PLCCS 2001 Judgments

2001 P L C (C.S.) 173

[Federal Service Tribunal]

Before Nasim Sabir Syed and Muhammad Hayatullah Khan Sumbal, Members

NAZIR AHMAD

versus

DIRECTORATE‑GENERAL, CIVIL DEFENCE, ISLAMABAD through Chairman and 3 others

Appeal No. 316‑L of 199?. decided on 9th September, 1997.

Civil service‑‑‑

‑‑‑‑Transfer‑‑‑Civil servant who was serving in Civil Defence Training School since long as Upper Division Clerk, was transferred with immediate effect to Civil Defence Academy‑‑‑Civil servant had challenged such transfer contending that post of Superintendent existed in Civil Defence Training School and he being senior most Upper Division Clerk was entitled to be promoted to that post, but he had been transferred with mala fide intention so that he could not be promoted to that post‑‑‑Validity‑‑‑Transfer of civil servant from Civil Defence Training School to Civil Defence Academy, being not in public interest, contention of civil servant that his transfer was with mala fide intention to deprive him of the right of promotion, was convincing‑‑‑Order of transfer of civil servant, was set aside, with direction that his case of promotion be considered in accordance with relevant rules and regulations.

Kalabe. Ali Sheikh for Appellant.

Respondent No.4 in person.

Zafar Javid, Asstt. Director Muhammad Din, Commandant Civil Defence Academy and Mqbool Ahmad, Commandant Civil Defence Training School, as Departmental Representatives.

Date of hearing: 4th September, 1997.

2001 P L C (C.S.) 175

[Federal Service Tribunal]

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

M. BADAR IQBAL

versus

SECRETARY, MINISTRY OF PETROLEUM AND NATURAL RESOURCES, ISLAMABAD and 2 others

Appeal No.242-R of 1997, decided on. 21st August, 1997.

Aftab Ahmad, Member agreeing with Muhammad Raza Khan, Member [Majority view]---

Civil Servants Act (LXXI of 1973)---

----S.5---Service Tribunals Act (LXX of 1973), S.4---Respondent belonging to entirely different cadre was appointed as Head of the Department wherein appellant was serving and was eligible to appointment to said post--­Validity---Such post was to be filled in through promotion, therefore, respondent belonging to entirely different cadre could not claim himself to be senior to appellant in that specific cadre to which he was appointed and wherein appellant was serving---Appellant felt aggrieved when respondent had been promoted as Head of the Department in violation of relevant rules, therefore, cause of action had accrued to appellant from respondent's appointment to the post in question---Appellant and respondent being in different cadres, their .positions/posts were not interchangeable and vested right of one employee could not be snatched for the benefit of another in violation of rules---For convenience of establishment, however; person belonging to one cadre could be temporarily posted in another one but that would not give him any right over those who were already working therein--­Departmental Rules did not allow importing officers from other sections--­Even if there were certain violations of rules in appointments, such lapse .or violation could not be quoted as precedents for another one---Judicial forums could not allow perpetuation of violation of Rules/Regulations---Employees of respondent-Corporation- were deemed to be performing functions in connection with affairs of Federation, therefore, they were deemed to be civil servants, amenable to jurisdiction of Service Tribunal---Respondent's appointment to post in question being in violation of Departmental Rules was not warranted---Authority was directed to consider appellant for promotion to the post in question.

Per Roshan Ali Mangi, Member [Minority view].---

Abdul Rahim Bhatti, Shah Abdur Rashid with Syed Amjad Ali, Senior Law Officer for Appellant.

Respondent No.3 in person.

Date of hearing: 21st June, 1997.

2001 P L C (C.S.) 184

[Federal Service Tribunal]

Before Nasim Sabir Syed and Muhammad Hayatullah Khan Sumbal, Members

MUHAMMAD ASHRAF and 10 others

versus

PAKISTAN TELECOMMUNICATION CORPORATION

through Chairman, P:T.C. Headquarters, Islamabad and 18 others

Appeals Nos. 100‑L to 113‑L of 1997, decided on 21st July, 1997.

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

‑‑‑‑Ss. 8 & 12(A)‑‑Federal Public Service Commission (Functions) Rules, 1978, R.4‑‑‑Seniority‑‑‑Determination‑‑‑Civil servants were shown, in an earlier seniority list, as seniors to opposing civil servants, but in seniority list issued after about ten years from said earlier list, they were relegated to lower position in seniority‑‑‑Civil servants claimed seniority contending that they joined 'service on recommendation of Federal Public Service Commission on regular basis whereas opposing civil servants joined department on ad hoc basis under N.D.V.P. Programme and their services were regularised much after civil servants' regular appointment‑-‑Opposing civil servants asserted that they were Graduate Engineers and when they were undergoing job training, Federal Public Service Commission advertised posts of Assistant Divisional Engineers and as they were already acquiring job training as Assistant Divisional Engineers, they made representation to Prime Minister for giving them appointment as Assistant Divisional Engineers‑‑‑Prime Minister being Competent Authority accepted request of opposing civil servants and they were appointed accordingly‑‑‑Opposing civil servants had further contended that later on Government issued Federal Public Service Commission (Functions) Rules, 1978 and according to R.4 thereof, Federal Public Service Commission was directed to test civil servants appointed between 1‑1‑1972 to 30‑6‑1977 whose cases were to be referred to Federal Public Service Commission by President of Pakistan as to whether they were fit to hold posts which they had been holding during that period‑‑‑Opposing civil servant having been appointed during said period, President of Pakistan who was Competent Authority, had confirmed them as they were found suitable to be confirmed‑‑‑Appointment of opposing civil servants which was confirmed, thus neither was ad hoc nor temporary as same was made by Competent Authority on regular basis‑‑‑Civil servants who were appointed by Federal Public Service Commission after appointment/confirmation of opposing civil servants could not claim seniority over opposing civil servants.

1995 SCMR 1229; 1984 SCMR 1023; 1982 SCMR 408; PLD 1996 SC 86; 1996 SCMR 1163; PLD 1991 SC 226 and PLJ 1982 Tr.C (Service) 1657 (sic) ref.

(b) Precedent‑‑‑

‑‑‑‑ Law enunciated by superior Courts ‑‑‑Prospectivity‑‑‑Laws evolved by Judiciary could not be applied retrospectively more particularly so in already settled issues.

Hafiz Tariq Nasim for Appellants.

Inamul Islam with Raja Iviz Mahmood, Assistant Director Staff, PTC for Respondent No. 1.

Ch. Mushtaq Masood for all the Private Respondents.

Syed Nader Ali, Deputy, Assistant Director, FPSC as Departmental Representative.

Date of hearing: 7th June, 1997.

2001 P L C (C.S.) 190

[Federal Service Tribunal]

Before Muhammad Raza Khan and Nasim Sabir Syed, Members

GHULAM QADIR

versus

CHAIRMAN, AREA ELECTRICITY BOARD, WAPDA, ISLAMABAD and 2 others

Appeal No. 199-L of 1997, decided on 14th July, 1997.

(a) West Pakistan Water and Power Development Authority Act (XXXI of 1958)---

---S. 18---Allegation of theft against employee---Removal from service--­Confession of guilt---Retraction---Effect---Civil servant working as Lineman who was subjected to disciplinary proceedings on account of theft of electricity, misuse of his position and causing loss to Authority, confessed his guilt in writing during enquiry proceedings, but such confession was retracted by him while replying of show-cause notice and claimed that he being illiterate his alleged confessional statement was got signed from him either in blank or without translating contents thereof---Civil servant also alleged undue influence and coercion in respect of his confession---Verbal allegations could not exclude documentary piece of evidence in the form of confession bearing the true signatures of civil servant---Neither any evidence nor any affidavit filed by civil servant hinted at the undue influence or pressure or coercion applied on him, to get his signatures on particular document of confession---Civil servant, thus, failed to prove that his confession was .result of undue influence or coercion.

(b) West Pakistan Water and Power Development Authority Act (XXXIX of 1958)---

----Ss. 18 & 29---Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---Civil servant who was­working as Grade-I lineman and was subjected to disciplinary proceedings and finally was removed from service on account of theft of electricity and misuse of his position and causing loss to Authority, had contended that Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules 1978 framed in exercise of power of the Authority under S. 18 of West Pakistan Water and Power Development Authority Act, 1958, were not 'statutory rules, thus, employee to whom charge-sheet was served for more than four months from knowledge of his alleged guilt, was to be regulated by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, whereby charge-sheet was to be served within thirty days of alleged misconduct---Contention of employee was repelled, firstly that Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978 were framed in accordance with the powers vested in Authority under S. 18 of West Pakistan Water and. Power Development Authority Act, 1958 and Rules always being in nature of subordinate legislation, any rules framed in accordance with provisions of statute, would be a piece of subordinate Legislature and would have due force---Approval of certain rules and regulations by the Government would net convert or upgrade the status of a particular rule or regulation---If a regulation or rule had to be approved by Government, same would have no validity unless it was so approved---Regulation framed under S. 29, West Pakistan Water and Power Development Authority Act, 1958, would be valid and operative only if such regulations were approved by Federal Government, but no requirement was that rules framed under S. 18 of West Pakistan Water and Power Development Authority Act, 1958 had also to be approved by Government---Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, thus, were valid and operative piece of subordinate legislation under S. 18 o. West Pakistan Water and Power Development Authority Act, 1958 and any proceedings conducted under said rules, would not suffer from any legal infirmity---If civil servant considered that West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 or Industrial Relations Ordinance, 1969 or other labour laws, should have been applied to his case, he should have approached appropriate forum.

(c) West Pakistan Water and Power Development Authority Act (XXXIX of 1958)---

----S. 18---Removal from service---Civil servant who was Grade-I Lineman was subjected to disciplinary proceedings and finally was removed from service on allegation of theft bf electricity, misuse of his position and causing loss to Authority---Civil servant though had confessed his guilt in writing before Inquiry Officer but such confession later on was retracted by him while replying to show-cause notice---Technical objections raised by civil servant, though could not have any force and confession of his guilt could defeat his case, but civil servant had about 23 years of service at his credit and no blot was in that entire service career of civil servant---No disciplinary proceedings were even initiated against him and no, penalty appeared to have been imposed in such a long service against him--Solitary incident of using electricity unauthorisedly and providing electricity to his neighbours resulting in financial loss to Authority, could be based on any reason but honest and clean breast confession of guilt by civil servant required to be compensated at least in the quantum of punishment--- Amount found due against civil servant had been deposited by him and Authority suffered no loss on that account----Extreme penalty of removal from service, being too harsh, same was converted into compulsory retirement.

Muhammad Asghar Malik for Appellant.

Muhammad Ejaz Ch. for Respondent.

Date of hearing: 14th July, 1997.

2001 P L C (C.S.) 194

[Federal Service Tribunal]

Before Abdul Razzaq A. Thahim, Chairman and Roshan Ali Mangi, Member

FAZAL AHMED JAT

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others

Appeal No.327-R of 1997, decided on 28th June, 1997.

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

----S 4(1)---Government Servants (Efficiency and Discipline) Rules, 1973, R.5(1)---Supension of civil servant---Appeal---Competency---Suspension order passed against civil servant under R.5(1) of Government Servants (Efficiency and Discipline) Rules, 1973 on allegations of misconduct and corruption which had been acted upon, was to be treated as final order and appeal against such suspension order was competent under S. 4(1) of Service Tribunals Act, 1973.

1985 SCMR 63 and 1984 PLC (C.S.) 926 ref.

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

----R.5(1)---Supension on allegation of misconduct and corruption---Civil servant who was suspended on allegation of misconduct and corruption had requested that order of suspension be set aside and he be allowed to perform his duties as usual---Civil servant having been charged for misconduct and corruption, proper course, in circumstances, was that civil servant should be either forced to proceed on leave or put under suspension as provided in R.5(1) of Government Servants (Efficiency and Discipline) Rules, 1973, which would be an interim arrangement till final decision on the basis of inquiry report was taken to logical end by Competent Authority---Civil servant. however, would not suffer any monetary loss as during his suspension he would be entitled to full salary and other benefits of his post--­Civil servant, thus, could not force Authorities to put him in charge of the post he was holding especially when during his posting he was charged for corruption.

Abdul Rahim Bhatti for Appellant.

Shafiq Ahmed, Inspector (Legal) on behalf of Director-General, F.I.A.

Date of hearing: 23rd June, 1997.

2001 P L C (C. S.) 212

[Federal Service Tribunal]

Before Jalal-ud-Din Akbarji, Chairman, Abdul Hameed Khan Khattak and Dr. Akhtar Hasan Khan, Members

Khawaja KHAWAR MEHMOOD

versus

JOINT DIRECTOR (DPW), AGRICULTURAL DEVELOPMENT PAKISTAN, ISLAMABAD and 2 other

Appeal No. 1485(lof 1999, decided on 29th November, 2000.

(a) Abatement-

---- Abatement by operation of law being always ipso facto, it was not necessary to obtain order of the Court wherein application or appeal was pending vis-a-vis abatement proceedings.

PLD 1976 SC 195 ref.

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

----S.5---Delay, condonation of---Mistake of a counsel in approaching a wrong forum on account of carelessness, negligence and without due diligence and caution, could not be taken to be a good ground for

PLD 1983 SC 385; 1984 SCMR 890; 1985 SCMR 333; 1975 SCMR 259 and 1991 SCMR 1841 ref.

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

----S.5---Delay, condonation of---Litigation before incompetent forum would not justify condonation of delay even if it was due to wrong advice of counsel.

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

----S.5---Delay, condonation of---Each day's delay was to be adequately and reasonably explained to seek indulgence of Court/Tribunal vis-a-vis condonation of delay.

PLD 1988 SC 144; 1993 SCMR 17; 1995 SCMR 396; 1998 SCMR 307; 1998 SCMR 785 and 1999 SCMR 784 ref.

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

----S.4---Appeal---Limitation---Aggrieved civil, servant would not have unfettered discretion to make application/appeal at any time---Period of limitation would not be dependent upon sweet choice of civil servant who might awake at his own sweet whims---Any omission, slackness and negligence could not be easily ignored or overlooked---Law would help vigilant, diligent and not indolent.

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

----S.4---Government Servants (Efficiency and Discipline) Rules, Rr.4, 5 & 6---Dismissal from service---Inquiry proceedings---Civil servant was dismissed from service on charge of misconduct after issuing him show­-cause notice and holding inquiry against him---Fair opportunity to defend was given to civil servant during inquiry proceedings and no prejudice in any manner was caused to him---All formalities relating to the inquiry -proceedings, were complied with---Minor shortcomings, if any, in the said proceedings, would not render whole of inquiry proceedings as void or useless as there was difference between departmental formalities to be observed and the modes of taking and evaluation of evidence during departmental proceedings and a full-dress trial conducted by a Civil or Criminal Court---Charges against civil servant having fully been proved, penalty of dismissal from service was rightly awarded

Altaf Ahmad Butt for Appellant.

Mushtaq Hussain Bhatti for Respondent alongwith Tanveer Anjum, EAD as Departmental Representative.

Date of hearing: 8th November, 2000.

2001 P L C (C.S.) 220

[Federal Service Tribunal]

Before Jalalud Din Akbarji, Chairman Aftab Ahmad and Dr. Akhtar Hasan Khan, Members

MUHAMMAD MOBIN GUL KHAN

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and another

Appeal No. 783-L of 1999, decided on 15th November, 2000.

Government Servants (Conduct) Rules, 1964---

----R. 16(b)-Government Servants. (Efficiency and Discipline) Rules, 1973, R.3(c)(ii)---Compulsory retirement on the allegation of living beyond means---Such charge was though proved against, but he was never accused of corruption or malfeasance in order to finance his ostentatious living--­Punishment of compulsory retirement being severe, Service Tribunal reduced the same to reduction in rank for four years from the date he was compulsorily retired.

Muhammad Habibullah for Appellant.

Syed Alamdar Raza, Standing Counsel for Respondents alongwith Mehboob Alam, Section Officer, Establishment Division and G.M. Riaz, Second Secretary, CBR, Departmental Representative.

Date of hearing: 5th October, 2000.

2001 P L C (C.S.) 486

[Federal Service Tribunal]

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

Syed ABDUL QAYYUM

versus

GENERAL, MANAGER, PAKISTAN RAILWAYS and 2 others

Appeal No. 136‑K of 1997, heard on 19th May, 1997.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Appeal‑.‑Limitation for‑‑‑Competency‑‑‑Cause of action accrued to civil servant in 1987 when he was ordered to shoulder the responsibility of higher post while getting the financial benefits of lower one‑‑‑Civil servant did not agitate issue in time, though a belated application was moved by him in 1988 but legal steps were not taken by him and service appeal was not filed under the law‑‑‑Frequent subsequent applications were not permissible under the law nor did they create fresh cause of action for extension of period of limitation‑‑‑Transitional arrangement of working against the higher post in his own pay scale came to an end in 1992, when civil servant was promoted to B‑17 although on acting charge basis‑‑‑Such occasion provided civil servant fresh opportunity for filing service appeal for the grant of pay of the post against which he had been working for almost 5 years, but he did not avail that either and continued to work against the post on acting charge basis‑‑‑To agitate the entire issue of demanding the pay of the post with effect from 1987 and further move‑over in 1991 after the lapse of almost 10 years from the previous or original cause of action was a bit too late‑‑‑‑Period of limitation had been prescribed by the Statutes in number of days and not in months, whereas in case of civil servant an entire decade had passed without any .agitation in accordance with law‑‑­Appeal tiled by civil servant, thus, was barred by time and was incompetent.

1994 PLC (C. S.) 411; Muhammad Arshad Saeed, D. l:‑G. Police v. Government of Pakistan 1994 SCMR 1033; Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD.1976 SC 258 and Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367 ref.

M.A. Hasan Malik for Appellant.

Date of hearing: 19th May, 1997.

2001 P L C (C.S.) 491

[Federal Service Tribunal]

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

MUHAMMAD RAMZAN and others

versus

DIVISIONAL ENGINEER, TELEGRAPH, SUKKUR DIVISION, SUKKAR and 2 others

Appeals Nos.3-K, 4-K to 26-K of 1997, decided on 29th May, 1997.

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

-S.4---Termination of service---Appeal---Limitation---Appeal, filed by civil servants against termination of their services, were resisted on ground of limitation ---Departmental appeals filed by civil servants within a period of 30 days from their termination order, were rejected after about two years-- Final order of rejection of appeals was not based on ground of limitation but it was decided on merits---Objection of limitation raised on part of Authority, thus, stood condoned.

(b) Civil service

----Ad hoc appointment Nature---Ad hoc appointments are made only under special circumstances as a stop-gap arrangement and for the restricted period only---Such appointments continue till the availability of regular selectees--­Ad hoc appointments, therefore, are ordered to handle the day to day work pending finalization of selection process and ad hoc appointments' have to be extended after the expiry of the original period---Appointments of civil servants though called ad hoc, but no period was prescribed and no process of selection was initiated---Civil servants rather were required to undergo certain examinations and they qualified the same---Selection process of civil servants having stood completed, they were eligible to be regularised afterbeing declared successful in such examination---Civil servants were also imparted regular training required for the job and they succeeded in such training as well---Civil servants had continuously performed service for more

than 4 years to the satisfaction of the Authority---Appointments of civil servants having stood regularised, their services thus could not be dispensed with without any cause of grievance against them and without affording them opportunity of being heard.

(c) Civil service—

­

Terminationof service---Authority had contended that services of civil servants were dispensed with for, the reason that they were appointed during the period when Government imposed ban on the recruitment---Said ground was repelled on two counts firstly that ground was not mentioned in original or appellate order of Authority and secondly, civil servant could not be penalised for any irregularity committed by any other officer or Authority--­Civil servants had been selected, qualified the examination, participated in the training and satisfactorily performed functions for sufficient length of time, thus, they could not be removed by an administrative order without following proper procedure.

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

----S.2---Service Tribunals Act (LXX of 1.973), S.4---Employees who performed functions in a body or organization which was created or controlled, administratively and financially by the Federal Government and the employees thereof were engaged in the functions of such institutions whereby they rendered that service exclusively for and on behalf of Federal Government, such employees would be deemed to be acting in connection with the affairs of Federation and, therefore, they would be deemed to be civil, servants under Civil Servants Act, 1973 and the remedy would lay before Federal Service Tribunal.

Pakistan Telecommunication Corporation v. Riaz Ahmed PLD 1996 SC 222; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Saeed Rabbani v. Leather Industry Development Organization PLD 1994 SC 123; Chairman, PBC v. Nasir Ahmed 1995 SCMR 1593; Abid Mahmood v. Government of Pakistan 1996 PLC (C.S.) 1061 and Director, Social Welfare, N.W.F.P., Peshawar v. Sadullah Khan 1996 PLC (C.S.) 927 ref.

Zamiruddin Ahmed for Appellants.

Niaz Ahmed Khan for Respondents.

Date of hearing: 22nd May, 1997.

2001 P L C (C.S.) 496

[Federal Service Tribunal]

Before Aftab Ahmed and Roshan Ali Mangi, Members

Syed ASAD ALI SHAH

versus

SECRETARY, NARCOTICS CONTROL DIVISION, ISLAMABAD

Appeal No. 303-R of 1997, decided on 31st July; 1997.

Civil service---

----Appointment---Validity---Civil servant who was confirmed as Assistant was. suspended and then was dismissed from service, but on filing appeal against his dismissal, he was re-instated to service with full back benefits--­During his suspension his co-civil servants were appointed against posts of Superintendents in B-16---Civil servant had challenged such appointments contending that posts to which his co-civil servants were appointed were100°G promotion posts against which co-civil servants could not be appointed and that he who was at Serial No. 2 of the seniority list of Assistants B-11 to B-15, fulfilled all the requirements for promotion against post of Superintendent to B-16---Authority on the other hand had asserted that co-civil servants who had been accommodated against posts of Superintendents B-16, had come from surplus pool and they had been accommodated against equivalent posts and since it was the decision of the Government to absorb the persons on surplus pool, no illegality had been committed in appointing co-civil servant as such---Held, Government having power to accommodate the persons who were already on surplus pool against equivalent posts it had not committed any legal error---Neither a fresh appointment had been made nor a person junior to civil servant had been promoted against relevant posts to give civil servant cause to ,challenge such an ointments in appeal.

Raja Muhammad Asghar Khan for Appellant.

Raja Muhammad Akram Rangha, Inspector ANF and Khahid Ahmed Sindhu. S.O. Narcotics Control Division, D.Rs. "

Date of hearing: 22nd July, 1997.

2001 P L C (C. S.) 498

[Federal Service Tribunal]

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

Mrs. AYESHA MOEEN and 3 others

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others

Appeals Nos. 167, 168, 169 and 170(R) of .1997, decided on 30th June, 1997.

Civil service----

----Promotion---ESTACODE 1989 Edn.; Serial No. 189, para. 2(b)--- Recommendation , of Central Selection Board---Review---Ministry of Education processed promotion cases of Assistant Professors fromBPS-18 to BPS-19 and placed those cases before Central Selection Board and Board. in its meeting cleared cases of civil servants, but did not approve cases of opposing civil servants---Recommendations of Central Selection Board were placed before Competent Authority, but Competent Authority with some observations referred back cases to Ministry of Education---Ministry of Education revised the cases in the light of observations of Competent Authority and again submitted cases to Central Selection Board and Board in its meeting considered revised proposal of Competent Authority and approved the promotions of opposing civil servants against which civil servants had got grievance-- -Contention of civil servant was that Central Selection Board in its earlier meeting having recommended promotion of civil servants, Competent Authority was bound to accept reconsideration of Central Selection Board and Competent Authority had no locus standi to refer back the cases---Contention of civil servant was repelled in view of the fact that para. 2(b), Serial No. 189, ESTACODE, 1989 had clearly -provided that in case Competent Authority had disagreed with the recommendations of Central Selection Board, the case should be returned to Central Selection Board for reconsideration---Central Selection Board being a recommendatory body its recommendations were not binding on Competent Authority as alleged by civil servants and Competent Authority in its wisdom had got the discretion to refer back cases---Cases of civil servants as well as opposing civil servants having duly been reconsidered by Central Selection Board according to their seniority and good performance on basis of their A.C.Rs., as per promotion policy, no illegality had been committed in their cases.

PLJ 1995 SC 371; PLD 1988 SC 155; 1995 SCMR 650; 1994 PLC (C.S.) 854; PLD 1994 SC 539; 1996 SCMR 165; 1997 PLC (C.S.) 216; 1985 SCMR 699; 1995 SCMR 955; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Faris Rehman Khan v. Federation of Pakistan 1995 SCMR 579; Federation of Pakistan v. Israrul Haq PLD 1981 SC 531; M. Y. Amir & Co.'s case 1995 SCMR 922 and 1992 PLC (C.S.) 1374 ref.

Hafiz S.A. Rehman for Appellants.

Khalid Abbas Khan, Federal Counsel alongwith Muhammad Munir Naqvi, AEA, Ministry of Education, Ratique Malik, Director, Model Colleges and Abdul Hakim Rahi, Establishment Division.

Raja Muhammad Asghar Khan for the Private Respondents Nos.8 to 10, 20, 21, 24, 25 and 28.

Bashir Ansari for the Private Respondent No.23.

Aminur Rehman for the Private Respondent No.27.

Date of hearing: 11th June 1997.

2001 P L C (C.S.) 513

[Federal Service Tribunal]

Before Roshan Ali Mangi and Muhammad Hayatullah Khan Sumbal, Members

MUHAMMAD YAR KHAN

versus

GOVERNMENT OF PAKISTAN

through Secretary, Establishment Division, Islamabad and 4 others

Appeal No. 13‑L of 1997, decided on 4th August, 1997.

Civil service‑--

‑‑‑‑Seniority‑‑‑Determination‑‑‑Civil servant who was a highly qualified person was appointed as Assistant Chief BPS‑18 in Tourism Division following his selection by Federal Public Service Commission‑‑‑Civil servant in earlier seniority list was shown senior to co‑civil servants but in seniority list subsequently issued by concerned Authority he was shown below co‑civil servants who were junior to him‑‑‑Authority had contended that civil servant was placed junior to co‑civil servants because civil servant who was declared surplus was absorbed against post of Deputy Controller in BPS‑18 in the Department‑‑‑Validity‑‑‑At no stage of sixteen years of service of civil servant he was ever informed that he had been declared surplus and that he would be absorbed in different capacity which would adversely affect his seniority‑‑‑No complaint was ever made against civil servant as to his performance and conduct during his tenure as Assistant Chief‑‑‑Authority had failed to follow any objective criterion while declaring civil servant surplus and it was in all probability a mere pick and choose exercise, because the case of civil servant universally acknowledged principle of last come first go had also been lost sight of‑‑‑Even otherwise absorption of civil servant did not amount to a fresh appointment and civil servant even after absorption, continued his service without any break in same Department in another capacity in the same grade and scale of pay‑‑‑In absence of any interruption in service, civil servant should be deemed to have carried his seniority with him from the date of his first appointment as Assistant Chief‑‑­Civil servant, in circumstances, should rank senior to co‑civil servants who were junior to him.

1990 PLC.(C.S.) 25 ref.

Hafiz Tariq Nasim and Mian Jaffar Hussain for Appellant.

Kh. Tariq Masood for Respondent‑Department.

Nemo for the Private Respondents Nos.3 to 5.

Date of hearing: 19th May, 1997.

2001 P L C (C.S.) 516

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

NAWAZ-UL-HAQ NADEEM

versus

THE SECRETARY, INTERIOR DIVISION and another

Appeal No.713-R of 1997, decided on 9th January, 1998.

(a) Civil service--

----Adverse remarks, expunction of---Civil. servant had challenged adverse remarks in his A.C.R. in which he had been rated as "below average" ---First part of A.C.R. recorded by same initiating officer was not adverse whereas second part was entirely adverse in almost all the columns of A.C.R.--­During service period of over five years and stay at more than seven stations, civil servant had not been awarded any adverse entry in any of the annual or special report, but had been given appreciations by respective officers--­Report against civil servant for relevant years, in circumstances, had become a solitary, unconnected and unjustifiable document --- Person who was considered to be good in all aspects of his personality and behaviours prior to and after a particular period, could not be considered to have suddenly fallen -` down to the lowest ebb for a brief interregnum only in all aspects of service discipline---Civil servant was found coming late to office on two occasions and those two occasions fell on same date, one could not be late twice on single day---Even if late coming for a single day in entire length of service be presumed to be indiscipline, that would not justify to damage entire service career of civil servant including his personal qualities, attitude and proficiency in job and specifically knowledge of civil servant about Islam, attitude towards Islamic ideology, appearance and bearing---Adverse remarks in A.C.R. of civil servant were ordered to be expunged, in circumstances.

(b) Civil service---

-----Adverse remarks, expunction of---Civil servant who had been rated as "below average" in his A.C.R., during service period of more than five years and stay at more than seven stations had not been awarded any adverse entry in any of annual or special report, had been given appreciations by respective officers---Authorities had referred to certain previous instances to justify adverse remarks against civil servant--- Validity--- Performance of an officer during a year was reflected in A.C.R. for the said year and it could not be taken forward by storing in memory to be recorded in some future A. C.Rs.---Performance in a particular year would become a closed chapter after expiry of that year ---A.C.R. which would play an extremely vital role in service record of a civil servant, all those who were entrusted with recording , of A.C.Rs. should do so objectively with extreme care so that no innocent civil servant could suffer a loss in service career for uncommitted offences and unproved allegations---Playing with service career and life of a person irresponsibly, could not be considered to be a trifle matter.

Abdur Rahim Bhatti for Appellant.

Muhammad Aslam Uns, Standing Counsel along with Shafique Ahmed, Assistant (Legal) and Muhammad Tajrian, Administrative Officer, as DR.

Date of hearing: 11th December, 1997.

2001 P L C (C.S.) 520

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

MUHAMMAD ASIF

versus

THE PRIME MINISTER

through Secretary, Establishment Division, Islamabad and 6 others

Appeal No.534-R of 1997, decided on 25th May, 1998.

Civil service---

---- Ante-dated promotion---Civil servant who was initially appointed as Lower Division Clerk in B-5 and was promoted later on as Upper Division Clerk, was compulsorily retired from service due to his involvement in sonic disciplinary proceedings, but Departmental Authority on acceptance of his appeal, converted penalty of his compulsory retirement from service into his reversion to lower post of Lower Division Clerk---Subsequently Lower Division Clerks who were junior to civil servant were promoted but civil servant was not considered for such promotion---Service Tribunal, on appeal, directed Authority to consider case of civil servant for promotion---On direction of Service Tribunal case of civil servant was considered and he was promoted after about two years from promotion of his juniors---Civil servant dissatisfied with such promotion filed Departmental appeal for ante-date of his promotion, but same having not responded, civil servant filed appeal before Service Tribunal---Civil servant, though was re-instated after his reversion to lower post of Lower Division Clerk, but he had blemished record because stigma of disciplinary proceedings on basis of which he was first compulsorily retired and then he was reverted to lower post, was still attached to him---Service Tribunal accepting appeal of civil servant set aside order of Authority remanded case to Departmental Authority for consideration as to whether civil servant deserved promotion from date his juniors were promoted and to pass appropriate/just order in that respect.

1982 PLC (SC) 451 and PLD 1987 SC 427 ref.

Aminur Rehman Khan for Appellant.

Date of hearing: 19th May, 1998.

2001 PLC (C.S) 524

[Federal Service tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

JAVED KHAN

Versus

THE DIRECTOR WORKS AND CHIEF ENGINEER

(ARMY) GHQ, RAWALPINDI

Appeal No. 360-P of 1997 decided on 26th May, 1998.

Civil Service---

----Removal from service--Wilful absence from duty---Civil servant who slipped away from duty and absented himself for a c6nsiderable period of more than one year without applying for leave, was removed from service or ground of wilful absence from duty---Civil servant,, was riot as free as he considered himself to be so, much so he was required to leave Headquarter with prior permission of Competent Authority and in case of grant of leave he must have got leave sanctioned from Competent Authority and in that event he could proceed on leave ----Civil servant without permission of Competent Authority and getting leave sanctioned if found absent would be doing so at his own risk ----Authority did not, leave any stone unturned in locating civil servant and when its effort proved futile, it had to order removal of civil servant from service which was quite just legal and proper No deed to wilful absence of civil servant from a considerable period of more than one year—­Conduct demonstrated by civil Servant had made being contumacious and unauthorised he could not say that Authority did not bother to find out reason for his absence especially when civil servant had made lame excuse for his absence from duty.

1998 SCMR 477 and 1998SCMR 540 ref.

Isa Khan for Appellant.

M. Aslam Uns, Federal Counsel for Respondent.

Date of hearing :22nd May, 1998.

2001 P L C (C.S.) 528

[Federal Service Tribunal]

Before Roshan Ali Mangi and Muhammad Raza Khan, Members

MUHAMMAD RAFIQUE and 2 others

versus

THE SECRETARY, ESTABLISHMENT DIVISION and 6 others

Appeals Nos.609-R, 645-R and 704-R of 1997, decided on 28th January, 1998.

(a) Service Tribunal (LXX of 1973)-

-----S.4--Compulsory Service (Armed Forces)--Ordinance (XXIV of 1971), S.9-A--- Seniority---Determination---Special statute---Overriding effect of--­Civil servants, in earlier seniority list, were shown senior to opposing civil servants but in subsequent seniority list they were placed junior to opposing civil servants---Opposing civil servants who were placed senior to civil servants in subsequent seniority list, had been given benefits of services rendered by them in Army under Compulsory Service. (Armed Forces) Ordinance, 1971, which had provided the compulsion on certain essential persons to render service in Armed Forces as a result of call-up notice--­Compulsory Service (Armed Forces) Ordinance, 1971, being a special statute, had overriding effect on all other laws, rules and instructions--­Opposing civil servants who had rendered required minimum length of service in Armed Forces satisfactorily, would be entitled to benefits of such service---Overriding clause appearing in a special statute would prevail over any other law, subordinate legislation, rules and administrative instructions-­-If somebody had any grievance against vires of such statute, he could have approached appropriate forum for rectification of any wrong, but the vires of a statute could not be challenged collaterally in proceedings of, entirely different nature and more particularly in matters relating to terms and conditions of service---Service Tribunal exercised limited jurisdiction relating to vested terms and conditions of service and vesting of aright was caused by provisions of statute or in absence of legal provisions, rules or administrative instructions---If statute itself provided an additional benefit to certain functionaries, who had performed certain functions, same could not be negated to protect merit position of another civil servant based on administrative instructions only---Opposing civil servants who fell within category of essential persons, were entitled to reckon their seniority by adding period of service rendered by them under Compulsory Service (Armed Forces) Ordinance, 1971, towards length of their service under Authority---Opposing civil servants were rightly placed senior to civil servants in disputed subsequent seniority list.

(b) Interpretation of statutes--

----Special statute---Overriding clause appearing in a special statute would prevail over any other law, subordinate legislation, rules and administrative instructions.

Raja Muhammad Asghar. Khan for Appellant.

Syed Kazim Hussain Kazmi for Appellant.

Muhammad Aslam Uns, Standing Counsel alongwith D.R

Malik Mukhtar Ahmed for Respondent No.4.

Dr G.S. Khan for Respondents Nos.5 and 6.

Nemo for Respondent No.7.

Date of hearing: 17th January, 1998.

2001 P L C (C.S.) 674

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

ANSAR AHMED KHAN and others

versus

CHAIRMAN, PTC and others

Appeals Nos.2638-K, 2256-K, 2367-K to 2373-K, 2508-K to 2510 and 2627-K of 1997, decided on 26th December, 1997.

Service Tribunals Act (LXX of 1973)---

----S.4---Appeal---Competency---Conditions precedent---Pre-requisites of filing appeal before Service Tribunal under S.4 of Service Tribunals Act, 1973 must be complied with which were firstly, that appellant must be proved to be a civil servant on the date when original or at least appellate order had been passed; secondly, that appellant had filed and exhausted departmental remedy, if there was no provision of appeal under Rules of particular organization, representation to higher Authority or application for review to same Authority was still available and without availing such remedy, appeal under S.4 of Service Tribunals Act, 1973 would not be competent; thirdly, if a departmental appeal had been filed and period of 90 days had not elapsed and departmental appeal had not been decided, in such a situation, also appeal would be premature and incompetent.

Appellant in person (in Appeals Nos.2638, 2367, 2508 to 2510-K of 1997).

Zamiruddin for Appellant (in Appeal No.2256-K of 1997).

Amanullah Khan for Appellant (in Appeal No.2369-K of 1997).

