing: 22nd, 23rd and 24th June, 1999,

2000 P L C (C.S.) 520

[Peshawar High Court]

Before Mian Muhammad Ajmal and Tariq Parvez, JJ

Miss RAZIA SULTANA, LECTURER

Versus

CELLOR, PESHAWAR UNIVERSITY, PESHAWAR and 4 others

Writ Petition No. 990 of 1996, decided on 22nd December, 1999.

(a) University of Peshawar Service Statutes, 1977--

----Ss. 11, 12 & 13---Civil service---Confirmation of appointment after completion of probation period---Where period of probation was not extended nor any extension was ever communicated to employee and no order of confirmation was passed, in absence of any adverse communication to the employee, it had to be presumed that period of initial probation was satisfactorily completed and confirmation of employee thus was to follow.

(b) University of Peshawar Service Statutes, 1977---

----S. 11(c)----Extension of period of probation---University Authorities, though had been empowered under S.11(c) of University of Peshawar Service Statutes, 1977 to extend period of probation of employee to a further period of two years but said extension was bound to take effect immediately on completion of first probation period---No provision in the Statutes existed to extend period of probation by giving it retrospective effect especially when it was not adversely communicated---Employee having already completed her first probationary period, further extension of probationary period at a belated stage would be a nullity in law.

(c) University of Peshawar Service Statutes,, 1977----

----Ss. 11, 12, 13 & 23---Constitution of Enquiry Committee---Enquiry Committee, constitution of which was assailed by employee, was not constituted to probe into some disciplinary matter nor for looking into a show-cause notice served upon employee as to any charge of misconduct, but the very object of said Committee was to find out facts regarding allegations and counter-allegations made by employee against co-employee and vice versa and domain of enquiry was limited to that extent---Enquiry Committee was not constituted under University Statutes, but wars a body formulated to amicably bring about settlement between two employees of the University--­Where any such Enquiry Committee or a body was constituted not to give its finding regarding guilt or innocence of employee, but was restricted about facts finding. mission, its reports were mere recommendations and no disciplinary action was to be taken against person against whom said Enquiry Committee was constituted---Employee having disassociated herself from the Enquiry Committee, no proceedings were held by the Committee---In absence of any enquiry or proceedings by the Committee the very formation or constitution of the Committee, could not be assailed.

(d) Civil service--

---- Promotion---Entitlement---Mere prospects of promotion of a particular incumbent holding a particular position; would not provide a substantive right to incumbent as promotion was always subject to seniority-cam-fitness, which was discretionary with the concerned Authorities.

Javed A. Khan for Petitioner.

M. Sardar Khan for Respondents.

Date of hearing: 3rd November, 1999.

2000 P L C (C.S.) 803

[Peshawar High Court]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

MUHAMMAD YOUSAF

Versus

ADMIDIISTRATOR, MUNICIPAL COMMITTEE, MANSEHRA and 3 others .

Writ Petition No. 148 of 1997, decided on 1st March, 2000., Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Termination of service---Petitioner was employed in BPS-1 initially as machine operator and subsequently as Naib Qasid"---Authority terminated the services of petitioner on the ground that appointment was irregular---Validity---Rules were violated at the time of appointment of petitioner by the Authority and not by the petitioner---Instead of taking action against the official who appointed the petitioner in violation of rules, petitioner who was a poor man, had been punished---Petitioner had not been treated according to the policy of government though he fulfilled the requisite qualifications for the post against which he was appointed---No illegality or irregularity in the appointment of the petitioner having been found, Constitutional petition of employee was accepted.

Sardar Muhammad Irshad for Petitioner

A.A.-G and Khan Afzal Khan for Respondents. Date of hearing: 29th February, 2000.

2000 P L C (C.S.) 965

[Peshawar High Court]

Before Mrs. Khalida Rachid and Tariq Parvez, JJ

Dr. ABDUS SATTAR KHAN

versus

UNIVERSITY OF PESHAWAR through Registrar, Peshawar and 3 others

Writ Petition No.376 of 1996, decided on 11th May,.2000.

Civil service---

---- Dimissal from service---Re-instatement---Violation of principles of natural justice---Civil servant was dismissed from service on allegation of wilful absence from duty after holding enquiry against him---Enquiry against civil servant was held in his absence as he was not provided opportunity to be heard---Mere addressing a letter by Enquiry Officer describing himself to be Enquiry Officer and asking for explanation of civil servant, through a letter, could not be held to be a "show-cause notice" or "charge-sheet" nor reply of civil servant to said letter of Enquiry Officer could be treated equivalent to participation of civil servant in a lawfully initiated enquiry--­Order dispensing with services of civil servant on charge of wilful absence from duty could not be protected on mere ground that civil servant had earlier filed his written reply---Enquiry Officer having failed to comply with provisions of statutory rules in enquiry proceedings, order of dismissal from service based on said enquiry proceedings, could not sustain.

Jehanzeb Rahim for Appellant.

Muhammad Sardar Khan for Respondent No. l

Date of hearing: 9th May, 2000.

2000 P L C (C.S.) 1034

[Peshawar High Court]

Before Mian Muhammad Ajmal and Shahzad Akbar Khan, JJ

SHAFIUL MULK

Versus

CHAIRMAN, AGRICULTURE DEVELOPMENT

BANK OF PAKISTAN, ISLAMABAD and 5 others

Writ Petition No. 1284 of 1996, decided on 15th June, 1999.

Constitution of Pakistan (1973)-

----Art. 199---Civil service---Maxims "Ignorantia juris sui non praejudicat juri" and "ignorantia juris sui non praejudicat juri"---Meaning and applicability---Petitioner had claimed that he, after being tested and interviewed, was selected for post of typist, but letter of appointment prepared in his name was never served on him with mala fide intention to appoint other person at his place---Authorities had contended that petitioner had himself failed to report his arrival within a month of issuance of letter of appointment to him---Evidence on record had proved that letter of appointment was not conveyed to the petitioner and ensuing delay in reporting his arrival for resumption of duty could not be attributed to petitioner---High Court applying the principle of "Ignorantia praesuinitur ubi scientia non probatur (ignorance is presumed where knowledge is not proved), had benefited petitioner with a co-relative principle of "ignorantia juris sui non prejudicat juri (ignorance of one's right does not prejudice the right) and directed Authorities to extend time of joining duty by modifying-appointment order of petitioner enabling him to get relief.

M. Asif Khan for Petitioner.

Nazir Ahmad Awan and Muzammil Khan for Respondents.

Date of hearing: 15th June, 1999.

2000 P L C (C.S.) 1145

[Peshawar High Court]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

SHER ALAM

versus

GOVERNMENT OF N.-W.F.P.

through Secretary of Education, Peshawar and 2 others

Writ Petition No.30 of 1997, decided on 29th March, 2000.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Civil service ---Appointment—Petitioner had submitted application before Authority for his appointment as Chowkidar---Petitioner had claimed that land on which the school was constructed was gifted away by his father and that as per instructions in a letter facility of appointment of one child from his family in B.P.S. 1 to 4 was provided and that petitioner had fulfilled said qualification for appointment of .the post applied for---Application of petitioner was rejected by Authority on ground that there .was a bar on appointments but Authority ignoring the petitioner appointed another person during said bar which was utterly in violation of the rules---Person so appointed taken in service on the recommendation of M.P.A. without advertising and giving information in the area from where the recruitment was made---Appointment made it violation of rules and regulations was declared to be illegal and concerned Authority was directed to re-advertise the post and make appointment strictly in accordance with law.

Munawar Khan v. Niaz Ali 1993 SCMR 1287 ref.

Khan Afzai Khan for Appellant.

Muhammad Ayub Khan, Addl. A.-G. for Respondents Nos. l and 2. Syed Amjad Shah for Respondent No.3.

Date of hearing: 29th March, 2000.

2000 P L C (C. S.) 1270

[Peshawar Hugh Court]

Before Shahzad Akbar Khan, J

EXECUTIVE OFFICER, CANTONMENT BOARD, DERA ISMAIL KHAN and 3 others

versus

MUHAMMAD NAWAZ

Civil Revision No.65 of 1998; decided on 1st May, 2000, (a) Service Tribunals Act (LXX of 1973)----

----Ss.2-A & 4---Employees of Cantonment Board---Matters related to terms and conditions of service---Jurisdiction of Civil Court---Every person holding a post in Cantonment Board is deemed to be a civil servant for the purpose of Civil Servants Act, 1973 under the provision of S.2-A of Service Tribunals Act, 1973, which gives jurisdiction only to Service Tribunal in such matters---Civil Court has no jurisdiction/authority to deal with matters related to terms and conditions of an employee of Cantonment Board.

(b) Specific Relief Act (I of 1877)---

----S.42---Service Tribunals Act (LXX of 1973), Ss.2-A & 4---Suit for declaration--- Matter pertained to terms and conditions of service---Failure to avail remedy available under relevant law---Plaintiff, an employee of Cantonment Board had assailed his order of departmental promotion by filing a civil suit before Civil Court---Trial Court dismissed the suit whereas the Appellate Court allowed the appeal filed by the- plaintiff and the suit was decreed---Validity---Where the rules had provided for departmental appeal or representation the same had to be complied with and such remedy was to be exhausted---Neither any suit could be filed, nor any appeal before Service Tribunal was competent without exhausting such remedy---Such remedy having not been availed by the plaintiff any kind of judicial proceedings were not competent---Judgment and decree of the Appellate Court was not correct as it had proceeded on illegal premises, and the same was set aside in circumstances.

1999 SCMR 197; PLD 1999 SC 990=1999 PLC (C.S.) 1032 and 1999 SCMR 1689 ref.

Salahuddin Khan Gandapur for Petitioners Syed Zafar Abbas Zaidi for Respondent.

Date of hearing: 1st May, 2000.

2000 P L C (C.S.) 21

[Quetta High Court]

Before Amirul Mulk Mengal and Javed Iqbal, J

Dr. Haji MUHAMMAD SOMRO

Versus

PRINCIPAL, BALOCHISTAN RESIDENTIAL COLLEGE, LORALAI and 2 others

Constitutional Petition No. 10 of 1995, decided on 25th April, 1996.

Balochistan ,Model Residential Secondary Schools Ordinance (XVII of 1983)---

----S.8(2)(d)---Baluchistan Civil Servants (Efficiency and Discipline) Rules; 1992, Rr. 4 & 5---Constitution of Pakistan (1973), Art. 199.--Constitutional petition---Compulsory retirement---Petitioner who was appointed as Medical Officer (B-17), was retired from service on ground that his conduct and performance was not found satisfactory---Show-cause notice was issued by the Authority to petitioner and Enquiry Committee was constituted and on report of Enquiry Committee, firstly services of petitioner were terminated and then he was retired from service---Validity---Authority being empowered to appoint, suspend, terminate or dismiss staff from B-1 to B-16 in accordance with Balochistan Medical Residential Secondary School Ordinance, 1983, it was beyond its jurisdiction to remove petitioner who was in B-17---Retirement order was issued by Secretary of Provincial Government, but he being not Appointing Authority of the petitioner, his order carried no legal sanctity and only Chairman, Board of Governors of the Institution who was Appointing Authority of petitioner, was competent to pass retirement order---Petitioner who was neither appointed by Provincial Government nor through Public Service Commission, was not civil servant, thus, his terms and conditions of service could not be regulated or governed by Civil Servants Act or Rules framed thereunder---Institution had been constituted and was being run under Balochistan Model Residential Public School Ordinance, 1983 whereunder certain Rules and Regulations had been framed and petitioner who was also appointed under said Ordinance, his terms of services would be governed under such Rules and Regulations--­Procedures provided by Rules and Regulations framed under Balochistan Model Residential Public School Ordinance, 1983 having not been adopted at the time of retiring the petitioner from service, order of retirement was without jurisdiction---Discretion vested in any functionary, was to be exercised judiciously and not in an arbitrary and fanciful manner---Where a procedure had been prescribed, that procedure should be followed in letter and spirit till any exception was provided---Constitutional petition filed by petitioner was disposed of with direction that, representation made by petitioner before Authorities should be disposed of in accordance with relevant Rules and Regulations.

1986 SCMR 1063 ref.

Muhammad Aslam Chisthi for Petitioner. Raja M. Afsar for Respondent No. 1. Advocate-General for Respondents Nos. 2 and 3.

Date of hearing: 31st October, 1995.

2000 P L C (C.S.) 60

[Quetta High Court]

Before Iftikhar Muhammad Chaudhary, CJ, Javed Iqbal and Amanullah Khan Yasinzai, JJ

Dr. MUHAMMAD AYUB, MANAGER, GOVERNMENT, FARM, LORALAI

Versus

THE PROVINCE OF BALOCHISTAN through the Secretary, Government of Balochistan Lives-took and Dairy Development Department, Quetta

Constitutional Petition No.367 of 1998, heard on 26th May, 1999.

Balochistan Government (Rules of Business), 1976---

----Rr. 5 & 19---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, R.7-A---Constitution of Pakistan (1973), Arts. 212 & 199---Constitutional petition---Maintainability---Civil service---Transfer and demotion---Validity---Petitioner working, as Manager, Government Dairy Farm was transferred and posted as Acting Deputy Director, but only after about 1-1/4 months was transferred and demoted as Assistant Director--­Petitioner before implementation of demotion order, was transferred as Manager, Government Poultry Farm, but within few days again was demoted and transferred as Assistant Director---Such frequent demotions and transfers in two months had been challenged by petitioner in Constitutional petition before High Court---Authorities had contended that transfer orders were issued on directions of Minster Livestock who was not happy with performance of petitioner as Acting Deputy Director---Validity---Secretaries or Heads of attached Departments were not supposed to succumb to desires and requests of political figures including Ministers in acting upon their unlawful directions having no sanctity or legal cover either under Balochistan Government (Rules of Business), 1976 or under any other provision of law--­Two transfers of petitioner in two months and his demotion on direction of Minister, no doubt, was unjustified, but petitioner could not be granted relief claimed by him in Constitutional petition, because same was not maintainable in view of bar contained in Art. 212 of Constitution of Pakistan (1973) and petitioner had remedy before Service Tribunal.

Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and others PLD 1995 SC 530 ref.

Raja M. Afsar for Petitioner. Malik Sikandar Khan, A.-G. for Respondent. .

Date of hearing: 26th May, 1999.

2000 P L C (C.S.) 447

[Quetta High Court]

Before Iftikhar Muhammad Chaudhary, C. J. and Aman Ullah Khan Yasinzai, JJ

Dr. Haji MUHAMMAD SOOMRO, EX-MEDICAL OFFICER, BALOCHISTAN

Versus

PRINCIPAL, BALOCHISTAN RESIDENTIAL COLLEGE, LORALAI and 2 others

Constitutional Petition No.495 of 1998, decided on 9th September, 1999

(a) Balochistan Civil Servants Act (IX of 1974)-----

----S.2(b)---Balochistan Service Tribunals Act (V of 1974), S.4--­Constitution of Pakistan (1973), Art.212---Terms and conditions of service-- -Violation- --Remedy ---Jurisdiction- --Any member of civil service of Provincial Government engaged in affairs of the Province was entitled to claim himself in the civil service of Province and in case of violation of terms and conditions of service he could invoke jurisdiction of Provincial Service Tribunal.

(b) Balochistan Model Residential Secondary Schools Ordinance (XVIII of 1983)7--

----S. 20---Constitution of Pakistan (1973), Art.199----Constitutional petition--- Maintainability---Compulsory retirement---Remedy---Authority contended that petitioner who was engaged in affairs of Province of Balochistan, had remedy before Provincial Service Tribunal and his Constitutional petition was not maintainable--- Validity---Appointment of petitioner was not made by Government of Balochistan or by person authorised by it in that behalf and petitioner was not supposed to hold office during the pleasure of Government of Balochistan---Terms and conditions of service of petitioner were not same which were available to civil servants ' under Balochistan Civil Servants Act, 1974 and Rules, but he was governed by Regulations framed under Balochistan Model Residential Secondary Schools Ordinance, 1983---Petitioner, being not a civil servant, he could challenge violation of any statutory Regulations governing his service in Constitutional petition, instead of invoking jurisdiction of Provincial Service Tribunal.

University of Balochistan through Registrar v. Saeed Muhammad Khan and others 1986 SC'.MR 1063 ref.

Muhammad Aslam Chishti for Petitioner. Saeed Ahmad and Malik Sikandar Khan, A.-G. for Respondents.

Date of hearing: 9th September, 1999.

2000 P L C (C.S.) 533

[Quetta High Court]

Before lftikhar Muhammad Chaudhary, C. J., Javed Iqbal and Aman Ullah Khan Yasinzai, JJ

Mir SHAH NAWAZ MARR1, EX-DIRECTOR; MINERAL DEVELOPMENT PRESENTLY O.S.D. S&GAD, QUETTA

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Balochistan Civil Secretariat Quetta and 4 others

Constitutional Petition No. 177 of 1998, decided on 30th August; 1999.

(a) Balochistan Civil Servants Act (IX of 1974)--

----S.10---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Civil service---Placing of Officer as O.S.D. (Officer on Special Duty) by way of punishment---Period of such posting---Extent---Term's "O.S.D." being absolutely extraneous to S.10, Balochistan Civil Servants Act, 1974 read with Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules. 1979---High Court directed the Provincial Government that Government Officers should riot be placed for a period longer than 30 days as O.S.D. and the services of such officer might be utilized in the best interests of public instead of allowing them to remain sitting idle and getting the service benefits without performing their duties.

Zahid Akhtar v. Government pf Punjab through Secretary Local 0overnment and Rural Development, Lahore and others PLD 1995 SC 530 and Syed Ajmal Hussain Bukhari v. The Commissioner, Rawalpindi 1997 PLC (C:S.) 754 rel.

(b) Balochistan Civil Servants Act (IX of 1974)--

----S.10---Placing of an officer as O.S.D. (Officer on Special Duty) by way of punishment---Guidelines---High Court gave guidelines to the Provincial Government for such posting viz: that Government should make efforts not to place an officer as O.S.D: beyond reasonable period of more than 30 days that if the services of such an officer were not utilized in the department in which originally he was appointed then he should be given other suitable post which might be commensurate with his qualification and status and that if the Government Officer was found to be inefficient or corrupt or was stated to be indulging in misconduct then instead of allowing him to continue as O.S.D. as punishment, he should be dealt with departmentally under the Efficiency and Discipline Rules, otherwise in absence of any such allegation the Government should not refuse to utilize services of such officer for any other extraneous considerations.

Per Javed Iqbal Judge, J.---

(c) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979--

----Constitution of Pakistan (1973), Art. 199---Constitutional petition ---Civil service---Posting of a particular Government servant against a particular post ---Scope ---Such posting being discretionary, fell within the prerogative domain of Government---Such discretion could not be exercised in an arbitrary or fanciful manner but judiciously and in accordance with settled norms of justice, equity and fairplay.

(d) Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979--

----Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Posting of a particular Government servant---Scope---Where a particular posting was vitiated by bias, political or extraneous considerations or was made in violation of the Service Rules, principles of natural justice and equity, the same could be interfered with and might be set aside---High Court could see that powers of appointments, transfers and postings must be exercised in accordance with service laws and simultaneously in conformity with mandate of law givers as the same would be in the interest of good and healthy governance.

Shakil.Alimed and Ayaz Sawati for Appellant.

Malik Sikandar Khan, A.-G. and Aslam Chishti for Respondent No.3. -

Date of hearing: 8th July, 1999.

2000 P L C (C. S.) 769

[Quetta High Court]

Before Iftikhar Muhammad Chaudhary, CJ. and Aman Ullah Khan Yasinzai, J

NASRULLAH and others

Versus

PROVINCE OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta and others

Constitutional Petition- No. 491 of 1999, decided on 30th December, 1999.

(a) Balochistan Public Service Commission (Function) Rules, 1982---

----R. 5---Withdrawing any post from purview of Public Service Commission---Competent Authority under the provision of R.5 of Balochistan Public Service Commission (Function) Rules, 1982 enjoys the jurisdiction to withdraw any post from purview of Public Service Commission in public interest.

(b) Words and phrases--

----"Public interest"---Connotation---Matter of public or general interest does not mean what is interesting as gratifying curiosity or a love of information or amusement; but that in which a class of the community has a pecuniary interest, or some interest' by which their legal rights or liabilities are affected.

Stroud's Judicial Dictionary, Vo1.I, p.2029; R. v. Bedfordshire 24 LJQB 84; Seymour v. Butterworth 3F & F 372; Cox v. Feeney 4 F&F 13; Strauss v. France 4 F&F 1113; Hunter v. Sharp 4 F&F 983; - R v. Labouchere 14 Cox CC 419; South Hetton Co. v. North Eastern News Association (1894) .1 QB 133; Joynt v. Cycle Trade Publishing Co. (1904) 2 KB 296; Thomas v. Bradbury, Agnew & Co. (1906) 2 KB 627; Mangena v. Wright 53 SJ 485; Sharman v. Merritt and Hatcher 32 TLR 360; Ellis v. Home Office (1953) 2 QB 135; R. v. Sussex Confirming Authority 157 LT 590; Duncan v. Cammell Laird & Co. (1942) AC 624; Ellis v. Hone Office (1953) 2 QB 135; Postmaster-General v. Pearce (Note) (968) 2 QB 463; Cartwright v. Post Office (1969) 2 QB 62; Words and Phrases by John B. Saunders, Second Edn., VoI.IV, p.220; Constitution of India, Art.19(5); Damodar Ganesh and others v. State AIR 951 Bom. 459 and Iswari Prosad and others v. N.R. Sen and another AIR 1952-Cal, 273 ref.

(c) Balochistan Public Service Commission (Function) Rules, 1982--

----R. 5---Expression "public interest" ---Meaning and scope---Expression "public interest" can be defined as any action which is to be taken to protect legal rights of, general public or class of public with whom justice is required to be done by a Competent Authority, keeping in view the relevant rules and law available on the subject---Competent Authority, though enjoys jurisdiction to adjudge in view of prevailing circumstances to do or not to do a particular act in public interest, but at the same time care should be taken that such act may not cause injustice to some or majority of the members of the public who are also entitled equally for protection of law/rules under which action has been taken.