Muhammad Younis for Appellants (in Appeals Nos.2372 and 2373-K of 1997).

Syed Mukhtar Ahmed for Appellant (in Appeal No.2627-K of 1997).

Nishar Warsi for Appellants (in Appeals Nos.2368-K, 2370-K and 2371-K of 1997).

Dates of hearing: 22nd and 24th December, 1997.

2001 P L C (C.S.) 692

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

MUMTAZ ALI KHAN

versus

SECRETARY, MINISTRY OF INDUSTRIES AND PRODUCTION, ISLAMABAD and another

Appeal No.52-P of 1997, decided ,on 20th May, 1998..

Civil service--

---- Misconduct---Unauthorised absence from duty---Dismissal from service--­Civil servant was dismissed from service after issuing him charge-sheet and holding inquiry against him on charge of unauthorised absence from duty--­Civil servant who was Design Engineer in Heavy Mechanical Complex, was directed by his immediate boss to visit assembly shop to oversee assembly of asphalt plant and remedy any discrepancies and problem, being faced during assembly work as plant was to be completed on priority basis---Civil servant not only did not attend to important assignment entrusted to him on relevant date, but also absented from duty without giving application for grant of leave or an application for permission to leave headquarter---Civil servant while leaving his headquarter/office, could do so with prior approval of Competent Authority---.Civil servant on inquiry was not found available in Pakistan and was presumed to reside abroad and that too in connection with other service---Proper course open to civil servant was that he should have got himself released -from the complex and then have gone abroad for service, but he had taken law in his own hand and thereby absented himself from service of Complex which he could not do so under law---Such act on the part of civil servant was height of misconduct and in violation of service agreement with Complex---Civil servant, in circumstance, was rightly dismissed from service.

1998 SCMR 477; 1998 SCMR 540 and 1984 PLC (C.S.) 1073 ref.

Sardar Shaukat Hayat for Appellant. Afzal Iqbal, Manager (Personnel) on behalf of HMC:

Date of hearing: 18th May, 1998.

2001 P L C (C.S.) 702

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

ABDUL GHANI CHANNA

versus

THE PRIME MINISTER OF PAKISTAN, Prime Minister's Secretariat Islamabad and 11 others

Appeal No.2744-K of 1997, decided on 30th July, 1998.

Civil service---

----Promotion---Entitlement to---In relevant year when civil servant was serving as a B-19 Officer in Income-tax Group, meeting of Central Selection Board was held for promotion of Officers to B.20---Co-civil servants were recommended to be promoted and finally vide Notification Officers junior to civil servant were promoted considering civil servant to be supersede Civil servant was not considered for promotion as A.C.Rs. of civil servant were not placed before Central Selection Board despite same were ready-­ Under Promotion Policy record had to be made available to Central Selection Board and particularly the latest A.C.R. should have been given supreme importance while considering case of promotion---Meeting of Central Selection Board was held in 1997, A.C.R. of civil servant for year 1996 which was ready, should have been placed for consideration of Central Selection Board, but despite request of civil servant same was not placed before Central Selection Board---In A.C.R. of 1996 and of previous year civil servant was graded as "very good" and all such A.C.Rs. were available with authority prior to date of meeting of Central Selection Board---In absence of such A.C.Rs. case of civil servant could not have been considered---Authority had contended that even if A.C.R. of civil servant for year 1996 or that of 1994 were placed before Central Selection Board, quantification would still have been deficient and promotion of civil servant was still not possible---Contention of Authority was repelled, because that was job of Central Selection Board and not for Authority---Civil servant was an employee of Income-tax Department which was a most sensitive department attracting a lot of critical observations, but civil servant was fortunate to be assessed as "good" and "very good" in all 18 years of his service while assessing his general and moral integrity as well as intellectual integrity---Service Tribunal accepting appeal of civil servant, modified order of his supersession into that of deferment and directed that case of civil servant should be placed before next meeting of Central Selection Board for considering him for promotion.

Sirajul Haq for Appellant.

Niaz Ahmed Khan, Standing Counsel alongwith G.M. Riaz, 2nd Secretary, CBR, Islamabad.

Date of hearing: 30th July, 1998.

2001 P L C (C.S.) 710

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

NASIM UR REHMAN

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 16 others

Appeal No. 1754R) of 1998, decided on 27th July, 1998.

Civil service----

---- Absorption of surplus civil servants in other Department---Determination of seniority---Civil servant who had been promoted as Assistant in Ministry of Works Department, later on was declared surplus and was absorbed in Board of Investment---Seniority list issued by Board of Investment wherein civil servant was absorbed, he was placed at the bottom of the list---Civil servant claimed that he was entitled to be allowed seniority from date he was promoted as Assistant in his previous Department, but his claim was riot acceded to---Rights of civil servants in surplus pool could not be construed to be adversely affected by act of State and policy of Government---Surplus civil servants who had been absorbed in other department should not be put at a loss with respect to their statutory rights which were duly secured prior to their rendering surplus---Service Tribunal, in circumstances, accepted appeal of civil servant with direction that he should be given a suitable place in the seniority list from date of his regular appointment in his previous Department.

PLD 1991 SC 514 ref.

Khalid Abbas Khan for Appellant.

M. Aslam Uns, Federal Counsel for Respondent-Department alongwith Sajjed A. Shaikh, Abdul Hameed Choudhry, A.D. and Mehboob Alam, SO, Establishment Division.

Private Respondent (absent).

Date of hearing: 14th July, 1998.

2001 P L C (C.S.) 720

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

SULTAN AHMED

versus

FEDERATION OF PAKISTAN, MINISTRY OF RAILWAYS

through Chairman, Railways Board, Islamabad and 3 others

Appeal No.A7-K of 1998, decided on 6th July, 1998.

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

----S.4---Territorial jurisdiction of Service Tribunal---Respondent had raised a preliminary legal objection stating that cause of action in appeal filed by appellant/civil servant pertained to Railway Headquarters at Lahore, appeal should have been filed by appellant/civil servant at Lahore Office of Federal Service Tribunal---Objection raised by respondent had no force because no specified territorial jurisdiction was provided for various offices of Federal Service Tribunal---Appeals of civil servants were being heard at various places within the country as convenient to parties without any restriction about territorial delimitation---Had there been a question of convenience of a party for hearing of appeal at Lahore, request should have been made which could be considered on merits but no restriction existed in filing of appeal anywhere in Pakistan as main case was against Federal Government and Federal Government existed on every inch of territories falling within the country.

(b) Civil service---

----Seniority Determination---Evidence on record had shown that civil servant joined service on ad hoc basis prior to time to opposing civil servant and that civil servant's ad hoc appointment was regularized from original date, whereas co-civil servant's ad hoc appointment was regularized later than civil servant---Civil servant having been regularized earlier than co-civil servant and civil servant having been promoted 6 years prior to co-civil servant, placement of co-civil servant over and above civil servant in seniority list, was not justified.

(c) Civil service---

----Seniority---Determination---Principle of natural justice ---Violation--­Department which had finalized seniority list, could not alter seniority position of a civil servant 3 years after such finalization and that too without issuing show-cause notice to civil servant to present his view point---With circulation of a final seniority list, right to maintain position in, seniority list vested in civil servant and 'same could not have been withdrawn without providing him opportunity of being heard---Principles of natural justice were to be read as part and parcel of every statute---If an order was intended to be passed against interest of a person, he deserved a right to explain his view­point.

(d) Civil service----

---- Ad hoc appointment---Regularization---Regularization of ad hoc service was not only for extending financial benefits, but ad hoc civil servant otherwise was entitled -to emoluments of the post---Regularization was not restricted to financial benefits, but regularization would mean commencing of-regular service with effect from a particular date ---Regularization of ad hoc service had some effect for filling up of a selection post as an appointment by selection because a regularization was also processed through same panel of Selection Board.

(e) Natural justice, principles of---

----Application---Principles of natural justice are to be read as part and parcel of every statute.

M. Shakir Naqshbandi for Appellant.

M. Shahid Saeed and Ch. Muhammad Shafique for Respondents Nos. l to 3.

Respondent No.4 in person.

Date of hearing: 20th June, 1998.

2001 P L C (C.S.) 732

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members

HABIB SHAH

versus

DIRECTOR-GENERAL, INTELLIGENCE BUREAU, ISLAMABAD and another

Appeal No. 2(R) of 1998, decided on 28th May, 1998.

Civil service---

----Promotion---Entitlement---Civil servant working as Assistant Director in BPS-17, was not considered for promotion to BPS-18 by Departmental Promotion Committee despite being senior to co-Civil servants who were considered for such promotion---Case of promotion of civil servant was deferred on ground of his alleges) "indifferent record of service" ---Authority, during course of hearing arguments was asked to clarify alleged "indifferent record of service" of civil servant, which was defined by Authority quoting relevant adverse entries from ACR of civil servant for relevant period of six months---Prior to relevant period of six months and thereafter, C.R. dossiers proved civil servant as good officer who had been shown as "A-1" with respect to "knowledge of Islam devotions to duty, honesty both moral and intellectual" and who made positive contribution in office where he was posted, but for period of hardly six months, he was condemned without and cogent and valid reasons especially when consistently he was coming to be a good officer since the -time he was recruited till his last ACR---Civil servant's deferment due to his alleged "indifferent record of service", in circumstances, was totally unjustified---Adverse remarks were required to be red-lined by the concerned Authority but CR dossiers did not depict the same like that---Accepting appeal, Service Tribunal directed that case of civil servant should be placed before Departmental Promotion Committee for its consideration for promotion to post of Deputy Director (BPS-18) with effect from date his juniors were considered and promoted.

Appellant in person, Muhammad Aslam Uns, Standing Counsel for Respondents alongwith Javed Rafique, DDIB, Departmental Representative.

Date of hearing: 27th May, 1998.

2001 P L C (C.S.) 800

[Federal Service Tribunal]

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

MUHAMMAD AKRAM KHAN

versus

MANAGING DIRECTOR, PAKISTAN STATE OIL

COMPANY LTD., KARACHI and 2 others

Appeal No. 18-P of 1998, decided on 10th April, 1999

Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants Act (LXXI of 1973), S. 2(b)---Termination of service--- Appeal---Appellant who was selected as Management Trainee in 'Talent Pool Scheme' of a company was appointed as Depot Officer after completion of training on the condition that his services could be terminated without assigning any reason on payment of one month's gross salary--­Services of appellant were terminated after about one year with immediate effect by giving him one month's gross salary in lieu of notice---Appellant contended that as neither any show-cause notice was issued to him nor any enquiry was conducted before terminating his services, order of termination could not sustain being violative of natural justice---Validity---Relationship between the parties that of master and servant in absence of violation of provisions of law or statutory rules, services of appellant were rightly terminated according to terms and conditions of his employment which had provided that his services could be terminated without assigning any reason on payment of one month's gross salary to him.

Mrs. Anisa Rehman's case 1994 SCMR 2232; Muhammad Tahir Khan and 2 others v. Secretary, Ministry of Petroleum and Natural Resources, Islamabad and another Appeals Nos.22 and 317 of 1998; Ghiasuddin Shaikh and others v. Federation of Pakistan and others C.Ps. Nos. 507-K to 513-K of 1998 and Syed Aftab Ahmed v. KESC C.P.L.A. No. 1305-K of 1997-ref.

Abdul Aziz Kundi for Appellant.

Mian Mohiuddin for PSO.

Date of hearing: 10th April, 1999.

2001 P L C (C. S.) 807

[Federal Service Tribunal]

Before Aftab Ahmed and Roshan Ali Mangi, Members

ABDUL RAHMAN

versus

GOVERNMENT OF PAKISTAN

through the Secretary, Ministry of Communications, Islamabad

Appeal No.844-R of 1997, decided on 19th January, 1998.

Civil service----

---- Advance increments---Entitlement---Civil servant working as Assistant Director in BPS-16, had claimed four advance increments on account of his earning specified qualification on basis of Finance Division's Office Memorandum wherein it was provided that advance increments would-be allowed to officials in BPS-1 to 16 for possessing or acquiring higher qualifications over and above prescribed qualification in relevant recruitment rules to the extent given therein---Civil servant who originally joined service as a Time Scale Clerk, later on was promoted as Inspector as a departmental candidate for which minimum qualification was Matriculate and civil servant during his service had improved his qualification up to B.A. ---Educational qualifications for recruitment to post on which civil servant was presently working was prescribed B.A. or equivalent from a recognised University--­Since post on which civil servant was working was not to be filled up 100% by promotion, qualification which was prescribed for initial recruitment, would be considered for grant of advance increment---Civil servant could only be granted advance increments on acquiring higher qualification than prescribed qualification---Civil servant could only become entitled for benefit of increments if he possessed higher qualification of M.A.---Civil servant, in circumstances, was not entitled to four advance increments as claimed by him.

Saeed-ur-Rehman Khan for Appellant.

M. Aslam Uns, Standing Counsel alongwith Muhammad Afzal, Assistant Accounts Officer, Post Office, D.R.

Date of hearing: 8th January, 1998.

2001 P L C (C.S.) 819

[Federal Service Tribunal]

Before Nasim Sabir Syed and Muhammad Hayatullah Khan Sumbal, Members

Malik MARAWAT HUSSAIN

versus

MANAGING DIRECTOR, SUI NORTHERN GAS

PIPELINES LIMITED, LAHORE and another

Appeal No.428‑L of 1997, decided on 12th November 1997.

Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Withdrawal‑‑‑Application of civil servant for appointment as Assistant (Stores) in Grade V, was accepted and appointment letter was also handed over to him, but when he reported for duty, he was told that offer of appointment had been withdrawn‑‑‑No reason for such withdrawal was given by the Authority‑‑‑Appointing Authority, even if had powers to withdraw offer of appointment made to civil servant, same had to be done on valid justiciable grounds and not arbitrarily or whimsically‑‑‑Authority could not withdraw offer of appointment without giving reasons for such withdrawal especially when a vacancy for that post existed.

PLD 1990 SC 951 and PLD 1981 Lah. 18 ref, Dr. Ehsanul Haq for Appellant.

Saleem Baig for Respondents.

Date of hearing: 1st November, 1997.

2001 P L C (C.S.) 824

[Federal Service Tribunal]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

Dr. MAZHAR NAEEM

versus

STAN INTERNATIONAL AIRLINES CORPORATION, KARACHI

Appeal No. 285-K of 1997, decided on 25th July, 1998.

(a) Words and phrases‑‑­

‑‑‑‑"Void"‑‑‑Connotation.

(b) Civil service‑‑‑

‑‑‑‑Termination of service‑‑‑Services of civil servant who was in confirmed employment of Corporation, were terminated without any charge‑sheet, inquiry and even without issuing show‑cause notice‑‑‑Validity‑‑‑Held, even if termination of civil servant was "termination simpliciter" he could not be terminated without adopting proper procedure and principle of natural justice should have been followed effectively and meaningfully‑‑‑Order of termination passed in flagrant violation of principle of natural justice, was set aside being void ab initio.

Shafi Mohammadi for Appellant.

Masood A. Khan for Respondent‑Corporation.

Date of hearing: 11th July, 1998.

2001 P L C (C.S.) 829

[Federal Service Tribunal]

Before Abdul Majeed Khanzada, Chairman and Bahauddin Sirhindi, Member

MANSOOR AHMED

versus

GOVERNMENT OF SINDH and others

Appeal No.5 of 1997, decided on 30th October, 1997.

Sindh Civil Servants Act (IV of 1973)---

----S. 8---Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 10---Seniority---Determination---Civil servant who was promoted from post of Assistant Commissioner on regular basis was senior to opposing civil servants who were inducted in service subsequently as Assistant Commissioners by way of direct recruitment---Civil servant was also shown senior to opposing civil servants ire earlier seniority lists issued by Authority concerned---No appeal or, objections were filed by opposing civil servant; against first seniority list and objections to second seniority list were filed b3 opposing civil servants after 8 months of its issuance---In third seniority lis issued by Authority, civil servant was also shown senior to opposing civil servants---Despite such position opposing civil servants were allowed seniority over and above civil servant without giving any reasons and without affording civil servant opportunity of hearing---Validity---Seniority having been allowed to opposing civil servants without taking into consideration their entitlement in accordance with law and ignoring civil servant without any reason and without providing him opportunity of hearing, order allowing seniority to opposing civil servants was illegal--­Order allowing seniority to opposing civil servants was set aside and case was remanded to Competent Authority for refixation of seniority in accordance with law.

Ahsan Ali .v. Secretary, KANA. Division, Islamabad PLJ 1996 (T.C.) 212; Mst. Anisa Rehman v. PIAC 1994 SCMR 2232;Aslam Warraich v. Secretary, Planning and Development Division 1991 SCMR 2330; Federation of Pakistan v. Azam Ali 1985 SCMR 386 and Nasimul Haq Malik v. Chief Secretary to Government of Sindh 1996 PLC (C.S.) 921 ref.

M.M. Aqil Awan for Appellant.

S.M. Sayedain Zaidi, Asstt.

A.-G. for Respondent No. 1.

Ch. Muhammad Jamil for Respondents Nos. 2 to 5.

Date of hearing: 15th October, 1997.

2001 P L C (C.S.) 840

[Federal Service Tribunal]

Before Roshan Ali Mangi and Muhammad Raza Khan, Members

NOOR MUHAMAMD HALEEM

versus

DIRECTOR-GENERAL PAKISTAN METEOROLOGICAL

DEPARTMENT, ISLAMABAD and another

Appeal No. 161-K of 1997, decided on 24th October, 1997

Civil Servants Act (LXXI of 1973)---

----S.10---Transfer of civil servant---In absence of any law whereby a person could be allowed to -demand transfer to a particular post in violation of statutory provisions contained in S.10 of Civil Servants Act, 1973, appeal of civil servant against his transfer was not maintainable.

Appellant in person.

Niaz Ahmed Khan, Standing Counsel for Respondent-Department.

Date of hearing: 24th October, 1997.

2001 P L C (C.S.) 845

[Federal Service Tribunal]

Before Aftab Ahmed and Roshan Ali Mangi, Members

AMANULLAH

versus

CHAIRMAN, WAPDA, WAPDA HOUSE LAHORE and 2 others

Appeal No.42-P of 1997, decided on 4th February, 1998.

Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978---

----R.5---Penalty of reversion to a lower position---Civil servant serving as Line Superintendent (BPS-11) was charged with receiving illegal gratification from consumer of electricity and tampering with electricity meter---After serving show-cause notice and affording civil servant opportunity of hearing, civil servant who was found guilty, was reverted to post of Lineman-1 in BPS-9 for a period of two years---Complaint against civil servant was lodged by complainant consumer and Investigating Officer during investigation caught civil servant red-handed when he was tearing the boards of electricity meter with his thumb nail---Charges against civil servant having fully been proved, he was rightly penalized under R.5 of Pakistan Water and Power Development Authority (Efficiency and Discipline) Rules, 1978; but since civil servant was appointed in BPS-I1, initially, order reverting him to lower rank of BPS-9 was amended and such penalty was converted into that of reducing stages to initial pay of BPS-I1 in time scale with cumulative effect.

Waqar Ahmed Sethi for Appellant.

Muhammad Latif for WAPDA alongwith , Sabaz Ali, Superintendent; D.R.

Date of hearing: 27th January, 1998.

2001 P L C (C. S.) 851

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

SADIQ MASIH and another.

versus

THE CHAIRMAN, PAKISTAN TELECOMMUNICATIONS

COMPANY LIMITED, ISLAMABAD and others

Appeals Nos.749-R of 1997 and 336-R of 1998, decided on 22nd June, 1998.

(a) Civil service---

----Promotion---Civil servant who was senior most as per seniority list, was maliciously and mischievously ignored from promotion to B-16 and instead opposing civil servant who was junior to civil servant was promoted with immediate effect---Validity---Civil servant who not only was senior most, but was well-behaved and his record was most satisfactory---Neither any disciplinary case was pending against civil servant nor any adverse entries were existing in his A.C.Rs. and he was also strongly recommended for promotion by concerned Authority---Ignoring such civil servant and giving promotion to junior most civil servant, was a sheer injustice and mal administration especially when junior opposing civil servant who had been promoted had not been shown to have any extraordinary quality which could attract administration to push him up to the total neglect of Senior most civil servant -Departmental Authorities and Government functionaries were required to pass orders fairly and honestly strictly within the four corners of law and dictates of rules and regulations specially in promotion cases--­Decision in that respect should be on permanent basis and not transitory in nature for avoiding mala practices and administrative inconvenience later on---Law required in promotion cases, consultation of the seniority list and all record essential for promotion inclusive of A.C.Rs. of civil servants--­Order promoting opposing civil servant passed without any justification and lending illegal assistance and support to him by Authorities, was set aside and case was remanded to Departmental Promotion Committee with directions to consider civil servant for promotion to B-16 with effect from the date when opposing civil servant was promoted.

(b) Administration of justice----

---- Justice was not merely a job of Courts---Obligatory on departmental functionaries also to do complete justice within their own sphere of activities strictly in accordance with rules and regulations concerned and any deviation there from without any legal justification thereby would render them to disciplinary action.

Amtnur Rehman Khan' for Appellant.

Raja Muhammad Asghar Khan for Appellant.

Bahadur Shah Qureshi, Deputy Chief Engineer, Mumtaz Hussain.

AGM: Raja Ivez Mahmood, Assistant Director (Lit.) on behalf of Respondent- Department.

Private Respondent No.6 alongwith Counsel.

Date of hearing: 16th June, 1998.

2001 P L C (C.S.) 865

[Federal Service Tribunal]

Before Roshan Ali Mangi and Noor Muhammad Magsi, Members

Dr. ALI AKBAR M. DHAKAN

versus

GOVERNMENT OF PAKISTAN

through Secretary, Ministry of Finance, Islamabad and 4 others

Appeal No.2557-K of 1997, decided on 3rd March, 1998.

(a) Civil service---

--- Promotion---Seniority---When enquiry was pending against civil servant, his case of promotion would be deferred till its findings---If civil servant was absolved from allegation, he would get promotion and seniority with effect from date his juniors were promoted.

(b) Civil service----

---- Seniority---Pro forma promotion---Civil servant who was initially appointed as an Assistant Director, thereafter was promoted as Deputy Director, then Senior Deputy Director and finally he was promoted as Director---Authority concerned issued notification whereby junior colleagues of civil servant were promoted to post of Deputy Governor, State Bank of Pakistan, but civil servant despite being senior was ignored---Case of civil servant for promotion was deferred allegedly on ground that certain charges were levelled against him---Earlier Competent Authority had examined said allegations and gave its finding that there was no force behind those allegations and civil servant was recommended and promoted to post of Executive Director for which he was found eligible for promotion after such finding---Allegations on basis of which civil servant was not considered for promotion to the post of Deputy Governor having already been found to be of no force, civil servant was entitled to be considered for promotion--­Service Tribunal accepting appeal of civil servant, directed Authority concerned to allow civil servant his seniority and pro forma promotion with effect from date of promotion of his juniors with all consequential benefits.

Abdul Karim for Appellant.

Muhammad Nasim for Respondent-Bank.

Date of hearing: 25th February, 1998.

2001 P L C (C.S.) 970

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Abdul Hameed Khan Khattak, Members

MUHAMMAD IQBAL

versus

DIRECTOR-GENERAL, PAKISTAN

RANGERS (SINDH), KARACHI and another

Appeal No. 824-Rof 1998, decided on 11th March, 1999.

Pakistan Rangers Recruitment Rules, 1968---

----R. 14(2)--Service Tribunals Act (LXX of 1973), S. 4---Dispensing with services---Appeal---Service of appellant as Sub-Inspector in Pakistan Rangers was dispensed with after more than four years with immediate effect excluding period of about one year of extraordinary leave availed by appellant---Pakistan Rangers Recruitment Rules, 1968 whereunder appellant was appointed, had provided total period of four years as probationary period and after expiry of said period, appellant would be deemed to have been confirmed in his appointment---Order dispensing with services of appellant with immediate effect after about four years and three months of his appointment when his services were legally confirmed, was illegal---Period of extraordinary leave availed by appellant could not be excluded while computing length of his service which would be deemed to be without break---Order dispensing with services of appellant was declared to be illegal with direction to re-instate him with all back benefits.

M. Nazir v. D. G. Pakistan Rangers Sindh C. A. No. 1197 of 1997 and 1989 PLC (C.S.) 79 ref.

Raja Muhammad Asghar Khan for Appellant.

Aslam Uns, Standing Counsel alongwith M. Nazir Khan D.S.R. Rangers and Pir M. Ishaq, D.A.S. for Respondent.

Date of hearing: 9th March, 1999.

2001 P L C (C.S.) 973

[Federal Service Tribunal]

Before Noor Muhammad Magsi and Muhammad Ayub Khan, Members

MUHAMAD SIDDIQUE

versus

THE SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others

Appeal No.603-R of 1998, decided on 9th December, 1998.

Civil service---

---- Deputationist---Reversion to original post in parent cadre ---Effect—­Deputationsit had no vested right to remain on foreign post as Deputationist for ever ---Deputationist on reversion to his original post in his parent cadre, could not be treated aggrieved provided he had been placed in his earlier grade and status in parent cadre.

1985 PLC (C.S.) 133 and 1998 SCMR 2631 ref.

Appellant in person.

Javaid Aziz Sandhu, Standing Counsel alongwith Pir Muhammad Ishaq, D.A.S., Sajjad A. Shaikh, Director, Board of Investment and Abdul Hameed Chaudhri, D.R. for Respondents.

Date of hearing: 7th December, 1998.

2001 P L C (C.S.) 976

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Muhammad Ayub Khan, Member

ARIF ALI

versus

THE NATIONAL TARIFF COMMISSION (NTC) through Chairman and 3 others

Appeal No.914‑R of 1997, decided on 18th April, 1998.

National Tariff Commission Employees (Service) Rules, 1990‑‑‑

‑‑‑‑R. 11(iv)‑‑‑Administration of justice‑‑‑Technical justice amounting to negation of justice in face of candid/adequate supporting R. 11(iv) of National Tariff Commission Employees (Service) Rules, 1990 could not be construed to hurdle the safe dispensation of justice.

PLD 1998 Lah. 1 ref.

Appellant in person.

Umer Moeen, Deputy Director and Waqar Ahmed . Shah for Respondents.

Date of hearing: 11th April, 1998.

2001 P L C (C.S.) 981

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and Abdul Hameed Khan Khattak, Member.

Sub‑Major (Rtd.) MUHAMMAD ZAMAN

versus

MANAGING DIRECTOR, FAUJI FOUNDATION, RAWALPINDI and 2 others

Appeal No.297‑P of 1997, decided on 10th March, 1999.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A & 4‑‑‑Appeal‑‑‑Comptency‑‑‑Appellant whose services were terminated on allegation of misconduct after holding full‑fledged inquiry, had challenged his termination before Service Tribunal‑‑‑Employer Foundation which was devoted exclusively to the welfare of ex‑servicemen of Armed Forces of Pakistan, their families and wives and children of Shaheeds, operated in private sector and all expenditures on its diverse welfare activities had always been met with funds generated by its own industrial and commercial projects and did not receive any, financial assistance from either Federal or any Provincial Government‑‑‑Foundation was a non‑statutory organisation and relationship between foundation and appellant was that of master and servant‑‑‑Foundation being not owned or controlled by Federal Government, ingredients as required under S.2‑A of Service Tribunals Act, 1973 were very much missing‑‑‑Employee of Foundation, thus could not enjoy status of civil servants, for purpose of Services Tribunals Act, 1973 and Service Tribunal lacked jurisdiction to decide appeal filed, by appellant .

Fazal Elahi Siddiqi for Appellant.

Khawaja Muhammad Farooq for Col. (Rtd.) Abid.

Date of hearing: 8th March, 1999.

2001 P L C (C.S.) 986

[Federal Service Tribunal]

Before Abdul Hameed Khan Khattak and Akhtar Hasan Khan, Members

GHULAM MURTAZA

versus

CHAIRMAN, CAPITAL DEVELOPMENT AUTHORITY, ISLAMABAD and 4 others

Appeal No.858-R of 1998, decided on 21st April, 1999.

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

----Para.. 6.04(c)---Service Tribunals Act (LXX of 1973), S. 4---Ante-dated promotion--- Entitlement---Respondents despite being junior to, appellant were promoted and placed in Selection Grade B. P.S.17, but case of appellant was deferred on account of pendency of disciplinary proceedings against him---Upon conclusion of said disciplinary proceedings, case of appellant for grant of Selection Grade, B.P.S. 17 was considered and he was granted said grade not from the date when his juniors (respondents) were -granted said grade, but after about nine months from that date---Validity---Departmental proceeding pending against appellant stood concluded by awarding him minor penalty of "censure" only eight days after consideration of Selection Grade by Departmental Promotion Committee---Minor penalty of "censure" awarded to appellant was not to be considered as any hindrance in grant of promotion---Department recommended case of appellant for ante-dated Selection Grade as "censure" was not an obstacle in that respect---Concerned officer, however, turned , down that recommendation--- Effect- --Appellant being senior to respondents who were granted Selection Grade B.P.S. 17 was also entitled to said grade from date his juniors were granted the same.

1990 SCMR 657 ref.

Raja M. Asghar Khan for Appellant.

Abdul Rashid for the C.D.A.

Date of hearing: 21st April, 1999.

2001 P L C (C.S.) 1130

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Muhammad Zafar Babar, Members

Sahibzada K.A.K. AFFRIDI

Versus

CHAIRMAN, PIA CORPORATION, ISLAMABAD and 3 others

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

(a) Civil service---

---- Termination of service---Allegations of conspiracy and mala fides--­Proof---Civil servant whose services were terminated on allegation of misconduct had alleged that his termination was result of conspiracy between Director, Finance of the Authority and his henchmen and also due to mala fides of the Authority---Civil servant could not substantiate his allegations of conspiracy and mala fides by producing any evidence, on record---Mere allegations of mala fides, without any proof or production of any substance which might lead to proof, could not be given credence---Allegations of mala fides and conspiracy should at least prima facie seem to exist and documentary evidence containing a summary of documentary or oral evidence should have been produced to prove said allegations.

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

----Ss.2-A & 4---Appeal before Service Tribunal without filing departmental appeal---Competency---Appeal filed before Service Tribunal without first filing departmental appeal before Competent Authority was incompetent.

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

----S.4---Appeal---Competency---Respondent Authority did not have any statutory Rules---Appeal of civil servant against termination of his service and for seeking his reinstatement into service was misconceived---Civil servant could not be granted relief prayed for and his only remedy under the Rules was a 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; The Principal, Cadet College. Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; 1971 SCMR 568 and PLD 1981 SC 224 ref.

(d) Practice and procedure---

----Remand---When superior Court had given any direction to a subordinate Court, it would strictly be a matter between the two Courts---Lower Court fully and completely would comprehend import of the words and the language used in remand order and of directions given by superior Court--­Judgment could be challenged before superior Court in any language or with any remarks, within decent limits, but it was quite a different matter to say that superior Court meant, this and this.

Appellant in person. Anwar Kamal for PIAC.

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

2001 P L C (C. S.) 1136

[Federal Service Tribunal]

Before Noor Muhammad Magsi and

Muhammad Ayub Khan, Members

MUHAMMAD SIDDIQUE

Versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others

Appeal No.603(R) of 1998, decided on 9th December, 1998.

Civil service----

---- Reversion of deputationist to his original post in his parent cadre--Effect­--Deputationist, on reversion to his original post in his parent cadre, could not be treated aggrieved provided he had been placed in his earlier grade and status in parent cadre ---Deputationist had no vested right to remain on a post as deputationist for ever.

1985 PLC (C.S.) 133 and 1998 SCMR 2631 ref.

Appellant in person.

M. Javaid Aziz Sandhu, Standing Counsel alongwith Pir Muhammad Ishaq, DAS, Sajjad A. Shaikh, Director, Board of Investment and Abdul Hameed Chaudhari, D.R.

Date of hearing: 7th December, 1998.

2001 P L C (C.S.) 1139

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Muhammad Zafar Babar, members

Dr. EHSAN ALI

Versus

THE SECRETARY, K.A.N.A. & S.D., ISLAMABAD and 5 others

Appeal No-269(R) of 1988, decided on 5th December, 1998.

(a) Civil service---

---- Grant of advance increments---Withdrawal of---Principle of locus poenitentiae ---Applicability---Four advance increments allowed to civil servant, were subsequently withdrawn and payment received by civil servant was also ordered to be recovered from him---Civil servant had contended that since advance increments had been granted to him for a long period and he was drawing amount of advance increments, he had acquired a vested right respect thereof under principle of locus poenitentiae---Validity---Civil servant was drawing advance increments not on basis of any valid notification/order of Competent Authority but was being allowed the facility without any valid base in form of existence of rules by Competent Authority---Huge amount so received by civil servant in an obscure background, could not be construed to have been received by civil servant in good faith---Said amount was rightly ordered to be recovered from civil servant---Principle of locus poenitentiae which could hold good conditionally in certain matter, was not absolute.

PLD 1969 SC 407; 1997 SCMR 15; 1991 SCMR 2330; 1995 PLC (C.S.) 1090 and PLD 1992 SC 207 ref.

(b) Administration of justice---

---- Law and financial discipline must prevail in each and every department/organization, strictly in spirit of golden principle of Islam and law of the land.

M. Javaid Aziz Sandhu, Standing Counsel alongwith Pir M. Shah, LO and M. Ashraf Malik, AAO, AGPR, D.R.

Date of hearing: 17th November, 1998.

2001 P L C (C.S.) 1146

[Federal Service Tribunal]

Before Syed Muhammad Zafar Babar

and Abdul Hameed Khan Khattak, Members

KHALID JAVED CHOUDHRY

Versus

CHAIRMAN, EMPLOYEES' OLD-AGE BENEFITS INSTITUTION

(EOBI), KARACHI and others

Appeal'No.428(L) of 1998, decided on 22nd February, 1999.

Service Tribunals Act (LXX of 1973)---

----S.4---Civil Servants Act (LXXI of 1973), S.22---Appeal---Competency--­Appeal filed before Service Tribunal without first filing departmental appeal or representation, was incompetent.

Muhammad Siddiq Mughal for Appellant.

Samiullah Khan for Respondents Nos.l, 2, and 3 with Raja Faizul Hasan, Director, Law and Miraj Din Deputy Director.

Munawar Ahmad Javed for Respondent No.4.

Date of hearing: 22nd February, 1999.

2001 P L C (C.S.) 1153

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Muhammad Zafar Babar, Members

Ch. ASGHAR HUSSAIN

Versus

THE PM through Secretary, Establishment Division, Islamabad, and others

Appeal No.380-R of 1998, decided on 21st November, 1998.

Civil Service---

----- Ante-dated promotion---Entitlement---Civil servant was given current charge of post of Director-General (B-20) on transfer of Director-General--­Civil servant was promoted to the post of Director-General, but not from the date when he was given current charge of the post despite being qualified and eligible for appointment---Validity---Contention of Authority that civil servant was not eligible or entitled to ante-dated promotion, was repelled because another civil servant was granted ante-dated promotion in similar circumstances---Ante-dated promotion, however, could be made even after retirement from service of civil servant.

1993 SCMR 609; PLD 1994 SC 203; 1998 SCMR 736; 1998 SCMR 2237 and 1998 PLC (C.S.) 980 ref.

Aminur Rehman Khan for Appellant.

Muhammad Aslam Uns, Standing Counsel alongwith Pir Muhammad Shah, D.A.S., Irshad Ahmed, Deputy Secretary Interior and Abdul Hakeem Rahi, Steno Establishment Division for Respondents.

Date of hearing: 19th November, 1998.

2001 P L C (C.S.) 1155

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Muhammad Zafar Babar, Members

ALLAH DAD KHAN

Versus

THE CHAIRMAN, NATIONAL HIGHWAY AUTHORITY

and 4 others

Appeal No.4-Q of 1998, decided on 6th November, 1998.

Service Tribunals Act (LXX of 1973)---

----S. 4---Promotion---Entitlement---Civil servant working as Superintendent (Accounts) in B-16 despite being senior to co-civil servants was ignored and co-civil servants were promoted to posts of Assistant Directors (Finance) in B-17 without assigning any reason and without hearing the civil servant--­ Non-speaking order which smacked mala fides on part of Authority was vota which could not be authenticated---Authority was legally bound to do justice to civil servant---Ignoring or depriving a civil servant from his statutory right inclusive of promotion was height of injustice which in no way was justified---Civil servant who was senior to co-civil servants was, declared promoted from date his juniors were promoted.

PLD 1998 Lah. 1 ref.

Shah Abdur Rashid for Appellant.

Abdul Rahim Bhatti for Private Respondents Nos. 2 and 3.

Date of hearing: 5th October, 1998.

2001 P L C (C.S.) 1158

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Muhammad Zafar Babar, Members

MUHAMMAD RASHID

Versus

THE SECRETARY, ESTABLISHMENT DIVISION

and another

Appeal No.327-R of 1998, decided on 30th November, 1998.

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, 1973, Art.212---Limitation Act (IX of 1908), S. 14---Appeal---Limitation---Candidature of appellant having been rejected due to lack of required experience, appellant instead of filing appeal before Service Tribunal for redress of his grievance, filed Constitutional petition before High Court and agitated the matter 'up to the Supreme Court---Matter being purely related to terms and conditions of service, appellant should have straightaway sought all his legal remedies from Service Tribunal but he filed appeal after more than one year before Service Tribunal---Effect---Litigation undergone before incompetent forums, would not create any justification for condonation of delay---Law would take its own course and time and tide wait for none---Delay would defeat equity and limitation once started could not be stopped---Appeal filed by appellant being time-barred, was dismissed, in circumstances.

PLD 1983 SC 385; 1975 SCMR 259; 1985 SCMR 333; 1985 SCMR 890; 1991 SCMR 1841 and 1997 SCMR 1167 ref.

Appellant in person. Javaid Aziz Sandhu, Standing Counsel for Respondents.

Date of hearing: 17th November, 1998.

2001 P L C (C.S.) 1162

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Dr. Akhtar Hasan Khan, Members

NAVEEDULLAH BABAR

Versus

CHIEF COMMISSIONER, PAKISTAN BOY SCOUTS

ASSOCIATION, ISLAMABAD and 2 others

Appeal No-533-R of 1997, decided on 15th March, 1999

(a) Administrative Authority-----

--- Mode of exercise of powers---Every departmental authority, high or low, and for that matter the State/Government functionaries, must follow the law and should not be led by their own whims and fancies and wishful thinking.

(b) Civil service---

---- Termination of service---Violation of principles of natural justice-- 'Civil Servant was most qualified and experienced person in his field not only at national level, but world over and his services were duly confirmed by Competent Authority---Confirmed services of civil servant, were terminated with immediate effect without issuing him show-cause notice and without providing him opportunity of hearing despite civil servant had rendered long meritorious services---Services of civil servant, had been terminated in total negation of principles of audi alteram partem---Order terminating services of civil servants was set aside with special costs, in circumstances.

1996 SCMR 413; 1990 SCMR 2330; PLD 1965 SC 94; Anisa Rehman's case 1994 SCMR 2232; 1997 PLC (C.S.) 1146; 1997 PLC (C.S.) 1014; 1997 SCMR 1543; 1998 PLC (C. S.) 5 and 1990 SCMR 999 ref.

Dr. G.S. Khan, Bar-at-Law for Appellant. Altaf Hussain with Abdul Manan, Deputy Director, D.R. for Respondents.

Date of hearing: 6th March, 1999.

2001 P L C (C.S.) 1168

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Muhammad Zafar Babar, Members

MUHAMMAD NASRULLAH KHAN and another

Versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and others

Appeals Nos. 52-Q and 2751-K of 1997, decided on 21st November, 1998, Civil service----

promotion----- Entitlement---Civil servants despite being senior as per seniority list and having good service record, were not considered for promotion within time without any valid reason whereas their juniors were promoted---Civil servants, in circumstances, were entitled to ante-date promotion with effect from the date their juniors were promoted.

1991 SCMR 696; 1998 SCMR 736 and 1998 SCMR 2237 ref.

Raja Muhammad Asghar Khan for Appellant (in Appeal No.52-Q of 1997).

Manzoor Ali Khan for Appellant (in Appeal No.2751(R) of 1997).

Javaid Aziz Sindhu, Standing Counsel alongwith Mehmoob Alam, Section Officer, Establishment Division, D.R. for Respondents.

Date of hearing: 6th November, 1998.

2001 P L C (C.S.) 1170

[Federal Service Tribunal]

Before Noor Muhammad Magsi and

Muhammad Ayub Khan, Members

MUHAMMAD ILYAS HASHMI

Versus

THE SECRETARY, MINISTRY OF INTERIOR, ISLAMABAD and 3 others

Appeal No.696-R of 1997, decided on 26th August, 1998.

(a) Precedent------

---- Sound and rightful order could be followed and cited as a precedent--­Entire system of law was based on the fair notion of justice in which rightful orders were made, obeyed and followed as precedents right from the bottom up to the order of the Supreme Court---Law/rules and regulations should be followed and not extraneous matters.

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

----S.4---Appeal---Limitation---Appeal which was to be filed before Service Tribunal within 30 days from rejection of Departmental appeal, was filed by civil servant with delay of 20 days of prescribed period---Appeal filed by civil servant, was rightly dismissed on ground of limitation.

Muhammad Asghar Khan for Appellant.

Shujjat Hussain Naqvi, PDSP for Respondent-Department.

Date of hearing: 24th August, 1998.

2001 P L C (C.S.) 1176

[Federal Service Tribunal]

Before Muhammad Raza Khan and

Noor Muhammad Magsi, Members

ABDUL WAHAB ARAIN

Versus

THE PRIME MINISTER, GOVERNMENT OF PAKISTAN, through

Secretary, Establishment Division, Islamabad and others

Appeal No.225-K of 1997, decided on 16th June, 1998.

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

----S.4---Appeal,--Limitation---Cq-civil servants were promoted, while superseding the civil servant---Civil servant challenged his supersession by filing departmental representation---Civil servant after first denial of his representation should have filed appeal before Service Tribunal within prescribed period of 30 days, but instead he repeated appeal and remained issuing reminders Authority---Civil servant filed appeal before Service Tribunal after more than, 8 months from denial conveyed to him by Authorities---Repetition of appeals and representation, was not allowed by law---Delay in filing appeal having not been explained, appeal filed by civil servant before Service Tribunal, was dismissed being barred by time.

Appellant in person.

Niaz Ahmed Khan, Standing Counsel.

Date of hearing: 16th June, 1998.

2001 P L C (C.S.) 1187

[Federal Service Tribunal]

Before Gulbaz Khan, Chairman and

Muhammad Ayub Khan, Member

ABDUL LATIF and 3 others

Versus

THE SECRETARY/CHAIRMAN, AZAD JAMMU AND KASHMIR

COUNCIL and others

Appeals Nos.841-R, 842-R, 875-R and 878-R of 1997, decided on 27th July, 1998.

(a) Civil service--­--

Departmental Authorities, duty of---Administration of justice---Legal duty of administration to d3 justice at the grass roots level as required under law on the subject ---Deparmental Authorities should not look forward for decision outside the Department but were supposed to administer justice to civil servants falling under the administrative control in all Utters, including seniority and promotion---Primary duty of Departmental Authorities was to administer even-handed and complete justice to their subordinates---Role played by Departmental Authorities was most important and essential whereas role of Courts would become subservient, but simultaneously not lesser in importance in event of any injustice, if committed being the Courts of last resort.

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

----R.8-B---Appointment on "acting charge basis"---Principles---Appointment on "acting charge basis" was made when officer/official was eligible for appointment to post, but- lacked specified length of service---Civil servant need not be allowed to linger on for an indefinite period on acting charge appointment and the moment requisite length of service was completed, no further justification existed for continuance of acting charge appointment--­Acting charge appointment must be given to person who were senior most according to seniority list and in that respect Appointing Authority had got no discretion at its sweet-will---Discretion needed to be exercised judiciously based on merit.

1983 SCMR 609; 1986 PLC (C.S.) 637; 1997 SCMR 1730; 1991 SCMR 2330; 1985 SCMR 1394; 1996 SCMR 1334; 1998 SCMR 736 and 1995 SCMR 429 ref.

Shah Abdur Rashid for Appellant (in Appeals Nos.841-R and 842-R of 1997).

Afnan Karim Kundi for Respondents Nos.l and 2 (in Appeals Nos. 841-R and 842-R of 1997).

Abdur Rashid Awan for Private Respondents (in Appeals Nos. 841-R and 842-R of 1997).

Shahbaz Yar Khan for Appellant (in Appeal No. 875-R of 1997).

Afnan Karim Kundi for Respondents Nos.l to 3 (in Appeals Nos. 841-R and 842-R of 1997).

Abdur Rashid Awan for Respondents Nos.4 and 5 (in Appeals Nos.841-R and 842-R of 1997).

Shah Abdur Rashid for Respondents Nos.6 and 7 (in Appeals Nos.841-R and 842-R of 1997).

Abdur Rashid Awan for Appellant (in Appeal no. 878-R of 1997).

Afnan Karim Kundi for Respondents Nos.l and 2 (in Appeals Nos. 841-R and 842-R of 1997).

Shah Abdur Rashid for Respondents Nos. 4 and 5 (in Appeal No.878 (R) of 1997).

Dates of hearing: 11th July and 18th July, 1998.

2001 P L C (C.S.) 1197

[Federal Service Tribunal]

Before Aftab Ahmed and

Muhammad Raza Khan, Members

S. ZIAUL HASAN TIRMIZI

Versus

CHAIRMAN, BOARD OF DIRECTORS (HEREI WATER PIAC), KARACHI AIRPORT, KARACHI and 2 others

Appeal No.543-K of 1997, heard on 31st October, 1997. .

Constitution of Pakistan (1973)---

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), Ss. 2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997), 4 & 6---Civil Procedure Code (V of 1908), S.11---Appeal---Competency---Appellant had challenged order of his dismissal from service before Labour Court and after dismissal of his grievance petition by Labour Court he filed appeal before Labour Appellate Tribunal which was also dismissed---Appellant thereafter filed Constitutional petition before High Court---During pendency - of Constitutional petition, Service Tribunals Act, 1973, was amended according to which employees of autonomous bodies were declared to be civil servants and in view of such amendment, appellant had filed appeal before Service Tribunal presuming that proceedings pending before High Court had abated by operation of law---Validity---Any suit, first appeal, second appeal, application for review and similar other proceedings whereby terms and conditions of a civil servant were to be adjudicated or to be executed, were held to abate so as to provide an opportunity for reference of such matter to specialized institution namely Service Tribunal---If any suit or appal or other proceedings with regard to adjudication of terms and conditions had been filed and finally adjudicated upon, such an issue could not be re-opened even before Service Tribunal, because closed matters could not be reviewed in view of S.11, C.P.C.---Normal remedy available to appellant under labour laws having stood exhausted with decision of Labour Appellate Tribunal, thus, issue with regard to adjudication of terms and conditions of service, had attained finality---Proceedings pending before High. Court against proper exercise or otherwise of the jurisdiction by Labour Appellate Tribunal, being extraordinary remedy, same could not be deemed to abate---Appeal filed by appellant before Service Tribunal, in circumstances, was not competent being misconceived.

Ashraf Hussain Rizvi for Appellant.

Date of hearing: 31st October, 1997.

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2001 P L C (C.S.) 1211

[Federal Service Tribunal]

Before Roshan Ali Mangi and

Muhammad Raza Khan, Members

GHULAM ABBAS

Versus

THE KARACHI ELECTRIC SUPPLY CORPORATION LTD through

Managing Director and another

Appeal No.319-K of 1997, decided on 22nd October, 1997.

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

----Ss. 2-A [as added by Service Tribunals (Amendment) Act (XVII of 1997) & 6--Constitution of Pakistan 1973), Art.212---Abatement of suit--­Jurisdiction of Service Tribunals---Appellant whose services were terminated in March, 1997 on account of abolition of post in employer Corporation, had filed civil suit in High Court against his termination---Pending adjudication of suit in High Court, Service Tribunals Act, 1973 was amended by Service Tribunals (Amendment) Act, 1997 and by such amendment scope of S.2 of Service Tribunals Act, 1973 was extended to employers of autonomous bodies and statutory corporations and employees of such autonomous bodies and statutory corporations were declared to be civil servants for the purpose of Service Tribunals Act, 1973---Appellant apprehending abatement of his civil suit by virtue of S. 6 of Service Tribunals Act, 1973 filed appeal before Service Tribunal---Cause of action having accrued to appellant prior to amendment in Service Tribunals Act, 1973 when appellant was not civil servant, he could not challenge order of his termination' before Service Tribunal in appeal because Service Tribunals (Amendment) Act, 1997 according to which employees of corporations like appellant were declared civil servants, was not retrospective in operation to include a cause of action which had arisen to appellant about three months prior to enforcement of Service Tribunals (Amendment) Act, 1997---Appeal filed by appellant before Service Tribunal 'was not compe­tent ---Apprehension of appellant that his civil suit pending before High Court was likely to abate was thus ill-founded.

(Tabrez Hussain Swera v. KESC Appeal No.542-R of 1997) rel.

Kanwar Mukhtar Ahmed for Appellant.

Date of hearing: 22nd October, 1997.

2001 P L C (C. S.) 1215

[Federal Service Tribunal]

Before Roshan Ali Mangi and

Muhammad Raza Khan, Members

GHULAM RABBANI CHAUDHRY

Versus

SECRETARY, MINISTRY OF LABOUR, MANPOWER AND

OVERSEAS PAKISTANIS, ISLAMABAD

and 10th others Appeal No.382-R of 1997, decided on 2nd February, 1998.

(a) Civil service---

----Seniority---Computation of---Period of ad hoc appointment---Period of ad hoc appointment could not be counted towards seniority.

ESTACODE, Principles of Seniority, para. A(iii), sub-para.(a) rel.

(b) Civil Service-----

----Seniority---Promotion---Departmentally promoted and direct oppointee--­Seniority inter see---Officers promoted to higher grade in continuous arrangement and as a regular measure in a particular year, would as a class be senior to those appointed by direct recruitment in the same year---Civil servant being a fresh appointee would stand junior to opposing civil servants who were departmentally promoted.

ESTACODE, 1989 Principles of Seniority, para. 227; M.Anwar Butt v. Secretary, Ministry of Labour and others Civil Petition No.348-R of 1984 and S. Mehr Badshah v. Secretary, Ministry of Labour Civil Petition No.201 /R of 1985 rel.

Syed Kazim Hussain Kazmi for Appellant.

M. Aslam Uns, Standing Counsel.

Date of hearing: 17th January, 1998.

2001 P L C (C.S.) 131

[Karachi High Court]

Before Sabihuddin Ahmed and Wahid Bux Brohi, JJ

S.M. AFAQ

versus

FEDERAL PUBLIC SERVICE COMMISSION

Constitutional Petitions Nos.D-1119, 1894, 1938 of 1997, D-2072 of 1999 D-461, 837 and 933 of 2000, decided on 8th August, 2000.

(a) Constitution of Pakistan (1973)--

----Art. 27(i), proviso I---Expression "belonging to"---Scope---Expression "belonging to" means a resident. or an inhabitant of a particular area which candidate treats or intends to treat as his permanent abode.

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

----Arts. 25, 27 & 37---Federal Public Service Commission Rules for Competitive Examination, 1997, R.6(a)(iii)---Quota system for Government service---Candidate whose father had migrated to Pakistan might be entitled to be admitted into Government service as a candidate from area in respect whereof his father had obtained a certificate of domicile---Such facility not available to child of a person who was born in or originated from one or the other Province in Pakistan and such child was inevitably tied down to the area of birth or origin of his father---Such qualification was not premised upon any rational basis, and was liable to be struck down as the same was violative of Art.25 of the Constitution.

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

----Art. 27---Quota system for recruitment in Federal Government service--­Object--- Reasonable classification---Uneven state of economic development and educational opportunities in different parts of country/sub-continent was recognized right from the formation of Pakistan and, therefore, the need for affirmative action in aid of the people of less developed areas was recognized---Quota system was introduced in Federal Services with such object and the same was in existence even before the separation of East Pakistan ---Affirmative action for the benefit of disadvantaged sections of the people could always be sustained on the test of reasonable classification.

Griswold v. Connecticut (1965) 381 US 479 ref.

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

----Art. 27---Quota system in Federal Services---Reservation for persons belonging to a particular area or class---Scope---Such reservation in terms of first proviso to Art.27(1) of the Constitution is an exception to the general rule and the same is not otherwise permissible under the main cl. (i) of Art.27 of the Constitution.

Mushtaque Ahmed Muhal v. Honourable Lahore High Court 1997 SCMR 1043 ref.

(e) Federal Public Service Commission Rules for Competitive Examinations 1997---

----R. 6(a)(iiil---Constitution of Pakistan (1973), Art.27(1), first proviso--­Vires of R.6(a)(iii) of Federal Public Service Commission Rules for Competitive Examinations, 1997---Extending benefit of quota system on the ground of ancestry---Validity---Proviso to Art.27(1) of the Constitution being an exception to the general rule, the same had to be strictly construed---Proviso to Art.27(1) only stipulated that reservation of posts could be made for persons belonging to a class or area ostensibly with the object of wiping out the disadvantage that was suffered on account of residing in less developed areas leading to unavailability of equal opportunities---Privilege of the proviso to Art.27(1) could not be extended to the persons who had enjoyed the best educational facilities in developed areas merely on the ground of their ancestry---Provision of R.6(a)(iii) of Federal Service Commission Rules for Competitive Examination, 1997, was ultra vires the first proviso to Art.27(1) of the Constitution.

(f) Federal Public Service Commission Rules for Competitive Examinations, 1997---

----R. 6(a)(iii)---Constitution of Pakistan (1973), Arts.27 & 199--­Constitutional petition---Quota System---Seats reserved by Federal Public Service Commission for specified areas---Refusal of the Commission to extend benefit to the candidates as provided in first proviso to Art.27(1) of the Constitution---Basis for such refusal was that the fathers of the candidates did not belong to the specified areas by birth---Validity---Quota system provided weightage to residence of certain areas on the disadvantages and lack of opportunities that were faced because of inadequacy or inequality of education or cultural opportunities---Such system could not be sustained on the ground of ancestry of a particular candidate---Provision of R.6(a)(iii) of Federal Public Service Commission Rules for Competitive Examinations, 1997, was ultra vires the Constitution---High Court directed the Federal Public Service Commission to allocate seats to different candidates on the basis of their permanent residence or the areas in which they had lived and acquired a substantial part of their education irrespective of the areas to which their respective fathers belonged---Constitutional petitions were allowed accordingly.

Miss Sumaeea Zareen v. Selection Committee, Bolan Medical College, Quetta 1991 SCMR 2099; Miss Salina Mughal v. Selection Committee, Bolan Medical College, Quetta 1993 SCMR 2083; Shireen Munir v. Province of Punjab PLD 1990 SC 292 and Pardeep Jain v. Union of India AIR 1984 SC 1428 ref.

(g) Interpretation of statutes--

----Proviso---Constitution---Where proviso was an exception to a general rule same had to be strictly construed.

Munib Ahmed for Petitioners (in C.Ps. Nos. 1119, 1938 of 1999 and 461 of 2000).

Muhammad Nawaz Shaikh for Petitioner (in C.Ps. Nos. 1894 and 2072 of 1999).

K.M. Nadeem for Respondent No.3 (in C.P. No. 3331 of 1999).

Syed Zaki Muhammad, Dy. A.-G.

Date of hearing: 28th June, 2000.

2001 P L C (C.S.) 223

[Karachi High Court]

Before Sarmad Jalal Osmany, J

MUSHTAQ HUSSAIN QAZI and others

versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division, Islamabad and others

Suits Nos. 765, 783 and 779 of 2000, decided on 4th October, 2000.

(a) Civil Servants Act (LXXI of 1973)--- , ----S. 2(i)---Service Tribunals Act (LXX of 1973), S. 2-A---Proceedings against civil servant under wrong provision of law---Effect---Civil servant would not cease to be a civil servant and he would continue to be a civil servant for all purposes unless it had been established otherwise---Just because civil servant had been proceeded against under a wrong provision of law, would not affect his status as a civil servant.

Registrar of Supreme Court v. Wali Muhammad 1997 SCMR 141 and Muhammad Abdul Olla v. Pakistan 1989 CLC 1146 distinguished.

(b) Interpretation of statutes--

----Applicability of statute by implication---Validity---Statute could not be applied to a particular class of persons merely by implication---Statute either would apply to a particular class of person or would not.

Union Bank Ltd. v. Federation of Pakistan 1998 PTD (Trib.) 2116 and Shanti Prasad v. Bachchi Devi AIR 1948 Oudh 349 ref.

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

----S. 4(i), proviso (b)---Service Tribunal, jurisdiction of---Officer on Special Duty (O. S. D.)---Nature---Post of O.S.D. is not post at all and is usually reserved for those officers who are not desirable for any number of reasons--­Such post denotes that the officer is not fit to be given any position of responsibility which concerns his fitness for occupying the same--­Jurisdiction of Service Tribunal under SA(i), proviso (b) of Service Tribunals Act, 1973, is not attracted and the matter is justiciable before the ordinary Courts of law including High Court.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Raees (Azam) v. Government of Balochistan 1995 PLC (C.S.) 151; Afzal Muhammad Farooq v. Secretary, Establishment Division 1998 PLC (C.S.) 1175; Dr. Amanul Haq v. Government of Punjab 2000 PLC (C.S.) 123 and Ahmed Salman Waris v. Nadeem Akhtar PLD 1997 SC 382 and Dr. Moula Bux v. Government of Sindh 2000 PLC (C.S.) 905 ref.

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

----S.4(i), proviso (b)---Constitution of Pakistan (1973), Art. 212---Officer on Special Duty (O.S.D.)---Jurisdiction of High Court---Civil servant was posted as O. S.D,.---Validity---Where fitness/suitability of civil servant was in issue, High Court had jurisdiction to the exclusion of Service Tribunal.

----Concept---Term "proceedings" means a prescribed course of action for enforcing a legal right and necessarily embraces requisite steps by which judicial action is invoked---Proceedings includes every step taken towards the further progress of a cause in Court or before Tribunal where the same may be pending---Proceedings is the step towards the objective to be achieved and the same commences with the first step by which the machinery of law is put into motion in order to take cognizance of the case--­Proceedings is a comprehensive expression and. includes all possible steps in the action under the law, 'from its commencement to the execution of judgment.

Karim Bibi v. Hussain Bukhsh PLD 1984 SC 344 ref.

(f) Words and phrases---

----"Pending"---Meaning---"Pending" means nothing more than undecided or awaiting decision or settlement---Action in law is considered pending from the time of its commencement of proceedings till final judgment.

Fajar Ali v. Jamila PLD 1969 Lah. 545 ref.

(g) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 13---Government Servants (Efficiency and Discipline) Rules, 1973, R.2---Civil servant was made Officer on Special Duty (O.S.D.) under the provisions of S.13 of Removal from Service (Special Powers) Ordinance, 2000---Contention by the civil servant was that since he was already under suspension under the provisions of Government Servants (Efficiency and Discipline) Rules, 1973, therefore, he could not be made O.S.D. under the provision of S.13 of Removal from Service (Special Powers) Ordinance, 2000---Validity---Departmental proceedings were pending when the civil servant was made O.S.D.---Case of the civil servant, under the provisions of S.13 of Removal from Service (Special Powers) Ordinance, 2000 was subject to the provisions of Government Servants (Efficiency and Discipline) Rules, 1973---Notices by which the civil servant was made O.S.D. were nullity in law since they were issued under the new Ordinance and the same were set aside in circumstances.

Shafique Ahmed Butt v. Punjab Labour Appellate Tribunal 1983 CLC 1352; Rashid Akhtar Nadvi v. Haji Irshad Ahmed Lodhi PLD 1965 Lah. 192; Muhammad Raees (Azam) v. Government of Baluchistan 1995 PLC (C.S.) 151; Afzal Muhammad Farooq v. Secretary, Establishment Division 1998 PLC (C.S.) 1175; Dr. Amanul Haq v. Government of Punjab 2000 PLC (C.S.) 123; Ahmed Salman Waris v. Nadeem Akhtar PLD 1997 SC 382; Syed Anjum Zafar and others v. Syed Abbas Ali Shah and others 2000 SCMR 59; Shanti Prasad v. Bachichi Devi AIR 1948 Oudh 349; Sukhlal Mondal v. Krishna Biswas and others AIR 1982 Cal. 207; Muhammad Arshad Kalim v. Chairman Town Committee 1991 PLC (C.S.) 80; Ali Ahmed Bugti v. Federation of Pakistan 2000 PLC (C.S.) 184; Syed Saghir A. Naqvi v. Province of Sindh 1996 SCMR 1165; Khadim Hussain v. Chief Engineer, Irrigation, Lahore 1981 PLC (C.S.) 826; Khurshid Ahmed Niazi v. D.C. Dera Ghazi Khan 1883 PLC (C.S.) 46; Allauddin v. Chief Commissioner and another PLD 1959 (W.P.) Kar. 282; Bashir Engineering Industries Ltd. v. MCB 1998 CLC 2065; Zarina Begum v. I.-G. Police, Punjab PLD 2000 Lah, 65; Mansab Ali v. Amir Ali PLD 1971 SC 124; Imran v. Presiding Officer Punjab Special Court No. VI, Multan and 2 others PLD 1996 Lah 542 and Philips- Electrical Industries of Pakistan Limited v. Pakistan and others 2000 YLR 2724 ref.

(h) Civil service--

---- Post of Officer on Special Duty (O.S.D.)---Nature---Post of O.S.D. is not a benison post as O.S.D. is deprived of his right to function as a civil servant without any cause or reason assigned for the same---Such civil servant not only suffers professionally but also on a personal level as the post usually has a stigma attached to it implying undesirability for any number of reasons with consequent social and personal disadvantages and dilemmas---Where Government is of the view that a particular officer is guilty of any misconduct, such officer should be proceeded against immediately under the rules and his case be finalized rather than making him O.S.D. or suspending him indefinitely.

Dr. Moula Bux v. Government of Sindh 2000 PLC (C.S.) 905; Syed Ajmal Hussain Bokhari v. Commissioner, Rawlapindi 1997 PLC (C.S.) 754 and Shahnawaz Marri v. Government of Balochistan 2000 PLC (C:S.) 533 ref.

Khaiid Jawaid Khan for Plaintiffs.

Naeem-ur-Rehman, Dy. A.-G. for Defendant No. l

Khalid Dogar for Defendants Nos.2 and 3.

Dates of hearing: 19th, 21st, 22nd, 26th June, 4th, 11th 15th, 18th, 25th and 29th September, 2000.

2001 P L C (C.S.) 361

[Karachi High Court]

Before Muhammad Roshan Essani and Muhammad Ashraf Leghari, JJ

NABI BUX and others

versus

GOVERNMENT OF SINDH and others

Constitutional Petition No.0-882 of 2000, heard tin 17th January, 2001.

(a) Disabled Persons (Employment and Rehabilitation) Ordinance (XL of 1981)---

----Ss. 10 & 11---Sindh Service Tribunals Act (XV of 1973), S.4--­Constitution of Pakistan (1973), Art. 199---Constitutional petition---Civil service---Appointment of disabled persons---Cancellation of---Petitioners who were disabled persons and were appointed under the law after observing all the codal formalities were serving at various places for the last about three years to the entire satisfaction of their superiors---No adverse or undesirable remarks had ever been assigned or communicated to the petitioners and their services were appreciated not only, by their superiors, but by the Enquiry Committee which found appointment of petitioners in accordance with law and prescribed procedure---Despite having served for about three years, petitioners' services were riot regularized and instead Authority gent a letter to the concerned officials directing them to cancel appointments of petitioners on the allegations that same were made against the quota reserved in the Province---Validity---Petitioners being confirmed employees were working against the existing vacancies and Authority had not specified as to which rule was infringed by the appointing Authority while appointing the petitioners---Action of Authority against petitioners which was mala fide and arbitrary and taken without' issuing show-cause notice was declared illegal, by High Court in exercise of its Constitutional jurisdiction.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLb 1981 SC 612; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Tariq Ali v. Director, Health Services, Multan Division, Multan and 4 others 1999 PLC (C.S.). 1297 and Dr: Muhammad Ayub, Manager, Government Loralai v. Province of Balochistan through Secretary, Government of Balochistan 2000 PLC (C.S.) 60 ref.

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

----S.4---Disabled Persons (Employment and Rehabilitation) Ordinance (XV of 1981), Ss. 10 & 11---Constitution of Pakistan (1973), Art. 199--­Constitutional jurisdiction of High Court---Scope---Civil ser-.ice---High Court no doubt would not entertain the matters concerning the terms and conditions of service, but case of petitioners was of exceptional n4ture on its peculiar facts and circumstances where vested rights of petitionerk had been infringed---When the rights of parties guaranteed by Constitution of Pakistan (1973), were infringed and action against them was contrary to law and in excess of authority or without jurisdiction, High Court could interfere in exercise of its 'Constitutional jurisdiction to safeguard the same---Such exercise could not be denied to a party merely on technical grounds and the persons could not be left at the mercy and whim of the G7vernment functionaries---Persons in bureaucratic hierarchy were supposed to act within the ambit of their authority---Any step/action to override the limits prescribed by law or transgress in order to defeat the ends of justice or the orders not finding support from statute, could be challenged in Constitutional jurisdiction without assailing or exhausting remedy at departmental level.

Dr., Moula Bux and others v. Government of Sindh and others C.P. No. D-164 of 1998 ref.

(c) Administration of justice-

---- No one should be condemned unheard.

(d) Natutal justice---

---- Principles of---No one should be condemned unheard.

(e) Maxim-

---"Audi ---"Audi alteram partem"---No one should be condemned unheard.

Imdad Ali Awan for Petitioner.

Sher Muhammad Shar, Asstt. A.-G. for Respondents.

Date of hearing: 17th January, 2001.

2001 P L C (C.S.) 623

[Karachi High Court]

Before Sabihuddin Ahmed and Zahid Kurban Alavi, JJ

MUSHTAQ AHMED SABTO and others

versus

FEDERATION OF PAKISTAN and others

Civil Petitions Nos. 1861 of 2000, 120, 121., 141, 152, 174, 206 and 242 of 2001, decided on 15th February, 2001.

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

----Art.199---Constitutional petition---Stay of proceedings before High Court---Filing of a petition for leave to appeal to Supreme Court against judgment---Effect---Mere filing of such petition was not a valid ground for grant of stay in the proceedings before High Court.

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

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Suspension of civil servant---Matter related to terms and conditions of service---­Constitutional jurisdiction of High Court---Scope---Suspension of civil servant pending disciplinary action relates to the terms and conditions of his service and appeal against such order is maintainable before a Service Tribunal---Jurisdiction of High Court under Art.199 of the Constitution to scrutinize the same stands ousted, (c) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss.3, 4, 9 & 10---Appeal before Service Tribunal---Scope---Where final order causing removal, compulsory retirement or imposing penalty under S.3 of Removal from Service (Special Powers) Ordinance, 2000, has been passed unless representation against the same has been decided under S.9 of Removal from Service (Special Powers) Ordinance, 20.00, no appeal would lie to the Service Tribunal.

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

----Art.212---Bar of jurisdiction of High Court---Bar under Art.212 of the Constitution can be attracted only if an appeal before the Service Tribunal is maintainable.

I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041 and S.M.H. Razvi and others v. Maqsood Ahmed Khan and others PLD 1981 SC 612 ref.

(e) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S.4---Civil Servants Act (LXXI of 1973), S.3---Rights of civil servants--­Powers of Government to take action against civil servants---Provisions of Removal from Service (Special Powers) Ordinance, 2000 and Civil Servants Act, 1973--- Distinction--- Substantive power of Government to take action and the rights of civil servant under the provisions of Removal from Service (Special Powers) Ordinance, 2000, are not very different from those available under the rules made under the Civil Servants Act, 1973--­Significant difference, however, is that unlike the ordinary rules, the Removal from Service (Special Powers) Ordinance, 2000, is designed at taking prompt action.

(f) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Vires of suspension of civil servants under the provisions of Removal from Service (Special Powers) Ordinance, 2000, for indefinite period---Civil servants had been suspended for eight months under the provisions of Removal from Service (Special Powers) Ordinance, 2000 and no decision had been taken by the Authorities---Validity---Suspension for an indefinite duration was never envisaged by Removal from Service (Special Powers) Ordinance, 2000---Such continued suspension of the civil servants without any further steps being taken for the purpose of taking action under S.3 of Removal from Service (Special Powers) Ordinance; 2000, was ultra vires the power conferred by S.4 and the scheme of the Ordinance---Suspension of civil, servants, for indefinite period defied the very purpose of Removal from Service (Special Powers) Ordinance, 2000---Need had arisen to take strict disciplinary action against those Government servants who had betrayed the solemn trust reposed in them and were found to be corrupt or guilty of acts requiring penal action---Continued suspension of the civil servants for more than 8 months without proceeding with action under S.3 of Removal from Service (Special Powers) Ordinance, 2000, could not be justified on any principle---High Court declined to uphold all the orders of suspension and the same were set aside.

Muhammad Sadiq Khokhar v. Engineer-in-Chief Pakistan Army 1985 SCMR 63; Syed Zafar Ali Shah v. General Pervez Musharaf PLD 1999 SC 869; East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi PLD 1965 SC 605; Government of N.-W.F.P. v. I.A. Sherwani PLD 1994 SC 72 and Pakistan and others v. Public-at-Large and others PLD 1987 SC 304 ref.

(g) Administration of justice----

---- All public power is visited with a duty to act reasonably and justly and even when no time limit is prescribed a public functionary is required by law to perform his duty within a reasonable time.

Chairman, RTA v. Pakistan Mutual Insurance Company PLD 1991 SC 14 ref. .

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

----R.5---Suspension of civil servant---Effect---Civil 'servant is identified as corrupt in the public eye the moment order of suspension is -passed and his self-respect and dignity is grossly impaired.

(i) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Res judicata, principle of--­Applicability---Suppression of facts---Petitioner had already filed Constitutional petition in another High Court which was dismissed---Fact of filing of earlier petition was not disclosed by the petitioner in her present petition.---Effect---Petitioner had neither controverted the fact of filing of the earlier petition nor had contended that the Court passing the order had no jurisdiction to do so---Judgment in the earlier petition had become res judicata as against the petitioner---Where the petitioner did not disclose the fact in the memo of petition and had suppressed the same, the petitioner was not entitled to any relief under Art.199 of the Constitution in circumstances.

Sirajul Haq Memon,. Khalid Jawaid Khan and Dr. Farough Nasim for Petitioners.

Raja Qureshi, A.G.,, Syed Tariq Ali and Khalil Dogar for Respondents.

Date of hearing: 15th February, 2000.

2001 P L C (C.S.) 637

[Karachi -High Court]

Before Sabihuddin Ahmed and Ghulam Rabbani, JJ

CIVIL AVIATION AUTHORITY

versus

WAFAQI MOHTASIB (OMBUDSMAN) and others

Constitutional Petition No.D-504 of 1998, decided on 5th December, 20CO.

(a) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (PA. 1 of 1983)---

----Art. 9(2)---Constitution of Pakistan (1973), Art.199---Constitutional petition-- -Order of Wafaqi Mohtasib-s-Jurisdiction of High Court to review the order---Scope---Where there is lack of jurisdiction on the part of Wafaqi Mohtasib, High Court can exercise its jurisdiction to review such order.

International Cargo Handling Company (Pvt.) Ltd. v. Port Kassim Authority through Secretary, Bin Kassim Authority PLD 1992 Kar.65 and International Airlines Corporation v. Wafaqi Mohtasib and others 1998 SCMR 841 ref.

(b) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)---

----Art. 9(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Civil service ---Jurisdiction of Wafaqi Mohtasib---Dispute was with regard to pensionary benefits which had arisen as a matter of service--­Complaint was filed against the Authority by the petitioner who was widow of the deceased employee of the Authority ---Wafaqi Mohtasib allowed the complaint and the representation before the President was rejected--­Validity ---Wafaqi Mohtasib (Ombudsman), in view of the embargo under the provisions of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 did not enjoy any power to accept, investigate and adjudicate upon the matter involved in such complaint---Order passed by Wafaqi Mohtashib was set aside---High Court advised the petitioner that she might get her grievance redressed by the Authority or Tribunal in accordance with law---Petition was allowed in circumstances.

Almas Khanum v. Federation of Pakistan and others 1994 MLD 6; Malik Azam Jan v. Habib Bank Ltd., Karachi and 3 others 1995 CLC 234 and Fazalul Qadir Chaudhry v. Muhammad Abdul Haq PLD 1963 SC 486 ref.