A. M. Khan Leghari, CSP, Member, Board of Revenue, West Pakistan v. Government of Pakistan through Secretary to Government of Pakistan, Establishment Division, Rawalpindi and 7 others PLD 1967 Lab. 227 and Lt.-Col Farzand Ali and others v. Province of West Pakistan through Secretary, Department of Agriculture, Government of West Pakistan Lahore PLD 1970 SC 98 ref.

(d) Balochistan Public Service Commission (Function) Rules, 1982---

----R. 5---Constitution of Pakistan (1973), Art. 199----Constitutional petition ---Withdrawing of posts from purview of Public Service Commission---Examination for appointment of 152 Assistant Engineers (B-17)---Provincial Government withdrew the posts from purview of Public Service Commission without specifying whether same was in the public interest and what would be qualification and experience of the candidates who were to be recruited against the posts---Validity---Competent Authority was not competent to take out the posts from purview of the Commission without specifying the reasons in order to prima facie establish that such action was in public? interest---Examination conducted and result announced had no legal sanctity as a consequence of such act of the Government.

PLD 1986 FSC 29; PLD 1990 SC 1013; PLD 1992 FSC 252; 1993 SCMR 1869; PLD 1996 Quetta 21; PLD 1996 Quetta 56 and Khadim Hussain v. Government of Pakistan through Secretary Establishment, Islamabad and 8 others 1993 SCMR 1869 ref. S.A.M. Qaudri for Petitioners. Noor Muhammad Achakzai, Addl. A.-G. for Respondent. H. Shakil Ahmed for the Intervenors/Applicants.

Date of hearing: 27th October, 1999.

2000 P L C (C.S.) 1353

[Quetta High Court]

Before Raja Fayyaz Ahmed, C.J. and Fazal-ur-Rehman, J

Miss ZUBEDA QADUS

versus

GOVERNMENT OF BALOCHISTAN through Secretary Education, Civil Secretariat, Quetta and 2 others

Constitutional Petition No.429 of 2000, decided on 11th July, 2000.

Service Tribunals Act (LXX of 1973)----

--- S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition--- Maintainability---Termination of service---Petitioner/civil servant had challenged her termination from service alleging same to be without jurisdiction and lawful authority---Matter raised in the Constitutional petition fell within exclusive jurisdiction of Service Tribunal and Constitutional petition was not maintainable in view of bar contained in Art.212 of Constitution of Pakistan (1973)---Order of termination passed by Authority, even if same was without jurisdiction or mala fide, could be challenged before Service Tribunal and jurisdiction of Civil Courts including the High Court would be barred.

1981 PLC (C.S.) 841; 1998 PLC (C.S.) 87; 1998 PLC (C.S.) 1175; 1998 PLC (C.S.) 1260 and 1998 SCMR 2280 ref.

Malik Sikandar Khan for Petitioner.

Ashraf Khan Tanoli, A.-G. for Respondents.

Date of hearing: 22nd June, 2000:

2000PLC(C.S.) 817

[Service Tribunal N.W.F.P]

Before Hidayatullah Khan and Taj Muhammad Khan, Members

LIAQAT ALI, EX-CONSTABLE, POLICE STATION NIZAMPUR, NOWSHERA

Versus

I.-G. POLICE, N.-W.F.P., PESHAWAR and 3 others .

Appeal No. 198 of 1996, decided on 23rd January, 1997

Civil service---

---- Removal from service---Civil servant who Served as Constable for more than 15 years, was removed from service after serving him a show-cause notice, issuing him charge-sheet and holding enquiry against him on allegation of absence from duty without any leave/permission---Statement of allegations contained only charge of absence of civil servant from specified date to date---Removal order showed that many dates of absence from duty had been added to justify that order, but civil servant was not proceeded against for absence from duty on various dates as contained in removal order---No similarity of charges was found in-between removal order and summary of allegations/charge-sheet---If civil servant was absent on so many occasions, Enquiry Officer should have been entrusted with enquiry on all dates/period on which civil servant was allegedly absent without leave, but only the date from specified date to date had been incorporated in the summary of allegations which rendered removal order ineffective in the interest of civil servant---Authorities had also made contradictory contentions with regard to medical certificates, despatched through post by civil servant to obtain leave and with regard to reference to Medical Board in their reply and reference in removal order---Order removing civil servant from service was set aside and civil servant was ordered to be restored to his service from date of his removal.

Mian Fazale Amin for Appellant.

Muhamamd Zubair Anwar for Respondents.

2000 P L C (C.S.) 116

[Punjab Service Tribunal]

Before

Syed Aal-a Ahmad, Member-I

HASHAM RAZA

Versus

CHIEF SECRETARY TO GOVERNMENT OF THE PUNJAB, CIVIL

SECRETARIAT LAHORE and another

Appeal No. 1507 of 1998, decided on 2nd March, 1999.

Punjab Service Tribunals

Act (IX of 1974)

----S. 4---Transfer---Appeal---Appellant civil servant was transferred from one place of service to another one on administrative considerations on basis of a series of complaints against him---Order of Authority transferring appellant could not be interfered with in appeal by Service Tribunal in circumstances.

Ch. Mushtaq Masood for Appellant

Muhammad Sharif Warsi for Respondent No.5.

Date of hearing: 1st March, 1999.

2000 P L C (C.S.) 472

[Punjab Service Tribunal]

Present: Abdul Hafeez Cheema, Chairman, Syed Aal-e-Ahmed, Member-I and

Ali Mohtasham, Member-II

MUHAMMAD ISHAQUE, SUB-ENGINEER, METRO­

POLITAN CORPORATION OF LAHORE and others

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB and 2 others

Appeal No. 1092 of 1993, decided on 16th September, 1999.

Punjab Service Tribunals Act (IX of 1974)---

----S.4---West Pakistan Local Councils and Municipal Committees Service Rules, 1963, Rr.9(2) & 12---Punjab Local Councils Services (Appointment and Conditions of Service) Rules, 1983---Local Councils (Appointment and Conditions of Service) Rules, 1993---Promotion---Appellants had sought declaration to the effect that provisions of Punjab Local Councils Services (Appointment and Conditions of Service) Rules, 1983 decreasing their promotion quota from 50 % to 20 % and subsequent amendment in Local Councils (Appointment and Conditions of Service) Rules, 1993 further decreasing promotion quota to 20% be declared ultra vires of the enactment---Appellant's further contention was that Department be directed to determine their fitness for promotion to next grade on 50 % quota as provided in the original unamended West Pakistan Local Councils and Municipal Committees Service Rules, 1963---Validity---Promotion prospect of appellants as provided under Punjab Local Councils Services (Appointment and Conditions of Service) Rules, 1983 were not less favourable to appellants---Present rules of Department were in consonance with rules of other relevant Departments of Government---Even otherwise posts of appellants were of Sub-Engineer which basically were B.S. 11 and their next tutu of promotion was in B.S. 16, while old Rules viz. West Pakistan Local Councils and Municipal Committees Service Rules, 1963 had provided promotion quota to next grade and not for promotion to Grade-17-­-Appellants had no grievance as far as their promotion to Grade-16 was concerned as their grievance related to promotion to Grade-17 only---Punjab Local Councils Services (Appointment and Conditions of Service) Rules, 1983 sought to be declared ultra vires, were in consonance with Rules of other Engineering Department, had provided adequate opportunities to Sub-Engineers for promotion to. Grade-17---Appeal which otherwise was hit by principle of misjoinder of parties, was dismissed, in circumstances.

Ch. Mushtaq Masud, Dr. Ehsan-ul-Haque, Ch. Ghulam Qadir and Qazi Umer Farooq for Appellant.

Ch. Manzoor Hussain, District Attorney and Dr. Mohy-ud-Din Qazi for Respondents.

Date of hearing: 16th September, 1999.

2000 P L C (C.S.) 691

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

SHAHZADA SALEEM

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE

Appeal No. 1530 of 1998, decided on 25th January, 2000.

Punjab Police Rules, 1934--

----Rr.13.14 & 13.15---Punjab Police (Efficiency and Discipline) Rules, 1975, R.14(c)---Punjab Civil Servants Act (VIII of 1974), S.21(2)--­Punjab Service Tribunals Act (IX of 1974), S.4---Promotion---Order admitting civil servant to "F" list---Withdrawal of such order---Civil servant who joined Police Department as an A.S.-I., was promoted as Sub-Inspector and on completing all requisite formalities and acquiring qualifying standard for post of Inspector, was admitted to "F List" of Sub-Inspector, and finally was promoted and posted as Inspector---Civil servant took charge of Inspector, but Authority (Inspector-General of Police), had withdrawn said order of promotion of civil servant on ground that he had suffered two penalties of "censure" and due to that he was not entitled to promotion---Plea of alleged two punishments of "censure" against civil servant, was devoid of any substance as one of the punishments was quashed in revision and second one was set at naught in appeal being violative of rules on the subject---No punishment of "censure" was pending on record against civil servant which could be made basis for his reversion---Even otherwise minor penalties could not stand in way of promotion of higher rank---Civil servant who had acquired qualifying standard for admission to "F List" and promotion as Inspector and was duly appointed and posted as Inspector, order of his promotion was withdrawn without issuing him any show-cause notice and without affording him opportunity of fearing---Order of withdrawal of promotion of civil servant, lead clearly offended against principles of natural justice which order had no sanctity of law---Order withdrawing promotion of civil servant was set aside and earlier order admitting him to "F List" and order posting him as "Inspector" were upheld declaring same to be valid for all intents and purposes.

PLD 1959 SC 45; PLD 1965 SC 90; PLD 1966 SC 536; PLD 1964 SC 673; PLD 1964 SC 410; 1969 SCMR 212; 1971 SCMR 551; 1972 SCMR 13; PLD 1987 SC 304; 1994 SCMR 2232; 1985 PLC (C.S.) 841; 1991 SCMR 1637; 1992 PLC (C.S.) 95 and 1990 SCMR 1414 ref.

Saleem Anwar Khan for Appellant.

Ch. Manzoor Hussain, District Attorney for Respondent.

Dates of hearing: 19th and 25th January, 2000.

2000 P L C (C.S.) 697

[Punjab Service Tribunal]

Before Syed Jawad Ahmed Mufti, Member

MUHAMMAD RIAZ KIYANI, D.S.P. C & I WAPDA, LAHORE

Versus

INSPECTOR-GENERAL; PUNJAB, LAHORE

Appeal No.3187 of 1999, decided on 7th February, 2000.

(a) Police Rules, 1934---

----Rr.13.18 & 13.20---Punjab Service Tribunals Act (IX of 1974), S.4--­Constitution of Pakistan (1973), Art.4---Anti-dated promotion/ confirmation---Entitlement---Civil servant despite being senior was ignored whereas juniors to him were granted anti-dated confirmation/promotion--­Service record of junior officers was not better than the civil servant and Authority had not given any valid reason or justification to give the civil servant a different treatment except that powers under Rr.13.18 & 13.20 of Punjab Police Rules, 1934 were discretionary and that Authority in his discretion did not find it fit case to permit period of officiating service to be counted towards period of probation---Powers of exercising discretion vesting in Authority, must be bounded by rules of equity, fairplay and justice and could not be exercised arbitrarily and capariciouly---Failure to treat all like persons in like situations without any reasonable distinction would tantamount to discrimination which was not allowed by law arid discrimination in like situation would offend against Art. 4 of the Constitution of Pakistan (1973) and also would be violative of principles of Sharia.

KLR. 1998 CC 6 ref.

(b) Punjab Service Tribunals Act (IX of 1974)---

----Ss.4 & 5--Service Tribunal---Status and powers of --Service Tribunal was a Court of appeal and had powers under S.5 of Punjab Service Tribunals Act, 1974 to confirm, set aside, vary or modify orders appealed against---Tribunal also possessed with all powers of a Civil Court to pass orders on appeal and then to carry them to logical end---Service Tribunal, on principles contained in 5.107, C.P.C. would have same powers and would perform as nearly as could be the same duties as were conferred and imposed on Competent Authority.

(c) Police Rules, 1934---

Rr.13.18&13:20---Punjab Service Tribunals Act (IX of 1974), S.4--­Anti-dated confirmation/promotion---Judgment/order of Service Tribunal --­Non-compliance --- Effect --- Service Tribunal had set aside orders passed by Authority refusing to confirm appellant/civil servant as "Inspector" from date of his promotion with a direction to consider his case in terms of 8.13.18 of Punjab Police Rules, 1934, but orders/judgments of Service Tribunal we're frustrated by the Authority ---Orders judgments of Service Tribunal were not challenged by Authority before Supreme Court---Service Tribunal being appellate forum for aggrieved civil servants and being substitute for High Court vide Art. 212 of Constitution of Pakistan (1973), its judgments/orders must receive consideration and respect and Authority was bound to comply with same in its true perspective.

(d) Appeal----

---- Meaning of---Expression "appeal" means "removal of cause or a suit from inferior forum to superior forum".

PLD 1970 SC 506 ref.

Muhammad Yasin Bhatti for Appellant. Muhammad Shafl, Representative of the Police Department for Respondent.

Date of hearing: 17th January, 2000.

2000 P L C (C.S.) 701

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman, and Syed Aal-e- Ahmad, Member-I

MAHMOOD KHAN

Versus

GOVERNMENT OF THE PUNJAB- through Additional Chief Secretary, Civil Secretariat, Lahore and 3 others

Appeal No.2371 of 1999, decided on 18th December, 1999.

Directorate of Floriculture (Training and Research) Punjab, Lahore Service Rules, 1996---

----Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan (1973), Art.25---Both civil servant and co-civil servant were serving on posts falling within functional unit of "Horticulture Wing" of Agriculture Department and according to seniority list, civil servant was senior and more qualified than the co-civil servant---When a new unit of "Floriculture" was established under the Directorate of Floriculture (Training and Research) Punjab, Lahore Service Rules, 1996, co-civil servant despite being junior to civil servant and less qualified, was taken in the new cadre while the civil servant ma; ignored---Validity---Newly established Floriculture Unit was a new functional unit detached from main unit of Horticulture---Equitable and just opportunity should have been provided to exiting incumbents of "Horticulture Wing", possessing requisite qualifications and experience to join the new functional unit---Qualification/experience prescribed for post of Director in newly established unit, was not progressive, transparent, just and equitable---Only one officer (co-civil servant) of "Horticulture Wing" had been considered for the post of Director in "Floriculture Unit" which was contrary to spirit of equity, fairplay and justice---Service Rules where under "Floriculture Unit" was established in the existing unit of "Horticulture Wing" being contrary to spirit of natural justice, equity, fairplay of equal rights as guaranteed under Art.25 of Constitution of Pakistan (1973), Authority was directed to re-draft Service Rules by giving equal opportunities to all incumbents of "Horticulture Wing" having requisite qualifications and experience and ensure that Rules would be broad-based and transparent.

Dr. Abdul Basit for Appellant.

Rana Safdar Ali Asif, District Attorney and M.A., Riaz for Respondent No. 4

Date of hearing: 18th December, 1999.

2000 P L C (C.S.) 708

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman, Syed Aal-e-Ahmad, Member-I-and Syed Ali Mohtasham, Member-II

MUHAMMAD RAFIQ GILL, DIRECTOR ESTABLISHMENT, MANAGEMENT, FAISALABAD DEVELOPMENT AUTHORITY, FAISALABAD

Versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Punjab, Lahore and 2 others

Appeal No.2807 of 1999, decided on 17th February, 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R.4---Punjab Service Tribunals Act (IX of 1974), S.4---Penalty of withholding of promotion---Civil servant who was Deputy Commissioner and had been heading District Recruitment Committee, was proceeded against on the allegations of certain irregularities in process of appointment of certain posts---Authorised Officer on report of Inquiry Officer imposed a minor penalty of stoppage of three increments upon said civil servant--­Authorised Officer by acting mechanically amended his earlier order and without issuing notice to civil servant and affording him chance of hearing, withdrew earlier penalty and imposed a fresh penalty of withholding of promotion of civil servant for a period of two years or till his retirement---Witnesses examined by Inquiry Officer had clearly stated that meeting of Recruitment Committee was held, - candidates were duly interviewed, recommendations were prepared and made as and when required---Nothing was on record justifying finding of Inquiry Officer that charges against civil servant had been proved---Authorised Officer had no authority in law to ignore his own earlier order and to pass a fresh order imposing another penalty on civil servant without issuing him a notice and without affording him opportunity of hearing---Order imposing penalty, on civil servant, was set aside, in circumstances.

1986 SCMR 1137 and 1993 SCMR 1287 ref. .

Ch. Muhammad Ikram Zahid for Appellant. Ch. Manzoor Hussain, D.A. for Respondent.

Date of hearing: 20th January, 2000.

2000 P L C (C.S.) 1099

[Service Tribunal Punjab]

Before Abdul Hafeez Cheema, Chairman

ASIFA AMIN, EX-PTC TEACHER

versus

DISTRICT EDUCATION OFFICER (W), BAHAWALNAGAR and another

Appeal No.2473 of 1999, decided on 16th May, 2000.

Civil service---

----Termination of service---Re-instatement---Civil servant who was appointed as a P.T.C. Teacher by a properly constituted Selection Committee and possessed requisite qualification her services were terminated without any valid reason despite she stood confirmed in her appointment --- Authority, ­defended termination order contending that appointment of civil servant was made on direction of Minister and that appointment orders were issued b"! District Education Officer whereas Competent Authority in her case was Deputy District Education Officer---Validity ---Civil servant had performed her duties about a decade after her appointment and she stood confirmed as a P.T.C. Teacher---Authorities had no mandate in law to terminate services of civil servant in that manner even if her appointment was made under orders of Minister as that would not vitiate appointment especially when Minister had been granted powers by Competent Authority vide Notification No.S & GAD, dated 28-2-1989 and Chief Minister in his order had validated appointment of Minister---If any irregularity in appointment of civil servant was committed by Departmental Officer, civil servant could not be punished for said lapse by any rule of equity or justice---Order terminating services of civil servant being absolutely without any lawful authority, was set aside and civil servant was ordered to be re-instated in service with all back benefits.

PLD 1964 SC 572; 1996 SCMR 413 and 1997 SCMR 15 ref.

Asif Nazir Awan for Appellant.

Ch. Manzoor Hussain, D.A, for Respondents.

Date of hearing: 16th May, 2000.

2000 P L C (C-S.) 1101

[Service Tribunal Punjab]

Before Jawad Ahmed Mufti, Member-II

MUNAWAR JAMIL QURESHI

versus

THE CHIEF ENGINEER (SOUTH), PUNJAB, LAHORE and another

Appeal No. 1180 of 1999, heard on 8th June, 2000.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

---Rr.7 & 18---Punjab Service Tribunals Act (IX of 1974), S.4--­"Termination of service---Re-instatement---Service of civil servant was terminated on account of wilful absence from duty---Appellate Authority on appeal set aside order of termination holding that said order was suffering -on legal infirmities as no inquiry as envisaged under R.7 of Punjab Civil servants (Efficiency and Discipline) Rules, 1975 was held before terminating services---Appellate Authority by same order regarded period of absence as "break" in service resulting in forfeiture of past service of civil servant for purposes of pension with direction that "reinstatement" of civil servants would be deemed as fresh appointment for all purposes---Validity---Term "reinstatement" would mean to restore person or things to its former state or condition---Appellate Authority despite finding that order of termination of services of civil servant was suffering from serious legal infirmities as neither enquiry was conducted by Enquiry Officer nor any opportunity of hearing was given to civil servant before imposing the major penalty, attached such conditions to reinstatement which were totally unwarranted, unjust and void ipso facto---Conditions attached by Appellate Authority to order of reinstatement of civil servant, were set aside by Service Tribunal with a direction that civil servant would stand re-instated with all back benefits.

1999 SCMR 1245 ref.

(b) Civil service----

----Re-instatement---Concept---Term "reinstatement" would mean "to reinstate, re- establish or restore person or thing to its former state or conditions".

1992 PLC (C.S.) 621 ref.

Ch. Parmoon Bashir for Appellant. Khawaja Haider Ali, District Attorney for Respondents.

Dates of hearing: 12th, 25th May and 8th June, 2000.

2000 P L C (C.S.) 1105

[Service Tribunal. Punjab]

Before Abdul Hafeez Cheema, Chairman

MUHAMMAD AIES ABID

versus

PROVINCE OF THE PUNJAB

through Secretary, Health, Department and 3 others

Appeal No.991 of 1999, decided on 5th April, 2000.

Civil service---

---- Advance increment---Entitlement---Civil servant was serving with the Health Department as Rural Health Inspector and initial prescribed qualification for this post was Matric with 1-1/2 years' Diploma in Rural Health Inspector Course---Civil servant during course of his employment had improved his qualification and passed F.A.., B.A. and M.A. Examinations--­Civil servant in view -of the improvement in qualification claimed six advance increments in terms of Pay Revision Rules of Finance Department--­Authority denied claim of civil servant contending that post of civil servant being technical one, improvement of qualifications in Arts subjects would not entitle him to advance increments as even M.A. (Punjabi) qualification was irrelevant in relevant field of civil servant---Duties of civil servant according to job description were multifarious---Civil servant was technician and had to perform curative work under supervision of Medical Officer--- Acquisition of knowledge of Arabic up to B.A. and Punjabi up to M.A. level could not be described an advancement of knowledge in relevant field--­Higher qualification acquired by civil servant being not related to relevant field of civil servant, he was rightly declined increments claimed by him.

Faiz Ahmad v. Chief Engineer, Punjab Highway Department Appeal No. 1776 of 1998 ref.

Ch. Aziz Ahmad Sbami for Appellant. Ch. Manzoor Hussain, D.A. for Respondents.

Date of hearing: 5th April, 2000.

2000 P L C (C.S.) 1184

[Punjab Service Tribunal]

Before Muhammad Aslam, Member-I

Mrs. IFFAT NAZIR, PRINCIPAL, GOVERNMENT GIRLS HIGHER SECONDARY SCHOOL, AWAN TOWN, LAHORE

versus

SECRETARY EDUCATION, GOVERNMENT OF THE PUNJAB, LAHORE

Appeal No.1401 of 1997, decided on 18th October, 1997.

Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974----

----R. 10-A---Punjab Education Department (School Education Recruitment) Rules, 1987, Sched. I---Punjab Civil Servants (Minimum Length of Service for Promotion) Rules, 1989, Sched.II---Promotion on regular basis---. Entitlement---Civil servant who joined Government service as S.E.T. in Education Department in 196;8, was appointed as Headmistress (B.P.17) in 1979 , and thereafter having been selected by Punjab Public Service Commission, joined as Principal of School in B.S.18 in 1990---On re­organization of School Teachers Cadre under 4 tier structure, she was considered for promotion to post in B.S. 19 and was promoted in B.S. 19, not on regular basis, but on acting charge basis on ground that she did not possess requisite service of twelve years in B.S. 17 and above, and that she was short of service of seven years in B.S.18---Validity---Civil servant had already completed more than seventeen years of her service in B.S.17 and above when notification of her promotion to B.S.19 was issued which included more than three years of her service in B.S. 18---Service rendered by civil servant in B.S.17 could not be excluded for purpose of promotion to B.S. 19---Requirement of seven years service in B.S. 18 was applicable to those civil servants who entered in B.S.18 through initial recruitment and was not applicable to persons of category of civil servants who were already serving the department in line and had rendered service in B.S.17---Civil servant, in circumstances, could not be treated to have been appointed on acting charge basis as she was already eligible for regular promotion to B.S. 19 because she had fulfilled condition of having a service of more than twelve years in B.S.17 and above as provided in Sched. I attached to Punjab Education Department (School Education Recruitment) Rules, 1987 and Sched.II attached to Punjab Civil Servants, (Minimum Length of Service for Promotion) Rules, 1989---Civil servant, in circumstances, was entitled to be promoted in B.S. 19 on regular basis from due date when vacancy under re-organized set-up of 4 tier structure became available.

Ch. Atta Illahi of Appellant.

Haider Ali Khawja, D.A. for Respondent.

Date of hearing: 14th October, 1997.

2000 P L C (C.S.) 1278

[Service Tribunal Punjab]

Before Abdul Hafeez Cheema, Chairman

KHALID MAHMOOD

versus

SUPERINTENDING ENGINEER, PROVINCIAL

BUILDING CIRCLE, FAISALABAD and another

Appeals Nos. 1035 and 1039 to 1045 of 1993, decided on 19th June, 2000

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975----

----S.4---Punjab Service Tribunals Act (IX of 1974), S.4---Termination of services--- Civil servants who in response to advertisement applied for the posts, were called, interviewed, tested and were selected by Selection Committee---Civil servants were appointed through appointment letters containing terms and conditions of service and such appointees also produced medical fitness certificates obtained by them from concerned Medical Superintendent---Services of civil servants were terminated after about one month of their appointment, on ground that their appointments were made in violation of revised Recruitment Policy---Validity---Services of civil servant were terminated without issuing them show-cause notice and without affording them opportunity of hearing---Representations filed by civil servants against their termination were rejected by Authority for the reason that appointments of civil servants were not made in accordance with "spirit of revised Policy"---Said revised Policy was issued at the time when civil servants had already joined their duties in pursuance of appointment letters issued to them and a right had come to vest in them on having joined their duties and ,consequently Authorities had no locus poenitentiae---Civil servants were serving Department to the satisfaction of Authorities; they possessed requisite qualifications for relevant posts; had undertaken test/interview, were declared successful and were duly given charge of assignments---If some irregularity in their appointment was committed by Department itself, no fault could be attributed to them as Department could not be allowed to take benefit of its own lapses/failings---Orders terminating services of civil servants passed in violation of principles of natural justice, being unjust and unwarranted were set aside, in circumstances.

Munawar Khan v. D.I.-G. and others 1996 PLC (C.S.) 122; Dr. Mariam Ashraf v. Secretary, PPSC and others 1992 PLC (C.S.) 136 and 1996 PLC (C.S.) 927 ref.

Mazud Ahmed Riaz for Appellant District Attorney for Respondent.

Date of hearing: 19th June, 2000.

2000 P L C (C.S.) 1282

[Service Tribunal Punjab]

Before Jawad Ahmad Mufti, Member, JJ

AZHAR HUSSAIN

versus

EXECUTIVE ENGINEER, 2ND PROVINCIAL BUILDINGS

DIVISION, GUJRANWALA and another

Appeal No.4 of 1998, decided on 26th June, 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--

----R.2(1)(b--Punjab Service Tribunals Act (IX of 1974), S.4 from service---Conversion into compulsory retirement proceeded against for remaining absent for considerable period without leave .and was removed from service on said allegation---Civil servant filed application that he would be satisfied if he was awarded penalty of "compulsory, retirement" and Authorities did not take any serious objection to the said application---Service Tribunal being Court of Appeal, would be within its mandate to modify penalty as per request of civil servant as absence from duty stood admitted by him---Compulsory retirement was also a major penalty, but when civil servant had himself prayed for modification of penalty, Service Tribunal converted penalty of removal from service into compulsory retirement accordingly.

Muhammad Razzaq v. Conservator of Forest and others 1994 PLC (C.S.) 477 and Government of Pakistan v. Zamir Ahmed 1996 SCMR 630 ref.

Ch. Tariq Javed and Ch. Manzoor Ahmed for Appellant. Rafaqat Ali Chathha, Departmental Representative with Attorney for Respondents.

Date of hearing: 26th June, 2000.

2000 P L C (C.S.) 1285

[Service Tribunal Punjab]

Before Jawad Ahmed Mufti, Member, II

MUHAMMAD ZAFAR IQBAL

versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT, LAHORE

Appeal No. 663 of 2000, decided on 27th June, 2000.

(a) Civil service--

----"Negligence"---Meaning, connotation and scope---Negligence was the failure to use such care as a reasonably prudent and careful person would use under similar circumstances---Negligence was doing of some act which a person of ordinary prudence would not have done under . similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R.4---PunjabService Tribunals Act (IX of 1974), S.4---Dismissal from service---Civil servant was proceeded against on account of unauthorised payments on bogus lapsed refund vouchers and on finding him guilty of offence major penalty of dismissal from service was imposed upon him--­Validity---Civil servant had a long unblemished service record extending over 36 years and it was the first case of "negligence" against him--­Authorised Officer had noted that no mense rea was attributed to civil servant and he was of the opinion that lapse, if any, on part of civil servant was due to "overwork"---Authorised Officer also had recorded finding that no criminal involvement was found on part of civil servant, but said facts were not properly appreciated by Authority who proceeded to impose major penalty of dismissal upon the civil servant---Civil servant was found by Departmental Authorities to be guilty only of negligence and negligence had not been provided by Legislature as a ground for penalty under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---No inefficiency on part of civil servant was pressed into service -against the civil servant---Mere in­advertence on part of civil servant in circumstances, would not entail any punishment much less extreme penalty of dismissal from service---Orders of dismissal passed against civil servant were set aside and civil servant was directed to be re-instated in service.

1988 SCMR 691; 1999 PLC (C.S.) 791; 1993 PLC (C.S.) 1443 and 1991 SCMR 1148 ref.

Muhammad Yasin Bhatti for Appellant.

District Attorney with Khalid Mahmood S.O B&E-1 for Respondent.

Date of hearing: 26th June, 2000

2000 P L C (C.S.) 1289

[Service Tribunal Punjab]

Before Jawad Ahmed Mufti, Member-II

WAZIR MUHAMMAD, INSPECTOR POLICE

versus

INSPECTOR-GENERAL OF POLICE, LAHORE and 2 others

Appeal No.3155 of 1999, decided on 30th June, 2000.

Police Rules, 1934---

----R.13.18---Punjab Service Tribunals Act (IX of 1974), S.4---Promotion--­Seniority---Determination---Civil servants who joined Police Force as Assistant Sub-Inspector, was finally promoted and confirmed as Inspector--­Co-civil servants who were though juniors to civil servant were given ante­dated promotion and were placed senior to civil servant in seniority list of Inspectors---Seniority being a vested right; same could , not have been disturbed comfortably by giving co-civil servants ante-dated confirmation and seniority---Date of confirmation in case of Police officials would not be different than date of appointment/promotion, except for disciplinary action or in case of gallantry awards etc.---Record of co-civil servants being not better than that of civil servant, no valid justification existed to place them senior to civil servant at any stage---Civil servant was declared entitled to confirmation' from date when co-civil servants who were juniors, were confirmed as Inspectors., and to promote him as Deputy Superintendent of Police when said co-civil servants were promoted.

Muhammad Yasin Bhatti for Appellant .

Ilyas Habib, Inspector (Legal), Departmental Representative for Respondent.

Date of hearing: 26th June, 2000.

2000 P L C (C.S) 1295

[Service Tribunal Punjab]

Before Abdul Hafeez Cheema, Chairman

Mian ABDUL LATIF MORAL

versus

SECRETARY, GOVERNMENT OF THE PUNJAB FOOD DEPARTMENT, LAHORE and another

Appeal No. 1248 of 1997, decided on 29th July, 1999

Civil service-­

----- Adverse remarks---Entire confidential record of civil servant was good--­Civil servant invariably had earned good reports and Reporting Officer had appraised the working of civil servant accurately and had given him invariably "A" reports and he had been described as an honest officer-- Countersigning Officer for the first time had pointed out slackness of civil servant in effectively controlling the establishment---Such remarks against civil servant, which were appended by Countersigning Officer after one year and nine months were absolutely unjustified as he had not been able to record any instance of alleged laxity of control on the part of civil servant---Had the Countersigning Officer recorded the remarks soon after the period reported upon in accordance with Instructions on the subject, it would have certainly carried weight---Record of adverse remarks after one year and nine months had made situation otherwise ---Possibility of Countersigning Officer having forgotten real position existed---Even otherwise an officer who had ever been rendering commendable performance, could not become slack all of a sudden in a period of six months---In absence of any justification for adverse remarks, they were ordered to be expunged.

Mansoor Humayun for Appellant:

Ch. Manzoor Hussain, D.A. for Respondent

Date of hearing: 29th July, 1999.

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

The file is currently being updated. Plz try again later. If the link still does not work, report to pakistanlawsite@oratiertechnologies.com

2000 P L C (C.S.) 45

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Munir A. Sheikh, JJ

MAZHAR ALI and others

Versus

SENIOR SUPERINTENDENT OF POLICE/DEPUTY

COMMANDANT POLICE COLLEGE, SIHALA and 2 others

Civil Petitions for Leave to Appeal Nos. 1747-L and 1748-L of 1998, decided on 4th January., 1999.

(On appeal against the judgment and order dated 7-9-1998 of the Punjab Service Tribunal, Lahore in Appeal No.3562 of 1997).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Absence from duty---Allegation of mala .fides in respect of dismissal from service---Leave to appeal was granted to determine questions of law of public importance involved in the case: namely that neither separate charge with regard to absence of civil servants from duty was framed nor they were afforded opportunity to meet said charge in accordance with law that question of mala fides was apparent in case and that whether two investigations conducted against civil servants on basis of which challan was submitted against them, were bona fide or not and what was the effect of acquittal in such-like cases.

Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 4th January, 1999.

2000 P L C (C.S.) 118

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

PROVINCE OF PUNJAB and another

Versus

Ch. MUHAMMAD ASHRAF and another, Civil Petitions for Leave to Appeal Nos.718-L, 7.19-L and 961-L of 1999, decided on 23rd September, 1999.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212---Suspension from service--- Jurisdiction of Service Tribunal in respect of matters relating to terms and conditions of service ---Matters relating to terms and conditions of civil servants, would include suspension from service of a civil servant and Service Tribunal alone had the jurisdiction to adjudicate upon such matter in appropriate proceedings---Jurisdiction of High Court in the matter was barred under Art. 212 of Constitution of Pakistan (1973).

(b) Constitution of Pakistan (1973)---

----Arts. 185(3) & 199---Civil service---Suspension from service---Petition for leave to appeal---Continuous suspension from service of civil servant was ex facie unjustified and High Court passed order against such continuous suspension---Validity---Present order passed by Supreme Court was confined to facts of the case in question alone---Case was not fit for interference by Supreme Court.

Dr. Mohy-ud-Din Qazi, Advocate Supreme Court for Petitioners.

Date of hearing: 23rd September, 1999.

2000 P L C (C.S.) 122

[Supreme Court of Pakistan]

Before Irshad Hasan Khan and Sh. Ijaz Nisar, JJ

GOVERNMENT OF PUNJAB through Secretary, Irrigation and Power, Punjab, Lahore and others

Versus

PUNJAB LABOUR APPELLATE TRIBUNAL and another

Civil Petitions for Leave to Appeal Nos. 1536-L of 1998 to 1538-L of 1998.

decided on 24th September, 1999.

(On appeal from the judgment dated 15-6-1998, passed by Lahore r High Court, Lahore in W.Ps. Nos 11061/98 to 11063/98).

West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)---

----S.2(i) & S.O. 1(b)---Constitution of Pakistan (1973) Art.185(3)---Status of permanent workmen---Determination---Leave to appeal was granted to S consider questions: whether employees were appointed against permanent posts or they were working as work-charge employees; whether employee., were "workers" within meaning of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and had been performing their duties as low-paid employees and whether after completion of 90 days' period employees had become permanent , "workmen" or were "work-charge employees".

Muhammad Anwar Ghuman, Advocate Supreme Court instructed by Rao M. Yusuf Khan, Government Advocate-on-Record for Petitioners.

Farooq Zaman, Advocate Supreme Court and Afzal Walah, Advocate Supreme Court for Respondent No. 14.

Date of hearing: 24th September, 1999.

2000 P L C (E.S.) 136

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Munir A. Sheikh, JJ

SIDDIQUE AKBAR

Versus

Mian ABDUL MAJEED

Civil Petitions Nos.431-L and 448-L of 1999, decided on 15th July, 1999.

(On appeal from the judgment, dated 2-3-1999 of the Federal Service Tribunal passed in Appeals Nos. 1476-L and 1477-L of 1998).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1993), . Art. 212(3)---Misconduct--­Dismissal from service---Employees of State Life Insurance Corporation of Pakistan, were dismissed from service after issuing them charge-sheets and holding enquiry against them. on allegations of misconduct ,by way of committing acts of fraud and embezzlement of money---Only one witness examined by Inquiry Committee had himself admitted that he was clot a direct witness as to the facts narrated in allegations against employees, but since he was connected with audit report in which objections were raised by Audit Committee, he was examined by Inquiry Committee---No other witness was examined to prove allegations against employees---No effort was made to produce evidence to prove handwriting of employees in order to prove allegations of tampering with record by them and no person was examined whose amount had allegedly been misappropriated by the employees---Case against employees being of no evidence and report of Inquiry Committee having not been provided to employees before their personal hearing by Authority principle of natural justice had been violated---Supreme Court converted petition for leave to appeal of employees into appeal and set aside judgment of Service Tribunal whereby order of dismissal passed by Authority was upheld, case was remanded to be decided afresh after constitution of Inquiry Committee 'and affording parties opportunity to adduce evidence in proof of their respective pleas.

Hafiz Tariq Naseem, Advocate Supreme Court and Mahmood A. Qureshi, Advocate- on-Record for Petitioners.

Jehanzeb Bharwana, Advocate Supreme Court and Mahmoodul Islam, Advocate- on-Record for Respondents.

2000 P L C (C. S.) 295

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Mamoon Kazi, JJ

THE EXECUTIVE ENGINEER (E), WAPDA and 2 others

Versus

RAHAT SHAH and 12 others

Civil Petitions. Nos.458 to 490, 565, 466, 489, 384 and 1263 o 1998, decided on 14th October, 1998.

(On appeal from the common judgment of the Federal Service Tribunal, dated 30-12-1997, passed in Appeals Nos.303, 304, 305, 306, 307, 315, 316 and 317-P of 1997 respectively).

West Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 17(1-A) [as amended by Pakistan Water and- Power Development Authority (Amendment) Act (XIII of 1994)]---Termination of service---Civil servants who were performing their functions to the satisfaction of the Authority, their services were terminated during probationary period stating that such action had been taken in. pursuance of their terms of appointment--­Terms of appointment of civil servants had provided that their services could only be terminated during probationary period in case their work or conduct was found unsatisfactory---Provisions of S. 17 (1-A) of West Pakistan Water and Power. Development Authority Act, 1958, had provided that Authority could terminate services of civil servants after informing civil servants in writing of grounds on which action of termination was proposed to be taken and after issuing them show-cause notice---No such procedure having been adopted by Authority while terminating services of civil servants, order of the Authority was rightly set aside by Service Tribunal and civil servants were rightly ordered to be reinstated in service.

Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 ref. .

Saadat Hussain, Advocate Supreme Court and Nur Ahmad Khan, Advocate-on-Record for Petitioners (in all Petitions).

Nemo for Respondents (in all Petitions except C.P. No. 465 of Sh. Wazir Muhammad, Advocate-on-Record for Respondent.

Date of hearing: 14th October, 1998.

2000 P L C (C.S.) 298

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD ASHIQ

Versus

SETTLEMENT COMMISSIONER (LANDS), THE SECRETARY, GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR, NARCOTICS CONTROL DIVISION, ISLAMABAD and 4 others

Civil Appeal No.654 of 1994, decided on 22nd March, 1999.

(On appeal against the judgment and order, dated 17-2-1993 of the Federal Service Tribunal, Islamabad, Camp at Multan in Appeal No. 127-L of 1992).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Civil servant was suspended from service after serving him with charge-sheet of inefficiency, misconduct and corruption---Inquiry was conducted after affording opportunity of personal hearing and Inquiry Officer reported that cogent evidence existed to establish beyond all doubt the truth of allegations levelled against civil servant---Final show-cause notice was issued to civil servant on the basis of Inquiry Officer's Report---Explanation given by civil servant having been found unsatisfactory, he was dismissed from service---Validity---Inquiry conducted was strictly in accordance with rules and civil servant failed to point out any irregularity and flaw in the inquiry---Allegations levelled against civil servant having been fully proved, he was rightly dismissed from service.

K.M.A. Samdani, Advocate Supreme Court and Mahmood A. Qureshi, Advocate- on-Record (absent) for Appellant.

Moulvi Anwarul Haq, Deputy Attorney-General, Rao Muhammad Yousuf Khan, Advocate-on-Record (absent) for Respondents.

Date of hearing: 22nd March, 1999

2000 P L C (C.S.) 301

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD RAFIQUE

Versus

COMMANDANT BATAI RANGERS and 2 others

Civil Appeal No. 1285 of 1995, decided on 17th February, 1999.

(On appeal against the judgment and order, dated 24-4-1994 of the Federal Service Tribunal, Islamabad in Appeal No. 12-L of 1994).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Appeal to Service Tribunal--- Limitation---Leave to appeal was granted by Supreme Court to consider whether the proceedings initiated against civil servant was in accordance with law and whether the appeal was barred by time.

(b) West Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967)---

----R. 4---Member of Pakistan Rangers---Misconduct---Dismissal from service--- Summary trial of member of Pakistan Rangers under Military law under which the Court of Inquiry was constituted---Validity---Proceedings against the member of Pakistan Rangers ought to have been initiated under the provisions of West Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 instead of resorting to a summary trial under Military law under which the Court of Inquiry was constituted---Rule 4, West Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 conferred a valuable right upon the member of the force to cross-examine the witnesses appearing against him of which appellant had been deprived---Entire process against member of Pakistan Rangers, to circumstances, stood vitiated.

(c) West Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967)---

----Rr. 4 & 17---Appeal to Service Tribunal---Limitation---Appeal against his dismissal from service filed by the Member of Pakistan Rangers, was rejected by the Director -General Rangers on 3-9-1993 and said order was received by the appellant on 23-9-1993 against which on 25-9-1993 the appellant filed a representation before the higher Authorities, which 'was withheld in the office of the Director-General---Said representation/ revision/mercy petition was to be disposed of by the Director-General himself under R. 17; West Pakistan Rangers (Efficiency, Discipline and Appeal) Rules, 1967 on the ground of material irregularity (summary trial under Military laws) having occurred in the proceedings---Said revision/representation was not disposed of and, thus, it was obvious that after the expiry of 90 days a right accrued to the appellant to invoke the jurisdiction of the Service Tribunal by way of filing an appeal within 30 days of the rejection of his appeal---Appeal preferred by the appellant before Service Tribunal, in circumstances, was not time-barred.

Shamim Abbas Bokhari, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Appellant.

Muhammad Aslam Chattha, Advocate-on-Record for Respondents.

Date of hearing: 17th February, 1999.

2000 P L. C (C.S.) 304

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Ch. Muhammad Arif, JJ

ALI NAWAZ

Versus

PAKISTAN RAILWAY through Chairman/Secretary and others

Civil Petition No. 1740-L of 1996, decided on 10th July, 1998.

(On appeal from the judgment dated 21-5-1996 passed by the Federal Service Tribunal, Lahore in Appeal No. 370(L) of 1995).

Civil service---

----Reinstatement---Entitlement to back benefits---Civil servant was removed from service on charge of misconduct---Service Tribunal, on appeal, found that charge had not been proved and ordered his reinstatement---Back benefits from date of removal from service up to date of reinstatement were, however, denied to civil servant---Validity---No appeal against order of Service Tribunal reinstating civil servant had been filed by Authority and it was conceded that civil servant was not gainfully employed elsewhere during period of his removal from service---Service Tribunal, in circumstances, was not right in denying back benefits.

Petitioner in person.

Nemo for Respondents Nos. 1 and 2.