(c) Pakistan Civil Aviation Authority Ordinance (XXX of 1982)---

----S. 5---Employees of Civil Aviation Authority---Such employees were not related to defence of Pakistan---Function of the Authority did not relate to the defence of Pakistan or the Military, Naval or Air Force of the country--­Provisions of Pakistan Army Act, 1952, as well as similar statute relating to Naval and Air Force clearly specified matters covered by the statute and described persons who were subject to them---Employees of the Authority were not covered by any of such statute.

(d) Establishment of the Office of Wafaqi Mobtasib (Ombudsman) Older (P.O. 1 of 1983)---

----Art. 38---Jurisdiction of Wafaqi Mohtasib---Exclusion of jurisdiction--­Validity--- Jurisdiction of Wafaqi Mohtasib cannot be excluded through an order passed under Art.38 . of Establishment - of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983.

(e) Administration of justice---

----Order without jurisdiction---Such order may not necessarily be set aside if the dictates of substantial justice require otherwise.

Abdul Qadir Siddiqui for Petitioner.

Naeemur Rehman Dy.A.-G. for Respondent.

Arshad Tayyabali for the Private Respondents.

Date of hearing: 24th October, 2000

2001 P L C (C.S.) 760

[Karachi High Court]

Before S. Ahmed Sarwana and Ghulam Rabbani, JJ

NAGINA BAKERY

versus

SUI SOUTHERN GAS LIMITED and 3 others

Constitutional Petition No. D-310 and Miscellaneous Application No. 1145 of 2000, decided on 8th August, 2000.

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

----Art. 199---Service Tribunals Act (LXX of 1973), S.2-A---Penal Code (XLV of 1860), S.21---Constitutional petition--Maintainability---Civil servant---Employees of Sui Southern Gas Company Ltd. Status of ---Sui Southern Gas Company is public limited and incorporated under the Companies Act, 1913, and is quoted on Stock Exchanges---Although the majority shares in the Company are held by the President of Pakistan, yet the same does not make the Company a department of Government of Pakistan--­ Insertion of S.2-A in Service Tribunals Act, 1973, does not in any way make employees of the Company civil servants or public functionaries to make them amenable to the Constitutional jurisdiction of High Court---Constitutional petition was not maintainable against the employees of Sui Southern Gas Company in circumstances.

Badruddin H. Mawani v. Messrs Commerce Bank Ltd. PLD 1975 Kar. 182 and Darab Shah B. Dalal v. Muslim Commercial Bank PLD 1977 SC 457 ref.

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

----Art. 199---Expression 'performing functions in connection with the affairs of Federation or Province'---Scope---Transmitting supply or sale of natural gas ---Company which was carrying on such business, could not be said to be performing functions in connection with the affairs of the Federation or the Province.

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

----Art. 199---Cfstitut4nal petition---Maintainability---Local authority Employees of Sui Southern Gas Company do not have status of employees of local authority---Company is a public limited company quoted on stock exchange and has not been entrusted by the Government with the control or management of a municipal or local fund as such the Company cannot be regarded as a local authority against which writ can be issued under Art. 199 of the Constitution.

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

----Art. 199---Constitutional petition ---Contractual obligation, enforcement of---Scope--Such obligation cannot be enforced by filing petition under Art. 199 of the Constitution.

M. Muzaffar-ud-Din Industries Ltd. v. Chief Settlement and Rehabilitation Commissioner 1968 SCMR 1136 and Messrs Pacific Multinational (Pvt.) Ltd. v. Inspector-General of Police, Sindh PLD 1992 Kar. 283 ref.

(e) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Filing of petition against legal or natural person---Scope---Where the petition was filed against designations and titles of officers of the Company who were not legal or natural persons, Constitutional petition was not maintainable.

Secretary, B & R Government of West Pakistan v. Fazal Ali Khan PLD 1971 Kar. 625 ref.

(f) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition ---Mala fides ---Impleading Government as party in Constitutional petition just to avoid office objection ---Effect--­Where no relief was sought against the Government and it was impleaded just to make the petition maintainable, High Court deprecated such act of the petitioner as the same was prima facie mala fide.

(g) Canons of Professional Conduct and Etiquette of Advocates-

---- Duty of Advocate towards Court and client---Failure to prepare brief properly---Effect---Advocate is an officer of Court, and is concerned in the proper administration of justice and owes an overriding duty to the Court, to the standards of his profession and to the public, to ensure that it is achieved---Where Advocate has not prepared his brief properly and has not placed the relevant law before the Court, such counsel has failed in his duty by not maintaining the standards expected of an Advocate---Where counsel does not come to the Court ready with the facts and law on the legal propositions, such lapse on his part would show disrespect to the standards of the profession, duty to the Court in the administration of justice and negligence of his duty to client---Such counsel has not only committed breach of the Injunctions of Islam but has also committed breach of promise to his client.

Holy Qur'an: Surah 5, Al-Maida, Ayat 1 ref.

(h) Counsel and client---

---- Counsel not preparing brief properly---Remedy for client---Counsel was duty bound to fulfil his obligation and undertaking of carrying out extensive research and argue the case to the best of his ability---Where the counsel fails to fulfil his duty, such counsel not only violates the Canons of Professional Ethics but he is also guilty of professional misconduct and if his client suffers injury because of his negligence such counsel is liable for the loss or injury suffered by his client.

Halsbury's Laws of England, 4th Edn., Vo1.44 and Bashir Ahmed v. Government of Punjab 1985 SCMR 333 ref.

(i) Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Counsel and client, relationship of--­Filing of vexatious petition---Petition was not maintainable and the counsel had not advised his client properly---Effect---Where the petition was vexatious to the knowledge of the counsel, he should not have filed the same even if his client insisted on the same---Counsel should never allow himself to be tempted by financial gains to commit a breach of his duty to the Court which has precedence over his duty to the client---High Court dismissed the petition with costs to be paid by the counsel in circumstances.

Shoaib Shibli for Petitioner.

Abdul Sattar Kazi for Respondents Nos. l to 3.

2001 P L C (C.S.) 907

[Karachi High Court]

Before Zahid Kurban Alavi and Wahid Bux Brohi, JJ.

Messrs PAKISTAN STATE OIL COMPANY LIMITED

versus

WAFAQI MOHTASIB (OMBUDSMAN) and another

Civil Petition No. 1747 of 2000; decided on 14th March, 2001.

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

----Arts.199 & 212---Constitutional petition---Civil service---Terms and conditions of service---Jurisdiction of High Court---Scope---Where controversy between the parties relates to terms and conditions of service and falls within the exclusive jurisdiction of Service Tribunal, the jurisdiction of High Court is barred under Art. 212 of the Constitution.

Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129 ref.

(b) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O.1 of 1983)---

----Art.32---Constitution of Pakistan (1973), Art.199---Constitutional petition---Alternate remedy, non-availing of---Petitioner instead of filing appeal under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, against the order of Wafaqi Mohtasib (Ombudsman), filed the Constitutional petition---Contention of the petitioner was that the order of Wafaqi Mohtasib (Ombudsman) was coram non judice, as the same pertained to terms and conditions of service---Validity---Where the petitioner failed to avail the alternate remedy of appeal under Art.32 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, High Court declined to interfere with the order passed by Wafaqi Mohtasib (Ombudsman) even if the same was coram non judice---Matter, in the case, related to the terms and conditions of service falling within the exclusive jurisdiction, of Service Tribunal, jurisdiction of High Court was, thus barred by Art.212 of the Constitution---Petition was dismissed in circumstances.

National Bank of Pakistan, Karachi v. Wafaqi Mohtasib (Ombudsman) PLD 1992 Kar. 339; Gatron Industries Limited v. Government of Pakistan 1999 SCMR 1072 and Abdul Majeed Khan v. Hyderabad Municipal Corporation, Hyderabad 1990 CLC 796 distinguished.

Water and Power Development Authority v. Commissioner, Hazara Division 1992 SCMR 2102 and Mir Zaman v. Mst. Sheda 2000 SCMR 1699 ref.

Akhtar Ali Mehmood for Petitioners.

Faisal Khalid for Respondent No.2.

Zaki Muhammad, Dy. A.-G. for the State.

Date of hearing: 28th February, 2001.

2001 P L C (C. S.) 919

[Karachi High Court]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, J.

Dr. KHURSHEED BHUTTO

versus

CIVIL AVIATION AUTHORITY

Constitutional Petitions Nos.D-1111 and 1120 of 2000, decided on 23rd October, 2000.

(a) Central Government Lands and Buildings (Recovery of Possession) Ordinance (LIV of 1965)---

----Ss.10 & 11---Specific Relief Act (I of 1877), S.42---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Civil service--­Allotment of residential. Quarter ---Cancellation of allotment---Residential quarters were allotted to the petitioner on payment of monthly rent--­Authority cancelled allotment without issuing any show-cause. notice to the petitioners---Such cancellation order was challenged by petitioners in Constitutional petitions---Maintainability of petition---Allotment order specifically showed that allotment of quarters in favour of petitioners was on temporary basis and that petitioners were required to vacate quarters as and when needed by the Authority---Authority before taking action against the petitioners/allottees, had issued a notice giving them reasonable time to vacate the quarters and action against the petitioners was taken due to shortage of „accommodation for its officials---Petitioners being mere temporary allottees of Government accommodations could not claim any vested right in respect thereof in their favour---Contention of petitioners that before cancellation of their allotments no show-cause notice had been served on them and principles of natural justice had been violated, was repelled because the petitioners had no statutory right of hearing before cancellation of their allotments and right of issuance of show-cause notice before cancellation of allotments was not an absolute right---Order cancelling allotments of quarters passed after allowing sufficient time to the petitioners to vacate the quarters, could not be- interfered with by High Court in Constitutional petition which otherwise was not maintainable.

Estate Officer Government of Pakistan v. Syed Tahir Hussain PLD 1962 SC 75; Imtiaz Hussain v. Government of Pakistan 1992 CLC 1122; Dr. Munir Ahmad, M.B.,B.S. Medical Officer v. Chairman, House Allotment Committee, Government of Balochistan, Quetta and another 1983 CLC 1783; Director-General, Pakistan Coast Guards, Karachi v. Mst. Zarina Jamshed 1998 MLD 1879 and Miss Rukhsana Soomro and others v. Board of Intermediate and Secondary Education, Larkana, Sindh and others 2000 MLD 145 ref.-

(b) Natural justice, principles of---

----Right of hearing when claimed on the principles of natural justice was not an absolute right, but it depended on the facts and circumstances of each case which would enable a Court to draw proper conclusion in that regard--­Distinction existed between the two situations, one where right of hearing was statutory and the other where said right was claimed on the principle of natural justice---Where right of hearing was statutory, such right was almost absolute, but when such right was claimed on the principles of natural justice was not so and exclusion of such right could be express or implied.

Muhammad Aziz Khan for Petitioner (in C.P. No. 1111 of 2000).

Muhammad Nehal Hashmi, Badar Muneer and Muhammad Rafi for Petitioner (in C. P. No. 1120 of 2000).

Muhammad Jamil for Respondent.

Syed Zaki Muhammad, Dy. A.-G. (on Courts Notice).

2001 P L C (C.S.) 927

[Karachi High Court]

Before Ghulam Nabi Soomro and Anwar Zaheer Jamali, JJ

ALTAF QURESHI

versus

GOVERNMENT OF SINDH through Chief Secretary and another

Constitutional Petition No.709 and Miscellaneous No. 1841 of 1999, decided on 27th October, 2000.

Sindh Civil Servants (Regularisation of Ad hoc Appointments) Act (XIX of 1994)---

----S.3---Constitution of Pakistan (1973), Arts. 199, 2A, 18 & 25--­Constitutional petition---Regularisation of ad hoc appointment---Civil servant who was a Law Graduate was appointed as Assistant Director on ad hoc basis for six months, but said period of six months later on was extended to two years---At time of appointment of civil servant no rules of recruitment were in force in the Department but during service of civil servant vide notification, method, qualification and other conditions for appointment were laid down according to which minimum educational qualification for post held by civil servant was prescribed as M.A. in IInd Division---Civil servant lacked the prescribed educational qualification at the time notification prescribing educational qualification was issued---Rules prescribed vide notification being very much applicable in the case of civil servant he could not validly claim immunity from said rules on the pretext that at the time of his initial appointment on ad hoc basis said rules were not in force---Special Committee constituted under Sindh Civil Servants (Regularisation of Ad hoc Appointments) Act, 1994, for limited purpose, had un-authorisedly issued recommendations for extension of period of ad hoc appointment of civil servant and also allowed him further time for acquiring requisite qualification as Committee had no jurisdiction to do so---Powers of ad hoc appointments had been conferred basically as a stop-gap arrangements pending recruitment on the post in accordance with method prescribed under the law---Practice of repeated extensions of terms of ad hoc appointment, in such circumstances, could not be approved because such practice if continued, would divert the course of regular appointments and same would also be violative of the spirit of Arts.2A, 18 & 25 of Constitution of Pakistan (1973)---Civil servant was not entitled for regularisation of service as prayed for by him.

Abdul Jabbar Memon and others' case 1996 SCMR 1349 ref.

Abdul Ghafoor Mangi for Petitioner.

Muhammad Qasim Mirjat, Addl. A.-G. for Respondents

Date of hearing: 27th October, 2000.

2001 P L C (C. S.) 949

[Karachi High Court]

Before Zia Perwez, J

HABIB-UR-REHMAN

versus

THE SECRETARY TO GOVERNMENT OF SINDH COMMUNICATION AND WORKS DEPARTMENT and 5 others

Suit No. Nil and Miscellaneous No.9275 of 2000, decided on 22nd March, 2001.

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

----S.4---Civil Procedure Code (V of 1908), O. VII, R.11---Civil service--­Rejection of plaint---Terms and conditions of service---Assailing. of matters of terms and conditions of service before Civil Court in civil suit--­Validity---Such plaint was barred by express provision of law and the same was hit by O.VII, R.11, C.P.C.---Plaint was rejected in circumstances.

Burmah Eastern Limited v. Burmah Eastern Employees' Union and others PLD 1967 Dacca 190 ref.

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

----Art.212---Service Tribunals Act (LXX of 1973), Preamble---Fitness of civil servant, determination of---Jurisdiction of Service Tribunal ---Scope--­Matter of fitness of civil servant is to be determined only by the Departmental Authority which is not, liable to be regulated in the proceedings before 'any Civil Court or before the High Court in exercise of its Constitutional jurisdiction under Art. 199 of the Constitution---Such matters lie within the domain of the prerogative right of the Government to select persons found suitable for appointment---Competent Authority in the Government is empowered to appoint or promote any person to hold any post or office, such power is protected by provisions of Art. 212 of the Constitution and the same is regulated by the legislation pertaining to Civil Services---Power to determine fitness of civil servant is to be exercised in a judicious manner and arbitrariness is not to be allowed to prevail---Where the promotion or selection is based on the conditions prescribed, the same amounts to condition of service and the aggrieved civil servant has a right to move the Service Tribunal for redressal of his grievance under the law.

1983 PLC (C.S.) 652; NLR 1978 (Service) 249; 1993 PLC (C.S.) 937; 1994 SCMR 759; 1995 SCMR 650; 1998 PLC (C.S.) 1175; Muttaqi Hussain Rizvi v. Province of Sindh PLD 1978 Kar. 703; Zafar Iqbal v. M.G.O., M.G:O. Branch, G.H.Q., Rawalpindi and 3 others 1995 SCMR 881; Muhammad Afzal and others v. Province of the Punjab and others 1977 PLC (C.S.T.) 195; Muhammad Azad Khan and others v. The Secretary, Azad Jammu and Kashmir Council and others 1999, PLC (C.S.) 122; Iqan Ahmed Khurram v. Government of Pakistan and others PLD 1980 SC 153; Muhammad Hashim Khan and others v. Province of Balochistan and others PLD 1976 Quetta 59; Fazal Elahi Ejaz and others v. Government of the Punjab and others PLD 1977 Lah. 549 and Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290 ref.

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

----Art.212---Matter relating to fitness of civil servant- --Jurisdiction of Court--- Scope---Where cases involve question of fitness or otherwise of a person to be appointed or to hold a particular post, bar under Art.212bf the Constitution becomes applicable.

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

----S. 56(d)---Sindh Service Tribunals Act (XV of 1973), S.4---Civil Procedure Code (V of 1908), O. VII, R.11 & O.XXXIX, Rr.1 & 2---Civil service---Terms and conditions of service---Plaint, rejection of---Injunction, grant of---Civil servant assailed promotion order passed by the Competent Authority, whereby he was not found fit for promotion to the next post--­Validity---Where civil servant was aggrieved of the order passed by the Competent Authority regarding his promotion, the remedy was by way of appeal before Service Tribunal---Plaint in civil suit could be rejected at any stage, where no fruitful purpose was served by prolonging the litigation that was expressly barred by law---Case being barred by law, as the matter pertained to terms and conditions of service and the Service Tribunal having exclusive jurisdiction, in the matter---Plaint was rejected in circumstances.

Zafar Iqbal v. M.G.O., M.G.O. Branch, G.H.Q., Rawalpindi and 3 others 1995 SCMR 881; Muhammad Azad Khan and others v. The Secretary, Azad Jammu and Kashmir Council and others 1999 PLC 122; PLD 1980 Quetta 68; 1999 PLC (C.S.) 122 and Muttaqi Hussain Rizvi v. Province of Sindh PLD 1976 Kar. 703 ref.

M.M. Aqil Awan for Plaintiff.

Raja Qureshi, A.-G. Sindh for Defendants Nos. l to 3.

Shabbir Ahmed Awan for Defendants Nos.4 to 6.

Date of hearing: 26th January, 2001.

2001 P L C (C.S.) 667

[Punjab Labour Appellate Tribunal]

Before Muhammad Latif Qureshi, Member‑II

MUHAMMAD ILYAS

versus

THE DEPUTY COMMISSIONER, KHANEWAL and another

Appeal No. 1830 of 1999, decided on 23rd February, 2001.

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑

‑‑‑‑Rr.3,4, 5 & 6‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service after issuing him show‑cause notice on allegations of forgery and receiving illegal gratification‑‑‑Court had acquitted the civil servant of the charges levelled against him and on his acquittal the very basis on which Departmental proceedings were initiated were demolished‑‑‑Enquiry against civil servant was conducted in casual manner‑‑‑In absence of any incriminatory evidence there was no justification to take the civil servant to task either by the Competent Authority or by the Appellate Authority‑‑‑Case against the civil servant was of no evidence and he was subjected to harsh treatment on the basis of surmises and conjectures‑‑‑Order of dismissal from service was set aside and he was ordered to be re‑instated in service.

PLD 1.989 SC 335; 1997 PLC (C.S.) 817 and 1996 PLC (C.S.) 414 ref.

(b) Criminal trial‑--.

‑‑‑‑Acquittal‑‑‑All acquittals are honourable.

Humayun Mansoor for Appellant.

Rab Nawaz, E.A.C., Khanewal/D.R. and Deputy District Attorney for Respondent.

Date of hearing: 6th February, 2001.

2001 P L C (C.S.) 6

[Lahore High Court]

Before Tassaduq Hussain Jillani, J

SHAHZAD AZIZ

versus

DEPUTY CHIEF PILOT, LAHORE and 5 others

Writ Petition No. 11956 of 2000, decided on 6th July, 2000.

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

----Ss.2-A & 4---Constitution of Pakistan (1973), Art.199---Awarding of punishment--- Remedy against---Constitutional petition---Competency of--­Civil servant who was proceeded against for certain allegations, was awarded punishment and civil servant had challenged said punishment in Constitutional petition before High Court---Competency of Constitutional petition---Civil servant apart from departmental appeal had a remedy of filing appeal before Service Tribunal---Constitutional petition filed by civil servant without availing other legal remedies available to him was incompetent.

Divisional Engineer Phones, Phone Division; Sukkur-and another v. Muhammad Shahid and others 1999 SCMR 1526; General Manager, OFST Co. Ltd. v. Abdul Rasheed Khan, Member NIRC, Islamabad 2000 PLC (C.S.) 180; Tariq Javed v. Director-General FIA, Islamabad 1997 PLC (C.S.) 273; PIA Corporation v. Kournal Channa 1999 PLC (C.S.) 1539; United Bank Limited v. Manzoor Ahmad 2000 PLC 749 and. Asadullah Rashid v. Muhammad Muneer 1998 SCMR 2129 ref.

Talib Haider Rizvi for Petitioner.

Anwar Kamal for Respondents.

2001 P L C (C.S.) 41

[Lahore High Court]

Before Tassaduq Hussain Jillani, J

MASOOD AHMAD and 24

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION and 2 others

Writ Petition No. 879 of 1999, decided on 12th July, 2000.

(a) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985‑‑‑‑

‑‑‑‑Regln. 7‑‑‑Industrial Relations Ordinance (XXIII of 1969), S.2(xxviii)‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.2(i) & S.O.1(b) ‑‑‑Constitution of Pakistan (1973),Art. 199‑‑‑Constitutional petition‑‑‑Permanent workman‑‑‑Petitioners, who were performing duties in respondent‑Corporation as "Passenger Services Assistants" for the last so many years, had sought declaration in their Constitutional petition that they be treated as its permanent regular employees and be given same benefits to which other regular Passenger Service Assistants were entitled under the rules and regulations— Claim of petitioners was denied by respondent‑Corporation contending that petitioners were employees of contractor and not of respondent‑Corporation respondent‑--Corporation had conceded that petitioners were interviewed by Management of respondent‑Corporation to assess their capability due to technical and sensitive nature of their duties‑‑‑Petitioners were already doing their job with respondent‑Corporation prior to contract arrived at between respondent‑Corporation and contractor and not only salaries were given to petitioners by respondent‑Corporation, but uniforms were also being issued to them by respondent‑ Corporation‑‑‑Mere nomenclature of "agreement" between respondent ‑Corporation and contractor, would not make petitioners "workmen" under contractor but they were to be considered permanent workmen of respondent‑Corporation‑‑‑Petitioners, who had been doing same job which regular "Passenger Services Assistants" were doing for the last more than two years, were entitled to same benefits/allowances, and treatment.

Farid Ahmad v. Pakistan Burmah Shell Limited 1987 SCMR 1463; SC Employees' Social Security v. Consolidated Sugar Mills Limited 1989 SCMR 888; Pakistan Tobacco Company v. Punjab Employees' Social Security Institution PLD 1978 Lah. 704; Messrs Ceramics Limited v. Registrar Trade Unions 1996 PLC 45; Pak Suzuki Motors Limited v. Muhammad Hussain and 24 others 1999 PLC 154; DC Works Limited v. State of Saurashtra AIR 1957 SC 264; Messrs Valika Woollen Mills v. Valika Woollen Mills Employees' Union 1969 PLC 783; Obab Khan v. Rashid Textile ills Limited 1987 PLC 99; Messrs Al‑Karam Textile Mills v. Muhammad Jamal and 10 others 1995 PLC 680; F.JB Ali v. State PLD 1975 SC 506; Muhammad Asim and others v. Telecommunication and others 1997 PLC (C.S.)1131; Muhammad Aslam Saleemi v. Federation of Pakistan PLD 1977 Lao. 840; Mushtaq Ahmad v. The Secretary to Government PLD 1994 Lah. 417; Syed Mumtaz Shah v. Chairman, NPT 1994 PLC (C. S.) 810 and State, of Haryana v. Payara Singh (1992) 4 SCC 118 ref.

(b) Constitution of Pakistan (1973) ‑‑

‑‑‑‑Art.25‑‑‑Equality of citizens‑‑‑Object of Art.25 of Constitution of Pakistan (1973) was that all persons similarly placed would be treated alike both in rights conferred and liabilities imposed‑‑‑Said equality, however, was not unqualified‑‑‑Legislature could create classifications and treat persons placed in respective classifications differently, but said classifications had to be reasonable.

A.. Ghani for Petitioners.

Javed Altaf for Respondents, Date of hearing: 23rd June, 2000.

2001 P L C (C. S.) 103

[Lahore High Court]

Before Syed Jamshed Ali, J

Syed AFZAL ALI SHAH

versus

COMMISSIONER OF PUNJAB EMPLOYEES' SOCIAL

SECURITY INSTITUTION, LAHORE and 2 others

Writ Petition No.20288 of 1998, heard on 24th February, 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Termination of services---Services of petitioner were terminated on ground of absence from duty by an officer who himself obtained his appointment on basis of forged and bogus decrees---Officer terminating services of petitioner was himself appointed on forged and bogus decrees and was behind the bar since long---Said officer could not competently act as Authority to impose major punishment on the petitioner under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---Order terminating services of petitioner was declared to be illegal by High Court.

Zahid Hussain Khan for Appellant.

Shabnam Sarwar Ch. for Respondents.

Date of hearing: 24th February, 2000.

2001 P L C (C.S.) 111

[Lahore High Court]

Before Nasim Sikandar, J

SUPERINTENDING ENGINEER, IRRIGATION, SAHIWAL and another

versus

MUHAMMAD AMIR and 2 others

Writ Petition No.295 of 1990, heard on 4th April, 2000.

(a) Factories Act (XXV of 1934)---

----S. 2(h)-.-"Workman"---Connotation---Mere fact that a person, during performance of his duties, does manual work is not by itself sufficient to make him a workman.

(b) Words and phrases---

Affair"---Meaning.

Concise Oxford Dictionary ref.

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

----S. 2(1)(b)---Factories Act (XXV of 1934),S.2(h)---Workmen's Compensation Act (VIII of 1923), S.2(1)(n)---Expressions "civil servant" and "worker" or "workman" ---Distinction---Civil servant doing manual work whether a workman---Exclusion clause in S.2(1)(b). of Civil Servants Act, 1973, is mentioned not with the purpose to create a class of workers within the civil service but to connote and express that a person covered by the definition of "worker" or "workman" in the provision of Factories Act, 1934 and Workmen's Compensation Act, 1923, should not enter the class of civil servants---Person doing manual work, under the provisions of Civil Servants Act, 1973 is not a workman.

(d) Industrial Relations, Ordinance (XXIII of 1969)---

----S. 25-A---Civil Servants Act (LXXI of 1973), S.2(1)(b)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Grievance petition--­Baildar in Irrigation Department, a civil servant---Employee was found guilty-of theft of trees and he was departmentally punished by stoppage of two increments alongwith recovery of price of the stolen trees---Employee preferred an application under S.25-A of Industrial Relations Ordinance, 1969 before Labour Court assailing the order of department---Labour Court allowed the application and set aside the order of the department---Labour Appellate Tribunal upheld the decision of the Labour Court and appeal filed by the department was dismissed---Contention by the Government was that the employee was a civil servant under the provisions of Civil Servants Act, 1973, and proceedings under S.25-A, Industrial Relations Ordinance, 1969 were not maintainable---Validity---Where the administrative departments of the Province were not engaged in any manufacturing or production process nor were engaged in any business or trade, regular employee of such department was civil servant and could not be said to be worker or workman only for the reason that in discharge of some of his duties he happened to exert physically- --Employee at the relevant time was a civil servant and his petition under S.25-A of Industrial Relations Ordinance, 1969 was not maintainable before the Labour Court---Labour Appellate Tribunal had no jurisdiction to maintain order which was illegal per se---Orders of both the Courts below were set aside in circumstances.

Mechanical Engineer v. S.M.D., Sukkur and others' v. Andrew John and others PLD 1978 Kar., 503 ref.

Muhammad Yaqub v. The Punjab Court No. l and others 1990 SCMR 1539; Executive Engineer, Central Civil Division, Pak. P.W.D., Quetta v. Abdul Aziz and others PLD 1996 SC 610 and Project Director, Karkhana Alaat-e-Zari and others v. The Presiding Officer, Punjab Labour Court and others PLD 1989 SC 152 distinguished.

Ch. Akhtar Masood Ahmad for Petitioners.

Ch. Altaf Hussain for Respondent No. 1.

Nemo for Respondent Nos.2 and 3.

Date of hearing: 4th April, 2000.

2001 P L C (C.S.) 121

[Lahore High Court]

Before Ch. Ijaz Ahmad and Muhammad Zafar Yasin, JJ

WASEEM SHAHID and 21 others

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and 5 others

Intra-Court Appeals Nos. 1102 of 1999 and 8 of 2000 in Writ Petition No. 6527 of 1996, heard on 22nd June, 2000.

(a) Calendar of Board of Intermediate and Secondary Education (Faisalabad)---

----Vo1.I, Reglns. 9.9 & 9.12(2)---Termination of service of employees of the Board---Services of the employees were terminated by the Board without assigning any reason and without initiating any proceedings against them under Civil Servants (Efficiency and Discipline) Rules, 1975---Validity--­When case of the employees fell under Reigns 9.9 & 9.12(2) of Calendar of Board of Intermediate and Secondary Education (Faisalabad) employee had no right to file appeal before the Appellate Authority.

(b) Civil service---

---- Locus poenitentiae, principle of---Applicability---Services of the employees were terminated by the employer without any n6tice---Validity--­Employee having had their appointments through back door on account of influence of the public representatives contrary to the Rules and Regulations of the Department, principle of locus poenitentiae was not attracted.

Jalaltid Din's case PLD 1992 SC 207 ref.

(c) Calendar of Board of Intermediate and Secondary Education (Faisalabad)--

----Vol.I, Reglns. 9.9 & 9.12(2)---Termination of service of employees of the Board---Failure to provide opportunity of hearing to the employees-­Employees got their appointments through back door on account of influence of public representatives contrary to the Rules and Regulations of the Board---Such order of the Board was assailed before High Court in exercise of Constitutional jurisdiction---High Court dismissed Constitutional petition--Validity---Applicants had not approached, the High Court 'with clean hands as they had got their appointments through back door---High Court refused to exercise discretion in favour of the employees.

Anis-ur-Rehman's case 1994 SCMR 2232; Pakistan and others v. Public-at-Large and others PLD 1987 SC 304; Jafar Ali Akhtar Yousafzai v. Islamic Republic of. Pakistan and another PLD 1970 Quetta 115; Abdul Jabbar Memon and others 1996 SCMR 1349; Secretary to Government of N.-W.F.P. and another v. Sadullah Khan 1996 SCMR 413; Wazir Ali Khoja v. MCB and others 1998 SCMR 1452; Benazir Bhutto v. President of Pakistan PLD 1998 SC 388; Ms. Zeba Mumtaz v. First Woman Bank Ltd. and others PLD 1999 SC 1106; Muhammad Siddique Javaid Chaudhry v. Government of West Pakistan PLD 1974 SC 393; Mrs. Aqeela Ashgar Ali and others v. Miss Khalida Khatoon Malik and others PLD 1991 SC 1118; Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab and others PLD 1991 SC 35; The Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170; Munawar Khan's case 1993 SCMR 1287; Channabasvih's case AIR 1995 SC 1293; Abdul Rashid v. Riaz-ud-Din and others 1995 SCMR 999; Mumtaz Hussain Malik v. Government of Pakistan PLD 1967 Lah. 1005; Abdul Karim v. West Pakistan PLD 1956 SC (Pak.) 298; Liaqat Ali Shahid v. Government of Punjab Civil Petition No.2100-L of 1998; Nawabzada Raunaq Ali's case PLD 1973 SC 236 and Rana Muhammad Arshad's case 1998 SCMR 1462 ref.

Malik Noor Muhammad Awan for Appellants.

M. Mohyud Din Qazi for Respondents.

Date of hearing: 22nd June, 2000.

2001 P L C (C. S.) 144

[Lahore High Court]

Before Iftikhar Hussain Chaudhary, J

Malik TAHIR MEHMOOD, D.S.P.

versus

THE GOVERNMENT OF THE PUNJAB through Chief Secretary, Lahore and 4 others, Writ Petition No. 18329 of 1999, heard on 6th October, 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975-

----Rr.5 & 7---Constitution of Pakistan (1973), Art.199---Constitutional petition---De novo inquiry---No bar was for Competent Authority to order holding of de novo inquiry against a civil servant where final inquiry report had been found to be lopsided or Competent Authority was of the view that Inquiry Officer had not conducted inquiry in accordance with law---First inquiry report could be ignored by Competent Authority and fresh proceedings could be initiated under germane rules against public servant---Complainant had withdrawn allegations against accused de novo inquiry in such 'situation might not have fructified or yielded desired result---Competent Authority in circumstances would re-examine case and pass a fresh order in matter .as complainant was no longer willing to come forward to support allegations levelled against accused/civil servant.

M.A. Zafar for Petitioner.

Malik Amjad Pervez for Respondent.

Date of hearing: 6th October, 2000.

2001 P L C (C.S.) 149

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

THE CHAIRMAN, PUNJAB LOCAL GOVERNMENT

BOARD/SECRETARY, LOCAL GOVERNMENT

AND RURAL DEVELOPMENT DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE

versus

THE PRESIDING OFFICER, PUNJAB LABOUR COURT NO.9, MULTAN and another

Writ Petition No.6139 of 1999, heard on 28th September, 2000.

Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983---

----R, 3---Punjab Local Government Ordinance (VI of 1979), S.44---Punjab Service Tribunals Act (IX of 1974), S.2(b)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Respondent, who was dismissed from service on basis of inquiry report of Chairman, Punjab Local Board, filed appeal against said dismissal before Additional Chief Secretary which was dismissed---Labour Court, accepting revision against said dismissal, set aside dismissal order and restored respondent to his post---Authority had challenged said order in Constitutional petition contending that respondent being civil servant and not "workman", Labour Court lacked jurisdiction in the matter---Respondent at the time of dismissal from service was posted as Sub-Engineer in Municipal Committee and was Member of Local Council Service and this was governed by Punjab Local Council Servants (Appointment and Conditions of Service) Rules, 1983 and as such would be deemed to be civil servant for the purpose of Punjab Service Tribunals Act, 1974 and not a "workman" ---Judgment passed by Labour Court which lacked jurisdiction in the matter was set aside by High Court being illegal.

Kh. Ijaz and others v. Government of Punjab 1983 PLC (C.S.) 690 ref.

M. Mohy-ud-Din Qazi for Appellant.

Habibullah Khan for Respondents.

Date of hearing: 28th September, 2000.

2001 P L C (C.S.) 157

[Lahore High Court]

Before Malik Muhammad Qayyum and Syed Zahid Hussain, JJ

GHULAM JILLANI

versus

GOVERNMENT OF THE PUNJAB and another

Intra-Court Appeal No.401 of 1992 in Writ Petition No.4404 of 1991, decided on 14th June, 2000.

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

----S.9---Promotion---Determination of fitness of civil servant for promotion­--Jurisdiction of Service Tribunal or other forums---Scope---Competent Authority alone had the exclusive authority to determine the fitness or otherwise of the civil servant on the basis of subjective evaluation of his service record---Interference by any other forum (Tribunal or Court) were not visualized---Determination of fitness was out of purview of the appellate jurisdiction of Service Tribunal also---Civil servant at the most could claim that he was entitled to be considered for promotion but had no right to be declared by the Tribunal/Court that he was fit for promotion---Determination of fitness for promotion thus fell within the domain of the Competent Authority alone.

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

----S.9---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Promotion of civil servant---Selection Board had not favourably recommended promotion of the civil servant---Civil servant contended that he was superseded---No allegation of bad faith, malice or mala fides against any of the members of the Board or the Competent Authority was made by the civil servant---Validity---Where no such allegation was made, civil servant was not illegally superseded---Assessment of record by Competent Authority could not be substituted by the High Court---High Court declined interference with the decision of the Selection Board or the Competent Authority.

Muhammad Aboo Abdullah v. The Province of East Pakistan and another PLD 1960 SC (Pak.) 164; Aish Muhammad and 68 others v. Pakistan and 75 others 1985 SCMR 774; Mrs. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another PLD 1988 Lah. 553; Secretary, Government of Sindh, Education Department and another v. Syed Riyazul Hassan Zaidi and another 1986 SCMR 64; Syed Noorul Hassan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others 1987 SCMR 598; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

Sh. Zia Ullah for Appellant.

Ch. Muhammad Ashraf, Asstt. A.-G. for Respondents.

Date of hearing: 8th June, 2000.

2001 P L C (C. S.) 167

[Lahore High Court]

Before Nazir Ahmad Siddiqui, J

DILDAR HUSSAIN

versus

DIRECTOR, MANPOWER AND TRAINING, GOVERNMENT OF PUNJAB and others

Writ Petition No. 1863-S of 1995/BWP, decided on 3rd March, 2000.