Aslam Sindhu, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate- on-Record for Respondents Nos.3, 4 and 5/Caveators.

Date of hearing: 10th July, 1998.

2000 P L C (C.S.) 305

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif JJ

Mirza ABDUL QAYUM BAIG

Versus

STATE BANK OF PAKISTAN, KARACHI

Civil Petition No. 708 of 1998, decided on 16th October, 1998.

(On appeal from the judgment dated 5-3-1998 of the Federal Service Tribunal, Islamabad in Appeal No. 2680-K/97).

Service Tribunals Act (LXX of 1973)---

----S. 2-A [as incorporated by Service Tribunals (Amendment) Act (XVII of 1997)], S.4---Constitution of Pakistan (1973), Art.212 (3)---Appeal before Service Tribunal--- Competency---Appeal against order of dismissal from service passed by Authority against civil servant, was dismissed by Service Tribunal holding that cause of action having accrued to civil servant during period when he was not a civil servant, appeal did not fall within ambit of jurisdiction of Service Tribunal Section 2-A, Service Tribunals Act, 1973 having retrospective effect relating to matters pertaining to procedure, leave to appeal was granted to consider as to whether Service Tribunal was justified in holding that civil servant's appeal was not competent.

Ghulam Mustafa Khairati v. Federation of Pakistan and another 1998 SCMR 1603 and Muhammad Afzal v. Karachi Electric Supply Corporation through Managing Director, Karachi 1999 SCMR 92 ref.

Zafar Abbas Zaldi, Advocate Supreme Court for Petitioner.

M.Z. Qureshi Azad, Advocate-on-Record for Respondent.

Date of hearing: 16th October, 1998.

2000 P L C (C. S.) 307

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

WATER AND POWER DEVELOPMENT AUTHORITY and others

Versus

SHAMSHAD-UL-HAQ

Civil Appeal No.939 of 1994, decided on 9th October, 1998.

(On appeal from the judgment dated 19-1-1993 passed by the Federal Service Tribunal, Islamabad, in Appeal No.271 (L) of 1989).

Pakistan Water and Power Development Authority Pension Rules, 1997----

----R. 5---Pensionary benefit and medical expenses---Settlement---Civil servant while performing his duties as Assistant Lineman on electric pole, got electrocuted and fell down sustaining "crush fraction of the body" and suffered serious injuries and was declared invalid for further service by approved Medical Board---Crush fracture sustained by civil servant according to Medical Board had resulted in "paraplegia" which was specially covered by Item 5, cl. (a) of R.5 of Pakistan Water and Power Development Authority `Pension Rules, 1977---Civil servant in view of permanent disability whereupon he was retired from service, fell within category of "invalid pension" ---Service- Tribunal had rightly awarded pension and payment of medical expenses to civil servant.

Sh. Zamir Hussain, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record (absent) for Appellant.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent.

Date of hearing: 9th October, 1998.

2000 P L C (C.S.) 312

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan and Ch. Muhammad Arif, JJ

MUHAMMAD NASIR KHAN, DIRECTOR, PHYSICAL EDUCATION

Versus

SECRETARY OF EDUCATION, GOVERMENT OF THE PUNJAB and 3 others

Civil Petition for Leave to Appeal No. 159 of 1997, decided on 6th July 1998.

(On appeal from the judgment dated 23-1-1997 passed by Punjab Service Tribunal, Lahore in Appeal No. 408 of`1997).

(a) Punjab Service Tribunals Act (IX of 1974)---

---S. 4---Appeal before Service Tribunal---Limitation---Civil servant could not approach Service Tribunal for redress of his grievance in regard to matters pertaining to his terms and conditions of service without allowing period of ninety days to expire as contemplated by proviso (a) to S. 4 of Punjab Service Tribunals Act, 1974.

(b) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Appeal before Service Tribunal---Making a representation to next Authority above the Authority, which made original order, was a condition precedent for vesting jurisdiction in the Service Tribunal to pass any order in terms of S. 4 of Punjab Service Tribunals Act, 1974.

(c) Civil Servants Act (LXXI of 1973)---

----S. 9---Transfer---Civil servant had no vested right to continue to hold a particular post at a particular place---Civil servant was liable to be transferred anywhere in exigencies of service.

(d) Constitution of Pakistan (1973)---

----Art. 212 (3)---Leave to appeal to Supreme Court---Dispute raised in petition for leave to appeal, related to an individual grievance and no question of law of public importance was involved to warrant interference under Art. 212 (3) of Constitution of Pakistan (1973)---Petition for leave to appeal was dismissed.

Rao Munawar Khan, Advocate Supreme Court instructed by Syed Abul Aasim Jafri, Advocate-on-Record for Petitioner.

Nisar Arshad Kotla, Advocate Supreme Court and Ch Mehdi Khan Mehtab, Advocate- on-Record for Respondents.

Date of hearing: 6th July, 1998.

2000 P L C (C.S.) 316

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

AMANATULLAH KHAN

Versus

WAPDA, LAHORE

Civil Appeal No. 709 of 1994, decided on 8th October, 1998.

(On appeal from the judgment dated 13-10-1993 of the Federal Service Tribunal in Appeal No.261-L of 1993).

West Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 17(1-A)---Pakistan Water and Power Development Authority Pension Rules, 1977, R. 7(iv)---Constitution of Pakistan (1973), Art. 212---Removal from service--- Entitlement to pension---Civil servant was removed from service under S.17(1-A) of West Pakistan Water and Power Development Authority Act, 1958 without assigning any reason with immediate effect on payment of thirty days' pay in lieu of notice---Such removal was simpliciter removal from service without referring to any misconduct, corruption, subversive activities or inefficiency on part of civil servant---If civil servant was to be removed under S.17(1-A) of West Pakistan Water and Power Development Authority Act, 1958 on any of said allegations, he was entitled to have a show-cause notice issued to him before he could be condemned as having committee act of misconduct ---Para. (iv) of R. 7 of Pakistan Water and Power Development Authority Pension Rules, 1977 (unamended), which had provided that no pension could be granted to civil servant who was dismissed or removed from service for misconduct, corruption, subversive activities, or inefficiency, being not applicable to the case of the civil servant, he was entitled to grant of pension after removal from service.

Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR 774 and Water and Power Development Authority v. Irtiqa Rasool Hashmi and another 1987 SCMR 359 ref.

Appellant in person.

Sh. Zamir Hussain, Advocate Supreme Court and Imtiaz M. Khan, Advocate-on-Record for Respondent.

Date of hearing: 8th October, 1998.

2000PLC(C.S.)321

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

PAKISTAN RAILWAYS through General Manager and others

Versus

SAMIULLAH and others

Civil Appeal No. 1428 of 1996, decided on 2nd March, 1999.

(On appeal from the judgment dated 10-1-1996 passed in Writ Petition No. 13152 of 1994 by Lahore High Court, Lahore).

Pakistan Railways Personnel Manual---

---- Rr. 79 & 157---Constitution of Pakistan (1973), Arts. 185 & 199--­Reservation of 4 % quota for promotion to post of Group Inspector of Special Ticket Examiners from Head Ticket Collectors---Validity---General Manager, Pakistan Railways, by virtue of Rr. 79 & 157 of Pakistan Railways Personnel Manual, called out 4% quota for Head Ticket Collectors for promotion to post of Group Inspector of Special Ticket Examiners---Said action of General Manager was assailed through Constitutional petition before High Court, which petition was accepted and decision of General Manager was declared to be illegal and original 100% quota reserved for Group Inspector of Special Ticket Examiners was restored---Action of General Manager, Railways was for the reason that prior to allocation of such quota of 4 % , Head Ticket Inspectors were not entitled to promotion as Group Inspector of Special Ticket Examiners and in order to avoid such hardship and to provide prospects of promotion to them, General Manager called out 4% quota for Head Ticket Inspectors---Order passed by General Manager, Pakistan Railways who was empowered under Rr. 79L & 157 of Pakistan Railways Personnel Manual to make rules in respect of non-gazetted Railway servants, reserving 4 % quota was within his competence and High Court was not justified to undo the same---High Court could not direct General Manager, Pakistan Railways to upgrade post of Head Ticket Collectors in exercise of Constitutional jurisdiction, in absence of any statutory provisions.

Mirza Masood-ur-Rehman, Advocate Supreme Court and M.A. Qureshi, Advocate- on-Record (absent) for Appellants.

Arif Saeed, Advocate High Court (on Special Permission) and Ch. Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondent No. 1.

M. Ismail Qureshi, Senior Advocate Supreme Court and S. Abul Aasim Jafri, Advocate- on-Record for Respondents Nos. 2 and 4.

2000 P L C (C.S) 325

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

FAIZ AHMAD KHAN and another

Versus

MUHAMMAD RAMZAN ABID and 2 others

Civil Petitions for Leave to Appeal No. 1544-L and 1684-L of 1998, decided on 24th November, 1998.

(On appeal from the order of the Punjab Service Tribunal, dated 3-8-1998, passed in Appeal No.329 of 1998).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Non-impleading of party- --Contention was that petitioner being necessary party, Service Tribunal .could not have passed impugned order without hearing him--­Respondent submitted that petitioner was not an aggrieved person--­Validity---Petitioner was not a party before Service Tribunal when appeal filed by respondent was accepted Supreme Court considered appropriate to remand the case to Service Tribunal with observation that petitioner or anybody feeling aggrieved in the case before Service Tribunal, could make an application for being impleaded as a party in appeal.

Ch. Mushtaq Masood, Advocate Supreme Court with Sh. Masood Akhtar, Advocate- on-Record for Petitioner (in C.P. No. 1544-L of 1998).

Rana Maqbool Ahmad Khan, Advocate Supreme Court for Respondents/Caveators (in C.P. No. 1544-L of 1998).

Muhammad Sharif Butt, Advocate Supreme Court for Petitioners (in C.P. No. 1684-L of 1998).

Rana Maqbool Ahmad Khan, Advocate Supreme Court for Respondent (in C.P. No. 1684-L of 1998).

Date of hearing: 24th November, 1998.

2000 P L C (C.S) 327

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Munawar Ahmed Mirza and Ch. Muhammad Arif, JJ

Prof. MUMTAZ ALI

Versus

GOVERNMENT OF PAKISTAN and 2 others

Civil Appeal No.829 of 19.96, decided on 30th October, 1998.

(On appeal from the judgment dated 30-8-1998 passed by the Federal Service Tribunal, Islamabad in Appeal No. 250-R of 1995).

Civil service---

---- Upgradation of post---Civil servant claimed grant of Grade-20 contending that co-civil servant who was given Grade-20 as against him was no longer in field as he had retired from service and that post which civil servant was holding had been upgraded ' to Grade-20---Appeal to Supreme Court was disposed of with observation that Competent Authority would consider case of civil servant for grant of Grade-20 to him in view of upgradation of the post.

M. Kowkab Iqbal, Advocate Supreme Court for Appellant.

Maulvi Anwar-ul-Haq, Deputy Attorney-General with Imtiaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 30th October, 1998.

200() P L C (C.S.) 328

[Supreme Court of Pakistan]

Present: Ajmal Mian C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

AHMED ALI and another

Versus

SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF

PAKISTAN, ISLAMABAD and others

Civil Appeal No.737 and Civil Petition No. 260 of 1993, decided on 3rd March, 1999.

(On appeal against the order dated 29-4-1993 of the Federal Service Tribunal, Islamabad in Appeals Nos. 500 and 501-R of 1990).

Service Tribunals Act (LXX of 1973)---

----S. 4---Recruitment Rules, 1980 [as amended on 15-5-1990]---Constitution of Pakistan (1973), Art. 212---Promotion against quota of promotees---Civil servants, serving as Assistant Engineers (B-16) had challenged direct ad hoc appointment of opposing civil servants as Assistant Executive Engineers (B-17) against quota reserved for promotees---Grievance of civil servants was that as under Recruitment Rules, 1980, 50% of posts of Assistant Executive Engineers (B-17) were to be filled by promotees and remaining 50% by direct recruitment, civil servants were eligible for promotion as Assistant Executive Engineer (B-17) on completion of 3 years' service in B-16, as Assistant Engineer---Validity---Recruitment Rules, 1980 were amended prior to direct ad hoc appointment of opposing civil servants as Assistant Executive Engineer (B-17) and as per amendment, quota of promotees was reduced from 50 % to 20 % for promotion and 80 % of posts were, reserved for direct recruitments ---Recruitment Rules, 1980 having been amended in accordance with law by Competent Authority, promotion policy and fixation of quota between direct recruits and promotees were to be regulated by Competent Authority on basis of said amended Rules and civil servants could not claim right of promotion as said right had been taken away by amended Rules.

Ch. Muhammad Insha Allah and others v. Chief Conservator of Forests (P&E), Punjab and others PLD 1988 SC 155 and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others 1997 SCMR 1043 ref.

Kh. M. Farooq, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate- on-Record for Appellant (in C.A. No. 737 of 1993).

Petitioner in person (in C.P. No. 260 of 1993).

Yawar Ali, Deputy Attorney-General and Ch. Akhtar Ali, Advocate-on-Record for Respondents (in C.P. No. 260 of 1993)

Date of hearing: 3rd March, 1999.

2000PLC(C.S.)331

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Muhammad Bashir Jehangiri, JJ

MUHAMMAD IQBAL ZAMAN, VERNACULAR CLERK, MARWAT CANAL DIVISION, BANNU

Versus

SUPERINTENDING ENGINEER, SOUTHERN IRRIGATION

CIRCLE, BANNU and 4 others

Civil Appeal No. 115 of 1995, decided on 11th March, 1999.

(On appeal from the judgment/order of the N.-W.F.P. Service Tribunal, dated 15-11-1994, passed in Appeal No.333 of 1993).

Constitution of Pakistan (1973)---

----Art. 212---Civil service---Suspension---Arrears of pay relating to suspension period---Entitlement to---Civil servant who was involved in murder case and was convicted and sentenced by Trial Court, was acquitted of murder charge by High Court in appeal---Civil servant, who after his acquittal was re-instated in service, prayed for arrears of pay relating to his suspension period, but his prayer was turned down by Authority on ground that civil servant was not entitled to arrears as he was not honourably acquitted, but was given benefit of doubt---Validity---Acquittal of civil servant, even if based on benefit of doubt, was honourable---Acquittal of civil servant, even based on benefit of doubt, could not become a hurdle in payment of arrears of pay to civil servant regarding his suspension period provided he had not been found to be gainfully employed during suspension period.

Mian Muhammad Shafa v. Secretary to Government of the Punjab, Population Welfare Programme, Lahore and another 1994 PLC (C.S.) 693; Government of Pakistan through the Secretary, P.W.D. (Irrigation Branch), Lahore v. Mian Muhammad Hayat PLD 1976 SC 202; Dr. Muhammad Islam v. Government of N.-W.F.P. 1998 PLC 1430 and Malik Azharul Haq v. Director of Food, Punjab, Lahore and another 1991 SCMR 209 ref.

Abdul Aziz Kundi, Advocate Supreme Court for Appellant.

Ejaz Muhammad Khan, Additional Advocate-General, N.-W.F.P. with Haji M.A. Qayyurn Mazhar, Advocate-on-Record for Respondents.

Date of hearing: 11th March, 1999.

2000 P L C (C.S.) 335

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

MUHAMMAD AKBAR KHAN

Versus

INSPECTOR-GENERAL OF POLICE, N.-W.F.P., PESHAWAR and 4 others

Civil Petition for Leave to Appeal No.245-P of 1998, decided on 11th August, 1999

(On appeal from the judgment, dated 3-10-1998, of the N.-W.F.P. Service Tribunal, Peshawar, passed in Appeal No.2155 of 1997).

(a) North-West Frontier Province Service Tribunals Act (I of 1974)---

---S. 4---Appeal to Service Tribunal---Scope---Departmental appeal barred by limitation- --Effect---If the Departmental Authority had not dismissed the departmental appeal on the ground of bar of limitation, Service Tribunal of its .own could hold the appeal before the Tribunal as incompetent in view of the said bar of limitation.

(b) Civil service---

----Promotion---Grant or refusal of Selection Grade---Inquiry pending against civil servants---Effect---If an inquiry was pending against the civil servant under relevant Efficiency and Discipline Rules, or the adverse findings had been recorded against him, then the delinquent civil servant was not to be considered for grant of selection grade or promotion till the inquiry was finalized---Where the inquiry could not attain finality and in the meantime civil servant voluntarily opted for leave preparatory to retirement, Service Tribunal was justified to have not granted the relief of selection grade to civil servant in circumstances.

M. Asif Khan, Advocate Supreme Court instructed by Hussain Khan, Advocate- on-Record (absent) for Petitioner.

Imtiaz Ali, Additional Advocate-General, N.-W. F. P. for Respondents.

Date of hearing: 11th August, 1999.

2000 P L C (C. S.) 338

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

DIRECTOR-GENERAL, HEALTH SERVICES, N.-W.F.P.

PESHAWAR and others

Versus

Dr. NIZAKAT IQBAL KARIM and another

Civil Petitions Nos.28-P and 29-P of 1999, decided on 9th August, 1999.

(On appeal from the judgment dated 30-9-1998 of the N.-W.F.P. Service Tribunal, Peshawar, passed in Appeals Nos.538 and 539 of 1998).

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Transfer of civil servant- --Interference by Service Tribunal---Scope---Indiscriminate and repeated transfer orders and cancellation of such transfer orders of civil servants had been made by the Authorities irrespective of the consideration of public interest---Orders of transfer passed by Authorities indiscriminately without rhyme or reason were found to be mala fide, arbitrary, against the canons of justice, equity and fair play by Service Tribunal which were rightly cancelled---Leave to appeal against said orders of the Service Tribunal was declined by Supreme Court.

Transfer of a civil servant is an incidence of service. Nonetheless, if either it is the outcome of the mala fides, or is otherwise arbitrary, violative of the principle of policy governing the transfer of civil servants or is against the canons of justice, equity, fair play then it can be interfered with by the Tribunal inasmuch as the transfer is one of the terms and conditions of civil service. No doubt allegations of mala fides are easy to allege but difficult to prove. At the same, however, one should not lose sight of the fact that element of mala fides can be inferred from the conduct of the functionary of the Government passing the order. In the present case, therefore, looking to the indiscriminate numerous transfer orders, the inference was rightly drawn by the Tribunal that the transfers were tainted with mala fides although the element of bad faith was not floating on the surface of the record. Nonetheless it could not be ignored by going through the record and taking note of indiscriminate transfer order after every 2/3 months.

It is disquieting to note that within a period of a year or two, the transfer orders and cancellation of such transfer orders had been made by the authorities irrespective of the considerations of public interest. The orders of transfer passed indiscriminately without any rhyme or reason obviously were found to be mala fide, arbitrary, against the canons of justice, equity and fair play. The Service Tribunal had, therefore, rightly cancelled the transfer order.

Syed Afzal Ahmad Hydari v. Secretary, Defence Production Division, Ministry of Defence, Rawalpindi and 3 others 1991 SCMR 477; Nazir Hussain, Ex-Director Excise and Taxation, Administrator, Auqaf, N.­W.F.P., Peshawar v. N.-W.F.P. through the Chief Secretary, Services and General Administration Department, Government of N.-W.F.P., Peshawar and 2 others 1992 SCMR 1843; Managing Director, WASA, Lahore v. Muhammad Hanif Ijaz 1997 PLC 108 and Mst. Niaz Perveen v. Mst. Rukhsana Shaheen and 3 others 1995 SCMR 1844 ref.

Ejaz Muhammad Khan, Additional Advocate-General, N.-W.F.P. for Petitioners.

Nemo for Respondents.

Date of hearing: 9th August, 1999.

2000 P L C (C.S.) 342

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J, Munawar Ahmad Mirza and Ch. Muhammad Arif, JJ

SHAKEEL AKHTAR and others

Versus

M.S. MENTAL HOSPITAL and others

Civil Petitions Nos. 1803-L to 1831-L, 1846-L and 1847-L, 1902-L to 1904-L, 1968-L to 1977-L, 1981-L, 1992-L, 2055-L and 2056-L of 1998, decided on 29th December, 1998.

(On appeal from the judgment, dated 5-10-1998 of the Punjab Service Tribunal, Lahore in Appeal No.898 of 1987 etc.).

West Pakistan Essential Services (Maintenance) Act (XXXIV of 1958)---

---S. 7---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.9 (3)---Strike by hospital employees---Dismissal from service of such employees---Validity---Service of hospital employees being subject to the provisions of West Pakistan Essential Services (Maintenance) Act, 1958, they had no legal justification to go on strike---Hospital employees having remained absent from duties in spite of repeated notices and warnings, without any justifiable reason, action of Hospital Authorities, to dismiss them from service was unexceptionable.

Hospital employees, in spite of repeated public notices and warnings, did not report for duty, with the result that a large number of patients in the Province encountered hardships and some of them even expired. Such an irresponsible conduct on the part of the employees could not be countenanced. The employees were subject to the provisions of the West Pakistan Essential Service (Maintenance) Act, 1958, which prohibits the employees, subject to the provisions of the Act, from absenting themselves from work. As a` matter of fact section 7 of the Act imposes criminal liability by providing that a person guilty of breach of the above provision of the Act is punishable with imprisonment for a term which may extend to one year and with fine. In presence of the above Act, the employees had no legal justification to go on strike. Since the employees remained absent from their duties in spite of repeated notices and warnings without any justifiable reason, the action of the hospital authorities to dismiss them from service was unexceptionable.

Muhammad Arif Siddiqui v. Government of Pakistan 1988 SCMR 673; Abdur Rehman Babar v. N.-W.F.P. through the Chief Secretary, Government of N.-W.F.P. 1989 SCMR 928 and Rehmat Ali Shah v. Secretary, Defence Production Division, Rawalpindi 1990 SCMR 1500 distinguished.

Hafiz Tariq Nasim, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in all petitions except in C.P. No. 1981-L of 1998).

Petitioner in person (in C.P. No. 1981-L of 1998).

Nemo for Respondents (in all except C.P. No. 1847-L of 1998).

M. Sharif Butt, Advocate Supreme Court for Respondent (in C.P. No. 1847-L of 1998).

Date of hearing: 29th December, 1998.

2000 P L C (C.S.) 346

[Supreme. Court of Pakistan]

Present: Nasir Aslam Zahid and Mamoon Kazi, JJ

GOVERNMENT OF SINDH through the Advocate-General Sindh

Versus

MUHAMMAD HUSSAIN and 6 others

Civil Petitions Nos.256-K to 259-K of 1999 and 261-K, 262-K and 267-K of 1999, decided on 8th July, 1999.

(On appeal from the judgment of the Sindh Service Tribunal, dated f0-3-1999 passed in Appeals Nos.31, 35, 49, 50, 51, 60 & 61 of 1998).

(a) Police Rules, 1934--

----R.128---Civil Servants Act (LXXI of 1973), S. 11---Discharge of probationer police officers from service before completion of their initial probation period---Reports sent by Superintendent of Police to the Deputy Inspector-General indicated that serious allegations of inefficiency were attributed to the probationers---Effect---If such allegations entailed removal of services of the probationer, they were entitled to a show-cause notice and an opportunity to defend themselves' against the proposed action--­Probationers being civil servants governed by Civil Servants Act, 1973, and right of appeal being provided to them under the relevant rules, the provisions of rule 12.8, Police Rules, 1934 could not prevail over the same.

Rule 12.8, Police Rules, 1934 no doubt indicates that officers referred to in the said rule are to be considered as probationers during the first three years of their appointment and they can be discharged from service during: such period for any of the reasons mentioned in the said rule and no appeal would lie against an order of discharge, but evidently the present case was not a case of simpliciter discharge. Reports sent by Superintendent of Police td the Deputy Inspector-General indicate that serious allegations of inefficiency were attributed to the probationers. If such allegations entailed their removal from service, they were entitled to a show-cause notice and an opportunity to defend themselves against the proposed action. Furthermore, no doubt rule 12.8, Police Rules, 1934 lays down that the officer against whom action is taken under the said rule shall not have any right of appeal, but the probationers being civil servants, they are governed by provisions of the Civil Servants Act; 1973. The right of departmental appeal being provided to the civil servants under the relevant rules, the provisions of rule 12.8, Police Rules, 1934 cannot prevail over the same.

(b) Civil service---

---- Termination of service---Appeal---Question of limitation---If similar action with regard to question of limitation taken by the competent Authority was found to be untenable in the case of other civil servants, relief could not be declined to respondents/civil servants.

Ainuddin, Additional Advocate-General and Miss Wajahat Niaz, Advocate-on-Record for Petitioner.

A.A. Khan, Advocate-on-Record for Respondents.

Date of hearing: 8th July, 1999.

2000 P L C (C.S.) 884

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

EXECUTIVE ENGINEER, PROVINCIAL BUILDING CIRCLE, LAHORE

Versus

MUZAFFAR BIL HAQ and 2 others

Civil Petition No. 1741-L of 1999, decided on 23rd November, 1999.

(On appeal from the judgment of Punjab Service Tribunal, dated 29-7-1999 passed in Appeal No. 1080 of 1997).

Civil service-

---- Deputationist---Lien---Civil servant on deputation, who had never been absorbed permanently in the borrowing department, would continue to be on deputation and his lien could not be terminated in his parent Department.

Aziz Ahmad Chughtai, Advocate Supreme court and Rao Muhammad Yousaf Khan, Advocate-on-Record for Petitioners.

M. Zaman Qureshi, Advocate Supreme Court and Qazi Muyuddin, Advocate Supreme Court for Respondents Nos. 1 and 3.

Date of hearing: 23rd November, 1999.

2000 P L C (C.S.) 886

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Sh. Riaz Ahmed, JJ

DIRECTOR-GENERAL, PAKISTAN RANGERS (SINDH), KARACHI and another

Versus

ABDUL RASHID

Civil Petitions for Leave to Appeal Nos.; 1543-L of 1997 and 47-L of 1998, decided on 14th April, 1999.

(On appeal against the judgment and order, dated 13-8-1997 of the Federal Service Tribunal at Lahore in Appeal No.234(l) of 1997).

Service Tribunals Act (LXX of 1973)-

----S.4---Constitution of Pakistan (1973), Art. 212(3)---Termination of service---Service of civil servant was terminated without issuing him any show-cause notice and assigning any reason for such termination---Civil servant whose services were being governed by Service Rules had completed probation period of four years---Service Tribunal, in circumstances, had rightly found that termination of service of civil servant without issuing him any show-cause notice and without holding inquiry against him, was illegal and, thus, had rightly directed reinstatement of civil servant treating intervening period from date of termination to his reinstatement as extraordinary leave without pay---In absence of any question of public importance, leave to appeal against order of Service Tribunal was refused.

Ch. Muhammad Yaqub Sindhu, Advocate Supreme Court and Syed Abul Asim Jafri, Advocate-on-Record for Petitioner/Respondent (in C.P. No. 47-L of 1998)

M.A. Aziz, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondent/Petitioner (in C.P. No. 47-L of 1998)

2000 P L C (C.S.) 888

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui and Wajihuddin. Ahmed, JJ

ABDUL HAQ

Versus

G.M. SNGP LTD.; LAHORE, and another

Civil Petition No.496-L of 1998, decided on 21st April, 1999.

(On appeal from the judgment of Federal Service Tribunal, dated 16-1-1998 passed in Appeal No.734-L of 1997).

Constitution of Pakistan (1973)---

----Art.212(3)---Petition for leave to appeal---Contentions raised by petitioner besides being in the nature of individual grievance and raising no question of law of public importance were duly considered and repelled by Service Tribunal---Order passed by Service Tribunal did not suffer from any legal infirmity so as to justify interference by Supreme Court under Art.212(3) of the Constitution---Petition for leave to appeal against order of Service Tribunal was dismissed.

Sh. Khizar Hayat, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Saleeni Baig, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 21st April; 1999.

2000 P L C (C.S.) 898

[Supreme Court of Pakistan], Present: Saiduzzaman Siddiqui, C.J. and Kamal Mansur Alam, J

Syed WASIM AHMED

Versus

K.E.S.C. and 3 others

Civil Appeal No.464 of 1998, decided on 21st December, 1999.

On appe;d from the judgment of Federal Service Tribunal dated 28-10-1997 passed to Appeal No. 184-K of 1997).

Service Tribunals Act (LXX of 1973)---

---S.2-A---Scope of application of S.2-A, Service Tribunals Act, 1973--­Appeal having been presented by the appellant before Service Tribunal within one month of the order of rejection of his representation by the Departmental Authority, he was entitled to maintain his appeal before the Service Tribunal.

As a result of insertion of section 2- A in the Service Tribunals Act, 1973 the appellant was deemed to be a civil servant for purposes of availing of remedy available to him under the Act. It could not be disputed that but for the insertion of section 2-A in the Act, the appellant would have been entitled to challenge order of his termination from service in­appropriate proceedings before the Court. However, as a result of the amendment brought about in the Service Tribunals Act that remedy had been taken away from the appellant. Had there been any proceedings pending on the date section 2-A was inserted in the Act, the appellant would have been entitled to approach the Service Tribunal on abatement of such proceedings within 90 days of the establishment of appropriate Tribunal. The right of appeal had been made available to the civil servants both under section 4 as well as under section 6 of the Act. Section 4 of the Act was amended in 1974 by Act XXXI of 1974 which conferred right of appeal to a civil servant aggrieved by an order, whether original or appellate made by the departmental authority in respect of any terms and conditions of his service within 30 days of the communication of said order or within 6 months of the establishment of appropriate Tribunal, whichever was later, to prefer appeal before such Tribunal. In the present case, the departmental appeal filed by the appellant was rejected on 26-5-1997 but before he could file any other proceedings to challenge the original order of termination passed by the departmental authority, the law was amended and, therefore, the appellant was entitled to present his appeal within 6 months from the date the Tribunal was conferred jurisdiction to entertain an appeal from a person aggrieved by the order in respect of terms and conditions of service of a corporation or organisation controlled or managed by the Government. Since the appellant before the Service Tribunal presented the appeal within one month of the order of rejection of his representation by the Departmental Authority, he was entitled to maintain his appeal before the Service Tribunal.

Appellant in person

A.S.K. Ghoury, Advocate-on-Record for Respondents.

Date of hearing: 21st December, 1999.

2000 P L C (C. S) 901

[Supreme Court of Pakistan)

Present: Khalil-ur-Rehman khan and Munir A. Sheikh, JJ

GULZEB HUSSAIN

Versus

SUI NORTHERN GAS PIPELINES LIMITED and 2 others

Civil Petition for Leave to Appeal No.410-L of 1998, decided on 14th April, 1999.

(On appeal from the judgment, dated 28-11-1997 of the Federal Service Tribunal passed in Appeal No.674(L) of 1997).

Service Tribunals Act (LXX of 1973)---

----S.2-A---Provision of S.2-A, Service Tribunals Act, 1973 being a law relating to procedure, as such, all the proceedings pending before any forum other than the Federal Service Tribunal in respect of departmental order made before insertion of S.2-A in Service Tribunals Act, 1973 could no longer continue and the only remedy was to approach the Service Tribunal.

Syed Aftab Ahmad and others-v. K.E.S.C. and others 1999 SCMR 197 fol

Ch. Ghulam Qadir, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

M.A. Qureshi, Advocate-on-Record for Respondents.

Date of hearing: 14th April, 1999.

2000 P L C (C.S.) 903

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

LAHORE HIGH COURT, LAHORE through Registrar

Versus

K.M SOHEL, ADDITIONAL DISTRICT AND SESSIONS JUDGE and others

Civil Petitions Nos.983-L to 989.-L of 1999, decided on 21st December, 1999.

(On appeal from the judgment, 'dated 21-6-1999 passed by the Punjab Subordinate Judiciary Service Tribunal in the Lahore High Court, Lahore in Appeals Nos.2 of 1998, 3 of 1998, 4 of 1998, 2 of 1999, 3 of 1999, 4 of 1999 and 5 of 1999).

Constitution of Pakistan (1973)----

----Art. 212(3)---Recording of adverse remarks in Annual Confidential Report (A.C.R.) of Subordinate Judicial Officer---Such adverse remarks were recorded in absence of the officer and without affording any opportunity of hearing---Leave to appeal was granted by Supreme Court to consider; whether the adverse remarks recorded beyond the time schedule prescribed by the Government through instructions for recording A.C.Rs. had lost their efficacy in view of law laid down by Supreme Court; whether the instructions issued by the Government for recording of A.C.Rs. could be varied by High Court keeping in view the exigencies of service of persons of the Subordinate Judiciary to advance the principle of independence of Judiciary; whether Judiciary Service Tribunal was right in holding that affected Judicial Officers should have been afforded a personal hearing in support of their representations and consideration of their representations in absentia by Administrative Committee of the High Court did not conform to the principle of audi alterem partem; and whether the judgment of Service Tribunal was in deviation of law laid down by Supreme Court.

Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587; Kh. Saeedul Hassan, Ex-­Additional District and Sessions Judge v. Government of the Punjab through the Chief Secretary, Lahore.1994 PLC (C.S.) 113; F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. and 5 others 1994 SCMR 722 and Shaukat Javed Farooqi, Under Secretary, Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and another 1999 SCMR 2141 ref.

Malik M. Azam Rasool. Advocate Supreme Court and Rao Muhammad Yusuf, Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 21st December, 1999.

2000 P L C (C. S.) 912

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

AKHTAR HUSSAIN

Versus

COMMISSIONER, LAHORE DIVISION and- another

Civil Petition No. 1546-L of 1999, decided on 26th November, 1999.

(On appeal from the judgment of Punjab Service Tribunal, dated 12-8-1999, passed in Appeal No.481 of 1999).

Constitution of Pakistan (1973)--

----Art. 212(3)---Dismissal from service---Grant of leave---Scope---Civil servant at the time of appointment suppressed the fact that he was already a dismissed civil servant---Grant of leave was discretionary with Supreme Court and leave under Art. 212 of the Constitution was to be granted only in cases where question of law of public- importance arose---Case of civil servant was one of individual grievance and no question of law of public importance arose in the case---Conduct of civil servant in suppressing a material fact at the time of seeking fresh employment in Government disentitled him to seek discretionary relief from the Court---Leave to appeal was refused.

Muhammad Amjad v. Chief Engineer, WAPDA and others 1998 PSC 337 distinguished.

Hafiz Tariq Nasim, Advocate Supreme Court and Mahmudul Islam. Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing, 26th November, 1999.

2000 P L C (C.S) 914

[Supreme Court of Pakistan]

Saiduzzaman Siddiqui, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

KISHWAR ALAM and others

Versus

MEDICAL SUPERINTENDENT and others

Civil Petitions Nos.1345-L 1383-L, 1441-L to 1445-L, 1543-L, 1552-L, 1559-L, 1616-L, 1662-L to 1671-L, 1699-L, 1700-L to 1706-L, 1745-L and 1746-L of 1999, decided on 26th November 1999

Constitution of Pakistan (1973)---

----Art. 212(3)---Recalling of leave granting order orally pronounced--- Another Bench of Supreme Court had declined leave against order of Service Tribunal in similar circumstances on merits---Such fact was not brought to the notice of Supreme Court either by the counsel for petitioners or by. Additional Advocate-General---Effect---Supreme Court recalled the leave granting order orally pronounced and directed that the cases might be fixed - for re-hearing before the Court according to roster.

Malik Abdus Sattar Chaughtai, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record- for Petitioners (in C.Ps. Nos.1662-L, 1663-L, 1664-L, 1665-L, 1666-L, 1667-L, 1668-L, 1669-L, 1670-L, 1671-L, 1699-L, 1700-L, 1701-L, 1702-L, 1703-L, 1704-L, 1705-L and 1706-L of 1999)

Malik Abdus Sattar Chaughtai, Advocate Supreme Court with Tanvir Ahmed, Advocate-on-Record for Petitioners (in C.P. Nos. 1662-L to 1671-L of 1999)

Ch. Ghulam Qadir, Advocate Supreme Court and Mehdi Khan Mehtab, Advocate-on-Record for Petitioner (in Ps. Nos. I 543-L and 1552-L of 1999).

Farooq Zaman Qureshi, Advocate Supreme Court and S. Abul Aasim Jafri, Advocate-on-Record for Petitioner (in C.P. No. 1559-L of 1999)

Irshad Ahmed Qureshi, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner (in C.P. No. 1616-L of 1999)., Ghulam Haider Al-Ghazaf, Addl. A.-G., A.H. Masud, Advocate Supreme Court with M. Yousaf Khan, Advocate-on-Record for Respondents (in all Cases).

Date of hearing: 26th.November, 1999.

2000 P L C (C.S.) 916

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif JJ

SHAHID KAMAL

Versus

STATE and others

Civil Petition for Leave to Appeal No.899-L of 1998, decided on 29th

(On appeal from the judgment/order dated 31-3-1998 passed by the Punjab Service Tribunal, Lahore in Appeal No.492/92).

Constitution of Pakistan (1973)--

Art. 212(3)---Dismissal from service---Civil servant absented without leave and provided medical certificate for his period of absence---Civil servant was allegedly arrested during the period---Civil servant was dismissed from service after departmental inquiry---Plea raised by civil servant for his presence at Karachi during his illness and death of father-in-­law of his brother---Civil servant failed to produce death certificate as demanded by Service Tribunal---Service Tribunal found that charge of absence without leave stood proved against the civil servant, but converted punishment of dismissal into compulsory retirement---Validity---No legal question requiring interpretation by Supreme Court arose so as to warrant interference---Leave to appeal was refused.

Ch. Muhammad Abdullah, Advocate Supreme Court and Rana M.A. Qadri, Advocate-on-Record for Petitioner.

Nemo for Respondents

Date of hearing: 29th November 1999.

2000 P L C (C.S.) 920

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

LAHORE HIGH COURT, LAHORE through Registrar

Versus

Mian MUHAMMAD YOUNAS, CIVIL JUDGE 1ST CLASS, _ FORTABBAS, DISTRICT BAHAWALNAGAR

Civil Petitions Nos. 569-L and 570-L of 1999, decided on 21st December, 1999.

(On appeal from the judgments dated 5-3-1999 passed by the Punjab Subordinate Judiciary Service Tribunal in the Lahore High Court, Lahore it Appeals Nos.7/97 and 8/97).

Punjab Subordinate Judiciary Service Tribunals Ordinance (II of 1991)

----S.8---Constitution of Pakistan (1973), Art. 212(3)---Recording of adverse remarks in Annual Confidential Report (A.C.R.) of judicial officer--­Subordinate Judiciary Service Tribunal set aside the remarks recorded in the A.C.R. of the officer---Validity---Leave to appeal was granted by Supreme Court to consider whether it was open to the Tribunal to accept appeal of the officer relating to adverse remarks recorded by Inspection Judge of High Court/Countersigning Officer in the facts and circumstances of the case; whether judgment of Tribunal was in conflict with guidelines laid down by Supreme Court regarding recording of A.C.Rs. or was in conformity with the decisions of Supreme Court and whether decision rendered by Administrative Committee of the High Court comprising of seven Judges , including Chief Justice was liable to interference by the Tribunal comprising of three Judges of the same Court.

Inspector-General of Police, Punjab, Lahore and 2 others v. Rana Altaf Majid 1994 SCMR 1348; Noor Elahi v. Director of Civilian Personnel, Rear Air Headquatters, Peshawar and 2 others 1997 SCMR 1749; Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar 1999 SCMR 1587 and Ch. Saeed Ahmed v. Federation of Pakistan through Secretary, Finance Division, Islamabad and 2 others 1996 SCMR 256 ref.

Malik M. Azam Rasool,- Advocate Supreme Court and Rao Muhammad Yusuf, Advocate-on-Record for Petitioner.

Mian Fazal Mehmood, Senior Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Respondents.

Date of hearing: 21st December, 1999.

2000 P L C (C.S.) 922

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, Raja Afrasiab Khan and Ch. Muhammad Arif, JJ MUHAMMAD. YOUSAF MALIK

Versus

WATER & POWER DEVELOPMENT AUTHORITY through Chairman, WAPDA

Petition for Leave to Appeal No. 1193-L of 1997, decided on 22nd December 1999

(On appeal from the judgment/order of Federal Service Tribunal, Lahore dated 17-6-1997 passed in Appeal No. 92 (L) of 1997).

Constitution of Pakistan (1973)--

----Art. 212(3)---Terms and conditions of service---Dispute was' with regard to payment of increase in house rent to civil servant by WAPDA---Service Tribunal found that the increase would be applicable after expiry of existing lease deed---Supreme Court directed WAPDA to pay enhanced rent to the petitioner from the date on which the payment of such increase in the rent became due within three weeks under intimation to the Registrar of the Court.

Petitioner in person

Muhammad Sharif, Advocate Supreme Court and Tanvir Ahmed, Advocate-on-Record for Respondents Nos. l and 2

2000 P L C (C.S.) 927

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J. Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

Syed ZAHID HUSSAIN and another

Versus

UNITED BANK LIMITED and others

Civil Appeals Nos. 869 and 870 of 1999, decided on 20th December, 1999.

(Os0b1PService Tribunal in Appeals Nos. 204(P) and 205(P) of 1998)

Service Tribunals AM (LXX of 1973)--

----S. 2-A---Constitution of Pakistan (1973), Art. 212(3)---Delay in filing appeal before Service Tribunal---Application for condonation of delay not decided by Service Tribunal---Effect---Petitions of the employees under S.25-A, Industrial Relations Ordinance, 1969 were dismissed by Labour Court after insertion of S.2-A of Service Tribunals Act, 1973---Appeals before Service Tribunal were filed with delay---Application for condonation of delay was not considered by Service Tribunal while dismissing, said appeals---Validity---Order of Service Tribunal was set aside by Supreme Court and cases were remanded for decision on the applications for condonation of delay.

Syed Aftab Ahmad v. K.E.S.C. 1999 SCMR 197 and Muhammad Afzal v. K.E.S.C. 1999 SCMR 92 ref.

Khalid Khan, Advocate Supreme Court for Appellants.

Rai M. Nawaz Kharal, Advocate Supreme Court for Respondents.

Date of hearing: 20th December, 1999.

2000 P L C (C.S.) 928

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

QAMAR-UD-DIN KHAN

Versus

GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad

Civil Petition for Leave to Appeal No. 1815-L of 1999, decided on .2nd December, 1999.

(On appeal against the order dated 25-1-1999 of the Federal Service Tribunal, Islamabad in Appeal No.261(L) of 1998).

Government Servants (Efficiency and Discipline) Rules, 1973---

----R.4---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service on charge of misconduct and corruption--Leave to appeal was granted by Supreme Court to consider question that out of 30 years of service, civil servant having remained suspended for more than six and half years and remained posted for nearly seven years finding of charge of corruption needed re-appraisal; that whether civil servant was politically victimized; that whether inquiry in the case was impartial; and whether sufficient evidence existed on record to connect the civil servant with charges framed against him.

Dr. A. Basit, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate-on-Record for Petitioner.

Nemo for Respondent

Date of hearing: 2nd December, 1999.

2000 P L C (C.S.) 934

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

Mian ABDUL RAHIM SETHI and others

Versus

FEDERATION OF PAKISTAN through Ministry of Defence and another

Civil Appeals Nos. 375 to 377, 379 and 887-L of ,1993, decided on 7th December, 1999.

(On appeal from the judgment of Lahore High Court, Lahore dated 5-12-1992 passed in R.F.As. Nos.99, 95, 94, 96 and 101 of 1989 respectively)

Limitation Act (IX of 1908)--

----S. 5---Constitution of Pakistan (1973), Art. 185---Time-barred appeal--­Condonation of delay---Application or condonation of delay contained grounds of general nature without giving explanation for delay of each day which was sought to be condoned in filing the appeal---Appellant relied on medical certificate according to which the appellant had undergone open heart surgery but the appellant had not disclosed as to what happened between the period from the date of operation till filing of the appeal in Supreme Court---No ground for condonation of delay having been made out, appeal was dismissed as time-barred, in circumstances.