Civil service---

----Appointment---Petitioner applied for the post of Chowkidar in response to the advertisement---Petitioner, who was the only candidate and belonged to the locality concerned, was interviewed and was selected, but appointment letter was issued to another person against recruitment policy and in contravention of recommendation of Recruitment Committee---Petitioner not only was resident of the locality, but also had some educational qualification whereas the other person was neither resident of the locality nor had any qualification---Other person was appointed and was immediately transferred to another city thus, leaving the local post vacant ---Validity---Mala fides of the Authority in ignoring the petitioner and instead appointing the other person, was quite evident from the fact that Authority had violated conditions as laid down in the advertisement by depriving petitioner of his due right and accommodating a person who was not even eligible to apply for the post being not permanent resident of locality--­Authority was directed to issue appointment order in favour of the petitioner for post which otherwise was lying vacant since date of transfer of the other person.

M. Shamshair Iqbal Chughtai for Petitioner.

Saleem Nawaz Abbasi, A.A.-G. for Respondents.

Date of hearing: 3rd March, 2000.

2001 P L C (C.S.) 198

[Lahore High Court]

Syed Jamshed Ali, J

GHULAM SARWAR

versus

HABIB BANK LIMITED and others

Writ Petition No.8879 of 2000, decided on 25th July, 2000.

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

----S.4---Constitution of Pakistan (1973), Art. 199---Implementation of order of Service Tribunal---Constitutional petition, maintainability of---Order passed by Tribunal having not been implemented by the employer-Bank, petitioner, through his Constitutional petition, had sought direction to the employer with regard to implementation of the order---Petition was resisted on ground that notwithstanding nationalization of the employer-Bank it continued to remain a body corporate and an independent entity and that it being not a Government Department, was not amenable to Constitutional jurisdiction of High Court---Validity---Bank after nationalization though continued to retain the status of an incorporated company, but its ownership and control stood vested in the Government---Employer-Bank. thus, was amenable to Constitutional jurisdiction and Constitutional petition filed against the Bank was maintainable.

Khalid Mehmood, Inspector Police, Rawalpindi Range, Rawalpindi v. Inspector General of Police Punjab, Lahore and another PLJ 1998 Lah. 1606; S. Inamul Haq v. The Secretary, Establishment Division, Government of Pakistan 1983 CLC 1954; Messrs Sandal Fibres Limited v. Government of Pakistan and 7 others PLD 1992 Lah. 400 and Karam Hussain v. Daily Mashriq and 2 others 1992 PLC 136 ref.

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

----S.4---Constitution of Pakistan (1973), Arts. 187, 199 & 212--­Implementation of order of Service Tribunal---Constitutional jurisdiction of High Court---Scope---Tribunal, constituted in pursuance of the command of Art. 212 of Constitution of Pakistan (1973) had exclusive jurisdiction in respect of the terms and conditions of service of a civil servant---Judgment rendered by Service Tribunal was binding on the Departmental Authorities--­Judicial system would be reduced to a clap trap if the Departmental Authorities were left free to implement or not to implement a judgment of the Tribunal---Contentions that under Art.187 of Constitution of Pakistan (1973), High Court could only direct implementation of the judgment of the Supreme Court and Constitutional jurisdiction could not be exercised to direct implementation of the judgment of the Service Tribunal, was repelled.

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

----S.4---Constitution of Pakistan (1973), Arts. 199 & 212---Implementation of order of Service Tribunal---Constitutional jurisdiction of High Court--- Scope---Petitioner, after having succeeded before Service Tribunal, could not be directed to again approach the Tribunal for implementation of order of Tribunal as Tribunal had no jurisdiction to direct implementation of its order---Contention that as the matter was related to the terms and conditions of the service of petitioner, Art.212 of Constitution of Pakistan (1973) barred the jurisdiction of High Court was repelled.

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

----S.4---Constitution of Pakistan (1973), Art. 199---Implementation of order of Service Tribunal---Filing petition for leave to appeal to Supreme Court against the said order---Effect---Respondent had contended that petition for leave to appeal being pending in the Supreme Court against the order of Service Tribunal, petitioner could make an application before Supreme Court for relief claimed by him through the Constitutional petition in the High Court---Contention of respondent was repelled on the ground that mere filing of the petition for leave to appeal before Supreme Court would not operate to stay the operation of order of the Service Tribunal.

Badaruddin H. Mavani v. Messrs Commerce Bank Ltd. PLD 1975 Kar. 182; Inayatullah Narejo v. The United Bank Ltd. of Pakistan and 7 others 1988 CLC 1446 and Tanvir Iqbal Siddiqui v. The Principal, Overseas Pakistan Foundation (OPF), Girls College, Islamabad 1994 SCMR 958 ref.

Muhammad Zaman Qureshi for Petitioner.

Abdul Rasheed for Respondent No. 1. Date of hearing: 25th July, 2000.

2001 P L C (C. S.) 205

[Lahore]

Before. Ch. Ijaz Ahmad, J

SIKANDAR AZIZ and 20 others

versus

SECRETARY, MINISTRY OF INDUSTRIES AND PRODUCTION GOVERNMENT OF PAKISTAN ISLAMABAD and 4 others

Writ Petition No. 8140 of 1999, decided on 9th October, 2000.

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

----Art.199---Constitutional petition---Past and closed transaction--­Voluntary Separation Scheme introduced by the Authorities---While exercising their option, the petitioners accepted the terms and conditions of the scheme in year 1996---Later on another Scheme named Voluntary Retirement Scheme was issued by the Authorities in the year 1999--­Petitioners claimed benefits available in the subsequent scheme ---Validity--­Where the petitioners accepted the offer under the provisions of the earlier Scheme, the petitioners had no right to wriggle out of the same after obtaining payment from the Authorities on the basis of the earlier scheme as the same was acted upon---Principle of past and closed transaction was attracted in circumstances.

Shamoon Bahadur's case PLD 1979 SC 835 and Miani's case PLD 1973 SC 17 rel.

United Sugar Mills' case PLD 1979 Kar. 410; The Murree Brewery Co. Ltd.'s case PLD 1972 SC 279; Messrs Burhan Engineering Co. 1985 PTD 465 and NLR 1998 CLJ 294 (sic) distinguished.

(b) Constitution of Pakistan (1973)--

----Art. 199---Constitutional petition---Maintainability---Constitutional petition is not maintainable on apprehension.

National Re-rolling Steel Mills's case 1968 SCMR 317 rel.

Ijaz-ul-Hassan for Petitioners. Farooq Amjad Mir for Respondents.

2001 P L C (C.S.) 207

[Lahore High Court]

Before Malik Muhammad Qayyum and Ghulam Mahmood Qureshi, JJ

ARSHAD AHMAD KHAN

versus

CHAIRMAN, BANK OF PUNJAB and others

Writ Petitions Nos.7655, 9286, 6962 and 11701 of 2000, decided on 28th July, 2000.

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

----Art. 199---Constitutional petition---Maintainability---Employment not governed by statutory rules---Effect---Unless a particular service or employment was governed by statutory rules, no Constitutional petition could be maintained to reinstate a servant who was allegedly wrongfully dismissed or removed from service.

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. Wali Ahmad Khan and others 1991 SCMR 2434 and ADBP and 2 others v. Muhammad Sharif 1998 SCMR 597 ref.

(b) Master and servant-

---- Master and servant, rule of---Application---Where there were no statutory rules governing the terms and conditions of service the rule would be governed by the principle of master and servant.

Muhammad Umar Malik v. Muslim Commercial Bank 1995 SCMR 453 ref.

(c) Bank of Punjab AM (XII of 1989)---

----S. 25---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Maintainability---Removal from service---Petitioners were employees of the Bank and their services had been terminated---Contention by the Bank was that as the service rules of the Bank were not statutory rules, therefore, Constitutional petition was not maintainable ---Validity--­ Bye-laws of service did not have the force of statutory rules or regulations as under the provisions of S.25, Bank of Punjab Act, 1989, in order to achieve such character approval of Provincial Government was necessary and the same was missing---Unless there were statutory rules of service the order of removal from service could not be challenged---Constitutional petition was not maintainable.

Mrs. Anisa Rehman v. Pakistan International Airlines Corporation and another 1994 SCMR 2232 distinguished.

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 and Anwar

Hussain v. Agricultural Development Bank of Pakistan and others PLD 1984 SC 194 ref.

Zahid Malik for Petitioner.

Ali Sibtain Fazli, Imran Aziz Khan, Nasar Ahmad and Muhammad Asif Piracha for Respondents.

Date of hearing: 3rd July, 2000.

2001 P L C (C.S.) 249

[Lahore High Court]

Before Nasim Sikandar and Muhammad Akhtar Shabbir, JJ

Maj. (Retd.) SHEHZAD HUSSAIN-KHAN

versus

GOVERNMENT OF THE PUNJAB and others

Intra-Court Appeal No. 110 in Writ Petition No. 3777 of 2000, decided on 27th April, 2000.

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

----Art.199---Constitutional petition---Scope---Contractual appointment--­ Premature termination of service---Rights of employer and employee--­ Remedy against premature termination---Employee was appointed for a period of three years but was terminated by the employer/Authorities before the end of contractual period ---Order of termination was assailed before High Court in Constitutional petition---High Court dismissed the petition on the ground that contractual appointment did not confer any right either on the employee to seek the completion or upon the employer to force the employee to complete the contractual period---Remedy---Where any one of the parties to the contract was aggrieved of the premature termination, the only remedy available was action in tort for damages both in terms of monetary and physical or mental loss---Such loss had to be quantified in terms of money to succeed---Forcing unwilling employee to complete the period of contract was legally as vulnerable in tort as the employer in the opposite situation could be.

1998 SCMR 429; Pakistan and others b. Public-at-large and others PLD 1987 SC 304 and Mst. Kalsoom Akhtar v. Abdur Rashid and 2 others PLD 1975 Lah. 244 distinguished.

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

----Art.199---Constitutional petition---Scope---Contractual liability--­Enforcing of such liability---Validity---Deciding of such matter amounts to make an order for specific performance of contract and as such the same is not possible in exercise of Constitutional petition.

(c) Locus poenitentiae---

----Principle of---Applicability---Contractual appointment, termination of--­Doctrine of locus poenitentiae belongs to gens of estoppel by record but is hardly attracted where both parties are equally placed to frustrate the terms of agreement----Where suit for damages is appropriate remedy, doctrine of locus poenitentiae is of limited application.

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

----Art. 189---Leave granting order by Supreme Court not of binding force--­Order of Supreme Court while granting leave to appeal does not by itself generally decide a question of law nor enunciates principle of law--­Provisions of Art. 189 of the Constitution are not applicable to leave granting order.

Sh. Zia-ud-Din Ahmad Qamar for Appellant.

2001 P L C (C.S.) 262

[Lahore High Court]

Before Ghulam Mahmood Qureshi, J

SHAH MUHAMMAD and 6 others

versus

DISTRICT COUNCIL, SARGODHA and 2 others

Writ Petition No. 16541 of 1998, heard on 27th September, 2000.

West Pakistan Civil Courts Ordinance (II of 1962)----

----S.24---Constitution of Pakistan (1973), Art. 199--Constitutional petition---Suit against civil servant---Civil Judge II Class, jurisdiction of-­Suit against Deputy Commissioner as Administrator of District Council was being adjudicated by Civil Judge II Class---Validity---Both the Courts below overlooked the bar contained under S.24, West Pakistan Civil Courts Ordinance, 1962---Effect---District Council being headed by Deputy Commissioner, who was a public officer, cases against such officer was wrongly entrusted to Civil Judge II Class on account of the bar contained under S.24 of West Pakistan Civil Courts Ordinance, 1962---Both the Courts below having passed the orders without jurisdiction and without lawful authority their orders were- set aside by the High Court.

Province of Punjab and another v. Abdul Majid NLR 1993 Service 56 and Khalil-ur-Rehman v. Town Committee, Rabwah PLD 1990 SC 792 ref.'

Syed Faizul Hassan Naqvi for Petitioner.

Nasim Sabir, Add1.A.-G. and Akhtar Masood Khan for Respondents.

Date of hearing: 27th September, 2000.

2001 P L C (C.S.) 296

[Lahore High Court]

Before Dr. Munir Ahmad Mughal, J

MUHAMMAD NAWAZ KHAN

versus

MULTAN DEVELOPMENT AUTHORITY, MULTAN through Director-General and 2 others

Writ Petition No. 9007 of 1997, heard on 4th May, 1999.

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

----R.6(3)---Constitution of Pakistani (1973), Art.199 --- Constitutional petition---Civil service---Show-cause notice---Imposing of major penalty--- Failure to record evidence---Show-cause notice under R.6(3) of Government Servants (Efficiency and Discipline) Rules, 1973, was issued to the employee, in the first instance and major penalty of compulsory retirement was imposed on him after such summary procedure---Validity---Where the employee denied all the allegations, it was not the case of having recourse to the shortest procedure of show-cause notice . as controversial questions of fact ;were involved which could not be resolved without recording of evidence and opportunity of cross-examination to civil servant---Case of employee was disposed of by the Authorities against the rules and the guidelines given by Supreme Court and as such the same was illegal and without lawful authority---High Court directed the-Authorities to initiate the proceedings against the employee from the stage of appointing Inquiry Officer who would proceed further in accordance with law --- Penalty imposed on the employee by the Authorities was set aside in circumstances.

Alamgir v. Divisional Forest Officer, Multan 1993 SCMR 603; Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134; The Secretary, Government of the Punjab through Secretary Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440; Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222 and Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868 rel.

Muhammad Amir Bhatti for Appellant.

Muhammad Amin Malik for Respondents.

Date of hearing: 4th May, 1999.

2001 PLC (C.S.) 312

[Lahore High Court]

Before Maulvi Anwarul Haq, J

SHAHZAD IQBAL, RESEARCH OFFICER, DEFENCE SCIENCE AND TECHNOLOGY ORGANISATION

DEFENCE PRODUCTION DIVISION, MINISTRY OF DEFENCE, CHAKLALA CANTT., RAWALPINDI

versus

FEDERAL PUBLIC SERVICE COMMISSION

through Secretary, Head Office Agha Khan Road, Sector F‑5/1, Islamabad and 2 others

Writ Petition No. 1657 of 2000, heard on 21st August; 2000.

Pakistan Citizenship Act (II of 1951)‑‑‑, ‑‑‑‑S. 17‑‑‑Pakistan Citizenship Rules, 1952, R. 23‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Civil service‑‑­Appointment‑‑‑Domicile certificate‑‑‑ Petitioner was born at Rawalpindi (Punjab), got his education there and was appointed as "Experimental Officer" on basis of domicile certificate competently issued by the Authority at Rawalpindi ‑‑‑Father of petitioner, who was an Army Officer, and was posted at Quetta (Balochistan) had domicile of Quetta ‑‑‑When petitioner applied for appointment to the post of. Senior Research Officer, he was debarred from applying for the same on the ground that his father having domicile of Quetta, he could not apply for the post against Punjab quota‑‑­Validity‑‑‑Provisions of S. 17 of Pakistan Citizenship Act, 1951 did not at all lay down that domicile of father would govern domicile of the child‑‑­Domicile certificate having not been wrongly issued by the Authority at Rawalpindi, in absence of any such, allegation it would be presumed that the certificate was issued to the petitioner after complying with conditions contained in R. 23 of Pakistan Citizenship Rules, 1952‑‑‑Section 17, Pakistan Citizenship Act, 1951 provided that any person regarding whom the Federal Government was satisfied that he had ordinarily resided in Pakistan for a period of not less than one year, immediately before the making of application and had acquired a domicile therein, could be granted a certificate of domicile‑‑‑Petitioner, in circumstances, could not be debarred from applying for a post against Punjab Quota simply because his fattier happened to have acquired domicile in Balochistan.

Abdul Rahim Bhatti for Petitioner.

Raja Iftikhar Javed, Standing Counsel for Respondents.

Date of hearing: 21st August, 2000.

2001 P L C (C.S.) 336

[Lahore High Court]

Before Mumtaz Ali Mirza, J

MUHAMMAD ANWAR BAJWA, EXECUTIVE DIRECTOR, AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN, 1-FAISAL AVENUE, ZERO POINT, ISLAMABAD

versus

CHAIRMAN, AGRICULTURAL DEVELOPMENT BANK OF

PAKISTAN, FAISAL AVENUE, ZERO POINT, ISLAMABAD

Writ Petition No.925 of 1998, decided on 2nd August, 2000.

(a) Civil service----

----Disciplinary action---If element of truth was found in the allegation same must be brought to the notice of civil servant and opportunity be afforded to him to explain his position---Inordinately delayed initiation of disciplinary action against civil servant, would render legitimacy of the action highly doubtful.

(b) Fundamental Rules----

----R. 54-A---Disciplinary action---If disciplinary action was initiated against civil servant and the action remained inconclusive during course of his service and he retired on attaining age of superannuation in the meantime, not only unconcluded disciplinary action would abate, but civil servant would also be entitled to full pensionary benefits---Disciplinary action not completed and taken to its logical conclusion during service of civil servant, could not be completed after his retirement and made basis of his punishment.

Zulfiqar Khalid Malooka for Petitioner.

Raja Iftikhar Ahmad Javed, Standing Counsel alongwith Tanvir Anjum, Extra-Assistant Director (Legal), ADBP.

2001 P L C (C.S.) 344

[Lahore High Court]

Before Mian Saeed-ur-Rahman Farrukh, J

Rana NAZIR

versus

UNITED BANK LIMITED

Civil Revision No. 1080-D of 1997, decided on 22nd April, 1998.

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

----Ss.52 & 54---Declaration qua terms and. conditions of service---Date of birth of plaintiff was wrongly entered in the record of the defendant---Trial Court decreed the suit in favour of the plaintiff, corrected the date of birth and directed the defendant to permit the plaintiff to continue to serve keeping in view the corrected date of birth---Lower Appellate Court modified the decree and excluded the direction qua terms and conditions of service--­Validity---Suit for relief to the effect that the plaintiff be allowed to continue service up to a certain date, was beyond the jurisdiction of Civil Court in view of Ss.52 & 54, Specific Relief Act, 1877---No illegality was committed by the Lower Appellate Court in modifying the decree of the Trial Court.

Sarfraz Khan v. Federation of Pakistan 1986 SCMR 1950 fol.

Rana Ijaz Ahmad Khan for Petitioner.

M.A. Zafar for Respondent:

2001 P L C (C.S.) 383

[Lahore High Court]

Before Syed Zahid Hussain, J

SUI NORTHERN GAS PIPELINES LIMITED LAHORE

versus

GOVERNMENT OF THE PUNJAB

through Secretary, Ministry of Labour and Social Welfare, Lahore and another

Writ Petition No.4984 of 1984, decided on 17th November, 2000.

(a) Provincial Employees' Social Security Ordinance (X of 1965)---

----S.1(3)---Payment of contribution---Abject---Object of the provisions of West Pakistan Employees' Social Security Ordinance, 1965, is to provide certain facilities and benefits to the employees of the establishment to which the provisions of the Ordinance are applied and extended.

(b) Interpretation of statutes-

---- Conflicting statutes---Where there is conflict between Federal law and Provincial law the former is to prevail as also the Special Law against a General Law.

Sardar Muhammad v. Noor Ahmad through Legal Heirs and others PLD 1991 SC 824; Cantonment Board through Cantonment Executive Officer, Peshawar v. District Sanitary and Food Inspector, Peshawar and 3 others 1993 SCMR 941 and Water and Power Development Authority and others v. Mian Muhammad Riaz and another PLD 1995 Lah. 56 ref.

(c) Pakistan Essential Services Maintenance Act (LIII of 1952)----

----S.7-A---Provincial Employees' Social Security Ordinance (X of 1965), Ss.5, 6 & 7---Constitution of Pakistan (1973), Art. 143---Essential services--­Payment of contribution---Overlapping provisions---Where services of 'any organization have been declared as essential services under the provisions of Pakistan Essential Services Maintenance Act, 1952, the provisions of the Act will have the precedence not only in view of Art. 143 of the Constitution but also under the provisions of S.7-A of Pakistan Essential Services Maintenance Act, 1952, as the provisions of the Act are of special and of overriding nature.

Pakistan Burmah Shell Ltd. v. Central Labour Commissioner and 5 others PLD 1982 Kar. 35 ref.

(d) Provincial Employees' Social Security Ordinance (X of 1965)---

----S. 1(3)---Pakistan Essential Services Maintenance Act (LIII of 1952), S.7-A ---Constitution of Pakistan (1973), Arts.199 & 143---Constitutional petition---Payment of contribution---Demand notice, issuance-of ---Services of the petitioner had been declared as essential services under the provisions of Pakistan Essential Services Maintenance Act, 1952---Contention of the petitioners was that the provisions of Provincial Employees'. Social Security Ordinance, 1965, were not applicable and the demand of the contribution under the provincial statute was illegal---Validity---Pakistan Essential Services Maintenance Act, 1952, was a federal law applicable to any employment under the Federal Government and to any employment or class of employment to which the Act was made applicable and the same was a special law, whereas Provincial Employees' Social Security Ordinance, 1965 was a Provincial law as such not only in view of Art. 143 of the Constitution but also for the reasons that the field was already occupied by a federal and special law, the Ordinance had to give way to the Act---Where there was a declaration by the Federal Government in respect :of employment of the petitioners as essential service under the provisions of Pakistan Essential Services Maintenance Act, 1952, notification under S.1(3) of Provincial Employees' Social Security Ordinance, 1965, by Provincial Government was not operative qua the petitioner as such the notification was not a lawful exercise of power.

Messrs Standard Printing Press v. Sindh Employees' Social Security Institution PLD 1978 Kar. 945; Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another PLD 1977 SC 197; Messrs Indus River Contractors, Tarbela v. Aziz Ahmad, Member, N.I.R.C. and another PLD 1980 Pesh. 216; Pakistan Burmah Shell Ltd. v. Central Labour Commissioner and 5 others PLD 1982 Kar. 35; Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another PLD 1982 SC 113; Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549; Neimat Ali Goraya and 3 others v. Jaffar Abbas, Inspector/Sergeant Traffic through S.P. Traffic, Lahore and others 1996 PLC (C.S.) 878 and National Embroidery Mills Ltd. and others v. Punjab Employees' Social Security Institution 1993 SCMR 1201 ref. Azhar Maqbool and Muhammad Saleem Shahnazi for Petitioner. Iftikhar Ahmed Dar for Respondent No.2.

Date of hearing: 25th October, 2000.

2001 P L C (C.S.) 405

[Lahore High Court]

Before Tanvir Ahmad Khan, J

ISRAR-UL-HAQ

versus

FEDERATION OF PAKISTAN and others

.Writ Petition No. 13035 of 1994, decided on 7th March, 2000.

(a) Removal from Service (Special Provisions) Regulation, 1969 [MLR 58]---

----Para. 3---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Dismissal from service---petitioner was dismissed from service after being served with charge-sheet alongwith statement of allegations.--Service Tribunal ordered reinstatement of petitioner, w1Lich was not implemented by the Authority-Proceedings conducted against petitioner by Military Tribunal did not at all conform to provisions of para. 3(2) of Removal from Service (Special Provisions) Regulation, 1969 [M.L.R. 58] as petitioner was not given fair chance to meet the allegations levelled against him---No witness was allowed to participate in the proceedings m support of defence of petitioner ---Military, Tribunal already had a secret list earlier prepared by the Martial Law Authority wherein even the punishment -proposed to be given to the petitioner was mentioned---1n the presence of such list it could be said that whole exercise was mala fide ---Mala fide action being no action under the law no sanctity could be attached to the same---Petitioner had gone twice before Service Tribunal and succeeded in obtaining the final order of his re-instatement in service, but said order was not implemented---Petitioner having had rushed from pillar to post principle of laches would not be attracted---Action taken against petitioner totally being mala fide, Constitutional petition filed by petitioner was not hit by the bar placed by Art.212 of Constitution of Pakistan (1973).

S.A. Rizvi v. Islamic Republic of Pakistan and others 1992 SCMR 1309; Federation of Pakistan through Secretary, Establishment Division, Islamabad v. Sh. Abdui Aziz 1998 SCMR 91; Federation of Pakistan and others v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; M. Yamin Qureshi v. Islamic Republic of Pakistan and others PLD 19RO SC 22; Khalid Mahmood Wattoo v. 'Government of Punjab and others 1998 SCMR 2280; Islamic Republic of Pakistan v. S.A, Rizvi 1992 SCMR 1309; Abdul Rauf v Abdul Hameed Khan PLD 1965 SC 671; Pakistan v. Saeed Ahmad Khan PLD 1974 SC 15i; State v. Zia-ur-Rehman PLD 1973 SC 49; S.A. Rizvi v Islamic Republic of Pakistan through Secretary, Establishment Division and 2 others 1991 MLD 1834 and Muhammad Sadiq v. Anver Majeed 1989 PCr. LJ 1223 ref.

(b) Removal from Service (Special Provisions) Regulation, 1969 [M.L.R. 58]---

----Para. 3---Constitution of Pakistan (1973), Arts. 199 & 270-A--­Provisional Constitution Order (1 of 1981), Art.13-A---Ouster of jurisdiction of superior Courts---Article 270-A of Constitution of Pakistan (1973) had not completely ousted the jurisdiction of the superior Courts to go into the vires of the action taken under Removal from Service (Special Provisions) Regulation, 1969 M. L. R. 58] as well as action taken under any other law protected by Art. 13-A of Provisional Constitution Order, 1981 which had been merged in. Art. 270-A of Constitution of Pakistan (1973).

Federation of Pakistan and others v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref.

Muhammad Rashid Bhatti, Barrister-at-Law for Petitioner.

Khawaja Saeed-uz-Zafar, Deputy . Attorney-General for Respondents.

Date of hearing: 1st March, 2000.

2001 P L C (C.S.) 418

[Lahore High Court]

Before Mian Nazir Akhtar, J

TARIQ LATIF

versus

THE SECRETARY, PUNJAB PROVINCIAL TRANSPORT

AUTHORITY, GOVERNMENT OF THE PUNJAB and 7 others

Writ Petitions Nos.8957 and 8958 of 1995, decided on 19th November, 1998.

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

----Art.199---Constitutional petition---Locus standi---Civil service--­Petitioner appeared in test for appointment of junior clerk---Petitioner could not clear the test and had challenged the appointments of the respondents--­Validity---Petitioner had no locus standi to assail the validity of appointment of respondents in circumstances.

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

----Art.199---Constitutional petition---Civil service---Age---Relaxation in upper age limit---Petitioner was not appointed for the post of junior clerk and he assailed the appointments of the respondents, on the ground that they were over-age at the time of appointment---Validity---Government had granted 5 years relaxation qua the upper age limit for recruitment to posts in BPS. 1 to BPS. 15 leaving it open to the Competent Authority to grant further relaxation of 5 years---No illegality, therefore was committed in the matter of appointment of respondents---Constitutional petition was dismissed.

Ch. Muhammad Hussain Naqashbandi for Petitioner.

Nazir Ahmed Khan, A.A.G. for Respondents Nos. l to 3.

Muhammad Ahmed Qazi for Respondents Nos.4, 6 and 8.

Nemo for Respondents

Nos. 5 and 7.

Date of hearing; 15th September, 1998.

2001 P L C (C. S.) 440

[Lahore High Court]

Before Mumtaz Ali Mirza, J

MUHAMMAD RAMZAN

versus

GOVERNMENT OF THE PUNJAB

through General Agricultural Field, Punjab, Lahore and 2 others

Writ Petition No.2553 of 2000, decided on 1st November. 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975----

----Rr. 5,6 & 7---Constitution of Pakistan (1973), Art. 199---Constitutional petition--- Termination of service---Departmental appeal---Departmental appeal tiled against termination of service of civil servant was not decided by Appellate Authority for more than two years---Civil servant in his Constitutional petition had prayed that a direction be issued to the Appellate Authority to attend to and to dispose of his appeal which had already been inordinately delayed---Departmental Authorities before whom the aggrieved civil servant preferred representation/appeal, were under a statutory obligation to dispose of the same within a reasonable period of time so that the civil servant could have recourse to the appropriate Service Tribunal for seeking . redress of the grievance arising out of the Departmental action against him.

S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612 ref.

Qazi Umar Farooq for Appellant.

2001 P L C (C.S.) 450

[Lahore High Court]

Before Malik Muhammad Qayyum, J

Rana HABIB-UR-REHMAN KHAN ADVOCATE

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary, Civil Secretariat, Lahore and 4 others

Writ Petition No.9482 of 2000, heard on 24th January, 2001.

Punjab Civil Servants, Act (VIII of 19744)----

----S. 4---Constitution- of Pakistan (1973), - Art. 199---Constitutional petition--- Appointment- --Writ of quo warranto---Respondents who neither possessed the requisite qualification nor-experience, were asked to look after the affairs as additional charge of Medical Superintendent and Additional. Medical Superintendent -in a hospital and remained working as such for the last about more than one year and six months--- Respondents who were not qualified for post to which they were appointed, High Court directed the Authorities to appoint duly qualified persons, on said permanent posts within specified period.

Petitioner in person.

Ch. Muhammad Ashraf, Asstt. A.-G. for Respondents Nos. l and 2.

Shaukat Umar Pirzada for Respondent Noa.3.

Shoaib Saeed for Respondents Nos.4 and 5.

Date of hearing: 24th January; 2001.

2001 P L C (E.S.) 634

[Lahore High Court]

Before Khalil-ur-Rehman Ramday, and Karamat Nazir Bhandari, JJ

MUZAFFAR HUSSAIN, PRINCIPAL, GOVERNMENT WEAVING AND FINISHING INSTITUTE, SHAHDARAH, LAHORE

versus

PUNJAB PUBLIC SERVICE COMMISSION through Secretary and 2 others, Writ Petition No. 16811 of 1999, heard on 4th December, 2000.

(a) Constitution of Pakistan (1973)--

----Arts. 27 & 199---Civil service---Safeguard against discrimination in service---Article 27 of the Constitution prohibits discrimination of citizens in the matter of appointment to the service of Pakistan on the basis of residence or place of birth---First proviso to Art.27(1) of Constitution of Pakistan (1973) enables Authorities to reserve posts for persons belonging to different classes or areas to secure their adequate representation in the service of Pakistan and proviso to Art.27 is only enabling and permissive in nature and can never be read to mean that all Governments and Authorities are under any direction by the Constitution to mandatorily reserve seats for persons belonging to different areas---No right is vested in any citizen to seek direction from High Court to any Government or Authority to provide for special exclusive seats for persons belonging to different districts or areas of the Province.

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

----Art.199---Constitutional petition---Misconduct---Ground of relief--­Effect--- Appending of documents with the Constitutional petition, obtained otherwise than in accordance with law by the petitioner was a misconduct---

Such a misconduct on the part of any litigant was sufficient to disqualify him for the grant of any discretionary relief.

Hafiz Tariq Naseem for Petitioner.

Mushtaq Ahmad Mohal for P.P.S.C.

Muhammad Shan Gul for A.-G. for Respondent.

Date of hearing: 4th December, 2000.

2001 P L C (C. S.) 644

[Lahore High Court]

Before Maulvi Anwarul Haq, J

NAVEED INAM CHEEMA

versus

SECURITIES AND EXCHANGE COMMISSION OF PAKISTAN

through Chairman

Writ Petitions Nos. 17807 and 19733 of 2000, heard on 23rd January, 2001.

Security and Exchange Commission of Pakistan Act (XLII of 1997)---

----Ss. 3, 22(3) & 43(e)---General Clauses Act (X of 1897), S.24-A--­Constitution of Pakistan (1973), Art.199---Constitutional petition--­Appointment, cancellation of--- Appointments of petitioners were cancelled by the Authority by letter stating therein that in view of conduct, performance and also objects for which the Authority was established, petitioners had not been found suitable for appointment---Letter in question did not disclose any reason as to why petitioners were not found suitable for the appointment---Validity---Order cancelling appointment of petitioners without application of mind and also in violation of relevant provision of Security and Exchange Commission of Pakistan Act, 1997 and General Clauses Act, 1897, was declared to be illegal and without lawful authority.

Malik Noor Muhammad Awan for Petitioner.

Hafiz Tariq Nasim for Respondent.

Date of hearing: 23rd January, 2001.

2001 P L C (C.S.) 661

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ABDUL AZIZ VIRK

versus

SPECIAL SECRETARY, EDUCATION (SCHOOLS), GOVERNMENT OF THE PUNJAB, LAHORE and 7 others

Writ Petition No. 10319 of 1999, heard on 26th February, 2001.

(a) Punjab Civil Servants Act (VIII of 1974)---

----S.2(b)---Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Rr. 4 & 5--- Pension Rules, 1963, R. 1.8---Disciplinary proceedings against retired civil servant--- Civil servant on the eve of his retirement would cease to be a civil servant for the purpose of Punjab Civil Servants (Efficiency and Discipline) Rues, 1975 and was not amenable to disciplinary proceedings after his retirement---Such civil servant could only be proceeded in terms of R.1.8 of the Pension Rules, 1963.

(b) Pension Rules, 1963---

----R. 1.9---Imposition of penalty---Rule 1.9 of Pension Rules, 1963 was exhaustive because in the said rule not only the grounds of action had been enumerated, but the penalties liable to be imposed had also been enlisted--­Procedure regarding imposition of penalty of removal was to be observed in the proceedings under that rule.

(c) Words and phrases---

----"Retire"---Connotation---Word "retire" means to terminate employment or service upon reaching retirement age.

(d) Punjab Civil Servants Act (VIII of 1974)---

----S.18---Punjab Service Tribunals Act (IX of 1974), S.2(b)---Pension--­Pension was part and parcel of terms and conditions of service---Civil servant was well within his right to agitate matter of pension before the Service Tribunal.

Hassan Bakhsh Khan's case 1983 PLC (C.S.) 795; Samee-ur­-Rehman's case 1983 PLC (C.S.) 832; Muhammad Ramzan's case 1983 PLC (C.S.) 956; Muhammad Sharif's case 1985 PLC (C.S.) 907; Brig. Imtiaz's case 1994 SCMR 2142; M. Abdul Latif's case 1981 SCMR 1101 and Muhammad Ramzan's case 1998 PCr.LJ 828 ref.

(e) Criminal Procedure Code (V of 1898)--

----S.154---Constitution of Pakistan (1973), Art. 199---Quashing of F.I.R.--­Jurisdiction of High Court---High Court had no jurisdiction to quash F.I.R.

Khawaja Nazir Ahmad's case AIR 1945 PC 18 and Shehnaz Begum's case PLD 1971 SC 677 ref.

(f) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--

----Rr. 4 & 5---Constitution of Pakistan (1973), Arts. 13 & 199---Protection against double punishment---Constitutional petition---Petitioner had contended that he having been exonerated earlier, Authority could not initiate proceedings against him-- -Contention was repelled, in view of the fact that the principle laid down in Art.13 of Constitution of Pakistan (1973), was not attracted in the case of petitioner---Words "shall be prosecuted" mentioned in Art. 13(a) of Constitution of Pakistan (1973) referred to initiation of proceedings of a criminal nature before a Court of law or Judicial Tribunal in accordance with the procedure prescribed in the statute which created the offence and regulated the procedure---Proceedings initiated by Authority against civil servant under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 did not constitute a judgment or order of a Court or Judicial Tribunal necessary for the purpose-of supporting a plea of double punishment---Petitioner civil servant having failed to point out that Authorities had initiated proceedings against the petitioner in violation of rules and regulations of the Authority, Constitutional petition was not maintainable.

Syed Alamdar Hussain Shah's case PLD 1978 SC 121; Muhammad Abbas' case PLD 1981 SC 642; PLD 1990 Kar. 286 and Ali Mir's case 1984 SCMR 433 ref.

(g) Administration of justice--

---- He who seeks equity, must come with clean hands.

Nawabzada Raunak Ali Khan's case PLD 1973 SC 236 ref.

Malik Riaz Khalid Awan for Petitioner.

A.A.-G for Respondents.

Date of hearing: 26th February, 2001.

2001 P L C (C.S.) 672

[Lahore High Court]

Before Dr. Munir Ahmad Mughal, J

FIAZ MUHAMMAD QURESHI, DSP (LEGAL), MULTAN

versus

GOVERNMENT OF THE PUNJAB, LAHORE

through Chief Secretary and 3 others

Writ Petition No. 305 of 2001, heard on 12th January, 2001.

Civil service---

----Promotion---Implementation of notification of promotion---Civil servant, consequent upon recommendations of Selection Board and approval of Competent Authority, was cleared for promotion to the rank of S.P. (BS-18) on regular basis vide notification issued by Authority, but said notification was not implemented despite many posts were lying vacant---Authority conceded the position but requested for time to implement the said notification---Authority was directed to implement notification up to a specified time.

Tahir Latif Sheikh v. Federation of Pakistan and another 2000 PLC (C.S.) 582 ref..

Syed Aaqa Asif Jaffary for Petitioner.