Khawaja M. Farooq, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Appellants. Respondent: Ex parte. Manzoor Ahmed, Deputy Attorney-General (on Court's Notice).

Date of hearing: 7th December, 1999.

2000 P L C (C.S.) 937

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

PROVINCE OF PUNJAB through Additional Chief Secretary, Government of Punjab and another

Versus

MUHAMMAD SIDDIQUE KHAN

Civil Petition for Leave to Appeal No. 874-L of 1998, decided on 30th November, 1999.

(On appeal from the judgment/order dated 31-3-1998 passed by the Punjab Service Tribunal, Lahore in Appeal No. 1680/94).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal from service---Regular inquiry not held---Service Tribunal had rightly concluded that dismissal of civil servant from service and subsequent reduction in punishment were violative of dictum laid down by Supreme Court in the case of Lal Muhammad and another 1980 SCMR 850 and thus both the orders were set aside---Petition for leave to appeal filed by the Department against the judgment of Service Tribunal being without merit, was dismissed in circumstances.

Lal Muhammad and another v. Government of Sindh 1980 SCMR 850 ref

Muhammad Sharif Butt, 'Advocate Supreme Court with Rao M Yousaf Khan, Advocate-on-Record for Petitioners

Nemo for Respondent

Date of hearing: 30th November, 1999.

2000 P L C (C.S.) 938

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

REHMAT KHAN and others

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary, Peshawar and others

Civil Petitions Nos. 1759 to 1773, -1794 to 1797 and 1815 of 1999, decided on 20th April, 2000.

(On appeal from the judgments dated 27-9-1999 of the N.-W.F.P. Service Tribunal, Peshawar in Appeals Nos.824, 639, 680, 681, 682, 683, 684, 685, 679, 687, 688, 703, 704, 707, 825, 634, 63-5, 686, 689 and 858 of 1997)

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Civil servants were appointed as junior clerks after due formalities---Civil servants claimed to have successfully completed the training at the. Staff Training Institute--­ that of the civil servants was that they were performing duties to the entire satisfaction of their superiors when suddenly they were dismissed from service after considerable time on the ground that their appointments had been found to be illegal, ab initio void and. against the prescribed rules--­Validity---Supreme Court had remanded the case to Service Tribunal to be decided afresh considering the case of each individual appellant separately---

Service Tribunal had not dealt with the appeals individually but disposed of the appeals instead in a rolled- up manner through a consolidated judgment in violation of the remand order of the Supreme Court---Supreme Court, in circumstances, converted the petitions for leave to appeal into appeals and by allowing the same, set aside -the order of the Service Tribunal and again remanded the appeals to Service Tribunal for disposal afresh by examining, the appeals of the appellants individually and separately on merits in accordance with law, in the light of observations made in the Supreme Court order---Supreme Court further observed that decision rendered by Supreme Court being binding on the Service Tribunal should have been implemented in letter and spirit and also directed that the appeals be disposed of within two months from the receipt of the present judgment of Supreme Court.

Abdullah and others v. The Director, Agriculture Engineering, N.-W.F.Pand another Civil Petitions Nos. 81-P to 105-P of 1999 ref.

Mian Fasih-ul-Mulk, Advocate Supreme Court and M. S. Khattak, Advocate-on-Record for Petitioners.

A. Sattar Khan, Addl. Advocate-General, N.-W.F,P, for Respondents.

Date of hearing: 20th.Apri1, 2000.

2000PLC(C.S.) 941

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

MUHAMMAD RASHID and others

Versus

FEDERATION OF PAKISTAN and others

Civil Petitions Nos. 1112 to 1122, 1126 to 1138, 1144 to 1146 and 1152 of 1999, decided on 18th April, 2000.

(On appeal from the judgment dated 31-3-1999 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.785-R/98 to 793(R)/98).

(a) Civil Servants (Seniority) Rules, 1993--

----Preamble---Rules are prospective in nature and would supersede all practices, instructions and office memoranda in the sphere of fixing seniority of civil servants.

Federation of Pakistan and others v. Muhammad Sharif Sabir and others 1999 SCMR 185 ref

(b) Civil service--

----Seniority---Principles for fixation of inter se seniority between promoted and directly recruited civil servants highlighted.

Fasihuddin Siddiqui v. Government of Pakistan and others 1998 SCMR 637; Muhammad Yousif and others v. Abdul Rashid and others 1996 SCMR 1297; Muhammad Nawaz Khan, Assistant v. Muhammad Ijaz Rashid, Assistant and others PLD 1993 SC 10; Ghulam Muhammad v. Federation of Pakistan 1992' SCMR 957_ and Manzoor Ullah v. Sabir Zameer Siddiqui 1991 SCMR 1127 ref.

(c) Civil service---

----Seniority---Failure to challenge the earlier seniority list---Effect

Pervez Ijaz Sheikh v. Secretary, Establishment Division and others 1994 SCMR 1523 and Nek Muhammad Ropaal v. Government of Punjab PLD 1990 SC 672 ref.

(d) Service Tribunals Act (LXX of 1973)---

----S.4---Appeal---Limitation---Seniority---Contention was that Departmental Authority had assigned the seniority in violation of law on the subject--­Limitation.

Government of Sindh v. Khalik Ahmad 1994 SCMR 782; Malik Khaja Muhammad and others v. Marduman Babar Kohal and others 1987 SCMR 1543 and Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119 ref.

(e) Civil Servants (Seniority) Rules, 1993---

----R. 3---Constitution of Pakistan (1973), Art. 212(3)---Seniority--­Promotion---Leave to appeal-was granted by Supreme Court to examine the contentions to the effect that Civil Servants (Seniority) Rules; 1993, being not retrospective in operation, same could not be. applied to the seniority of civil servants as determined in 1985; that according to Rules, ratio of fifty-fifty was required to be maintained in promotion and direct recruitment quota which was not followed by the. Departmental Authority and the promotions were made in excess of 50 % promotion quota by utilizing the quota reserved for direct recruitment and that Service Tribunal erred in law in treating the appeal of respondent to be within limitation.

Civil Petitions Nos. 1282 to 1285 of 1998 ref.

Petitioner in person

Mansoor Ahmed, Deputy Attorney-General for Respondent No. l (in all Petitions except C.P. No. 1152 of 1999).

Fazal Elahi Siddiqui, Advocate Supreme Court and Ejaz Ahmad Khan, Advocate-on-Record for Respondent/Caveator (in C.Ps. Nos. 1116, 1127, 1132 and 1152 of 1999).

Date of hearing: 18th April, 2000.

2000 P L C (C.S.) 1029

[Supreme Court of Pakistan]

Present: Sh. Ijaz Nisar, Abdur Rehman Khan and Munir A. Sheikh, JJ

Dr. SHAHBAZ KHAN and another

Versus

WAPDA through Chairman and 4 others

Civil Appeals Nos.2 and 3 of 1999, decided on 24th February, 2000.

(On appeal from the judgment dated 16-7-1998 of the Federal Service Tribunal passed in Appeals Nos.265 and 271 (P) of 1997).

(a) West Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 17(lA)---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service on basis of charges carrying stigma---Leave to appeal was granted by Supreme Court to consider whether in a case where the WAPDA employee was sought to be removed from service on the basis of serious charges carrying stigma, recourse to the provision of S.17(lA) of West Pakistan Water and Power Development Authority Act, 1958 could be made or the Authority was required to proceed under Civil Servants (Efficiency and Discipline) Rules, 1977 and if the charges were such which required evidence, .Inquiry Committee was to be constituted and proceeded in accordance with law.

(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)---

----S. 17(lA)---Constitution of Pakistan (1973), Art. 212(3)---Dismissal from service on basis of charges carrying stigma---Such dismissal from service of the employee was made by WAPDA under the provision of S.17(lA) of West Pakistan Water and Power Development Authority Act, 1958---Validity---Such provision of law could not be invoked, in a case where WAPDA employee was sought to be removed from service on account of serious charges carrying stigma---Such employee would be proceeded against in accordance with Civil Servants (Efficiency and Discipline) Rules, 1973, though for the purpose of simple termination of employment of such employee, the provisions of S.17(lA) of West Pakistan Water and Power Development Authority Act, 1958 could be invoked---Orders of removal of the employee from the service and dismissal of appeal by Service Tribunal were not sustainable in circumstances.

WAPDA and others v. Sikandar Ali Abro and others 1998 SCMR 137 and Aleem Jaffar, Ex-Line Superintendent, WAPDA, Lahore v. WAPDAthrough Chairman, Lahore and 2 others 1998 SCMR 1445 rel.

Sheikh Riazul Haq, Advocate Supreme Court (in C.A. No. 2 of 1999), Hafiz S.A. Rahman, Senior Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellant (in C.A. No. 3 of 1999).

Saadat Hussain, Advocate Supreme Court for Respondents (in both Appeals).

Date of hearing: 24th February, 2000

2000 P L C (C.S.) 1031

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif JJ

ZAHID HUSSAIN

Versus

CITY SUPERINTENDENT, POST OFFICE, PESHAWAR and another

Civil Appeal No.426 of 1994, decided on 2nd April, 1998.

(On appeal from the judgment, dated 19-12-1993 of the Federal Service Tribunal, Islamabad, passed in Appeal No.83(P) of 1993).

(a) Constitution of Pakistan (1973)---

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Leave to appeal was granted by Supreme Court to consider, contention of the civil servant that on the material placed before Enquiry Officer no case could be made out against the civil servant specially when he was not provided with the documents allegedly attributed to his negligence and, that Authorised Officer, who served the charge-sheet on the civil servant was not competent to impose major penalty on him.

(b) Service Tribunals Act (LXX of 1973)---

----S.4---Compulsory retirement---Charge-sheet was issued to the civil servant against allegations of causing loss to the Government exchequer--­ Departmental inquiry was conducted and the civil servant was compulsorily retired from service and appeal before Service Tribunal was .dismissed--­ Contention raised by the civil servant was that relevant documents were not provided to him to meet the charges---Validity---Statement of the civil servant before the Inquiry Officer was specifically noticed in the judgment of Service Tribunal and Service Tribunal came to a definite finding that requisite documents were supplied to the civil servant---Service Tribunal had not misread the record/evidence to give the findings in the judgment--­Appeal was dismissed by Supreme Court.

Atiqur Rehman Qazi, Advocate Supreme. Court instructed by Muhammad Zahoor Qureshi Azad, Advocate-on-Record (absent) for Appellant. Sh. Riazul Haq, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate-on-Record for Respondents.

Date of hearing: 2nd April, 1998.

2000 P L C (C.S.) 1038

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg., C.J., Mamoon Kazi and Ch. Muhammad Arif, JJ

ASAF KHAN

versus

SECRETARY, MINISTRY OF FOREIGN AFFAIRS

Civil Petition No.216 of 1996, decided on 8th December, 1997.

(On appeal from the judgment, dated 10-1-1995 passed by the Federal Service Tribunal in Appeal No.452(R) of 1995).

Constitution of Pakistan (1973)----

----Art.212(3)---ESTACODE, 1989 Edn., Chap.VI, Sr. Nos. 63 to 69--­Grant of additional charge---Civil servant was given an additional charge of the post of Commercial Secretary, High Commission of Pakistan---Grant of additional charge was turned down by the Establishment Division being not tenable---Appeal of civil servant before Service Tribunal was dismissed on the ground that civil servant did not lay any claim to his eligibility as also qualification for promotion as Commercial Secretary but a compensation of 10 % of the pay of his own post for performing the additional duty was allowed---Validity---Such was the adequate compensation for the same--­Substantial justice having been done in the case, Supreme Court declined to substitute its decision for that of the Service Tribunal---Leave to appeal was refused.

Subha Sadiq v. Secretary to Government of Punjab .1984 PLC (C.S.) 718; Syed Imtiaz Ali Naqvi v. Managing Director (P:), WAPDA 1984 PLC (C.S.) 1606 and Federation of Pakistan v Shezada Shah Pur Jan 1986 SCMR 991 distinguished.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.

Mian Tariq Mahmood, Advocate Supreme Court for Respondents.

Date of hearing: 8th December, 1997.

2000 P L C (C.S.) 1042

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Sh. Ijaz Nisar and Ch. Muhammad Arif JJ

ZULFIQAR ALI MEMON and others

Versus

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY and others

Civil Appeals Nos. 76-K ' to 78-K of 1993, decided on 16th November 1998.

(On appeal from the judgment, dated 25-10-1992 passed by the High Court of Sindh, Karachi in Constitution Petitions Nos.571 of 1992, 727 of 1992 and 752 of 1992).

(a) Constitution of Pakistan (1973)---

---Arts. 185.(3) & 212---Leave to appeal was granted by Supreme Court to consider; whether the decision of WAPDA in appointing the petitioners as Technical Upper Subordinates was based on determination of fitness or otherwise of the petitioners and whether jurisdiction of High Court was barred under Art.212 of the Constitution.

Iqan Ahmed Khurram's case PLD 1980 SC 153 ref.

(b) Constitution of Pakistan (1973)---

Arts. 185 & 212---Appointment to the post of Junior Engineer--­Acceptance of appointment letter to the lower post---Employees did not contest the appointment letter issued by the Authority until institution of their Constitutional petitions in High Court---No explanation whatsoever had been offered by and on behalf of the employees on account of their own voluntary act of accepting the assignment/appointment as Technical Upper Subordinates---Appeal was dismissed accordingly.

Iqan Ahmed Khurram's case PLD 1980 SC 153 distinguished.

Mansoor Ali Khan, Advocate Supreme Court with Ahmadullah Faruqi, Advocate- on-Record for Appellants.

R.A. Qureshi, Advocate-on-Record for Respondents. Nos. 1 to 3.

Respondents Nos.4 to 6: Ex parte. Respondent No.7 (absent).

Date of hearing: 16th November, 1998.

2000 P L C (C.S.) 1047

[Supreme Court of Pakistan]

Present: Ajmal Mian, Actg. CJ., Mamoon Kazi and Ch. Muhammad Arif, JJ

KHALID PERVEZ

Verses

SECRETARY, ESTABLISHMENT DIVISION and 51 others

Civil Petition No.377 of 1996, decided on 11th December, 1997

(On appeal from the judgment, dated 5th May, 1996 passed by the Federal Service Tribunal in Appeal No. 144(R) of 1996).

Constitution of Pakistan (1973)---

----Art.212(3)---Promotion---Civil servant was not treated as a Member of Economists Group---Departmental appeal as well appeal before Service Tribunal were turned down for the reason that the advice of Establishment Division and judgment of Supreme Court in case of Federation of Pakistan v. Muhammad Akram and others (1995 SCMR 1647) could not form basis of a precedent in such other cases---Validity---Leave to appeal was granted to consider the efficacy or otherwise of the observations made by the Service Tribunal for non-suiting the civil servant on both the points i.e. limitation and applicability of Supreme Court's judgment reported in 1995 SCMR 1647 to the case of the civil servant.

Federation of Pakistan through Secretary, Planning and Development Division, Islamabad v. Muhammad Akram and others 1995 SCMR 1647 ref.

Petitioner in person.

Nemo for Respondents

Date of hearing: 11th December, 1997.

2000 P L C (C.S.) 1053

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Abdur Rehman Khan and Ch. Muhammad Arif, JJ

MUHAMMAD IQBAL

verses

ASSISTANT COMMISSIONER, JARANWALA and another

Civil Appeal No. 149 of 1995, decided on 16th January, 1998.

(On appeal from the judgment, dated 3-7-1993 passed by the Punjab Service Tribunal in Appeal No.580 of 1991).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Leave to appeal was granted to determine, whether case of civil servant was the one in which an inquiry should have been held before imposing penalty of dismissal, from service.

(b) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 4---Dimissal from service---Inefficiency and misconduct ---Proof--­Authorised Officer recorded such findings without making reference to any such instance of alleged incompetence throughout unblemished record of service of the civil servant---Validity---Single instance of any incorrect behaviour of individuals in any discipline whatsoever could hardly furnish a ground for holding those civil servants guilty of extreme incompetency.

M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691 ref.

(c) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

---R. 4---Constitution of Pakistan (I973), Art-212 ---West Pakistan Land Revenue Act (XVII of 1967), S.42---Dismissal from service---Inefficiency end misconduct, charge of---Civil servant was Patwari and mutation of State d was entered by him in favour of private person on the basis of transfer land order issued by Deputy Settlement Commissioner---Departmental proceedings were initiated against the civil servant for making that entry and was dismissed from service---Validity---Conduct of the civil servant in the he matter of entering the disputed mutation in the appropriate register with in red ink was not at all blameworthy because the same had sanction of note behind it---Entry of disputed mutation having been made by the civil law t in performance of his duties in terms of mandate contained in S.42 of servant P West Pakistan Land Revenue Act, 1967, could not but be held to have been e civil servant in the performance of his official duties, made- by the fide---Dismissal order of civil servant and judgment of Service Tribunal bona ere set aside---Civil servant was re-instated in service with back benefits.

A.U. Musarrat v. Government of West Pakistan PLD 1977 SC 24; M.A. Rehman v. Federation of Pakistan and others 1988 SCMR 691; M. it and another v. Divisional Forest officer 1991 SCMR 1523 and Alamgir and another v. Divisional Forest Officer, Multan 1993 SCMR 603 Alamgir ref.

Syed Jamshed Ali, Advocate Supreme Court for Appellant. Sh. Altaf Elahi Additional Advocate-General, Punjab for Respondents.

Date of hearing: 16th January, 1998.

2000 P L C (C.S.) 1107

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Kamal Mansur Alam, JJ

KHALID SIDDIQUE

versus

SECRETARY, EXCISE AND TAXATION DEPARTMENT GOVERMENT OF PUNJAB, LAHORE and 2 others

Civil Appeal No. 1291 of 1995, decided on 17th December, 1999.

(From the judgment/order dated 17-4-1994 passed by the Punjab Service Tribunal. Lahore, in Appeal No.348 of 1991).

Punjab Service Tribunals Act (IX of 1974)---

----Ss. 4 & 3---Appeal ---Constitution of Service Tribunal---Such Bench of Service Tribunal comprising the Chairman and one member heard the appeal but before order could be passed one member of the Bench retired and the order was passed by the Chairman of the Bench long after such retirement of the member---Validity---Bench having been constituted to hear and decide an appeal, such Bench alone, for the purpose of that appeal, could be deemed to be Tribunal---On the retirement of one of the two members of the Bench, the Tribunal so constituted would cease to exist, with the result that the decision by the remaining member could not be considered as that of the Tribunal--­Case was remanded to Service Tribunal for hearing the appeal afresh.

Appellant in person.

Arshad Ali Chaudhry, Advocate Supreme Court for Respondents.

Date of hearing: 17th December, 1999.

2000 P L C (C.S.) 1177

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. CJ., Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUM ABDUL QADEER KHAN and another

versus

ABDUL GHAFFAR BABAR and 3 others

Civil Appeal No.763 of 1997, decided on 14th June, 2000.

(On appeal from the judgment, dated 16-4-1997 of the Peshawar High Court, Circuit Bench, D.I. Khan in Writ Petition h1o.81 of 1995).

West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962--

----R.6(b)---Constitution of Pakistan (1973), Arts. 212 & 199---Civil servant who was considered to be not eligible for the post of Naib-Tehsildar on account of his being not less than 50 .years of age on the 1st January of the year in which the appointment was to be made in terms of R.6(b) of the West Pakistan Tehsildari and Naib-Tehsildari Service Rules, 1962---High Court under Art. 199 of the Constitution had no jurisdiction in the matter in view -of Art.212 of the Constitution of Pakistan as matter in question would fall within the exclusive jurisdiction of the Service Tribunal.

Imam Bakhsh v. Deputy Commissioner 1992 SCMR 365 ref.

M. Bilal, Senior Advocate Supreme Court and Imtiaz M. Khan Advocate-on-Record for Appellants.

Qazi Atiqur Rehman, Advocate Supreme Court and K.G. Sabir Advocate-on-Record for Respondent No. 1.

Qazi Rashidul Respondent No.4.

Date of hearing: 8th June, 2000.

2000 P L C (C.S.) 1180

[Supreme Court of Pakistan]

Present: Khalil-ur-Rehman Khan and Ch. Muhammad Arif, JJ

ASLAM JAVED, DEPUTY SUPERINTENDENT, DRY PORT, LAHORE

versus

CENTRAL BOARD OF REVENUE and another

Civil Petition No:462-L of 1997. decided on 20th August, 1998.

(On appeal from the judgment, dated 28-1-1997 passed by the Federal Service Tribunal, Lahore in Appeal No.291(L) of 1996).

Constitution of Pakistan (1973)---

----Art. 212(3)---Government Servants (Efficiency and Discipline) Rules, 1973, R.4---Departmental punishment---Civil servant after departmental proceedings was awarded penalty of lowering five stages in the, time scale---Service Tribunal while deciding the appeal, reduced the penalty to lowering of two stages in the time scale for three years ---Validity--­Service Tribunal was possessed of the jurisdiction to reduce the penalty while disposing of the appeal---Civil servant failed to raise any question of general public importance---Leave to appeal was refused.

Petitioner in person with Tanvir Ahmed, Advocate-on-Record for Petitioner.

Sh. Izhar-ul-Haq, Advocate Supreme Court for Respondents.

Date of hearing: 20th August, 1998.

2000 P, L C (C.S.) 1300

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Muhammad Bashir Jehangiri and Ch. Muhammad Arif, JJ

Mrs. BILQEES ZAMAN

versus

FEDERATION OF PAKISTAN and 3 others

Civil Appeal No. 1399 of 1995, decided on 12th June, 1998.

(On appeal from the judgment dated 31-5-1994 passed by the Federal Service Tribunal, Islamabad in Appeal No.240(L) of 1993).

(a) Constitution of Pakistan (1973)---

----Art. 212(3)---Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)---Leave; to appeal was granted to examine case of the petitioner in proper perspective, interpret relevant provisions of Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981, whereunder the petitioner and the respondents were treated as civil servants, as a decision in that regard would be a question of law of general public importance inasmuch as same would be of concern to a large number of functionaries involved in the Population Welfare Planning Programme.

(b) Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981)---

----Ss. 3, 6 & 8---Re-instatement in service---Granting of Basic Pay Scale-17 with all benefits---Entitlement to emoluments for the period during which the civil servant was out of service---Validity---Service Tribunal was right in holding that the relief regarding grant of Basic Pay Scale-17 with all benefits appurtenant thereto, related to the period when the appellant was not a civil servant---Assumption of duty by the civil servant was in acceptance of the order passed by Supreme Court in the case titled Federation of Pakistan and another v. Riaz Ahmad Baig and another reported as 1984 SCMR 759 and the same had not indicated that civil servant had been reinstated with retrospective effect---Service Tribunal had rightly repelled the plea of the civil servant that order of reinstatement in service was different from order in relation to other officers, in that civil servant was treated on medical leave which entitled the civil servant to the emoluments for the period when she was out of service.

Federation of Pakistan and another v. Riaz Ahmed Baig and another 1994 SCMR 759; Lutfi Siddiqui v. Secretary, Establishment Division, Rawalpindi 1991 SCMR 125; Zainul Abedin v. Multan Central, Cooperative Bank Limited, Multan PLD 1966 SC 445; 1989 SCMR 174; 1991 SCMR 640; 1990 SCMR 1356 and 1986 SCMR 1213 ref.

(c) Service Tribunals Act (LXX of 1973)--­

----S.4---Departmental appeal---Limitation---Jurisdiction of Service Tribunal--- Scope---Service Tribunal was competent to go into the question of limitation for filing departmental appeal.

1989 SCMR 174 and 1991 SCMR 640 ref.

Sh. Hamid Mukhtar, Advocate Supreme Court and Mahmood; A Qureshi, Advocate- on-Record (absent) for Appellant.

Maulvi Anwar-ul-Haq, Deputy Attorney-General and Ch. Anwar Ali, Advocate- on-Record for Respondent No. l

Respondents Nos.2 and 3: Ex parte, Sh. Altaf Elahi, Addl. A.-G., Punjab and Rao Muhammad Yousaf Khan, Advocate- on-Record (absent) for Respondent No.4.

Date of hearing: 12th June, 1998.

2000 P L C (C.S.) 1310

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Iftikhar Muhammad Chaudhary and Rana Bhagwan Das, JJ

Capt. (Retd.) MUHAMMAD NASEEM HIJAZI

versus

PROVINCE OF PUNJAB through Secretary, Housing and Physical Planning and 2 others

Civil Petition for Leave to Appeal Nor856 of 2000, decided on 9th June, 2000.

(On appeal from the judgment, dated 1-5-2000 passed by Lahore High Court, Lahore in I.C.A No.907 of 1998).

(a) Civil services----

----Appointment on contract---Contractual period of civil servant's appointment comes to an end when he is absorbed in the service.

(b) Constitution of Pakistan (1973)----

----Art.185(3)---Petition for leave to appeal--New plea could not be allowed to be raised for the first .time in a petition for leave to appeal.

1998 SCMR 307 ref.

(c) Constitution of Pakistan (1973)----

---Art.199(2)(b)(ii)---Constitutional jurisdiction of High Court ---Scope--­Writ of qua warranto, issuance of---Essentials---Locus standi to challenge unauthorised occupation of a public office---Principles.

Under Article 199(2)(b)(ii) of the Constitution of the Islamic Republic of Pakistan the High Court in exercise of its. Constitutional jurisdiction is competent to enquire from any person, holder of a public office to show that under what authority lie is holding the said office. In such-like cases where a writ in the nature of quo warranto is instituted the duty of the petitioner is to lay an information before the Court that such and such officer has no legal authority to retain such office. For a petitioner who acts, in fact, as an informer is not required to establish his locus standi to invoke the jurisdiction of the Court. Writ of quo warranto in its nature is an information laying against persons who claimed or usurped an office, franchise or liberty and was intended to inquire by what authority he supported his claim in order that right to office may be determined. It is necessary. for the issuance of writ that the office should be one created by the State of character or by statute and that the duty should be of a public nature. Writ of quo warranto could be moved by "any person who even may not be an aggrieved party but is holding a public office created by character or statute by the State". Any person can move the High Court to challenge the unauthorised occupation of a public office. On any such application Court is not, only to see that the incumbent is holding the office under the order of a Competent Authority but it is to go beyond that and see as to whether he is legally qualified to hold the office or to remain in the office. The Court has also to see if statutory provisions have been violated in making the appointment. The invalidity of appointment may arise not only from want of qualifications but also from violation of legal provision for appointment.

Masood-ul-Hassan v. Khadim Hussain and another PLD 1963 SC 203; M.U.A.Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228; Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others 1992 PLC (C.S) 289; Al-Jehad Trust through Raseeul Mujahidden Habib-ul- Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161; Mushtaq Ahmad Mohal and others v. The Hon'ble Lahore High Court, Lahore and others 1997 SCMR 104 and Atta Muhammad Qureshi v. Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 ref.

(d) Civil service---

----Appointment---Promotion---Validity---Service Regulations of the Department concerned had designated Director-General of the Department to be Appointing Authority prescribing therein the method of recruitment and promotion on the basis of seniority-cum-fitness-- Any recruitment/promotion in violation of such method would not fall within the ambit of said method.

(e) Civil service---

----Appointment---Promotion---Validity---Designated Authority had not discharged its functions the way he was required to do so---Such action of the Authority had no sanctity to sustain.

(f) Civil service---

----Appointment---Non-providing opportunity to the eligible candidate to compete against, the post militated', against the appointment so made.

Abdul. Jabbar's case 1996 SCMR 1349 ref.

(g) Civil service----

----Promotion---Validity---Civil servant was holding the post in Grade-18 on ­contract basis for a period of 3 years---Said civil servant who had only 3 to 6 months' period of service to his credit managed not only to get himself promoted in Grade-19 but also got himself absorbed permanently in the department which was in utter violation of Service Regulations of the Department---Civil servant, in circumstances, had no authority under the law to retain the post of BPS-19 as he did not fulfil any of the conditions laid down by the Departmental Regulations and his appointment being contrary to the Service Regulations his subsequent absorption was also not sustainable.

Director, Social Welfare, N.-W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350 distinguished.

Mushtaq Ahmad Mohal and 2 others v. Hon'ble Lahore High Court, Lahore and others 1997 SCMR 1043 applied.

Naseer Ahmad Bhutta, Advocate Supreme Court and Mehr Khan Malik, Advocate- on-Record for Petitioner.

Mrs. Nasira Javed Iqbal, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents.

Date of hearing: 9th June, 2000.

2000 P L C (C.S.) 1326

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. CJ. and Munir A. Sheikh, JJ

CHAIRMAN, WAPDA and 2 others

versus

ABDUL HAFEEZ KHAN

Civil Appeal No. 869 of 1996, decided on 24th May, 2000.

(On appeal from the judgment dated 20-11-1994 of the Punjab Service Tribunal, Lahore, passed in Appeal No.643-A of 1991).

(a) Water and Power Development Authority (Power Wing) Commercial and Revenue Officers Rules, 1982---

----Punjab Service Tribunals Act (IX of 1974), S.4(2), proviso (b)--­Constitution of Pakistan (1973), Art. 212(3)---Appeal of WAPDA employee on deputation from Provincial Government before Punjab Service Tribunal--­Maintainability---Failure of WAPDA employee to fulfil the conditions of promotion resulting in his reversion---Validity---Leave to appeal was granted by Supreme Court to consider the contention of the Authority that as the WAPDA employee had sought relief in respect of a post to which he had been appointed by WAPDA, the Provincial Service Tribunal had no jurisdiction to entertain his appeal and that WAPDA was competent to lay down conditions in the nature of qualifications for promotion to higher appointments and as the employee had not fulfilled the condition soon which he was promoted the Authority was competent to revert him to the post he was holding before the promotion.

(b) West- Pakistan Water and Power Development Authority Act (XXM of 1958)--

----S.17(1-B)---Service- Tribunals Act (LXX of 1973), S.4 ---Province of West Pakistan (Dissolution) Order (1 of 1970), Art. 12 (l)(c)--WAPDA employee on deputation from Provincial Government---Status---Any employee of the Provincial Government or any other Authority) constituted by the Provincial Government, holding a post under WAPDA was to be treated as the employee of WAPDA by Art. 12(1)(c), Province of West Pakistan (Dissolution) Order (1 of 1970)---Service under the Authority had been declared to be service of Pakistan under S.17(1-B) of the Nest Pakistan Water and Power Development Authority Act, 1958 and every person holding a post under the Authority, not being a person who was on deputation to the Authority from any province, was to be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973--­Deputation of the employee, which he held in WAPDA having been severed' by virtue of Art. 12 (1)(c) of the Province of West Pakistan (Dissolution) Order, 1970, said employee had ceased to be the employee of the Provincial Government and by operation of law he had become the employee of WAPDA amenable to the jurisdiction of Federal Service Tribunal and his grievance could not have been decided by the Provincial Service Tribunal for lack of jurisdiction

M. Salim Chaudhry, Advocate Supreme Court for Appellants. Respondent in person.

Date of hearing: 24th May, 2000.

2000 P L C (C.S.) 1336

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

CHAIRMAN, RAILWAYS BOARD/SECRETARY, MINISTRY OF

RAILWAYS, ISLAMABAD and others

versus

Rana KHALID MAHMOOD and another

Civil Appeals Nos. 1756, 1757, 1760 and 1762 of 2000, decided on 7th June, 2000.

(On appeal from the judgment of the Federal Service Tribunal dated 18-3-1996 passed in Appeal No. 14(L) of 1996, 35(L) of 1996, 33(L)i of 1996 and 31 (L) of 1996 respectively).

Constitution of Pakistan (1973)---

----Arts. 212 & 199---Service Tribunals Act (LXX of 1973), S.4--­Constitutional petition before High Court---Maintainability---Fringe benefits to Railways' employees on grant of selection grade to them which fell within the terms and conditions of their service---Withdrawal of---Validity---Forum to redress grievance of Railways' employees---Railways' employees were granted selection grade in BS-17 by the Competent. Authority after observing all legal formalities and. thereafter A.C.C. passes were allowed to them by the Railways Authorities which were fringe benefits falling within the terms and conditions of service of employees which could not be taken away by the Railways Department---Order of Railways Department withdrawing the­ A.C.C. passes allowed to said employees was not based on equity, fairplay and rather that appeared to be arbitrary which showed that the employees were being discriminated by the Department---Constitutional petition before High Court by Railways' employees was rightly dismissed by High Court for want of jurisdiction as grievance of the employees related to terms and conditions of service and appropriate forum for redressal of their grievance was the Service Tribunal.

Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207; Government of Punjab and others v. Muhammad Awais Shahid and others 1991 SCMR 696; Muhammad Islam and others v. General Manager, Pakistan Railways 1994 SCMR 1626 and Government of Pakistan v. Syed Akhlaque Hussain and another PLD 1965 SC 527 distinguished.

Mirza Masood-ur-Rehman, Advocate Supreme Court and Mahmood A. Qureshi, Advocate-on-Record (absent) for Appellant (in all Appeals).

Afzal Ahmed Qureshi, Advocate Supreme Court and A. Abul Asim Jafri, Advocate- on-Record for Respondent No. 1. (in all Appeals).

Date of hearing: 7th June, 2000.

2000 P L C (C.S.) 2

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J., and Basharat Ahmad Shaikh, J

Dr. Kh. MUSHTAQ AHMAD

Versus

AZAD GOVERNMENT and 3 others

Civil Appeal No.51 of 1997, decided on 12th June, 1998

(On appeal from the judgment of the Service Tribunal, dated 5-6-1997 in Service Appeal No.884 of 1997).

(a) Azad Jammu and Kashmir Animal Husbandry Department Establishment Service Rules, 1992---

----Entry No. 2-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47---Civil service---Promotion---Validity---Post of Planning Officer in B-17 in the Department held by respondent was upgraded and he was promoted to that post---Appellant who was also working in B-17 in same Department challenged said promotion before Service Tribunal where his appeal was dismissed on ground that he belonging to a different cadre, had no locus standi to challenge the promotion---Validity---Promotion of respondent was made under Entry No.2-A of Azad Jammu and Kashmir, Animal Husbandry Department Establishment Service Rules, 1992 which had provided that if Planning Officer/Statistical Officer B-17 had five years' service at his credit, had the right to be promoted to post of, Deputy Director---Respondent who had the required five years' service to his credit and was fully qualified to be promoted to the post, had rightly been promoted to that post and appellant who not only belonged to a different cadre, but also was not qualified to the post, was rightly not considered for promotion.

Mubashar-ul-Haq v. Azad Government of the State of Jammu and Kashmir and 2 others 1991 PLC (C.S) 426 and Muhammad Rashid Chaudhry v. Chairman, AKLASC and others 1993 PLC (C.S.) 1201 ref.

(b) Azad Jammu and Kashmir Animal Husbandry Department Establishment Service Rules, 1992---

----Entry No. 2-A---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975) S.4---Civil service---Service Rules---Judicial scrutiny---Jurisdiction of Service Tribunal---Service Rules were not sacrosanct and could be judicially scrutinized ---Vires of a law could be challenged before Service Tribunal--­Order about terms and conditions of civil servant could be vacated by ignoring or striking down a law if it was found to be invalid by Service Tribunal.

Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC (AJ&K) 5 ref.

Khawaja Iftikhar Ahmad for Appellant.

Raja Shiraz Kayani, Advocate-General for Respondents Nos. l and 2.

Raja Muhammad Hanif Khan for Respondent No.4.

Dates of hearing: 5th November, 1997 and 15th May, 1998.

2000 P L C (C.S.) 9

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

AZAD GOVERNMENT and 4 others

Versus

Dr. Syed ABADAIN HAIDER and 8 others

Civil Appeal No.28 of 1998, decided on 13th August, 1998.

(On appeal from the judgment of the High Court, dated 29-10-1997 in Writ Petitions Nos. 2561 and 284 of 1997).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 42 & 44---Constitutional petition---Civil service ---Appointment--­ Curtailment of quota after selection of candidate---Candidates in response to advertisement of Public Service Commission applied for posts of Civil Medical officer and were declared successful and were selected for said posts---Authority curtailed subsequently quota of seats and dropped seats of civil servants who were selected after test and interview---Validity---After qualifying test and interview in accordance with advertisement by Public Service Commission and issuing handout with regard to success and selection of civil servants, a valuable right had accrued in favour of such person which could have not been taken back by subsequent action, especially when no reason was given by Authority for curtailment of quota of seats---High Court, in circumstances, had rightly presumed that candidates' right had been adversely affected with mala fide designs.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.44---Civil Procedure Code (V of 1908), S.35-A---Constitutional petition--- Exemplary cost---Award---Jurisdiction of High Court---High Court was not debarred from awarding an exemplary cost to a petitioner who had no cause of action or who had come in Court by bringing frivolous petitions to harass other parties to burden them with unnecessary expenses of litigation---On same analogy such power was available where filing of a Constitutional petition became necessary to challenge a totally unsupportable or frivolous order.

Inayatullah v. Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020 and Mst. Maasoom Bibi v. Deputy Administrator, (R.P.), Sialkot and others 1988 CLC 2317 ref.

Raja Shiraz Kayani, Advocate-General for Appellants. .

Ghulam Mustafa Mughal for Respondents.

Date of hearing :18th June, 1998.

2000 P L C (C.S.) 13

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shiakh and Muhammad Yunus Surakhvi, JJ

Syed SADAQAT HUSSAIN SHAH and 4 others

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT and 3 others

Civil Appeals Nos. 64 and 76 of 1998, decided on 14th December, 1998.

(On appeals from the judgment of the High Court, dated 12-3-1998 in Writ Petition No. 132 of 1994). .

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)-

----S. 44---Petition for writ of quo warranto---Competency to file---Issuance of writ of quo warranto would not require petitioner to be an aggrieved person---Citizen who was out of service could challenge appointments of functionaries of Government by filing petition, for writ of quo warranto--­Person not in service of Azad Jammu and Kashmir could invoke writ jurisdiction for redressal of grievance arising out of terms and conditions of service.

Manzoor Ahmed v. Azad Government and another 1995 PLC (C.S) 59; Azad Jammu and Kashmir Government v. Muhammad Yunus Tahir 1994 CLC 2339 and Mst. Zabeda Begum v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad 1998 PLC (C.S) 292 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.44---Writ of quo warranto---Question of laches---Question of laches alone hardly mattered and was not at all fatal for issuance of writ of quo warranto unless it was actuated by malice.

Raja Muhammad Hanif Khan, Advocate for Appellants (in Civil Appeal No. 64 of 1998).

Kh. `Shahad Ahmad, Advocate for Respondents (in Civil Appeal No. 64 of 1998).

M. Tabassum Aftab Alvi, Advocate for Appellant (in Civil Appeal No. 76 of 1998).

Raja Shiraz Kayani, Advocate-General for Respondent No.2 (in Civil Appeal No. 76 of 1998).

Date of hearing: 6th November, 1998.

2000 P L C (C.S.) 66

[Supreme Court (AJ&K)]

Present; Basharat Ahmad Shaikh and Muhammad Yunus Surkhvi, JJ

Syed ARSHAD GILLANI and another

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 2 others

Civil Review Petition 1 of 1999, decided on 16th April, 1999.

(In the matter of review from the judgment of this Court dated 10-12-1998 in Civil Appeals Nos.67, 68 and 82 of 1998).

(a) Interpretation of statutes---

---- Application of interpretation of one enactment to another enactment--­Principle---Interpretation of an enactment was only applicable to another enactment if both enactments were para materia.

Azad Government of the State of Jammu and Kashmir through Chief Secretary and 3 others v. Human Genuine Rights Commission, Azad Jammu and Kashmir through Ashfaque Hussain Kiani, Advocate, Central Bar, Muzaffarabad and 7 others 1999 MLD 268 ref.

(b) Azad Jammu and Kashmir Additional Custodians, Deputy Custodians and Managers of Evacuee Property (Terms and Conditions of Service) Rules, 1992---

----Azad Jammu and Kashmir Additional Custodians, Deputy Custodians and Managers of Evacuee Property (Terms and Conditions of Service) Rules, 1992 and Azad Jammu and Kashmir Civil Servants (Pension) Rules, 1970 are not applicable to the Judges of the Shariat Court.

Raja Muhammad Hanif Khan, Advocate for Petitioners.

Dates of hearing: 10th June and 2nd November, 1998.

2000 P L C (C.S.) 79

[Azad J&K]

Before Muhammad Saddique Farooqi, J

Chaudhary MUKHTAR HUSSAIN

Versus

A.K. GOVERNMENT through Chief Secretary, Muzaffarabad and 2 others

Writ Petition No.67 of 1998, decided on 26th February, 1999.

Civil service-

---- Advance increments---Entitlement---Civil servant after qualifying prescribed qualification was appointed as Tehsildar---Civil servant during course of his service having qualified LL.B. (Hon.) applied to a Authority for grant of two increments on basis of said additional qualification, but his claim was repudiated on ground that he did not hold Master's Degree--­Validity---Civil servant after qualifying LL.B. (Hon.) was performing many duties in Department which required legal knowledge---Authority had also assigned to civil servant duties for looking after legal matters in Department---Civil servant had placed on record a notice of acknowledgement by Senior Member, Board of Revenue, on compilation of a look whereby laws relating to Revenue and Rehabilitation Department had been codified in one volume---Civil servant had also placed on record certain copies of judgments of superior Courts and also notification whereby LL.B. (Hon.) degree was equated with Master's Degree for purpose of grant of advance increments---Law brought on record by civil servant had justified grant of two increments in favour of civil servant---Civil servant who had made a valuable contribution by compilation of Revenue/Rehabilitation laws in form of a book, deserved encouragement--­High Court accepting Constitutional petition of civil servant directed Authority to allow him two advance increments on basis of the additional qualification.

Muhammad Zareef Khan v. Government of N.-W.F.P. 1996 MLD 833 and 1997 PSC 1333 ref.

Petitioner in person.

Khawaja Muhammad Nasim for Respondents.

2000 P L C (C.S.) 155

[Supreme Court (A J & K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

SECRETARY FOR PRIME MINISTER, PRIME MINISTER'S

SECRETARIAT, AZAD JAMMU AND KASHMIR, NEW

SECRETARIAT, MUZAFFARABAD and 3 others

Versus

MUHAMMAD ASLAM and 5 others

Civil Appeal No.24 of 1999, decided on 6th July, 1999.

(On appeal from the judgment of the High Court, dated 1-10-1998 in Writ Petition No.342 of 1998).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----S. 17---Appointment---Advertisement for a post---Condition of advertisement contained in R. 17, Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, being of fundamental importance, was mandatory in nature---If a post had not been advertised, appointment made against such post, even if based on recommendation of Selection Board would be void because advertising a post was basis on which merit system stood.

(b) Civil service ---

----Appointment---Recission of appointment--- Rule of audi alteram partem'--- Applicability---If a person was not qualified to hold a post, it was not necessary to hear him before rescinding his appointment---Rule of 'audi alteram partem' in circumstances, had no application.

Mst. Rehana Aziz v. Mst. Shakeela Ashraf and 2 others 1998 SCR 281; Government of Pakistan, Islamabad v. The General Public PLD 1988 SC 645; Abdul Rashid v. D.E.O. and another 1998 PLC (C.S.) 304; Malik Zafar Ali v. Inspector-General of Police 1995 SCR 234 and Abid Hussain Jafri and others v. Azad Government and others 1998 PLC (C.S.) 141 ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction, exercise of---Writ jurisdiction could not be exercised to protect ill-gotten gain.