Malik Qasim Khan, Asstt. A.-G. for Respondents:

Date of hearing: 12th January, 2001.

2001 P L C (C.S) 781

[Lahore High Court]

Before Muhammad Nawaz Abbasi, J

MUHAMMAD ASHRAF CHAUDHRY

versus

CHAIRMAN. CENTRAL BOARD OF REVENUE through Ministry of Finance, Government of Pakistan and another

Writ Petitions Nos. 391, 392, 393. 394, 644, 645, 663, 664, 665, 666, 667, 668, 669, 670, 671, 677, 687, 688, 689, 712, 713 and 714 of 2001, decided on 1st March, 2001.

(a) Constitution of Pakistan (19731---

----Art. 212---Civi: service---Matters relating to terms and conditions of service- -Jurisdiction of High Court---Bar---Conditions to make bar effective- -Jurisdiction of High Court is barred in all matters relating to the terms and conditions of a civil servant which is subject to the satisfaction of the conditions i.e. that the matter relates to the terms and conditions of service of a civil servant and that the Service Tribunal has been established to adjudicate such matters.

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

----S. 4---Removal from Service (Special Powers) Ordinance (XVII of 2000), S.10---Forum of appeal---Forum of appeal is Service Tribunal under the provisions of Civil Servants Act, 1973 read with the provisions of Government Servants (Efficiency and Discipline) Rules, 1973 and S.10 of Removal from Service (Special Powers) Ordinance, 2000.

(c) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 4---Civil Servants Act (LXXI of 1973), S.16---Service Tribunals Act (LXX of 1973), S.4---Suspension---Appeal against order of suspension--­Service Tribunal, jurisdiction of---Every order passed by the Competent Authority in relation to the terms and conditions of service is appealable before Service Tribunal under the provisions of S.4 of Service Tribunals Act 1973---Suspension order passed either under Civil Servants Act, 1973, or under Removal from Service (Special Powers) Ordinance, 2000 is appealable before the Service Tribunal.

(d) Removal from Service (Special Powers) Ordinance (XV1I of 2000)---

----Ss. 4 & 10---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan (1973), Art.212---Suspension order---Remedy---Jurisdiction of High Court---Scope---Civil servant was put under suspension under the provisions of S.4 of Removal from Service (Special Powers) Ordinance, 2000, and the order was assailed before High Court under Art.199 of the Constitution---Validity---Suspension of civil servant from service being not separable from his terms and conditions of the service, same would by virtue of Art.212 of the Constitution be exclusively adjudicatable by Service Tribunal established under Service Tribunals Act, 1973---Contention that orders of suspension passed under S.4 of Removal from Service (Special Powers) Ordinance, 2000 being not the final order would not be challengeable before Service Tribunal was repelled---Service Tribunal had exclusive jurisdiction in a case,, which was founded on the terms and conditions of service even if there involved a question of violation of law, mala tide or the same was challengeable on any other ground---Where the orders of suspension fell within the ambit of terms and conditions of service, the same would not be adjudicateable by the High Court under its Constitutional jurisdiction due to bar of jurisdiction under Art.212 of the Constitution notwithstanding the fact whether the order was challengeable by way of appeal before the Service Tribunal or not---Where final order in consequence to the proceedings under the provisions of Removal from Service (Special Powers) Ordinance, 2000 was challengeable before the Service Tribunal, the jurisdiction of High Court in the interlocutory orders under the provisions of Removal from Service Ordinance, 2000, was not invocable---Matter relating to the terms and conditions of service was not subject to the judicial review of High Court due to bar of jurisdiction and the Constitutional petition under Art. 199 of the Constitution was not maintainable.

Mujeebullah Aijaz v. Director-General, Telephone and Telegraph Department and 2 others PLD 1980 Quetta 58; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Khalid Mahmood Wattoo v. Government of Punjab 1998 SCMR 2280 and Khalilur Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750 ref.

(e) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutionals 5 petition under Art. 99 of the Constitution--- Matter relating to terms and conditions of service---Power of judicial review under Art. 199 of the Constitution---Scope---Power of judicial review in service matter can only be exercised subject to Art.212 of the Constitution---Person who is subject to the provisions of Civil Servants Act, 1973, and Removal from Service (Special Powers) Ordinance, 2000, cannot invoke the jurisdiction of High Court either on the ground of violation of the provisions of the statute or mala fide, taking the plea that the Service Tribunal was not competent to entertain appeal on such grounds.

(f) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Constitutional petition---Alternate remedy, non­-availability of---Effect---Non-availability of alternate remedy to civil servant against a specific order would not vest jurisdiction in the High Court under Art. 199 of the Constitution or remove the bar of jurisdiction under Art.212 of the Constitution.

Muhammad Akram Sheikh assisted by Dr. Amjad Bokhary for Petitioner.

Mansoor Ahmad, Dy. A.-G. and Raja Iftikhar Ahmad Javaid, Standing Counsel for Respondents.

2001 P L C (C.S.) 905

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

SAJIDA TABSHIR

versus

GOVERNMENT OF PUNJAB

through Secretary, Education Department, Lahore and another

Writ Petition No. 2726 of 1999, decided on 23rd February, 2001.

Constitution of Pakistan (1973)---

----Arts.4, 25 & 199---General Clauses Act (X of 1897), S.24-A --­Constitutional petition---Civil service---Regularisation of service --­Discrimination, proof of---Services of co-civil servants were regularised and they were paid arrears due to them, but services of petitioner/civil servant were not regularised despite his case was exactly similar to those of co-civil servants---Case of petitioner/civil servant being tainted with discrimination was hit by provisions of Art.25 of Constitution of Pakistan (1973)---Public functionaries were duty bound to act in accordance with law without fear, favour 'and nepotism and to act within framework of the Constitution---Duty and obligation of the public functionaries to redress the grievance of the citizens with reasons---High Court having ample power under Art. 199 of Constitution of Pakistan to give direction to the public functionaries to act in accordance with law by virtue of Art.4 of Constitution, directed the Authority to pass fresh order strictly in accordance with law.

Zahid Akhtar's case PLD 1995 SC 530; Ahmad Latif's case PLD 1994 Lah. 3; I.A. Sherwani's case 1991 SCMR 1041; M/s. Airport Support Services' case 1998 SCMR 2268 and H.M. Razvi's case PLD 1981 SC 612 ref.

Rafique Ahmad Bajwa and Shaukat Rafique Bajwa for Petitioner.

Akhtar Hussain Awan, Addl. A.-G. for Respondents.

2001 P L C (C.S.) 913

[Lahore High Court]

Before M. Javed Buttar, J

ALI ARSHAD

versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.20176 of 1999, decided on 29th October, 1999.

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

----S.2-A---Civil Servants Act (LXXI of 1973), S.2(l)(a) --- Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil servant---Person who belonged to the category of employees who had been declared as civil servants under S.2-A of Service Tribunals Act, 1973 for only the limited purpose of availing the remedy before the Service Tribunal, could not, in the absence of corresponding amendment in the Civil Servants Act, 1973, automatically become civil servants within the meaning of Civil Servants Act, 1973---If a person was not civil servant within the meaning of Civil Servants Act, 1973, he could not avail of the remedy provided under the Service Tribunals Act, 1973---Petitioner, being not a civil servant within the meaning of Civil Servants Act, 1973 the doors of other forums like Labour Court and Tribunal N.I.R.C. or the Civil Court would remain open to him and due to the availability of alternate remedies, Constitutional petition filed by him was not maintainable.

Muhammad Yar Buttar and 4 others v. Board of Governors, Overseas Pakistanis Foundation, Islamabad and another 1999 PLC (C.S.) 409 and Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S) 1208 ref.

Muhammad Zaman Qureshi for Petitioner.

Yawar Ali Khan, Deputy Attorney-General of Pakistan for Respondents. ,

2001 P L C (C.S.) 933

[Lahore High Court]

Before Sayed Zahid Hussain, J

COTTON EMPLOYEES WELFARE ASSOCIAATION, COTTON RESEARCH INSTITUTE, MULTAN through Senior Vice-President

Versus

PAKISTAN CENTRAL COTTON COMMITTEE

through Vice-President and 2 others

Writ Petition No. 285 of 1991, decided on 2nd February, 2001.

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

----Art.17---Right to form an association or union---Provisions of Art. 17 of Constitution of Pakistan (1973) had conferred upon every citizen a right to form an association or union subject to any reasonable restrictions imposed by law in the interest of sovereignty or integrity of Pakistan, public order or morality.

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

----Arts.8 & 17---Voidness of law---Law which was inconsistent and in contravention of Fundamental Rights or which took away or abridged such rights, was void to the extent of such contravention ---Paramountcy of Fundamental Right was recognised by Art. 8 of Constitution of Pakistan (1973) limiting the powers of State organs to the extent that what had been conferred by the Constitution as Fundamental Rights, could not be taken away or abridged by the State---What had been guaranteed by the Constitution as a Fundamental Right could not be annihilated or taken away in the garb of 'reasonable restrictions'.

(c) Pakistan Central Cotton Committee (Staff Union) Rules, 1972---

----R.80---Cotton Cess Act (XIV of 1923), S.4(4) [as added by Cotton Cess (Amendment) Ordinance (XIII of 1980)]---Constitution of Pakistan (1973), Arts. 8, 17 & 199---Constitutional petition---Formation of Service Association---Service Association which fulfilled and complied with the conditions set out in R.80 of Pakistan Central Cotton Committee (Staff Service) Rules, 1972 could qualify for its recognition, operate and function accordingly---Rule 80, Pakistan Central Cotton Committee (Staff Union) Rules, 1972, would continue to be in force and its legal efficacy was not impaired by the amendment in S.4 of Cotton Cess Act, 1923---Service Association formed by the staff for the welfare and betterment of the employees/members of Association could function and operate ---Order of Authority imposing ban on formation of Association was declared to be ultra vires of Art.17 of Constitution of Pakistan (1973) and of no legal effect.

Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad through its Director-General and 3 others PLD 1993 Lah. 306; Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another PLD 1997 SC 781; Intisar Shamim Ahmed and another v. Secretary, Labour and Manpower, Government of Punjab, Lahore and 2 others 1997 PLC (C.S.) 860; Suo Motu Case No.l of 2000 (2000 SCMR 770) and Kameshwar Prasad and others v. State of Bihar and another AIR 1962 SC 1166 ref.

Malik Muhammad Tariq Rajwana for Appellant.

Mian Iftikhar-ur-Rashid for Respondent.

Date of hearing: 24th January, 2001.

2001 P L C (C.S.) 939

[Lahore High Court]

Before Syed Jamshed Ali, J

MUHAMMAD AKHTAR SHERANI and 35 others

versus

THE PUNJAB TEXTBOOK BOARD, LAHORE and 4 others

Writ Petitions Nos.12555 and 11865 of 2000, decided on 13th October, 2000.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Show‑cause notice‑‑‑Petitioners initially had been appointed for six months under orders of the Provincial Minister without following prescribed procedure‑‑‑Scrutiny Committee was constituted which recommended regularisation of services of petitioners after issuing them show‑cause notice‑‑‑Petitioners challenged said show‑cause notice in Constitutional petition‑‑‑No adverse orders had yet been passed against the petitioners and they had simply been called upon to show cause against the proposed action‑‑‑Effect‑‑‑Constitutional petition was not maintainable against show‑cause notice as Departmental Authorities had yet to pass a final order after considering the matter in the light of reply of the petitioners‑‑‑Petitioners would be at liberty to raise all questions of law and fact before Competent Authority including deliberations of Scrutiny Committee, its recommendations and formal order issued on basis thereof regularising service of a number of officials of the department.

Chairman, Minimum Wage Board, Peshawar and another v. Fayyaz Khattak 1999 SCMR 1004; Muhammad Yousaf v. Administrator, Municipal Committee, Mansehra and 3 others 2000 PLC (C.S.) 803; Shagufta Begum v. The Income‑tax Officer PLD 1989 SC 360; Nazir Ahmad Sheikh v. Government of Sindh through Secretary 1998 PLC (C.S.) 607; Shabbir Ahmad v. Director, Agriculture and others 1998 PLC (C.S.) 1213; M. Zafar Abbas v. Commissioner and others 1999 PLC (C.S.) 931; Mir Nabi Bakhsh Khan Khoso v. Branch Manager, National Bank of Pakistan 2000 SCMR 1017; Munawar Khan v. Niaz Muhammad and 7 others 1993 SCMR 1287; The Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi v. Jalaluddin PLD 1992 SC 207 and Messrs Vulcan Company (Pvt.) Ltd. v. Collector of Customs and others PLD 2000 Lah. 253 ref.

Hafiz Tariq Nasim for Petitioner.

Maqbool Elahi Malik, A.‑G. assisted by Raja Muhammad Arif for Respondent.

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2001 P L C (C.S.) 1057

[Lahore High Court]

Before Muhammad Farrukh Mahmud, J

AZAM SUBHANI

Versus

DISTRICT HEALTH OFFICER, LODHRAN

Writ Petition No.4198 of 2001, decided on 23rd May, 2001.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R.4---Constitution of Pakistan (1973) Arts. 199 & 212---Constitutionai petition ---Maintainability---Civil service---Petitioner had called in question the validity of order passed by the Authority whereby show-cause notice was issued to him---Petitioner being a civil servant, Constitutional petition by him was not maintainable in view of bar contained in Art.212 of Constitution of Pakistan (1973).

Federation of Pakistan through Secretary, Establishment Division, Islamabad and another v. Sheikh Abdul Aziz 1998 SCMR 91; Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209; Rai Ahmed Ali v. Province of Punjab and others 1999 SCMR 1832 and Sajjad Ahmad Javed Bhatti v. The Secretary, Establishment Division and 11 others 1999 SCMR 2186 ref.

Nemo for the Petitioner.

2001 P L C (C.S.) 1059

[Lahore High Court]

Before Muhammad Farrukh Mahmud, J

Rao MUHAMMAD HASSAN

Versus

A. M. C.

Writ Petition No.4494 of 2001, decided on 25th May, 2001.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 4-a(ii) & 4-B(i)---Constitution of Pakistan (1973) Arts. 13(a) 199---Constitutional petition maintainability of---Disciplinary/criminal proceedings against civil servant---Nature and object---Petitioner/civil servant had sought issuance of direction to the Authority to the effect that departmental penalties of stoppage of increments and reduction in rank, having already been imposed upon him, no criminal proceedings could be initiated against him in accordance with Art. 13(a) of Constitution of Pakistan (1973)---Validity---Bar of another trial would operate only on a person who had already been tried by the competent Court for commission of an offence, and either he had been convicted or acquitted---Article 13(a) of Constitution of Pakistan (1973) had nothing to do with departmental inquiries---Departmental inquiry and disciplinary proceedings against a civil servant were meant to maintain purity of public service which was in the highest public interest---Departmental penalty, therefore, was no bar against criminal proceedings.

Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar and another PLD 1987 SC 195; Shafqat Mahmood Lodhi v. The Accountant-General, West Pakistan, Lahore PLD 1968 Lah. 786 and Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333 ref.

Qazi Khalid Pervaiz for Petitioner.

2001 P L C (C.S.) 1073

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

ABDUL QADIR

Versus

DISTRICT EDUCATION OFFICER (EE & M), DISTRICT RAHIMYAR KHAN and other

Writ Petition No.2778 of 2000, heard on 15th December, 2000.

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

----Arts. 2A, 3, 4, 9, 14, 18 & 199---Constitutional petition---Civil service---Payment of salary---Right of civil servant---Fundamental Right-­Violation of---Petitioner who in response to an advertisement, applied for appointment as Class IV employee, was duly appointed after interviewing him---Petitioner during more than three years of his appointment, was transferred from one place of service to another---Petitioner despite rendering services had not been paid his salaries on the ground that appointment of the petitioner had not been verified by the Competent Authority---Validity---I appointment of the petitioner was illegal due to non-approval by Competent Authority, then there was no justification for utilization of his services for more than three years---To obtain verification was the obligation of the Authorities and not the duty of the petitioner---Salary was the reward of the petitioner who had rendered services to the Authorities and withholding hi: salary, waste glaring example of violation of Fundamental Rights a: guaranteed by the Constitution of Pakistan (1973) and also amounted to slavery---Petitioner could not be deprived, of his right of demanding the salary of his service rendered by him to the Authorities and he could not be punished and deprived of his Fundamental Right for the simple reason that his appointment was not verified by the Competent Authority as non-­verification of the appointment of the petitioner was not his fault, but was the fault of those to whom he had rendered service---Authority was directed to make the payment of salaries to the petitioner accordingly.

Metropolitan Corporation, Lahore v. Imtiaz Hussain Kazmi and others PLD 1996 Lah. 499; Mst. Ghosia Naz v. Deputy Education Officer 1997 PLC (C.S.) 666 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

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

----Arts. 2A, 3, 4, 9, 14, 18 & 199---Constitutional petition---Civil service--Fundamental Rights---Petitioner who was duly appointed and had served the Authorities was not given salaries despite he served for more than three years---Salaries of the petitioner were withheld on the ground that his appointment was not verified by the Competent Authority---Non-payment of salary to a person would tantamount to violation of Fundamental Rights granted in Arts. 2A, 3, 4, 9, 14 & 18 of Constitution of Pakistan (1973)--­To enjoy life according to his own will and facilities provided under the law was also an inalienable right of a person and if a person served others and for his services no reward was given to him was not the practice of today's civilized world---To earn a livelihood was also Fundamental Right of a person which had also been recognized in Islam.

(c) Punjab Service Tribunals .pct (IX of 1974)---

----S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Maintainability---Appeal to Service Tribunal---Scope---Appeal to the Service Tribunal would lie only when a final order by a Departmental Authority or the Appellate Authority was passed---If no such order was passed and only some hindrance or obstacle was caused/created, for that act civil servant, if aggrieved, could invoke the Constitutional jurisdiction of High Court---No final or appellate order having been passed against the petitioner, Constitutional petition was competently filed to issue direction to the Authority to redress his grievance.

Mumtaz Hussain Bazmi for Petitioner.

Saleem Nawaz Abbasi, A.A.-G. for Respondent No.2.

Date of hearing: 15th December, 2000.

2001 P L C (C.S.) 1080

[Lahore High Court]

Before Syed Jamshed Ali, J

Rao MANZOOR UL HAQUE KHAN

Versus

HEADMASTER, GOVERNMENT HIGH SCHOOL, HANDAL, TEHSIL AND DISTRICT KASUR and 7 others

Writ Petition No. 17143 of 2000, heard on 2nd March, 2001.

Punjab Civil Servants Act (VIII of 1974)---

----S.4---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Appointment --- Petitioner/candidate despite having been placed at Serial No. 1 of the merit list and being far ahead of the respondent in academic qualifications was ignored and instead respondent was appointed to the post simply on the criteria that respondent was living closer to the institution where appointment had been made---Such was wholly irrelevant consideration because according to the eligibility criteria the first preference was to be given to the candidate belonging to the Tehsil end both petitioner and the respondent were residing within same Tehsil---Order appointing respondent in preference to the petitioner, was declared to be illegal by High Court with direction to the Authorities to appoint the petitioner to the post in question on the same terms and conditions on which respondent was appointed.

Dr. Ihsan-ul-Haq for Petitioner.

Malik Akhtar Hussain Awan, A.A.-G.

Haji Muhammad Nisar, Law Officer for Respondent No.3. Javed lqbal, Assistant Director for Respondent No.4.

Ch. Muhammad Khalid for Respondent No. 7.

Asad Ullah Khalid, D.E.O., Lahore Cantt. for Respondent No.8.

Date of hearing: 2nd March, 2001.

2001 P L C (C.S.) 1084

[Lahore Nigh Court]

Before Amir Alam Khan, J

ABDUL HAMEED AKHTAR

Versus

SECRETARY, SMALL INDUSTRIES, GOVERNMENT

OF PUNJAB, LAHORE and 2 others

Writ Petition No.829 of 2OOOl13WP, decided on 12th June, 2000.

Civil Service----

----Transfer of civil servant---Transfer was an incident of service and every employee, big or small, was obliged under the law to work wherever he was sent by his employer, be that it was a case of private employment or Government service---Transfer could only be made within the domain and administrative control of the employer or the Authority who in turn was vested with the power to transfer the employee---If employees of the "Vocational Training Centre" were performing their duties in the domain and under the control of "Punjab Small Industries Corporation" and the Centres were taken out of the domain and administrative control of Corporation and were placed ,under the domain and administrative control of newly created Authority namely "Technical Education and Vocational Training Authority (T.E.V.T.A.)" civil servant could not be transferred from one Authority to the other for the domain of the two Authorities were independent and exclusive of each other---Civil servant having been taken within the folds of Punjab Small Industries Corporation, could not be transferred to another Authority created and established under a different statute---Transfer of civil servant by said Corporation, to a centre under the administrative control of Technical and Vocational Training Authority, was absolutely without jurisdiction and without lawful authority.

Ch. Muhammad Afzal Cheema for Petitioner.

Saleem Nawaz Abbasi, A.A.-G. alongwith Akhtar Ali Qureshi, A.D. (Legal), PSIC for Respondents Nos. l and 2.

M. Shamsher Iqbal Chughtai for Respondent No.3.

Date of hearing: 11th May, 2000.

2001 P L C (C.S.) 1236

[Lahore High Court]

Before Khalil-ur-Rehman Ramday and

Karamat Nazir Bhandiri, JJ

ZAFFAR HUSSAIN

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others

Writ Petition No. 16811 of 1999, decided on 4th December, 2000.

(a) Punjab Civil Servants Act (VIII of 1974)-----

----S. 4---Constitution of Pakistan (1973), Art.27(1), first proviso [as amended by Constitution (Sixteenth Amendment) Act (VII of 1999)]--­Appointment through quota system---Provisions of first proviso to Art. 27(1) of Constitution of Pakistan, (1973) [as amended], had provided that posts could be reserved for persons belonging to any class or area to secure their adequate representation in the service of Pakistan---Article 27(1), proviso was only enabling and permissive in nature and it could never be read to mean that all Governments and Authorities were under any direction by the Constitution to mandatorily reserve seats for persons belonging to different areas but only a provision had been made allowing any Government and Authority to follow quota system if it was so desired---Government or Authority was not under any compulsion to reserve seats for persons belonging to certain areas---No right was vested in any citizen to seek a direction from High Court to the Government and Authority to provide for special exclusive seats for such person belonging to different districts or areas of the Province---Discretion was left to an employer to keep or not to keep such special seats---If some one wished to follow it he could do so and if any Department did not consider it necessary or appropriate to do so, it was at liberty not to do so.

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

---Art.199---Disqualification for grant of discretionary relief---Petitioner had appended documents with his Constitutional petition which he lad obtained otherwise than in accordance with law---Such misconduct of petitioner was sufficient to disqualify him for grant of any discretionary relief.

Hafiz Tariq Naseem for Petitioner.

Mushtaq Ahmed Mohal for the P.P.S.C. Muhammad Shan aul for A.-G.

Date of hearing: 4th December, 2000.

2001 P L C (C:S.) 1239

[Lahore High Court]

Before Muhammad Nawaz Abbasi, J

KHADIM HUSSAIN

Versus

Dr. FARZANA CHAUDHRY and others

Writ Petition No.8/S of 2000, decided on 9th February, 2001.

Civil Servants Act (LXXI of 1973)---

----S.8---Constitution of Pakistan (1973), Arts.199 & 212---Constitutional petition---Competency of---Seniority---Determination .of---Petitioner/civil servant in his petition had sought determination of his seniority---Matter raised in the petition being related to terms and conditions of service, same could not be adjudicated by the High Court in exercise of its Constitutional jurisdiction in view of bar contained in Art.212 of Constitution of Pakistan (1973).

Asadullah Rashid v. Haji Muhammad Munir and others 1998 SCMR 2129; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Sarfraz Ahmad l;Iiraja v. Water and Power Development Authority and others 1999 SCMR 2828; Finance Secretary, Government of Pakistan, Islamabad and 2 others. v. Shahid Hussain and others 1992 SCMR 77; Muhammad Azam Jamali and 11 others v. Government of Pakistan through Secretary/Chairman, Ministry of Railways and 33 others 1992 PLC (C.S.) 637; Khaliq-uz-Zaman Chaudhry, Civil Judge 1st Class, Lahore and 72 others v. Government of the Punjab 1993 PLC (C.S.) 1322 and Ghulam Hussain Baluch v. Liaqat Ali Baloch 1999 PLC (C.S.) 397 ref.

Dr. G.S. Khan for Petitioner.

Qezi Ahmad Naeem Qureshi, Federal Counsel with Dilshad Ahmad, S.O., Establishment Division, Muhammad Din, D.S., Health and Liaquat Ali, S.O., Health Department.

Babar Bilal with Dr. Farzana Chaudhry for Respondent No. 1.

2001 P L C (C.S.) 1251

[Lahore High Court]

Before Karamat Nazir Bhandari, J

SARFRAZ

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, HEALTH DEPARTMENT, LAHORE and others

Writ Petition No. 10272 of 1999, decided on 8th June, 1999.

Constitution of Pakistan(1973)-----

----Art.199---Civil service---Transfer---Petitioner, claiming to be a social worker had filed Constitutional petition as pro bono publico questioning the legality of the order whereby the earlier order of transfer of a civil servant was cancelled---Petitioner alleged that said civil servant was transferred due to lot of complaints against her, but her transfer had been undone under the influence of the Minister---Validity---Matter was purely administrative and it was doubtful if the petitioner had the locus standi to file Constitutional petition as he could not be an aggrieved person---Petitioner could make representation to concerned Authority which could decide the matter in accordance with law after providing him an opportunity to substantiate his point of view.

Dr. Ehsan-iil-Haqt s Khan for Petitioner.

2001 P L C (C.S.) 70

[Peshawar High Court]

Before Mian Shakirullah Jan and Talat Qayum Qureshi, JJ

SALEEM AHMAD

versus

FEDERAL MINISTRY PETROLEUM

through Secretary, Gas and Natural Resources of Pakistan and another

Writ Petitions Nos. 367, 7 of 1998 and 309 of 1997, decided on 25th May, 2000.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Termination of service---Enforcing of right in exercise of Constitutional jurisdiction---Non-issuance of show-cause notice before termination of service on expiry of contract period ---Effect--­Petitioners were selected as Management Trainees for a fixed period of 2 years with a condition that they would not be entitled for regular job/service in the company---Contention by the petitioners was that no show-cause notice was issued to the petitioners before termination of their services ---Validity--­Order passed by the company was not a termination order rather was information given to the petitioners about expiration of the contract period of their training---Where appointment letter was for a fixed period, petitioners had no right which could be enforced in exercise of Constitutional jurisdiction of High Court---Petition was dismissed in circumstances.

Abdullah Mirza for Petitioner.

Saleem Baig for Respondent No.2.

Date of hearing: 25th May, 2000.

2001 P L C (C. S.) 442

[Peshawar High Court]

Before Muhammad Qaim Jan Khan, J

MIR AFZAL

versus

LAL BADSHAH and 7 others

Civil Revision No. 101 of 1999, decided on 1st November, 2000.

North‑West Frontier Province Civil Servants (Appeal) Rules, 1986‑‑‑‑

‑‑‑‑Rr. 3 & 9‑‑‑Civil Procedure Code (V of 1908), S.115‑‑‑Absence from duty‑‑‑ Termination of service‑‑‑Services of respondent were terminated after issuing him show‑cause notice on charge of remaining absent from duty‑‑­Respondent instead of tiling appeal as provided under North‑West Frontier Province Civil Servants (Appeal) Rules, 1986; directly filed civil suit against 'the‑order terminating his service‑‑‑Suit was dismissed by Trial Court, but Appellate Court set aside the judgment and decree of Trial Court-‑‑Revision had been filed against judgment of Appellate Court ‑‑‑Validity‑‑‑ Remedy of appeal under the Rules was mandatory and if respondent had failed to get favourable order in appeal, he could have moved the Civil Court‑‑‑Charges against respondent had fully been proved and his services were terminated after adopting proper procedure‑‑‑Order of Appellate Court below being groundless, was set aside in revision by High Court.

Saleemullah Khan' for Petitioner.

Rustam Khan Kundi and Ghulam Hur Khan for the State and for Respondents Nos.2 to 8.

Date of hearing: 1st November, 2000.

2001 P L C (C. S.) 902

[Peshawar High Court]

Before Malik Hamid Saeed and Ejaz Afzal Khan, JJ

WAJID ALI

versus

PROVINCE OF N.-W.F.P. through Chief Secretary and 3 others

Writ Petition No.816 of 2000, decided on 7th December, 2000.

(a) Civil service---

----Promotion---Promotion was not a vested right and the Government had the right to enhance the qualification and the standard for recruitment and promotion in order to maintain the efficiency in service.

Government of N.-W.F.P. Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzafar Iqbal and others 1990 SCMR 1321 ref.

(b) West Pakistan Deputy Superintendents of Police Services Rules, I 964---

----R.5---North-West Frontier Province Service Tribunals Act (I of 1974), S.4--- Constitution of Pakistan (1973), Art. 199---Constitutional petition--­Recruitment and promotion --- When the Legislature in its wisdom had amended rules for filling the post of Deputy Superintendent of Police through direct recruitment, High Court in exercise of its Constitutional jurisdiction could not substitute its own view for that of the Legislature particularly when it had not been canvassed before the Court that said amendment was mala fide and had been introduced with ulterior motive or otherwise was violative of any of the Constitutional provision---Question of eligibility or ineligibility for being considered for promotion or for excluding civil servants from consideration for promotion, fell within 'exclusive jurisdiction of Service Tribunal---Even the vires of law or rules affecting terms and conditions of service could be questioned before Service Tribunal and Constitutional petition would not be maintainable in that respect.

Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others 1992 SCMR 365 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division Islamabad and others 1991 SCMR 1041 ref.

Shahzada Shahpur Jan for Petitioner.

2001 P L C (C. S.) 915

[Peshawar High Court]

Before Abdur Rauf Khan Lughmani, J

MOEEN-UD-DIN KHAN

versus

GOMAL UNIVERSITY, D.I.KHAN through Vice­ Chancellor and 7 others

Civil Revision No.47 of 1996, decided on 30th March, 2000.

Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R.8---Seniority, fixation of---Refusal to give selection grade---Petitioner gave his option requesting for absorption in the University on permanent basis-- -Petitioner after the absorption requested for the selection grade which was not allowed by the Authorities---Petitioner assailed the refusal of Selection Grade in civil suit which was dismissed and appeal also met the same fate---Validity---Where the absorption of the , petitioner in the University was on the basis of the option exercised by him with his free choice, determination of seniority was within the competency of the concerned Authorities---Persons held senior to the petitioner were already on regular strength of the University and the petitioner could not claim seniority over the employees of the University appointed prior to absorption of the petitioner---Authorities had no mala fide in refusing the selection grade in circumstances.

Sh. Muhammad Bashir Gohar for Petitioner.

S. Zafar Abbas Zaidi for Respondents Nos. l to 7.

Inamullah Khan for Respondent No.8.

Date of hearing: 4th December, 1998.

2001 P L C (C.S.) 756

[Quetta High Court]

Before Aman Ullah Khan and Ahmad Khan Lashari, JJ

Sardar MUHAMMAD AMJAD DURRANI

versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN, CIVIL SECRETARIAT, QUETTA and 5 others

Constitutional Petition No. 682 of 2000, decided on 19th March, 2001.

(a) Balochistan Development Authority (Efficiency and Discipline) Rules, 1987---

-----R. 5(c)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Dismissal from service---Corruption, inefficiency and misconduct charge of---Petitioner was found guilty of such charges and was dismissed from service under R.5(c) of Balochistan Development Authority (Efficiency and Discipline) Rules, 1987---Validity---Where the petitioner was guilty of defrauding the Government and corruption, such matter was to be referred to the law-enforcing agencies for initiating criminal proceedings against him--­Action of department to the extent of his misconduct or any illegality, irregularity was lawful under the Balochistan Development Authority (Efficiency and Discipline) Rules, 1987.

(b) Penal Code (XLV of 1860)---

----Ss. 409, 467, 468, 471 & 109---Prevention of Corruption Act (I1 of 1947)., S.5(2)---Constitution of Pakistan (1973), Art. 199---Constitutional petition---Registration of two F.I.Rs. for the same offence---Failure to appear before Trial Court in compliance of non-bailable warrants---Petitioner 'was alleged to be guilty of corruption, inefficiency and misconduct---After registration of F.I.R. against the alleged act of corruption, the department decided to proceed in the matter departmentally---Petitioner was found guilty on all the charges and he was dismissed from service---Despite the fact that an F.I.R. was already registered, the Authorities got another F.I.R. registered against the petitioner for the same offence---Validity---Where F.I.R. on the same allegation had already been registered, registration of second F.I.R. was not correct---Petitioner failed to appear before High Court and also did not surrender himself before the Trial Court in consequence of non-bailable warrants issued against him---High Court refused to grant any discretionary relief to the petitioner in exercise of Constitutional jurisdiction---Petition was dismissed in circumstances.

Muhammad Aslam Chishti for Petitioner.

Ikhtiar Khan Marghazani, A.-A.G. for Respondents.

Date of hearing: 21st December, 2000.

2001 P L C (C.S.) 771

[Quetta High Court]

Before Aman U11ah Khan and Ahmed Khan Lashari, JJ

ABDUL BASHIR and 9 others

versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat, Quetta and 3 others

Constitutional Petitions Nos. 950 of 1999 and 548 of 2000, decided on 18th December, 2000.

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

----Art. 199(2)(b)(ii)---Quo warranto, writ of---Maintainability---High Court in exercise of its Constitutional jurisdiction is competent to enquire from a person holding a public office as to under what authority of law he claimed to hold that office.

Masoodul Hassan v. Khadim Hussain PLD 1963 SC 203 and Cap. (Retd.) Muhammad Naseem Hijazi Y. Province of Punjab through Secretary, Housing and Physical Planning and 2 others 2000 SCMR 1720 ref.

(b) Interpretation of statutes---

----Departure from Rules---Where a statute requires a thing to be done in a particular way, it must be done by the Authority in the manner as prescribed by the statute, else departure from the Rules would invalidate the thing done in the manner other than prescribed by the Rules.

Atta Muhammad Qureshi v. The Settlement Commissioner, Lahore Division, Lahore and 2 others PLD 1971 SC 61 and Craies on Statutory Laws, 6th Edn. ref.

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

Art. 199---Constitutional petition---Appointments made in violation of the Rules and in excess of authority---Inspectors were appointed by the Authorities without relaxing the Rules and without availability of vacancies, in haphazard manner, deviating from the Rules---Validity---Where the appointments were made in violation of the Rules and in excess of authority by the Department, such appointments held of no legal effect---High Court directed the Government departments to make all appointments in accordance, with the Rules and directed the head of the departments that while making such appointments, Rules should be followed strictly to make the process of appointments transparent, so that there should dot be any heart burning and ill-will amongst the public servants and other contestants ---Constitutional petition was allowed accordingly.

(d) Civil Service--

----Appointment---Illegal orders---While making appointments, head of departments should not follow illegal orders issued by the concerned Ministers or any other Authority.

H. Shakil Ahmad and Ayaz Sawati for Petitioners (in C.P. No. 950 of 1999).

Mujeeb Ahmad Hashmi with Ashraf Khan Tanoli, A.-G. for Respondents (in C.P. No. 950 of 1999).

Basharatullah and Mujeeb Ahmad Hashmi for Petitioners (in C.P. No. 548 of 2000).

Ashraf Khan Tanoli, A.-G. for Respondents (in C.P. No. 548 of 2000).

Dates of hearing: 16th, 17th and 31st October, 2000.

2001 P L C (C. S.) 794

[Quetta High Court]

Before Tariq Mahmood and Ahmed Khan Lashari, JJ

AHMED KHAN

versus

SECRETARY, HEALTH DEPARTMENT, GOVERNMENT OF BALOCHISTAN, QUETTA and 2 others

Constitutional Petition No.S-103 of 2000, decided on 17th March, 2001.

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

----Arts. 199 & 212---Civil service---Jurisdiction of High Court---Scope--­Where relief sought was beyond powers of Service Tribunal, Constitutional petition to the High Court was maintainable.

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

----Art. 212---Service Tribunals Act (LXX of 1973), S.4---Civil service--­Bar contained in Art.212 of the Constitution---Applicability---Where any of the conditions mentioned in S.4,. Service Tribunals Act, 1973, were non­existent in a case, then the bar contained in Art.212 of the Constitution was not operative.