Bashir Ahmad Khan v Custodian and another 1992 SCR 149 ref.

Ch. Muhammad Ibrahim Zia, Advocate for Appellant. Mujahid Hussain Naqvi, Advocate for Respondents.

Date of hearing: 11th June, 1999.

2000 P L C (C. S.) 161

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Raja ABDUL MAJID, SECTION OFFICER, SERVICES DEPARTMENT, MUZAFFARABAD and 24 others

Versus

Syed ABDUL LATIF SHAH and 4 others

Civil Appeal No. 161 of 1998, decided on 6th July, 1999.

(On appeal from the judgment of the High Court, dated 3-6-1998 in Writ Petition No.212 of 1996).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 42, 44 & 47(2)---Azad Jammu and Kashmir Civil Servants Act, 1976, S. 22---Transfer of civil servant to another department---Permanent adjustment in transferee department---Appeal to Supreme Court---Civil servants who were transferred to other department, filed writ petition in the High Court and prayed that direction he issued to transferee department that petitioners would not be repatriated to their parent departments---High Court accepted the writ petition and issued directions that petitioners should not be sent back to their parent departments---Validity---Direction issued by High Court related to terms and conditions of civil servants and by such direction rights of co-civil servants had been adversely affected---Such directions of High Court were beyond jurisdictional competence as when terms and conditions of service of civil servants were involved jurisdiction of High Court under S. 47(2), Azad Jammu and Kashmir Interim Constitution Act, 1974, was totally ousted---Even Government was not competent to exercise power under S. 22, Azad Jammu and Kashmir Civil Servants Act, 1976, in favour of respondents because said power could not have been exercised in violation of just and equitable principles---Supreme Court set aside judgment of High Court in circumstances.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Aggrieved person---Not necessary that a person should be an aggrieved person in stricto senso, but if interests of petitioner were liable to be jeopardised by an act, of functionary of Government which act was not in accordance with law, petitioner for redressal of his grievance would become an aggrieved person.

Ch. Muhammad Ibrahim Zia, Advocate for Appellants.

Abdul Rashid Abbasi, Advocate for Respondents Nos. l and 2.

Kh. Attaullah, Additional Advocate-General for Respondents Nos.3 to 5

Date of hearing: 18th May, 1999.

2000 P L C (C.S.) 171

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Basharat Ahmad Shaikh, J

MUHAMAD HANIF KHAN

Versus

Sardar MUHAMMAD HALIM KHAN and 4 others

Civil Appeal No. 16 of 1998, decided on 17th July, 1998.

(On appeal from the judgment of the High Court dated 19-I1-1997 in Writ Petition No. 387 of 1997).

(a) Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993---

------Ss. 8(b), 9 & 17---Cadet College Pallandri (General Conditions of Service) Rules, 1996, R. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44---Civil service---Permanent absorption of civil servant brought on deputation--- Validity---Civil servant employed on permanent basis in Accountant-General Office as Senior Auditor in B-15 was sent on deputation to Cadet College, for a period of three years--­Principal of college absorbed civil servant as a permanent member of staff as Accounts Officer which absorption was challenged in Constitutional petition by private citizens of State who were interested in efficient management of Cadet College---High Court accepting Constitutional petition found that civil servant had not been competently and legally absorbed on permanent basis and that he held said post only as a transitional arrangement ---Validity--­When civil servant was permanently absorbed by Principal, Azad Jammu and Kashmir Government Educational and Training institutions Act, 1993, was in force whereunder Board of Governors was sole Authority to order recruitment of officers and servants of Cadet College---Principal of College, thus, was not competent to induct civil servant on- permanent basis---High Court, in circumstances, had rightly found that civil servant was not legally and competently absorbed on permanent basis as Accounts Officer.

Syed Sajid Hussain v. Ch. Muhammad Latif and others 1992 SCMR 468; Syed Manzoor Hussain Gillani v. Sain Mullah PLD 1993 SC (AJ&K) 12 and Azad Government and others v. Sahibzada Ishaque Zafar and others 1994 MLD 2382 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44(2)(b)(ii)---Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993, S. 8(b)---Writ of quo warranto---Permanent absorption of civil servant who was brought on deputation, made by Principal of Cadet College was challenged by private citizens in Constitutional petition before High Court on ground that it was incompetently made by Principal and at relevant time only Board of Governors was empowered to make said absorption under Azad Jammu and Kashmir Government Educational and Training Institutions Act, 1993, which was in force at that time--High Court accepting Constitutional petition not only held that civil servant was illegally and incompetently absorbed on permanent basis, but also had directed that said post be filled up in accordance with relevant law---Validity---Petitioner did not challenge civil servant's right to hold disputed post as a transitional arrangement, but had challenged his permanent absorption---High Court, in circumstances, could not declare that civil servant could not perform function in pursuance of a transitional arrangement---Such directions of High Court were beyond scope of writ of quo warranto.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ of mandamus and certiorari---Issuance of ---Distinction--­ Aggrieved person---Writ of mandamus could only be issued on application of an aggrieved person---Petitioners who in their Constitutional petition had challenged permanent absorption of a civil servant (taken on deputation) in post of Accounts Officer in Cadet College, were citizens of State who were simply interested in efficient management of Cadet College---Such claim of petitioners did not make them aggrieved persons for filing writ of mandamus or writ of certiorari.

Kh. Shahad Ahmad for Appellant. Ch. Abdul Aziz for Respondents.

Date of hearing: 17th April, 1998.

2000 P L C (C.S.) 210

[Supreme Court (A J & K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surkhavi, JJ

Civil Anneal No. 135 of 1998

Ch. ABDUL LATIF, SUPERINTENDENT, CENTRAL EXCISE AND

SALES TAX, MIRPUR CIRCLE, AJ&K and 2 others

Versus

SECRETARY, AZAD JAMMU AND KASHMIR COUNCIL, F-5/2, ISLAMABAD and 2 others

(On appeal from the judgment of the Federal Service Tribunal, dated 27-7-1998, in Service Appeal No.878-R of 1997).

Civil Appeal No. 191 of 1998

MUHAMMAD HAMEED KHAN, INCOME-TAX

OFFICER/SUPERINTENDENT, CENTRAL EXCISE/ASSISTANT

EXCISE AND TAXATION OFFICER, MUZAFFARABAD

Versus

ABDUL LATIF, SUPERINTENDENT, CENTRAL EXCISE

BHIMBER CIRCLE, MIRPUR and others

(On appeal from the judgment of the Federal Service Tribunal, dated 2,7-7-1998, in Service Appeal No.841-R of 1997).

Civil Appeal No. 192 of 1998.

MUHAMMAD HAMEED KHAN, INCOME-TAX

OFFICER/SUPERINTENDENT, CENTRAL EXCISE/

ASSISTANT, EXCISE AND TAXATION OFFICER, MUZAFFARABAD

Versus

MUHAMMAD KHAN, SUPERINTENDENT, CENTRAL EXCISE, BHIMBER CIRCLE, MIRPUR, AZAD KASHMIR and 2 others

(On appeal from the, judgment of the Federal Service Tribunal, dated 27-7-1998, in Service Appeal No. 842-R of 1997).

Civil Appeal No. 193 of 1998.

MUHAMMAD HAMEED KHAN, INCOME-TAX OFFICER/

SUPERINTENDENT, CENTRAL EXCISE/ASSISTANT

EXCISE AND TAXATION OFFICER, MUZAFFARABAD

Versus

MUHAMMAD NAZIR ABBASI, PRESENTLY POSTED AS

INCOME TAX OFFICER/SUPERINTENDENT, CENTRAL

EXCISE/ASSISTANT EXCISE AND TAXATION OFFRICER, MUZAFFARABAD and 2 others

(On appeal from the judgment of the Federal Service Tribunal, dated 27-7-1998, in Service Appeal No.875-R of 1997).

Civil Appeals Nos. 135 and 191 to 193 of 1998, decided on 16th April, 1999.

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S. 4---Service Tribunal (Procedure) Rules, 1974, R. 7---Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976, R.8---Civil service--?Appeal before Service Tribunal---Competency---Appeal before Service Tribunal was filed without impleading Secretary of Azad Jammu and Kashmir Council who was Competent Authority in the case ---Impleading Competent Authority as respondent in appeal was mandatory requirement of law which having not been fulfilled by appellant, appeal was not competent and liable to be dismissed on that ground.

Muhammad Ashraf Khan Kayani v. Azad Government and 4 others 1998 PLC (C.S) 110; Muhammad Resham Khan v., Chairman, Inspection Team and 3 others 1990 CLC 1355 and Mirza Lal Hussain v. Custodian of Evacuee Property 1992 SCR 214 ref.

(b) Azad Jammu and Kashmir Civil Servants Act, 1976---

----S.9--Civil service---Promotion against selection and non-selection posts--- Criteria--- Promotion, against non-selection posts had to be made on basis of seniority-cum-fitness, whereas in case of selection posts it had to be made on basis of selection on merits---In case of non-selection post if on a given date a civil servant had passed departmental examination, he had a right to be considered for promotion on basis of seniority irrespective of date of passing of departmental examination or the marks obtained by him---If civil servant was found fit by Selection Authority, civil servant had to be promoted.

(c) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R.8(b)---Civil service---Appointment on acting charge basis such an application could be made when a post was vacant---Only senior most civil servant could be promoted under R. 8(b) of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973-- When most senior civil servant was fit for promotion and he also possessed specified length of service there was no room for appointment on acting charge basis---When post fell vacant, matter should be referred to Departmental Promotion Committee as early as possible and promotion should be made on basis of recommendations of Selection Committee.

Fazal Ellahi Siddiqui, Advocate for Appellants (in Civil Appeal No. 135 of 1998).

Abdul Rashid Abbasi and Kh. Muhammad Aslam Habib, Advocate for Respondent No.3 (in Civil Appeal No. 135 of 1998).

M. Tabassum Aftab Alvi, Advocate for Appellant (in Civil Appeal No. 191 of 1998).

Fazal Ellahi Siddiqui, Advocate for Respondent (in Civil Appeal No. 191 of 1998).

M. Tabassum Aftab Alvi, Advocate for Appellant (in Civil Appeal No. 192 of 1998).

Fazal Ellahi Siddiqui, Advocate for Respondents (in Civil Appeal No. 192 of 1998).

M. Tabassum Aftab Alvi, Advocate for Appellant (in Civil Appeal No. 193 of 1998).

Abdul Rashid Abbasi and Kh. Muhammad Aslam Habib, Advocates for Respondent No.1? (in Civil Appeal No. 193 of 1998).

Date of hearing: 18th February, 1999.

2000 P L C (C.S.) 247

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ., Basharat Ahmad Shaikh

and Muhammad Yunus Surakhvi, JJ

MUHAMMAD ARSHAD KHAN, TEHSILDAR and another

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

through Chief Secretary, Muzaffarabad and others

Civil Appeals Nos. l and 2 of 1999, decided on 8th July, 1999.

(On appeal from the judgment of the Service Tribunal, dated 5-10-1998 in Service Appeals Nos.839, 840, 902 and 903 of 1995).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

-----S. 4---Promotion---Appeal---Competency---Appellants after exhausting departmental remedy filed appeal against a letter by Secretary, Board of Revenue to Accounts Department wherein it was explained that respondents were purported to have been given retrospective promotion from dates of their appointments as acting/officiating charge basis---Such appeals were dismissed by Service Tribunal on the ground that the letter did not amount to- an order, but was an explanation of rules and was not appealable--­Validity---Letter whereby respondents had been held entitled to ante-dated promotion, had adversely affected seniority of appellants---Appellants, in circumstances, were legally competent to assail said letter by filing appeal to Service Tribunal after exhausting departmental remedy---Even otherwise letter could be appealed against despite fact that same had not been couched as an order.

Muhammad Arshad Saeed, D.I.-G. Police v. Government of Pakistan through Secretary, Establishment Division, Islamabad (994 SCMR 1033 ref.

(b) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----Rr. 10-A & 13---Promotion on acting/officiating basis---Retrospective effect on promotion---Conditions---Two, conditions for 'giving ante-dated operation to a promotion: firstly there must be an existing vacancy available for the promotion at the relevant time, and secondly, the promotee must have requisite qualifications for said promotion on relevant date.

(c) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----Rr. 10-A & 13---Appointment/promotion on acting/officiating basis--­Concept ---Procedure---Conditions---Acting charge promotion could be given if a post was reserved for departmental promotion and the most senior civil servant belonging to the cadre or service concerned, who was otherwise eligible for promotion did not posses special length of service at the time of his promotion---If a post was deserved to be filled in by initial recruitment, but a suitable person was not available to fill in the same, said post could be filled in on acting charge hasps by appointing the most senior officer eligible for promotion---Appointment on acting charge basis in case of departments! promotion, could be made only when promotee did not possess requisite length of service---Appointment on acting charge basis would not be deemed to be made on regular basis for any purpose nor it would confer any right for regular appointment.

Inayat Ali and another v. Manzoor Ullah and another 1987 SCMR 407; Muhammad Iqbal Khokhar v. The Government of the Punjab, Lahore PLD 1991 .SC 35; Dr. Sabir Zameer Siddiqui v. Mian Abdul Malik and 4 others PLD 1991 SC 226; Muhammad Nawaz Khan v. Muhammad Ijaz Rashid PLD 1993 SC 10; 1993 PLC (C.S.) 338; Asif Ali Khan v. Secretary to the Government of Punjab Communication and Work's Department, Lahore 1992 SCMR 198; Muhammad Rahim, Lecturer v. Muhammad Aurangzeb, Lecturer 1986 SCMR 8?3; Government of N.-W.F.P. through. Chief Secretary v. Muhammad Ajmal 1986 SCMR 2007; Sh. Manzoor Ahmad v. Azad Government 1995 PLC (C.S.) 59; Sardar Sabir Hussain Khan Abbasi v. Azad Government Civil Appeal No. 16 of 1999; Khawaja Muhammad Ahsan v. Manzoor Ali Khokhar Civil Appeal No.19 of 1998; Prof. Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government 1990 MLD 1283 and Syed Aftab Hussain Shah Garadizi. v. Azad Jammu and Kashmir Government through Chief Secretary 1993 PLC (C.S.) 1659 ref.

(d) Civil service---

----Seniority list---Rule of preparation---Ordinary rule of preparing seniority list is that first a provisional list is issued by the Competent Authority and objections are called and thereafter, a final list is prepared.

(e) Azad Jammu and Kashmir Civil Servants Act, 1976--

----S. 22---Powers under S. 22, Azad Jammu and Kashmir Civil Servants Act, 1976---Scope---Powers under S. 22 of the said Act, being residuary in nature, are to be exercised by the Government.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Sardar Rafique Mahmood Khan, Advocate for Respondents.

Date of hearing: 8th June, 1999.

2000 PLC (C. S.) 706

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

ABDUL KHALIQ, PRIMARY TEACHER, PRIMARY SCHOOL, RAJKOT, TEHSIL AND DISTRICT MUZAFFARABAD

Versus

ZAHEER AHMED and 4 others---Respondents

Civil Appeal No. 145 of 1999, decided on 18th February, 2000.

(On appeal from the judgment of the Service Tribunal, dated 10-7-1999 in Service Appeal No. 109 of 1999).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)-

---Ss.4 & 5--Direction of Service Tribunal after dismissing appeal--Validity---Service Tribunal dismissed appeal holding that it was not maintainable, but despite said dismissal directed the Authority to investigate dispute between the parties and to pass a final order---After finding that appeal was not maintainable, no power was left with Service Tribunal to issue any direction---Service Tribunal could only act on appeal and could set aside, vary or modify order against which appeal was filed before it and had no suo motu powers to issue any direction or pass any order after doing any such action---Direction given by Service Tribunal being not covered by any of said actions, Supreme Court vacated the same.

Faroog Hussain Kashmiri, Advocate for Appellant.

Shiraz Kayani, Advocate-General for Respondent No.3:

Date of hearing: 17th February, 2000.

2000PLC(C.S.) 714

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Sheikh and Muhammad Yunus Surkhavi, JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Azad Government, Muzafarabad and 4 others

Versus

MUHAMMAD SIDDIQUE HAIDERI

Civil Appeal No. 104 of 1999, decided on 18th. February, 2000.

(On appeal from the judgment of the High Court, dated 3-5-1999 in Writ Petition No.296 of 1998).

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977--

----R.17---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Removal from service---Re-instatement-;-Civil servant was removed from service without giving him opportunity of hearing on allegations that he had been guilty of tampering with the record on account of which he was able to get himself absorbed in service on regular basis and was also able to secure his promotion to B-14 from B-8---Allegations against civil servant being of serious nature would have the effect of attaching a permanent stigma and such finding could not be given behind his back­ Civil servant having been condemned unheard, order removing him from service had rightly been quashed by- High Court---High Court had restored civil servant to service, but had riot allowed Competent Authority to proceed' in matter afresh which was not approved by Supreme Court observing that in view of the serious allegations like tampering with record, it was necessary that matter should be properly investigated and a person accused of such behaviour could not be allowed to escape on technical grounds---Supreme. Court ordered that Competent Authority be allowed to proceed in the matter after giving opportunity of hearing to respondent.

Secretary to Prime Minister v. Muhammad Aslam and others Civil Appeal No. 24 of 1999; Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88 and Muhammad Ajaib v: Public Service Commission and 3 others 1997 PLC (C.S.) 222 ref.

Farooq Hussain Kashmiri for Appellant. Mujahid Hussain Naqvi for Respondent.

Date of hearing: 1st February, 2000.

2000 P L C (C.S.) 930

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J., Basharat Ahmed Shaikh and Muhammad Yunus Surakhvi, JJ

UNITED BANK LIMITED. EMPLOYEES' UNION through President and General Secretary and 4 others

Versus

UNITED BANK LIMITED through President and 3 others

Civil Appeal No. 54 of 1999, decided on 16th March, 2000.

(On appeal from the judgment of the High Court dated 4-2-1999 in Writ Petition No. 494 of 1997).

Azad Jammu and Kashmir Service Tribunal Act (XXH of 1975)---

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Retrenchment---Writ petition---Maintainability---Officers, cashiers, clerks, gunmen and peons serving in Bank filed writ petition to challenge their retrenchment at the hands of functionaries of the Bank---Writ petition was maintainable against a "person" as defined in subsection (5) of S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 who was performing functions in connection with affairs of Azad Jammu and Kashmir, a Local Authority or the State---Bank although was a corporation but it was under the control of Government of Pakistan and not under control of Azad Jammu and Kashmir Council or Azad Government of State of Jammu and Kashmir and in circumstances, did not fall under definition of "person"---Bank did not perform functions in connection with affairs of Azad Government of State of Jammu and Kashmir, Local Authority or Azad Jammu and Kashmir Council---Writ petition was rightly dismissed by High Court being not maintainable.

Muhammad Rashid Choudhry v. Chairman, AKLASC and others f995 SCR 73 and Salah-ud-Din and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 ref.

Raja Muhammad Hanif Khan, Advocate for Appellants. Abdul Rashid Abbasi, Advocate for Respondent No.3.

Date of hearing: 14th March, 2000.

2000 P L C (C.S.) 1076

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD RASHEED KHAN

versus

FARHAT ALI MIR and 3 others

Civil Appeal No.41 of 1997. decided on 2nd February, 1998.

(On appeal from the judgment and orders of the High Court, dated 23-4-1997 and 22-5-1997 in Writ Petition 1Vo.96 of 1997).

Civil service----

---- Adverse remarks ---Expunction of---On filing writ petition, High Court requisitioned relevant file from Department concerned ordering Secretary, Services and General Administration Department to submit said file---Said file having not been presented on date of hearing of case, non-bail able warrant for arrest of civil servant, who was held responsible for non­-compliance of order of Court, was issued---Civil servant gave cogent reason for said non-compliance of order and Court ordered to submit file on next date of hearing, which order was complied with---Allegation of disobedience of order of Court and warrant of arrest directed by High Court, being adverse remarks had been sought to be expunged by civil servant---Civil servant had not committed any disobedience, firstly because order to produce file in Court was not directed to him personally and secondly for the reason that relevant file at relevant time was with higher Authority to which direction to produce file in High Court was sent---Remarks recorded by High Court against civil servant, were not justified and High Court was also not justified in issuing order for arrest of civil servant---Adverse remarks against civil servant were expunged, in circumstances.

M. Tabassum Aftab Alvi, Advocate for Appellant. Ghulam Mustafa Mughal, Advocate for Respondent No.4.

Date of hearing: 16th January, 1998.

2000 P L C (C.S.) 1088

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

KHALID ASHRAF

versus

AZAD GOVERNMENT and 2 others

Civil Appeal No.74 of 1998, decided on 21st May, 1999.

(On appeal from the judgment of the High Court, dated 8-7-1998 pronounced on 24-7-1998 in Writ Petition No. 17 of 1997).

Azad Jammu and Kashmir Civil Servants Act, 1976----

----S.10---Azad Jammu and Kashmir Civil, Servants (Efficiency and Discipline) Rules, 1977, Rr.6 & 7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Removal from service---Civil servant who was appointed as Meter Reader and was on probation was removed from service after issuing him show-cause notice and serving upon him charge-sheet on allegation that he had absented himself from duty and to justify his absence he filed false and forged medical certificate---Charge-sheet was served upon civil servant by Authorised Officer under directions of Competent Authority---Allegations against civil servant having been fully proved, he was rightly removed from service by Competent Authority on recommendation of Authorised Officer---Requirements of relevant rules having been fully complied with by Authority in removing civil servant from service, order of removal upheld by High Court, could not be interfered with in appeal before Supreme Court.

Sardar Muhammad Sayab Khalid, Advocate for Appellant.

Raja Shiraz Kayani, Advocate-General for Respondents.

Date of hearing: 1st March, 1999.