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

----S. 4---Constitution of Pakistan (1973), Art.212---Expression "aggrieved"---Applicability---Service Tribunal, jurisdiction of---Civil servant tiled departmental appeal and succeeded, thus, original orders of termination merged in the appellate order---Effect---Such civil servant was not an aggrieved person and could not approach the Service Tribunal.

(d) Balochistan Civil Servants (Appeal) Rules, 1983---

----Rr.5(3) & 7(1)---Constitution of Pakistan (1973), Art.199--­Constitutional petition---Appeal, withholding of---Failure to file departmental appeal through head office---Civil servant who was terminated from service filed departmental appeal directly---Appeal so filed was accepted and the civil servant wasre-instated in service---Authorities raised objection to the appeal on the ground that provisions of Rr.5(3) & 7(1) of Balochistan Civil Servants (Appeal) Rule's, 1975, were not complied with--­Validity---Held, though it was, proper for the civil servant to submit appeal through head office but as the same was considered on merits and was decided in favour of the civil servant, the appellate order could not be ignored simply on the ground that departmental appeal was not routed through the head office---Requirement under R.7(1) of Balochistan Civil Servants (Appeal) Rules, 1983 was directory in nature and not mandatory.

(e) Balochistan Civil Servants (Appeal) Rules, 1983---

---R. 6(3)---Constitution of Pakistan (1973), Art.199---Constitutional petition---Civil service---Non-compliance of order passed by Appellate Authority---Civil servant succeeded in departmental appeal and order of termination of service of the civil servant was set aside by the Appellate Authority---Grievance of the civil servant was that -the order of the Appellate Authority was not complied with---Validity---Order of Appellate Authority was to be given effect under R.6(3) of Balochistan Civil Servants (Appeal) Rules, 1983---High Court directed the Authorities to give effect to the order passed by the Appellate Authority as the Authorities were under legal obligation to do so.

Naeem Akhtar for Petitioner.

Dr. Siddique Bugti, Director He21th for Respondents.

Date of hearing: 10th March, 2001.

2001 P L C (C.S.) 23

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

SOHAIL IQBAL

versus

GOVERNMENT OF THE PUNJAB through Secretary, Agriculture and 3 others

Appeals Nos. 1297 and 1561 of 1999, decided on 22nd May, 2000.

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

----Rr.2(1)(b),6(4), 7-A, 8 & 18---Punjab Service Tribunals Act (IX of 1974), S.4---De novo inquiry---Validity---Appeal before Service Tribunal--Order of Authorised Officer imposing minor penalty of "censure" passed under R.7-A of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 was set aside by Secretary, Agriculture directing de novo inquiry exercising revisional power under R.18 of said Rules, despiteinquiry proceedings were never reported to him either under R.6(4) or R.7-A of said Rules---Competency of such inquiry---Secretary who was Authority in terms of R.2(l)(b) of -Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, could disagree with findings of Authorised Officer and order de novo inquiry only on two situations; firstly when proceedings were reported to him under R.6(4) of said Rules with recommendations for imposition of major penalty and secondly when proceedings were forwarded to him under R:7-A of said Rules with recommendations for imposition of major penalty or for dropping the proceedings---In case proceedings having never been reported to, "Authority" by Authorised Officer either under R.6(4) of Punjab Civil servants (Efficiency and Discipline) -Rules,. 1975 or under R.7-A of said Rules, no occasion arose for Secretary to order de novo inquiry under R.8 of said Rules---Equally no warrant existed for-respondent­ Authority for invoking revisional powers available to Government under R.18 of said Rules for reason that "Secretary" was himself "Authority" in case and could not invoke revisional powers of Government under R. 18 of said Rules---Minor penalty of "censure" awarded to appellant/civil servant by Authorised Officer being final in itself same could not have been tinkered with by Secretary under revisional powers which only lay with Government.

(b) Civil service---

---- Permanent transfer to other Department---Repatriation of---Civil servant working in "Water Management Wing" of Agriculture Department, was permanently transferred on his option to "Extension Wing" of Agriculture Department on condition that he would not retain his lien with "Water, Management Wing" from where he was transferred to "Extension Wing"--­Civil servant who was permanently adjusted in Department to which he was transferred, his subsequent repatriation and suspension, were without lawful authority and of no legal effect.

(c) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 18---Terms "any authority" and "the authority" ---interpretation.

Qazi Umer Farooq and Syed Safdar Hussain for Appellants.

Ch. Manzoor Hussain, District Attorney for Respondents.

Date of hearing: 17th May, 2000.

2001 P L C (C.S.) 67

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman and Syed Aal-e-Ahmad, Member-I

Dr. SABIR ZAMEER SIDDIQVI

versus

SECRETARY TO GOVERNMENT OF PUNJAB, AGRICULTURE DEPARMTENT and 6 others

Appeal No.734 of 1999, heard on 20th May, 2000.

Civil service-

---- Pro forma promotion---Entitlement---Judgment of Supreme Court holding civil servant to be senior to the co-civil servants who were granted pro forma promotion earlier had attained finality and Authority had acted upon the judgment so far as seniority of civil servant over co-civil servants was concerned, but did not grant pro forma promotion to civil servant from the date co-civil servants were granted the promotion---Validity---Authority was under legal obligation to-comply with judgment of Supreme Court in letter and spirit and to grant relief of pro forma promotion sought by civil servant in terms of judgment of Supreme Court.

1991 SCMR 530 and 1991. SCMR 1127 ref.

Qazi Umar Farooq for Appellant. Rata Safdar Ali Asif, District Attorney for Respondents.

Date of hearing: 20th May, 2000.

2001 P L C (C.S.) 74

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member.

Maulvi FAIZ MUHAMMAD

versus

PROVINCE OF PUNJAB and another

Appeal No.42 of 1996, decided on 19th July, 2000.

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

----S. 4(c)---Appeal---Limitation---Delay, condonation of---Civil servant who filed appeal with delay of 37 years had filed application for condonation of such inordinate delay in filing appeal contending that he had filed a suit in Civil Court which was dealt with up to the High Court and then to Supreme Court and point of jurisdiction was not touched---Jurisdiction was vested by law and not by Courts and ignorance of law was no excuse---Civil servant had litigated at all available forums but he was not granted relief claimed by him---No justification, was thus, left for condonation of delay---Even otherwise no appeal would lie to Service Tribunal against order or decision of Departmental Authority made at any time before 1st July, 1969 as provided under S. 4 (c) of Punjab Service Tribunals Act, 1974.

M. Akhtar Munir Peerzada for Appellant.

Muhammad Ashiq Bhatti, D.A. for Respondents.

Date of hearing: 19th July, 2000.

2001 P L C (C.S.) 79

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

ABDUL MAJID

versus

DISTRICT EDUCATION OFFICER (M), GUJRANWALA and others

Appeal No. 715 of 1996, decided on 25th July, 2000.

Civil service---

---- Termination of service---Reinstatement---Seniority---Claim for arrears of pay---Civil servant whose services were terminated after about eight months of his appointment was reinstated after about three years from his termination---Civil servant claimed arrears of pay for the period he remained out of job after his termination and also claimed seniority from the date of his initial appointment---Reinstatement of the civil servant was fresh appointment from the date of reinstatement---Civil servant had himself given undertaking not to claim arrears of pay for period he remained out of job, but he had not foregone his right of seniority---Civil servant was not entitled to arrears for period he remained out of job but he was entitled to seniority from the date of his initial appointment because he was reinstated in service which included such benefit---Civil servant was granted seniority from date of his initial appointment in circumstances.

Ch. Tariq Javed for Appellant.

Muhammad Ashiq, D.A. for Respondents.

Date of hearing: 25th July, 2000.

2001 P L C (C. S.) 82

Punjab Service Tribunal

Before Abdul Hafeez Cheema, Chairman

MUAHMMAD HUSSAIN

versus

THE MEMBER, BOARD OF REVENUE, GOVERNMENT OF THE PUNJAB and another

Appeal No. 1248 of 1996, decided on 23rd June, 1999.

Civil service---

----Dismissal from service---Civil servant, who had rendered twenty7four years' service in the Department, was dismissed from service without issuing him any show-cause notice and without affording him opportunity of hearing on the ground that he, after obtaining his two years' extraordinary leave, had proceeded abroad without permission of the Department and thus had committed misconduct---Civil Servant had not concealed that after obtaining leave, he had proceeded abroad---Civil servant, who had put in a long service and had unblemished service record had not been able to properly maintain family with his meagre pay; went abroad to avail chance available to him to improve his earnings--Departure of a civil servant to a foreign country without obtaining leave from the Department indeed was very objectionable act, but while deciding such matters, ground realities should have been realised---Penalty of dismissal from service imposed on civil servant who served Department for about a quarter century with unblemished service record, was not commensurate with the guilt attributed to him---Penalty of dismissal from service was altered into that of compulsory retirement:

Raja M. Saleem for Appellant.

Ch. Manzoor Hussain, D.A. for Respondents.

Date of hearing: 23rd June, 1999.

2001 P-L C (C.S.) 86

[Punjab Service Tribunal]

Before Ch. Akhter Hussain, Member-IV

MUHAMMAD ABBAS

versus

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and 2 others

Appeal No. 1689 of 1994, decided on 29th February, 2000.

Civil service---

Removal from service---Civil servant who was involved in a criminal case of kidnapping, was prosecuted but was acquitted of the charge by Trial Court holding that prosecution had failed to prove its case against accused/civil servant---Civil servant despite the° acquittal was removed from service by Authority holding that though he was acquitted but charges levelled against him in F.I.R. had been proved during the investigation of the case--­Validity---Ignoring findings of criminal Court and passing order relying on investigation which had been turned down by Court was not fair---Judgment of Court should have been given due consideration---Order of removal from service passed against civil servant was set aside and he was ordered to be re­instated from the date of his removal from service.

Shah Ahmad for Appellant.

Rana Muhammad Latif, Inspector Legal for Respondents.

Date of hearing: 29th February, 2000.

2001 P L C (C.S.) 88

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman, Syed Aal-e-Ahmad, Member-I

and Muhammad Latif Qureshi, Member-II

Sh. JAVED SARWAR

versus

GOVERNMENT OF THE PUNJAB

Appeal No. 893 of 1998, decided on 31st July, 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975--

----R. 4---PunjabService Tribunals Act (IX of 1974), S. 4---Dismissal from service---Alteration of punishment---Civil servant was dismissed from service after holding enquiry against him on allegation that he in violation of policy of Government and directions of Commissioner was instrumental in allotment of valuable plot of land belonging to Highway Department -to another person---Allegation against civil servant had fully been established and it had also been established that what had been done by civil servant was not a conduct becoming of a Government Officer---Cavil servant had failed to attribute any ill-will or personal grudge either to Enquiry Officer, Authorised Officer or to the Authority---Charge against civil servant though had been fully proved beyond any shadow of doubt. But redeeming features of the case were in context of punishment awarded to civil servant---Concerned Authorities who passed allotment orders in respect of plot in question, were also held responsible by Enquiry Officer, but no action was taken against any of them and possession of plot in question had not yet been delivered to allottee who himself had abandoned his rights arising from the allotment--­Civil servant had a service career extending over more than three decades and proceedings against him were a solitary instance---Penalty of dismissal from service was altered to that of compulsory retirement, in circumstances.

1993 PLC (C.S.) 1443 and 1988-SCMR 691 ref.

Imtiaz Javed for Appellant.

Khadim Hussain Sandhu, DA for Respondent.

Dates of hearing: 26th June, and 27th July, 2000.

2001 P L C (C.S.) 109

[Punjab Service Tribunal]

Before Ch. Akhtar Hussain, Member, III

MUHAMMAD AHMED TARIQ

versus

DISTRICT EDUCATION OFFICER (M-EE), ELEMENTARY EDUCATION, BAHAWALNAGAR

Appeal No. 799 of 1999, decided on 11th April, 2000.

Civil service----

---- Termination of service---Verbal order of termination of service carries no value in the eye of law---Civil servant was neither associated with any inquiry nor was provided any opportunity of defence before termination of his service---No proper order of termination was issued to civil servant--­Services of civil servant having been terminated in violation of prescribed procedure, his termination order was set aside and he was deemed to be in service from date his services were terminated.

Mrs. Rizwana Anjum Mufti for Appellant.

Kh. Haider Ali, District Attorney for Respondent.

Date of hearing: 11th April, 2000.

2001 P L C (C.S.) 117

[Punjab Service Tribunal]

Before Jawad Ahmad Mufti, Member-II

MUNIR AHMED

versus

GOVERNMENT OF THE PUNJAB and 2 others

Appeal No.51 of 2000, decided on 30th June, 2000.

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

----S.5---Civil Procedure Code (V of 1908), Preamble---Proceedings before Service Tribunal---Application of provisions of Civil Procedure Code and powers of Tribunal there under---Service Tribunal by virtue of provisions of S.5 of Punjab Service Tribunals Act, 1974, was to be deemed to be a Civil Court and would have same powers as vested by Code of Civil Procedure, 1908---Provisions of said Code would be applicable to, proceedings before Service Tribunal.

(b) Punjab Rules of Business, 1974---

----R.17---Punjab Civil Servants Act (VIII of 1974), S.22---Punjab Service Tribunal Procedure Rules, 1975, Rr.12/13---Punjab Service Tribunals Act (IX of 1974), S.4---Permanent retirement on allegation of misconduct ---Re­instatement of---Civil servant who was Sub-Engineer was retired prematurely along with Sub-Divisional Officer on allegations of misconduct, corruption, inefficiency and criminal breach of trust---Said Sub-Divisional Officer who proved to be main accused, was pardoned by Authorities and was reinstated---Civil servant could rot secure his reinstatement despite Administration Department, after getting advice from Law Department, had recommended that his case was on better footing than Sub-Divisional Office-, who had been reinstated in service and said recommendations were approved by Chief Minister---No regular inquiry was held against civil servant in the manner which principles of natural justice required--­Authorities had not deemed that civil servant was not directly responsible for mischief and that Sub-Divisional Officer, who was pardoned and reinstated by same punishing Authority was responsible for said mischief--­Service Tribunal accepting appeal set aside order of Authorities whereby civil servant was permanently retired and ordered his reinstatement from date of his premature retirement.

1997 PLC (C.S.) 936; 1989 PLC (C.S.) 650; PLD 1984 FSC 34 and 2000 PLC (C. S.) 697 ref.

Sh. Ayub Hassan for Appellant.

District Attorney with D.R. for Respondents

Date of hearing: 26th June, 2000.

2001 P L C (C.S.) 172

[Punjab Service Tribunal]

Before Aqeel Ahmad Khan, Chairman

Rana MUKHTAR AHMAD

versus

COMMISSIONER, MULTAN

Appeal No.2776 of 1997, decided on 18th September, 1997.

Civil service‑‑‑

‑‑‑‑Transfer‑‑‑Civil servant who was a Sub‑Engineer, was transferred from one place of working to another and after only 8 months he was again transferred to another place‑‑‑Such transfer of civil servant which was premature was made without any valid reason‑‑‑Order of premature transfer of civil servant being violative of policy, was set aside, by Service Tribunal in circumstances.

Dr. Ehsanul Haq for Appellant.

S. Abbas Raza, D.A. for Respondents.

M.Y. Bhatti for Respondent No.3.

2001 P L C (C.S.) 241

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUNEER AHMAD, EX‑PTC TEACHER

versus

DIRECTOR EDUCATION (E), DIRECTORATE OF EDUCATION, D.G. KHAN and 2 others

Appeal No.2800 of 1999, decided on 2nd March, 2000.

Civil service‑

‑‑‑‑Reversion‑‑‑Locus poenitentiae, principle of‑‑‑Applicability‑‑‑Civil servant who initially was recruited as "Mali" passed Matriculation Examination in second division and also obtained P.T.C. Certificate‑‑‑Civil servant, on the basis of said qualifications was promoted and appointed as P.T.C. Teacher‑‑‑After about two years civil servant was reverted to his original position, after issuing him show‑cause notice on grounds; firstly that he got Third Division in Matric secondly that despatch number allotted to appointment order of civil servant was in conflict with office record and thirdly that appointment order was signed by incompetent officer‑‑­Validity‑‑‑Civil servant was admittedly Second Division Matriculate and also P.T.C. in First Division and thus possessed requisite qualifications‑‑‑Civil servant was not responsible for wrong despatch number and signing of appointment order by incompetent officer which was fault of the department and not of civil servant‑‑‑Civil servant having worked as P.T.C. for quite some time, valuable right had accrued to him and after a long time Authority could not be allowed to turn around and say that order passed by Authority was incompetent in view of principle of locus poenitentiae‑‑‑Civil servant was allowed to continue as P.T.C. Teacher.

PLD 1964 SC 572 and PLD 1969. SC 407 ref.

Mahmood Ahmad Qazi for Appellant.

Ch. Manzoor Hussain, D.A. for Respondents.

Date of hearing: 2nd March, 2000.

2001 P L C (C.S.) 245

[Punjab Service Tribunal]

Before Jawad Ahmed Mufti, Member‑II

Ch. SHAFAQAT AHMED

versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 5 others

Appeal No.701 of 1999, decided on 3rd July, 2000.

Police Rules, 1934‑‑‑‑

‑‑‑‑‑R.13.18‑‑‑Punjab Civil Servants Act (VIII of 1974), S.8‑A‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Promotion‑‑‑Confirmation from date of appointment/promotion on ground of acts of gallantry and excellent performance‑‑‑Appeal before Service Tribunal‑‑‑Civil servant who joined Police Department as A.S.‑I., was promoted as Sub‑Inspector after about nine years of his appointment and was confirmed as such after more than two years from his promotion‑‑‑Subsequently civil servant was promoted as Inspector, and was confirmed on said post after two years of his promotion and lastly he was promoted as Deputy Superintendent of Police, and was confirmed long after said promotion‑‑‑Civil servant had claimed that due to his case of gallantry and excellent performance, his confirmation, right from A.S.‑I. was required to be revised under 8.13.18 of Punjab Police Rules, 1934 and he was entitled to be confirmed at all stages from date of promotion or from date of act of gallantry whichever would be earlier‑‑­Representations of civil servant having been rejected by Authorities, civil servant had filed appeal before Service Tribunal‑‑‑Performance of civil servant throughout had been commendable and he was holder of highest award namely "Quaid‑e‑Azam Police Medal"‑‑‑Civil servant, many a time was recommended for out of turn promotion which was permissible under S.8‑A of Punjab Civil Servants Act, 1974 on basis of his outstanding service record‑‑‑Civil servant was not asking for out of turn promotion on account of his acts of gallantry or outstanding performance, but he was asking for his confirmation from date of his appointment/promotion as A.S.‑I., Sub­Inspector and Inspector with consequential service benefits including promotion as Deputy Superintendent of Police and so on‑‑‑Two prerequisite conditions to successfully press into service 8.13.18 of Police Rules, 1934 which were, existence of vacancy and satisfactory service record, having fully been fulfilled by civil servant, he was entitled to relief claimed for‑‑­Service Tribunal setting aside orders passed by Authorities below whereby representations of civil servant were rejected, granted relief claimed for by civil servant.

Javed Khan's case D.S.P. 2180 of 1997; Syed Manzar‑Ali Shah's case 640 of 1996; Messrs Zulfiqar Ahmed and others 912 of 1994, 451 of 1994, 1224 of 1994, 351 of 1994 and 118 of 1992; 1995 PLC (C.S.) 1140; 1997 PLC (C.S.) 687; 1998 PLC (C.S.) 373; 1999SCMR 1594; 20001 PLC (Q.S.) 697; Chief Secretary v. Raja Mumtaz Ahmed, S.P. 1996 SCMR 1945 and Inspector‑General of Police v. Qayyum Nawaz Khan 1999 SCMR 1594

Masud Ahmed Riaz for Appellant. District Attorney for Respondents Nos. l and 2

Date of hearing: 3rd July, 2000.

2001 P L C (C.S.) 253

[Punjab Service Tribunal]

Before Jawad Ahmed Mufti, Member-II

AHMED ALI, A.S.-I., POLICE, OKARA

versus

D.I.-G. and 10 others

Appeal No.926 of 1995, decided on 17th June, 2000.

(a) Civil service-

---- Relaxation in upper age limit---Civil servant, who was involved in Zina case, was dismissed from service by Competent Authority but in revision he, was awarded penalty of reduction in rank---Said punishment was also set aside, by Service Tribunal---During said proceedings many Head Constables junior to civil servant were selected for Intermediate class course and on successful passing of said course, were promoted as Assistant Sub-­Inspectors, but civil servant, who in the meantime had become over-age, was denied said selection---Civil servant had contended that he having been exonerated of criminal charge against him, was entitled to relaxation in upper age limit and. Authorities could not have refused to nominate him for Intermediate class course on ground that he had crossed prescribed age limit---Relocation in age limit could be given in cases of hardships or where civil servant would miss the bus for some untoward reasons for which he could not be blamed---Civil servant at relevant time was facing an action which was lecherous, and though he was exonerated in criminal case against him, but his record otherwise was also "chequered "---Civil servant could not claim equal treatment with those who had enviable service record---Rule of consistency could not be pressed into service for civil servant who, had blemished record---In absence of any ill-will on the part of Authorities for not allowing relaxation in upper age limit in case of civil servant, their order could not be interfered with.

(b) Civil service---

---Conduct of civil servant---Effect of criminal proceedings on Departmental proceedings---Standard of evidence/material in criminal cases was altogether different from material on service roll of a civil servant---In service matters, conduct of a civil servant was to be seen---Result of criminal proceedings could not always influence proceedings on Departmental side---Accused in some cases was not prosecuted on some technical grounds, but that would not be a bar for Authorities from enquiring into truth of charge against civil servant by examining his service record.

Masud Ahmed Riaz for Appellant.

Muhammad Wasim, Representative of L-G.P. and Mushtaq Hussain, Representative of S.P., Okara.

Date of hearing: 17th June, 2000.

2001 P L C (C.S.) 259

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

MANZOOR AHMAD

versus

SECRETARY TO GOVERNMENT OF PUNJAB

Appeal No. 1430 of 1998, decided on 5th April, 2000.

Civil Service --

----Move-over---Entitlement---Civil servant was granted "move-over" not from the date the same was due, but was granted after five years from the said date on the ground that penalty of "censure" was once imposed on him---Civil servant had been proceeded against on a number of charges, but Authorised Officer had exonerated him of the same and had imposed penalty of "censure" for his inability to reconcile the accounts---Civil servant possessed unblemished service record spread over 26 years and throughout his career he had been portrayed generally as a good officer---"Censure" or "warning" being a penalty of lowest order, could not be allowed to stand in the way of promotion/move-over---Refusal of Authority to grant move-over to civil servant from the due date thus had no legal justification.

1991 SCMR 1637 ref.

Al-Haj Muhammad Iqbal Chaudhry for Appellant.

Ch. Manzoor Hussain, DA and Khairat Baig, Deputy Superintendent and Mehmood, SC, DG, RD Department for Respondent.

Date of hearing: 5th April, 2000.

2001 P L C (C.S.) 270

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

MUNAWAR SULTANA

versus

DIRECTOR OF EDUCATION

Appeal No.2129 of 1997, decided on 6th April, 2000.

Civil service--

---- Natural justice, principles of---Termination of service---Civil servant was duly appointed by Competent Authority, after undergoing test/interview--­Civil servant, after appointment, took over .her charge as P.T.C. Teacher--­Services of civil servant were terminated without issuing her any notice and without providing her opportunity of hearing simply on ground that she was a Third Divisioner in Matric---Order of termination of services of civil servant passed in violation of principles of natural justice and by incompetent Authority was set aside, and she was ordered to be reinstated in sera ice.

1999 SCMR 2203; 1999 SCMR 2774; PLD 1959 SC 45; PLD 1965 SC 90 and 1972 SCMR 13 ref.

Ch. Muhammad Ikram Zahid for Appellant.

Ch. Manzoor Hussain, DA for Respondent.

Date of hearing: 6th April, 2000.

2001 P L C (C.S.) 329

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

MUHAMMAD AFZAL, S.V. TEACHER, GOVERNMENT HIGH SCHOOL, TAHLI TALBANI, TEHSIL, KHAIRPUR TAMEWALI, DISTRICT BAHAWALPUR

versus

DISTRICT EDUCATION OFFICER (MALE), BAHAWALPUR and another

Appeal No.628 of 1995, decided on 24th August, 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑

‑‑‑‑R. 6(3)‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑‑Removal from service‑‑‑Civil servant was removed from service after issuing him show‑cause notice on the ground that he had acquired service through bogus and illegal means‑‑‑Reply of civil servant to show‑cause notice was not considered and he was removed from service without assigning ground for dismissal‑‑‑Validity‑‑‑Removal from service was major penalty and called for proceedings under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 but such proceedings were not taken‑‑‑No Authorised Officer was appointed and Authority had itself acted as Authorised Officer‑‑‑If under R.6(3) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 Authorised Officer decided that it was necessary to hold enquiry, he would inform the civil servant forthwith by order in writing of action proposed to be taken against him and grounds of action, but, in the present case before issuing show‑cause notice said mandatory provisions were not complied with as neither charge‑sheet was given to civil servant nor inquiry was conducted and civil servant also was not provided opportunity of cross‑examining inquiry witnesses‑‑‑Neither the name of the informer was mentioned by the Authorised Officer nor the said informer was examined by the inquiry Officer‑‑‑Order of removal from service passed against civil servant was set aside in circumstances and he was ordered to be re‑instated in service.

M.A. Munir Pirzada for Appellant.

Muhammad Ashiq Bhatti, District Attorney for Respondents.

2001 P L C (C.S.) 356

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

Mst. SHAHEEN KAUSAR

versus

THE DIRECTOR EDUCATION (EE), BAHAWALPUR

DIVISION, BAHAWALPUR and, another

Appeal No. 1376 of 2000, decided on 24th August, 2000.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑‑

‑‑‑‑Rr.4& 6(3)‑‑‑Punjab Service Tribunals Act (IX of‑1974), S. 4‑‑‑Removal from service‑‑‑Civil servant, a P.T.C. Teacher was removed from service after issuing her show‑cause notice on ground that she was appointed without merit, contrary to Recruitment Policy and without observing procedural formalities‑‑‑No Authorised Officer was appointed‑‑‑Rule 6(3) of Punjab Civil Servants (Efficiency and Discipline) Rules; 1975 had provided that if Authorised Officer had decided that it was necessary to hold enquiry, he would inform civil servant forthwith by order in writing of action proposed to be taken against him and the grounds of action but in the present case, before issuing show‑cause notice said mandatory provisions of law were not complied with‑‑‑Order of removal passed without complying with mandatory provisions of law, was set aside and civil servant was ordered to be re­instated in service.

Ch. Parmoon Bashie for Appellant.

Muhammad Ashiq Bhatti, District Attorney for Respondents.

Date of hearing: 24th August, 2000.

2001 P L C (C.S) 432

[Punjab Service Tribunal]

Before Muhammad Latif Qureshi, Member‑II

MUHAMMAD ASLAM

versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 2 others

Appeal No.2112 of 1999, decided on 14th December, 2000.

Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑. .

‑‑‑‑Rr. 7, 8 & 12‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Misconduct‑‑‑ Compulsory retirement‑‑‑Civil servant was dismissed from service on charge of misconduct, but in Departmental appeal punishment of dismissal was converted into forfeiture of two years approved service‑-­Authority, after about a period of one year and five months in exercise of its revisional jurisdiction, after issuing show‑cause notice to civil servant; but without holding enquiry and without providing reasonable opportunity to civil servant to defend himself set aside order of Appellate Authority and awarded punishment of compulsory retirement from service with immediate effect‑‑‑Powers of revision conferred on the Authority under R.12 of Punjab Police (Efficiency and Discipline) Rules, 1975 were to be exercised judiciously, indiscriminately and in fair manner and within a reasonable time and not after lapse of considerable long time of about one year and five months‑‑‑Regular enquiry through an Enquiry Officer was sine qua non for imposition of, major penalty which could not be lost sight of by Competent Authority even while exercising revisional power‑‑‑Mere service of show cause notice in absence of regular enquiry would not serve the ends of justice‑‑‑When the very basis was illegal, superstructure raised thereupon, was bound to crumble down‑‑‑Colourable revisional exercise with inordinate delay, in absence of enquiry having prejudiced the civil servant, order passed against him was set aside and he was ordered to be reinstated.

Abdus Sattar v. S. P., Faisalabad 1984 PLC 639; 1995 SCMR 11; PLD 1986 SC 162; Ghulam Dastgir v. I.‑G., Prisons 1985 PLC 639; D.l.‑G. of Police, Lahore and others . Anis‑ur‑Rehman Khan PLD 1985 SC 134 and 1993 SCMR 603 ref.

Rana Zulqamain for Appellant.

Barkhurdar Warraich, Inspector Legal/DR alongwith Deputy District Attorney for Respondents.

Date of hearing: 15th November; 2000.

2001 P L C (C.S.) 648

[Punjab Service Appellate Tribunal]

Before Ch. Muhammad Sarwar, Member

RASHID AHMED

versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, EXCISE AND TAXATION DEPARMTENT, LAHORE and 3 others

Appeal No. 38 of 1992, decided on 12th October, 2000.

Punjab Civil Servants (Efficiency and Discipline) Ruler, 1975---

----Rr. 3, 4 & 6---Reduction to a lower post---Penalty was imposed on the civil servant on allegation of receiving illegal gratification without holding any enquiry against him and affording him an opportunity of cross­ examining the witnesses---Authorities had acted in haste and under political will and whole case against the civil servant was full of doubts and was controversial---Order awarding penalty to the civil servant, was set aside, in circumstances.

M. Mansoor Humayun for Appellant.

Muhammad Ashiq Bhatti, D.A. for Respondents:

Date of hearing: 12th October, 2000.

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2001 P L C (C.S.) 1062

[Punjab Service Tribunal]

Before Justice Riaz Kayani, Chairman

ALTAF HUSSAIN, INSPECTOR TRAFFIC POLICE, FAISALABAD

Versus

INSPECTOR-GENERAL OF POLICE. PUNJAB, LAHORE and 4 others

Appeal No. 1446 of 1999, decided on 12th May, 2001.

Civil service--­----

Promotion or fixation of seniority---Minor punishment could be not considered as impediment in the way of promotion or fixation of seniority civil servant.

Ch. Muhammad Ikram Zahid for Appellant.

District Attorney with D.R. for Respondent.

Date of hearing: 12th May, 2001.

2001 P L C (C.S.) 1064

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

ABDUL JAMIL KHAWAJA, DISTRICT ATTORNEY, RAHIM YAR KHAN

Versus

SECRETARY, LAW AND PARLIAMENTARY AFFAIRS

DEPARTMENT, GOVERNMENT OF THE PUNJAB, LAHORE and another

Appeal No.5 of 1995, decided on 26th April, 2001.

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

----Rr. 9(2) & 10-B---Promotion---Civil servant who was appointed a< Deputy District Attorney in B.S.17 was eligible for promotion on regular basis as District Attorney in B.S.18 after five years of his appointment buy after five years he was appointed as District Attorney on current charge basis and remained appointed as such for about four years---Civil servant made representation requesting that he could be promoted as District Attorney in B.S. 18 on regular basis from the date he was appointed on that post on current charge basis, but his representation was rejected on ground that no regular vacancy of District Attorney in B.S. 18 was available and that record of civil servant was incomplete---Evidence on record had proved that about twelve vacancies were available---Authority was to get the record of the civil servant completed and civil servant could not be held responsible for the same---Civil servant not only had become entitled to promotion on basis of seniority-cum-fitness as per Recruitment Rules as he had completed fiver years' service as Deputy District Attorney, but also on ground that he had been continuously working against the post of District Attorney B.S. 18 since his appointment to that post on current charge basis---Order regarding appointment of civil servant as District Attorney B.S.18 on current charge basis was converted into promotion on officiating basis and he was held to be entitled by Service Tribunal for annual increments accordingly with direction to place his case before Departmental Promotion Committee for promotion as District Attorney in B.S. 18 on regular basis from the date on which he was appointed on current charge basis.

(b) Civil service---

----Seniority---Seniority being vested right same could not be disturbed without assigning reason and without giving opportunity of hearing to the affected persons.

M. Munir Akhtar Pirzada for Appellant. District Attorney for Respondent.

Date of hearing: 26th April, 2001.

2001 P L C (C.S.) 1068

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

MUHAMMAD ASIF, SENIOR SCALE STENOGRAPHER

Versus

SECRETARY (SERVICES), SERVICE AND GENERAL

ADMINISTRATION DEPARTMENT, LAHORE and 2 others

.Appeals Nos.88 and 89 of 1996, decided on 8th May, 2001

(a) Civil service---

---- Officiating promotion---Officiating promotion had all the attributes of regular promotion except that it was for a specific period and was temporary in nature.

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

----R.10-B---Current charge appointment---Current charge appointment would be made where a post was likely to remain vacant for a period of less than six months and the Appointing Authority did not consider it expedient to make an appointment on ad hoc basis.

Ch. Manzoor Ahmad for Appellant.

District Attorney for Respondent.

Date of hearing: 8th May, 200

2001 PLC (C.S.) 1175

[Punjab Service Tribunal]

Before Aqeel Ahmad Khan, Chairman

NAZIR AHMAD HASRAT, CHIEF OFFICER, MUNICIPAL

COMMITTEE, JHANG

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, LG & RD DEPARTMENT/ CHAIRMAN, PUNJAB

LOCAL GOVERMENT BOARD, LAHORE and 2 others

Appeal No. 1670 of 1997, decided on 4th September, 1997

Civil service-----

----Transfer---Civil servant who was due to retire from service on attaining age of superannuation, was transferred only about one year before his retirement---Civil servant had challenged his transfer contending that under transfer policy he was entitled to be posted at a station of his choice, but his request was turned down without giving any reason---Request of civil servant having been turned down by Authority without any plausible reason, Authority was not justified to transfer civil servant at its own sweet-will without taking into consideration choice of civil servant.

Dr. Ehsan-ul-Haq Khan for Appellant.

Syed Abbas Raza, District Attorney for Respondents.

Date of hearing: 4th September, 1997.

2001 P L C (C.S.) 1185

[Punjab Service Tribunal]

Before Muhammad Aslam, Member-I

MUHAMMAD TUFAIL ANJUM

Versus

THE SECRETARY, GOVERNMENT OF THE PUNJAB, HEALTH

DEPARTMENT, CIVIL SECRETARIAT, LAHORE and 2 others

Appeal No. 1648 of 1997, decided on 20th February, 1998.

Civil service---

---- Termination of service---Services of civil servant were terminated on allegation that letter of appointment of civil servant was bogus and his appointment was fictitious---Charge on basis of which services of civil servant were terminated, was a serious charge---Termination of services of civil servants was a major penalty for which it was incumbent on Authority to carry out a regular Departmental enquiry against civil servant who allegedly was found to obtain appointments on bogus letter of appointment--­Allegation was that appointment of civil servant was against policy and his appointment letter was bogus---Authority did not produce record to support the allegation---In absence of any record, such allegations could only be considered as presumptive---Order terminating services of civil servant was purported to have been issued under directions of Government to denotify illegal appointments---Validity---No directions could be issued to denotify appointment in an illegal manner even if such appointments were alleged to have been made in an illegal manner---Order of termination passed without assigning any good reasons and without providing civil servant an opportunity of hearing, could not sustain especially when qualifications of civil servant were found to be in order.

Muhammad Iqbal Khan for Appellant.

Kh. Haider Ali, District Attorney for Respondents.

Date of hearing: 20th February, 1998.

2001 P L C (C.S.) 477

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and S. Nasim Haider, Senior Member

ABDUL BASIT KHAN

versus

CHIEF MINISTER, SINDH, KARACHI and 4 others

Appeal No. 89 of 1998, decided on 18th May, 1999

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

----S. 18---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R:13---Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, R. 4---Sindh Service Tribunals Act (XV of 1973), S. 4---Removal from service--- Re-instatement--- Entitlement to arrears etc.---Civil servant filed appeal against order of his removal from service---During pendency of appeal, as a result of negotiations between civil servant and Authority, civil servant withdrew his appeal---Civil servant, as a .result of negotiation was re­instated in service but his intermediate period was treated as extraordinary leave without pay and his re-employment was not treated in continuation of his earlier appointment and civil servant had filed appeal against said order--­When original removal order was set aside civil servant was entitled to past service benefits, arrears of his pay and allowance as well as restoration of his past seniority as contemplated and provided, under R.13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 where under, even if a junior had been promoted in the meanwhile, senior was allowed benefit of pro forma seniority in the next higher grade--,-Appellate Authority on setting aside dismissal or removal order, was competent under S. 18 of Sindh Civil Servants. Act, 1973 to determine arrears of pay and no provision of law existed which could enable Authority to deny arrears of pay in toto---No administrative order could take effect retrospectively unless full justification for the same was spelled out in the order itself---Order of removal from service passed against civil servant, having been set aside, civil servant was entitled to payment of arrears of pay' for intervening period and restoration of his original seniority.

1989 PLC (C.S.) 398; 1988 PLC (C.S.).441; 1996 PLC (C.S.) 1106; PLD 1981 SC 172; PLD 1997 SC 351 and PLD 1989 Kar. 404 ref.

(b) Limitation---

----Principle---Any order which was hit by limitation, would become non­-enforceable at law:

Hamid Hussain for Appellant.

S.M. Saiydeain Zaidi, A.-A.G., Sindh for Respondents.

Shabbir Ahmed Awan for the Private Respondents.

Date of hearing: 20th April, 1999.

2001 P L C (C.S.) 533

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and Bahauddin Sirhindi, Member‑I

Pir MUNAWAR‑UL‑HAQ

versus

CHIEF SECRETARY, GOVERNMENT OF SINDH and 2 others

Service Appeal No. 134 of 1998, decided on 1st October, 1999.

Civil service‑‑‑

‑‑‑‑ Transfer on deputation‑‑‑Repatriation‑‑‑Civil servant serving in Karachi Port Trust was transferred on deputation in Irrigation and Power Department on request of transferee department for ‑a period of three years in his own pay scale with consent and approval of parent department‑‑‑Transferee Department, in view of efficient performance of civil servant absorbed him on permanent basis with consent and approval of Competent Authority‑‑­Civil servant was absorbed and confirmed in transferee Department and his seniority .was also fixed without any objection from any quarter, but after about four years of said absorption, transferee Department suddenly issued notification whereby civil servant was ordered to be repatriated to Karachi Port Trust with immediate effect‑‑‑Civil servant was not afforded chance to defend himself‑-‑Validity‑‑‑Said notification was issued in violation of principle of natural justice, fairplay and equity‑‑‑Order of repatriation of civil servant,, being illegal; against principle of law, natural justice and mala fide, was set aside with direction to re‑instate civil servant in transferee Department in which he was presently absorbed, with immediate effect.

1996 SCMR 284; 1992 SCMR 435 and 1996 SCMR 1350 ref.

Abdul,Ghafoor Mangi for Appellant.

S.M. Sayedain, Zaidi, Asstt. A.‑G. for the Official Respondents Nos. l and 2:

Abdul Rehman Butt for Respondent No. 3.

Date of hearing: 10th September, 1999.

2001 P L C (C.S.) 542

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and S. Nasim Haider, Senior Member

Rao ABDIIL JABBAR KHAN

versus

GOVERNMENT OF SINDH and 2 others

Appeal No.67 of 1998, decided on 25th May, 1999. .

Sindh Civil Servants Act (XIV of 1973)‑‑‑

----S. 8‑‑‑Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, Rr. 11 & 13‑‑‑Seniority‑‑‑Entitlement‑‑‑Supreme Court, in its judgment, in an earlier round of litigation, had decided that appellant/civil servant, when considered and promoted in Grade‑18, would maintain his seniority‑‑‑Respondents/Authorities which should have granted due seniority to appellant in Grade‑18 after correcting disputed seniority list, instead circulated another seniority list of officers in which officials junior to appellant were shown senior to him without giving any justification for the same‑‑‑ Validity‑‑‑Appellant/civil servant, who already was senior to co‑civil servant in lower grade by virtue of his earlier appointment as against later appointment of co‑civil servant, should have been continued to be senior to co‑civil servant in next higher grade‑‑‑Seniority of appellant having been protected under R. 13(i) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, should have been granted seniority which had already been determined by Supreme Court in its earlier judgment.

1994 PLC (C.S.) 201 and 1999 PLC (C.S.) 279 ref.

Rao M. Shakir Naqshbandi for Appellant.

Naimatullah Qureshi for Respondent.

S.M. Sayedain Zaidi, Asstt. A.‑G.; Sindh for the Official.

Respondents Nos. l and 2.

Date of hearing: 21st April, 1999.

2001 P L C (C.S.) 550

[Sindh Service Tribunal]

Before Abdul Majid Khanzada; Chairman and Bahauddin Sirhindi, Member

MUHAMMAD HASHIM

versus

THE SECRETARY TO GOVERNMENT OF SINDH, LOCAL GOVERNMENT RURAL DEVELOPMENT

DEPARTMENT AND KATCHI ABADIS DEPARTMENT, SINDH SECRETARIAT and another

Appeal No.243 of 1998, decided on 10th September, 1999.

Sindh Civil Servants Act (XIV of 1973)‑‑‑

‑‑‑‑S. 24‑‑‑Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R.13‑‑‑Promotion‑‑‑If any civil servant was not promoted on his turn on ground mentioned in R.13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules; 1975, he could be allowed seniority in the next higher grade over and above his junior who was promoted earlier to him‑‑‑Merely an officer who was promoted on '.'out of turn" basis could not be pulled back after having been so promoted after lapse of about three years‑‑Promotion order passed in favour of civil servant by Competent Authority and which had not been branded illegal by the Authority itself, having been acted upon, same could not be recalled‑ subsequently.

Inspector‑General of Police, Punjab, Lahore v. Muhammad Amir Abdullah Khan 1990 SCMR, 1414 ref.

M.M. AqilAwan for Appellant.

S.M. Sayedain Zaidi, Asstt.A.‑G. for Respondents.

Date of hearing: 26th August, 1999.

2001 P L C (C.S.) 555

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member

FAROOQ AHMAD MEHESAR

versus

GOVERNMENT OF SINDH through Chief Secretary and another.

Appeal No. 121 of 1997, decided on 5th March, 1999.

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

‑‑‑‑Ss. 2(1)(a) & 11(3)‑‑-Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 10‑‑‑Sindh Public Service Commission (Functions) Rules, 1974, R. 4‑‑‑Siiadh Civil Servants (Regularisation of Ad Hoc Appointment) Act (VII of 1989), S. 3‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Termination of service‑‑‑ Regularisation of ad hoc appointment‑‑‑Civil servant initially was appointed on ad hoc basis by Competent Authority on recommendation of Departmental. Selection Committee, but his services were not regularised despite he served for considerable time and was fully qualified for post to which he was appointed‑‑‑Services of civil servant were terminated without issuing him any show‑cause notice, without hearing him and without any departmental inquiry on ground that he did not possess prescribed qualification of M.A. (Economics)‑‑‑Civil servant was M.B.A. which according to certificate issued from Additional Registrar of University, was much higher degree ire status than that of M.A. (Economics)‑‑‑Civil servant being fully eligible, for post and having served for a considerable period as ad hoc employee, had vested right of regularisation of his service and his services could not be terminated‑‑‑Authority was directed to regularise services of .civil servant with consequential service benefits.

(b) Limitation‑‑‑

‑‑‑‑‑Limitation does not operate against illegal/void order.

Muhammad Yousuf Leghari for Appellant.

S.M. Sayedain Zaidi, Asstt. A.‑G. for Respondents.

Date of hearing: 11th February, 1999.

2001 P L C (C.S.) 560

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member

ILYAS KHICHI

versus

DEPUTY INSPECTOR‑GENERAL OF POLICE and another

Service Appeal No. 74 of 1998, decided on 25th May, 1999.

Police Rules, 1934---

‑‑‑‑Rr. 12.8, 12.14 & 12.1&‑‑Sindh Service Tribunals Act (XIV of 1974), S.4‑‑‑Termination' of service‑‑‑Services of civil servant were terminated on certain serious charges against him at time when he was undergoing training after being selected and appointed through prescribed procedure by competent Selection Board‑‑‑In view of alleged charges against civil servant which amounted to "stigma" on his character. it was necessary to hold a proper full‑fledged departmental inquiry and if charges against him were established/proved, only then he could be convicted for the charges, but no such inquiry was held against him‑‑‑Plea that order passed under R. 12.8 of the Police Rules, 1934 was "non‑appealable"‑‑‑Validity‑‑‑Where the jurisdiction was ‑barred specifically the superior Courts/legal forums could look into' the bona fides of an action as to whether necessary formalities had been observed,‑‑‑Civil servant was also condemned unheard as no show‑cause notice was issued to him and he was not provided opportunity of personal hearing‑‑‑Order terminating services of civil servant passed' arbitrarily and in violation of principles. of natural justice, was set aside and he was ordered to be re‑instated in service.

1996 PLC (C.S.) 1085 and 1998 PLC (C.S.) 586 ref.

M.M. Aqil Awan for Appellant.

S.M. Sayedain Zaidi, Asstt. A.‑G. for Respondents.

Date.of hearing: 7th May, 1999.

2001 P L C (C.S.) 566

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Harder;

Senior Member and Bahauddin Sirhindi, Member

Agha ALTAF NABI

versus

GOVERNMENT OF SINDH and 2 others

Appeal No. 93 of 1997, decided on 12th January, 1999.

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

‑‑‑‑S. 24‑‑‑Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, Rr. 7, 9‑A & 1 0‑‑‑Sindh Public Service Commission (Function,`. Rules, 1974, R. 5‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑­Transfer on deputation‑‑‑Cancellation of transfer‑‑‑Civil servant initially was appointed in Housing Town Planning Department on ad hoc basis, but subsequently his services were regularised‑‑‑Services of civil servant were transferred on deputation to Agricultural and Wildlife Department in his own pay and grade where, on account of his meritorious performance, civil servant was absorbed in transferee Department by, order of Competent Authority‑‑‑Terms and conditions of the deputation were notified and name of civil servant was also included in seniority list of transferee Department‑‑­Transferee Department, through notification, after about three years, cancelled earlier notification through which civil servant was transferred on' deputation and annulled civil servant's absorption in transferee Department, and reverted civil servant to his parent Department‑‑‑Civil servant had challenged the repatriation/reversion alleging that his transfer/absorption had been cancelled without issuing him any show‑cause notice, without inquiry and without affording him proper opportunity of defence‑.:‑Civil servant at time of his transfer on deputation in B.P.S.‑18 was serving in BPS‑17 in his parent Department and as per 8.7(1)(2) of Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, appointment‑ by transfer could be made from among persons holding appointment on regular basis in same grade in which post to be filled existed‑‑-Illegal transfer 'of civil servant on deputation was rightly cancelled‑‑‑In absence of any cogent ground, order of cancellation could not be interfered with.

Sohrab Khan Kalwar's case .PLD 1990 SC 279; Anisa Rehman's case 1994 SCMR 2230; Himayatullah Farukh's case PLD 1969 SC 407; ,PLD 1971 SC 846; PLD 1982 (sic) 184 and Ahsanullah Memon v. Government of Sindh 1993 SCMR 982 ref.

(b) Words and phrases‑‑‑

------“Legal right "‑‑‑Meaning and connotation‑‑‑ "Legal right" was a right given under a "law" and its definition by no stretch of imagination, would extend to any right acquired or given illegally including through coercion whether mental, physical or political.

Manzoor Ali Khan for Appellant. S.M. Sayedain Zaidi, Asstt. A.‑G. ,for Respondents.

Date of hearing: 15th December,, 1998.

2001 P L C (C. S.) 576

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, Bahauddin Sirihindi, Member‑I and Abdul Rasheed Memon, 'Member‑II

SHABBIR HUSSAIN

versus

KARACHI METROPOLITAN CORPORATION and 7 others

Appeal No. 97 of 1997, decided on 9th May, 2000.

Karachi Metropolitan Corporation Rules‑‑‑‑

‑‑‑‑R. 38‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Promotion‑‑­Entitlement to benefit of previous promotion‑‑‑Civil servant, who earlier was promoted, having declined said promotion, his said promotion was cancelled on his own request by the Authority‑‑‑Subsequently, after about three years, civil servant was again promoted in BPS‑16, but Authority allowed him higher start being maximum of BPS‑17 from the date his juniors were promoted when civil servant had declined said promotion‑‑‑Civil servant thereafter was allowed move‑over from BPS‑17 to BPS‑18 and his pay was fixed in BPS‑18 after allowing him move‑over in BPS‑18‑‑‑Civil servant after declining ‑ his previous promotion to BPS‑16, could not be given maximum of BPS‑17, as per provisions of R. .38, Karachi Metropolitan Corporation Rules which was applicable on initial induction only‑‑‑Civil servant, who earlier surrendered his, promotion, and same. having been cancelled aid such cancellation order having not been withdrawn at any . subsequent stage, civil servant was to wait for four years before he was to be considered again for, promotion‑‑‑Civil servant was not eligible for taking benefit of his previous promotion and seniority on the, plea that his juniors were promoted earlier when he himself declined his promotion‑‑‑Order of Authority ,allowing civil servant second move‑over, was illegal and against Rules.

Fazle Ghani for Appellant.

Altaf Ali Qureshi for Respondents Nos. 1, 3, 4, 6 and 7.

Muhammad Qasim Mirjat, A.A.‑G. for Respondent Nos.2 and 8.

Date of hearing: 11th April, 2000.

2001 P L C (C.S.) 581

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and S. Nasim Haider, Senior Member

ABDUL BAQI SIDDIQUI

versus

PROVINCE OF SINDH and 2 others

Appeal No.98, of 1998, decided on 2nd June, 1999.

(a) Sindh Civil Servants Act (XIV of 1973)‑‑‑.

‑‑‑‑S. 14‑‑‑Sindh Service Tribunals Act (XV of 1973), S. 4‑‑‑Re‑employment after retirement on superannuation ‑‑‑Appeal to Service Tribunal‑‑‑No extension in service could be granted‑by any Authority,' but I retired civil servant could be re‑employed subject to prescribed two basic conditions; (1) Non‑availability for a suitable substitute of retired civil servant; (2) approval of next higher Authority than Appointing Authority.

1980 SCMR 607; 1985 CLC 2754 and 1997 SCMR 1228 ref.

(b) Administration of justice‑‑‑‑

‑‑‑‑ Principle of‑‑‑Any order without proper authority and jurisdiction was a void order.

M.M. Aqil Awan for Appellant.

S.M. Sayedain Zaidi, A.A.‑G. for Respondents.

Date of hearing: 11th May, 1999.

2001 P L C (C.S.) 654

[Sindh Service Appellate Tribunal]

Before Abdul Majid Khanzada, Chairman and Abdul Rasheed Memon, Member-II

KHALID MEHMOOD

versus

THE SECRETARY TO GOVERNMENT OF SINDH and another

Appeal No.49 of 1999, decided on 23rd May, 2000.

(a) Civil service---

----- Pro forma promotion and move-over---Entitlement---Civil servant despite being senior in service promotion was deferred and his juniors were promoted---Civil servant was not only senior in service to co-civil servants, but his grading was of more than required score---Departmental Promotion Committee had not taken into consideration that adverse remarks, if any against civil servant, had already been expunged. by the Competent Authority---Very basis on which civil servant was deferred by Departmental Promotion Committee, having been disappeared, civil servant was entitled to pro forma promotion arid move-over and was wrongly superseded---,Civil servant was entitled to pro forma promotion and move-over from the date his juniors were promoted to the higher posts.

Aqila Asghar Ali's case PLD 1991 SC 1118; Miari Khalid Masood, SP v. Chief Secretary, Government of Punjab 1992 PLC (C.S.) 760,; Rauf Ahmed v. Government of Punjab 1984 PLC (C.S.) 287; Muhammad Farooq v. Province of Punjab PLD 1987 SC 271 and Raza Muhammad Siyai v. Chief Secretary, Government of Sindh Appeal No.99 of 1997 ref.

(b) Civil service---

----Promotion---Principle of deferment---If officer was not found tit for promotion for want of certain requirements, the moment said requirements were completed, the officer would take his promotion with effect from date his juniors were promoted as he was deferred and not superseded.

M.M. Aqil Awan for Appellant.

Muhammad Kassim Mirjat, .A.A.-G. for Respondents

Date of hearing: 4th May, 2000.

2001 P L C (C.S.) 878

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and S. Nasim Haidar, Member

Dr. FEROZE MEMON

versus

SECRETARY HEALTH, GOVERNMENT OF SINDH and another

Appeal No. 125 of 1997, decided on 4th June, 1998.

(a) Civil service‑‑‑

‑‑‑‑ Promotion‑‑‑Promotion was one of the terms and conditions of service of a civil servant and was one of the vested rights of the civil servant, subject to criteria laid down under relevant laws.

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

‑‑‑‑S.4‑‑‑Promotion‑‑‑Jurisdiction of Service Tribunal‑‑‑Extent‑‑‑If a civil servant despite being eligible, was not considered for promotion malafidely, Service Tribunal could direct concerned Authority to consider his case for promotion‑‑‑Once a civil servant was considered and rejected by competent forum, for whatever reasons, jurisdiction of Service Tribunal was ousted order provisions of S.4, proviso (b) of Sindh Service Tribunals Act, 1973.

1997 MLD 1925; 1988 CLC 327; 1991 PLC (C.S:) 728; 1991 PLC (C.S.) 129; 1987 SCMR 502; 1992 SCMR 1652; 1997 CLC 497; 1997 PLC (C.S.) 391 and Raja Attaullah v. Shabbir Ahmad Chughtai 1998 PLC (C.S.) 100 ref.

Khalid Javed Khan for Appellant.

S.M. Sayedain Zaidi, A.A. ‑G., Sindh for Respondent No. 1.

Shoaib Ali Khan for Respondent No‑2.

Date of hearing: 12th May, 1998.

2001 P L C (C.S.) 1088

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman hand S. Nasim Haider, Senior Member

MUHAMMAD WASIM

Versus

DIRECTOR (ADMN.), EXCISE AND TAXATION

DEPARTMENT, KARACHI and another

Appeal No.88 of 1999, decided on. 18th May, 1999.

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

----R.6---Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R.10(l)---Sindh Service Tribunals Act (XV of 1973), S.4--­Termination of service---Civil servant was initially appointed as Junior Clerk against a leave vacancy and subsequently he was appointed against a clear vacancy---Civil servant appeared before Departmental Selection Committee and he was selected and regularised and was allowed two advance increments---Civil servant who was performing his duties efficiently and to the entire satisfaction of his superiors, his services were suddenly terminated on ground that he was not selected by Departmental Selection Committee--­Services of civil servant had already been regularized through prescribed forum of Departmental Selection Committee, he was treated as regularised and his name appeared in seniority list---Civil servant whose appointment could not be termed as ad hoc could not be legally compelled to appear before Departmental Selection Committee subsequently after about three years from regularization of his appointment under R.6 of Sindh Civil Servants (Appointment. Promotion and Transfer) Rules, 1974, Second Departmental Promotion Committee could be convened only if Appointing Authority would not accept recommendation of earlier Departmental Selection Committee and that too after recording reasons therefor and obtaining order of next higher Authority---Authorities having failed to comply with said procedure prior to convening subsequent Departmental Selection Committee, order terminating services of civil servant was set aside, and he was ordered to be reinstated in service.

M.M. Aqil Awan for Appellant.

S.M. Sayedain Zaidi, A.A.-G., Sindh fpr Respondents.

Date of hearing: 22nd April, 1999.

2001 P L C (C.S.) 1092

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman

and S. Nasim Haider, Senior Member

MUHAMMAD SALEEM

Versus

a SECRETARY TO GOVERNMENT OF SINDH, COMMUNICATION

WORKS DEPARTMENT, KARACHI and another

Appeal No.74 of 1996, decided on 24th February, 1999.

Civil service‑‑‑‑

‑‑‑‑Penalty‑‑‑Imposition of‑‑‑Civil servant who was posted as Resident Engineer was issued show‑cause notice alleging that due to his inaction a Chowkidar, who was to be retired on attaining age of sixty years, continued to serve for more than three years from due date of his retirement. ­Authority imposed penalty upon civil servant for recovery of pay and allowances from him which were paid to Chowkidar for excess period of three years‑‑‑When retirement of Chowkidar was due, his service record alongwith other civil servants was not available in the Department, but was received after he had relinquished his charge‑‑‑Successor of civil servant was to relieve the concerned Chowkidar after record was received by him from the Department‑‑‑Civil servant, in circumstances, could not be penalized for the act which he had not done‑‑‑Even otherwise Chowkidar had worked all the time till he was relieved his post was neither abolished nor any one was appointed in his place‑‑‑No pecuniary loss to Government having been established order imposing penalty upon civil servant was set aside.

M.M. Aqil Awan for Appellant.

S.M. Sayedain Zaldi, A.A.‑G. for Respondents.

Date of hearing: 13th February, 1.999.

2001 P L C (C.S.) 1095

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and S. Nasim Haider, Senior Member

JOUNGAL KHAN DOMKI

Versus

INSPECTOR-GENERAL. OF POLICE, SINDH, KARACHI and 2 others

Appeal No.91 of 1997, decided on 19th March, 1999.

Civil service----

---- Dismissal from service---Civil servant, a Police Constable, was dismissed from service after issuing him show-cause notice on allegation that he was involved in robbery case---Name of civil servant did not appear in F.I.R. registered against real culprits nor he was challaned before competent Court and no recovery was effected from the civil servant---Accused against whom case was registered had also been acquitted of charge by competent Court--­Civil servant having nothing to do with offence with which he was charged, show-cause notice issued to him and his consequent dismissal from service were set aside with direction that intervening period. Should be treated anon leave due.

Muhammad Aslam Pirzada for Appellant.

S.M. Sayedain Zaidi, A.A.-G. for the Official Respondents.

Date of hearing: 11th March, 1999.

2001 P L C (C.S.) 1097

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and

Bahauddin Sirhindi, Member

MIR AHMAD CHANDIO

Versus

THE INSPECTOR-GENERAL OF POLICE, SINDH and 2 others

Appeal No.298 of 1998, decided on 16th September, 1999.

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

----S. 4---Sindh Police (Efficiency and Discipline) Rules, 1988, R. 2(5)­Sindh Civil Service Rules Manual, R.55---Reduction in rank ---Order awarding penalty of reduction in rank incompetently passed by unauthorised Authority, without affording the civil servant opportunity of hearing a without giving period of reduction in rank, was set aside being void a illegal.

1983 PLC (C.S.) 1156; PLD 1979 Lah. 783; 1981 PLC (C.S.I if 1982 PLC (C.S.) 119; PLD 1962 Dacca 132; 1991 PLC (C S.) 172 and Pl 1976 Lah. 1030 (sic) ref.

Abdul Ghafoor Mangi for Appellant.

S.M. Sayedain Zaidi, A.A.-G. for Respondents.

2001 P L C (C.S.) 1101

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member

ISHTIAQ HASNAIN CHISHTI

Versus

GOVERNMENT OF SINDH through Secretary

Home Department Sindh. Secretariat, Karachi and 2 others

Appeal No.64 of 1995, decided on 2nd March, 1999.

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

----Rr4, 6-A, 8 & 9---Change of cadre---Civil servant, who had initially joined as "cameraman" in BSP-13, continued to serve in that capacity for about ten years---Director of Establishment, on request of civil servant, allowed change of cadre of civil servant and appointed him as Sub-Inspector in BPS-11---Civil servant continued to serve as Sub-Inspector in BPS-11 for about five years and thereafter his appointment was cancelled by Competent Authority on ground that his appointment in down-grade was contrary to the rules, unauthorised and without jurisdiction---Validity---Civil servant was appointed in BPS-11 as Sub-Inspector from BPS-13 on his own request for better career planning/prospect for promotion because post of cameraman in BPS-13 had no chance for promotion being an isolated post---Whatever could be the reason of change of cadre, same was to be allowed in "equal grades" whereas grades of "cameraman" and "Sub-Inspector" were different---Change of cadre of civil servant from BPS-13 to BPS-11, amounted to "reversion" from higher to lower grade and Director Establishment was not competent to revert civil servant to lower grade without a show-cause notice or Departmental enquiry---Even otherwise appointment by transfer had to be in same grade in which post to be filled existed and recommendations of Departmental Selection Committee were a must for such appointment.

Himayatullah Farrukhi's case PLD 1969 SC 407 and Nisar Ahmad v. Inspector-General of Police, Sindh and others No. 4K of 1998 ref.

Manzoor Ali Khan for Appellant.

S.M. Sayedain Zaidi, A.A.-G., Sindh for Respondents.

Date of hearing: 14th January, 1999.

2001 P L C (C.S.) 1105

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman

and Bahauddin Sirhindi, Member

Malik RASHID AHMAD

Versus

SINDH SEED CORPORATION through

Chairman and 2 others

Appeal No.97 of 1998, decided on 28th September, 1999.

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

----S.4---Appeal before Service Tribunal was filed without filing departmental appeal---Civil servant who was awarded minor penalty of withholding of annual increments for a period of two years, had filed appeal against said order before Service Tribunal without first filing departmental appeal---Maintainability---Civil servant having not exhausted remedy of departmental appeal available to him, appeal before Service Tribunal was not maintainable.

1999 TD 135 and 1997 SCMR 1543 ref.

Shabbir Ahmad Awan for Appellant.

Muhammad Moosa for Respondents.

2001 P L C (C.S.) 1108

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, S. Nasim Haider, Senior Member and Bahauddin Sirhindi, Member

NOOR MUHAMMAD and others

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH

and 2 others

Appeals Nos. 132, 133, 138, 142, 144, 145, 146 and 153 of 1996, decided on 4th June, 1999.

(a) Civil service---

---- Dismissal from service---Reinstatement---Civil servant including principal accused, who was highest ranking officer, were dismissed from service on certain charges of misconduct against them, but said principal high ranking officer was not only reinstated, but was also promoted---Other civil servants had contended that principal accused/high ranking officer having been reinstated, they who were subordinates, were also entitled to the same relief---Contention of other civil servants was repelled because fate of every accused/civil servant was contingent on merits of his own individual case--­Two wrongs could not make one right and an incorrect/illegal order would not become legal---Other civil servants/co-accused could not be reinstated simply because one of the accused, though he was principal accused had been reinstated especially when mala fides in the reinstatement had not beer proved.

1993 SCMR 1440; 1996 PLC (C.S.) 678; 1996 PLC (C.S.) 826; 1996 PLC (C.S.) 857; PLD 1971 SC 376; PLD 1989 SC 89; Yousuf Patel's case PLD 1957 SC (Pak.) 104; PLD 1976 SC 208; 1996 PLC (C.S.) 682; -1996 PLC (C.S.) 832 and 1996 PLC (C.S.) 859 ref.

(b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973----

----Rr.5, 6 & 7(2)---Sindh Service Tribunals Act (XV of 1974), S.4--­Dismissal from service---Reinstatement---Civil servants were dismissed from service after holding enquiry against them on certain allegations of misconduct---Findings of Enquiry Committee were arbitrary and per­functory as well as illegal, because enquiry proceedings were conducted by three persons, but findings were signed by two members only---Enquiry report was based on statement of complainant only which was not corroborated---Statements of civil servants and witnesses from either side were not recorded by Enquiry Committee in accordance with rules and various additions, alterations, and deletions in enquiry report and statements made by civil servants and witnesses, were not signed or even initialled by any of the members of Enquiry Committee---Proceedings of Departmental Enquiry were deemed to be judicial proceedings under provisions of R.7(2) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1974---Entire proceedings of Enquiry Committee on account of said gross blunders/errors or omissions were null and void in the eyes of law and would constitute sufficient grounds to set aside dismissal order passed by the Authorities against civil servants.

M.M. Aqil Awan for Appellants (in Appeals Nos.132, 133, 144 and 146 of 1996).

Manzoor Ali Khan for Appellant (in Appeal No. 138 of 1996).

Abdul Latif Channa for Appellant (in Appeal No. 142 of 1996).

Nooruddin Sarki for Appellant (in Appeals Nos. 145 and 153 of 1996).

S.M. Sayedain Zaidi, A.A.-G., Sindh for Respondents.

Date of hearing: 5th May, 1999.

2001 P L C (C.S.) 1123

(Sindh Service Tribunal)

Before Abdul Majid Khanzada, Chairman

and S. Nasim Haider, Senior Member

SALEEM RAZA

Versus

GOVERNMENT OF SINDH through Home Secretary, Karachi and 2 others

Appeal No.31 of 1998, decided on 6th April, 1999.

(a) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973----

----S. 5(6) ---Dismissal from service--- "Authority" and "Authorised Officer" ---Determination---Where two or More civil servants were proceeded against jointly, "Authority" and "Authorised Officer" in respect of highest ranking civil servant amongst them, would be the "Authority" or "Authorised Officer" in respect of all such civil servants---'There being six civil servants and highest ranking amongst them being that of B.N.S.P. 18 Officer, "Authority" in respect of all such civil servants was "Chief Secretary" and Home Secretary being next in command, was the "Authorised Officer" ---Dismissal order passed against civil servants by Home Secretary, who was "Authorised Officer" and not Competent Authority, was void--­Chief Secretary who was the Competent. Authority was authorised to pass dismissal order and Home Secretary Who was Authorised Officer, could only sign show-cause notice and statement of allegations---Dismissal order passed by Home Secretary instead of Chief Secretary, amounted to coram non judice, was illegal and could not be sustained.

(b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973----

----R. 6---Dismissal from service---Holding of Departmental Enquiry---Civil servant who was dismissed from service, was issued a show-cause notice stating therein that it was not necessary to hold enquiry against him---Acts of alleged misconduct were not mentioned in the show-cause notice, but were attached to it as "statement of allegations"---No final show-cause notice was issued to civil servant nor copy of Enquiry Report was provided to him, nor a~ personal hearing was provided to civil servant before passing dismissal order which otherwise was passed by incompetent Authority---Dismissal order passed without complying with provisions of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 and passed by Authority which had no jurisdiction to pass the order was of no legal consequence and was a void order.

PLD 1990 Quetta 8 ref.

(c) Sindh Government Rules of Business, 1986----

----Rr. 7 & 19---Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, Rr. 5 & 6---Sindh Civil Servants Act (XIV of 1973), R.25---Status of Chief Minister and his powers--=Compliance of orders of Chief Minister--­Chief Minister of Province, though was embodiment of (Provincial) Government and his order which did not extend to any illegality were to be complied with in letter and spirit, but his order should be judicious and in accordance with enacted law---Procedural rules framed by Government, unless amended or rescinded in prescribed manner, Chief Minister was bound, to obey same under supremacy of law---Myth that Chief Minister being rule-framing Authority was exempted from operation of an existing rule even when not specifically provided in concerned Act itself, was incorrect---Chief Minister being the Leader of the House in Provincial Assembly could always bring an amendment to an Act through passage of bill and could also amend rules framed thereunder through prescribed procedure of notifying same in official Gazette, but his word was not law nor was he exempted from operation of laid down law---Passing of order by Chief Minister on certain applications without calling for record, without hearing other side of the story/Departmental version, was bad in law and amounted to passing order in non judicious manner.

2001.P L C (C.S.) 1150

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman

and Bahauddin Sirhindi, Member

Syed ARIF RAZA

Versus

CHIEF ENGINEER BUILDINGS, COMMUNICATION

AND WORKS DEPARTMENT, GOVERNMENT

OF SINDH and 2 others

Appeal No. 19 of 1991, decided on 28th September, 1999.

Civil service----

---- Withdrawal of Selection Grade---Selection Grade BPS-2 granted to civil servant was withdrawn by same Authority which had granted the grade earlier---No show-cause notice was issued before withdrawing the grade and civil servant was also not afforded opportunity of hearing before such action---Civil servant had availed benefit of grade for about five years--­Effect---Civil servant having been condemned unheard and no show-cause notice having been issued to him before withdrawal of grade after five years of its grant, order of withdrawal was set aside, in circumstances.

1996 PI_C (C.S.) 72; 1999 PLC (C.S.) 568 and 1999 PLC (C.S.1 457 ref.

Abdul Latif Ansari for Appellant.

S.M. Sayedain Zaidi, A.A.-G. for Respondents.

Date of hearing: 14th September, 1999.

2001 P L C (C.S.) 1179

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman

SARWAN KUMAR

Versus

SECRETARY, EXCISE AND TAXATION DEPARTMENT, GOVERNMENT OF SINDH, SINDH SECRETARIAT, KARACHI

Appeal No. 100 of 1997, decided on 6th June, 1998.

(a) Limitation------

---- Condonation of delay ---Condonation of delay, though within inherent powers of Trial Court, but delay for each day had to be properly accounted for and justified to the satisfaction of Trial Court.

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

----S. 4---Appeal---Limitation---Appeal against order of termination of service was filed by civil servant before Service Tribunal after about 2 years from order of termination---In absence of cogent reason for condonation of such inordinate delay, appeal was dismissed being barred by time.

1997 PLC (C.S.) 1158; PLD 1982 SC 631 and Haji Kadir Bux v Province of Sindh and others C.A. No.K-58 of 1979 ref.

M.M. Aqil Awan for Appellant.

Date of hearing: 15th May, 1998.

2001 P L C (C.S.) 57

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

Dr. TARIQ NAWAZ and another

versus

GOVERNMENT OF PAKISTAN

through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another

Civil Petition No.33-K of 2000, decided on 10th July, 2000.

(On appeal from the order, dated 24-11-1999 of the Sindh High Court, Karachi, passed in Constitutional Petition No.D-645 of 1999).

(a) Medical Officers (Regularization of Appointments) Act (XV1 of 1992)---

----Preamble & S.3---Constitution of Pakistan (1973), Arts. 18 & 25---Vires of Medical Officers (Regularization of Appointments) Act, 1992--­Discrimination, element of---Ad hoc appointments of doctors; prior to 12-10-1988 were regularized under the provisions of S.3, Medical Officers (Regularization of Appointments) Act, 1992 with effect from 30-7-1992--­Appointments of the petitioners on ad hoc basis were made after the date specified in S.3 of Medical Officers (Regularization of Appointments) Act, 1992, therefore, same were not regularized---Contention by petitioners was that statute was discriminatory in nature and the same was in violation of Arts. 18 & 25 of the Constitution---Validity---Petitioners were appointed in the year 1989 and thus, could not avail the benefit contained in S.3 of Medical Officers (Regularization of Appointments) Act, 1992 as such the same could not be equated to that of discrimination which always involved an element of unfavourable bias and bias was lacking in the case--­Provisions contained in Medical Officers (Regularization of Appointments) Act, 1992 were neitherarbitrary nor discriminatory and 'were not in violation of the provisions as contained in Arts. 18 & 25 of the Constitution.

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

----Art.25---"Equality"---Connotation---Equality should not be in terms of mathematical calculation and exactness and must be amongst the equals--­Equality has to be between persons who are placed in the same set of circumstances---Conception of equality before the law, does not involve the idea of absolute equality among human beings, that being a physical impossibility.

1991 CLC 13; PLD 1980 Quetta 10; PLJ.1979 Quetta 246; AIR 1951 Nag. 58 and ILR 1951 Nag. 646 ref.

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

----Art. 25---Expressions "equality of -citizens" and "equal protection of law"---Object and scope---Expressions as envisaged in Art.25 of the Constitution mean that no person or class of persons is denied the same protection of law which is enjoyed by persons 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---Similarity of treatment has been guaranteed by the Constitution and not identical treatment---Protection of equal laws does not mean that all laws must be uniform and means that among equals the law should be equal and should be equally administered and the like should be treated alike---Expressions "equality of citizens" and "equal protection of law" mean that there should be no denial of any special privilege by reason of birth, creed or the like and also equal subjection of all the individuals and classes to the ordinary law of the land.

PLD 1991 Quetta 7; PLD 1968 Kar. 73; AIR 1953 SC 250;. AIR 1952 SC 235; AIR 1953 Hyd. 100 and ILR 1951 Nag. 58 ref.

(d) Interpretation of statutes---

---- Law should be saved rather than destroyed and Courts must lean in favour of upholding the constitutionality of a legislation---Rule of Constitutional interpretation. is that there is a presumption in favour of the constitutionality of legislative enactment.

Inamur Rehman v. Federation of Pakistan 1992 SCMR 563; Mehreern Zaibun Nisa v. Land Commissioner, Multan PLD 1975 SC 397; Jibendra Kishore v. Province of East Pakistan PLD 1957 SC (Pak.) 9 and Waris Meah v. The State PLD 1957 SC (Pak.) 157 ref.

Petitioners in person.

Nemo for Respondents.

Date of hearing: 10th July, 2000.

2001 P L C (C.S) 60

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri and Abdur Rehman Khan, JJ

THE MANAGING DIRECTOR, SUI SOUTHERN GAS CO. LTD:

versus

SALEEM MUSTAFA SHAIKH and others

Civil Petitions No. 979-K to 1012-K of 2000, decided on 10th July, 2000.

(On appeal from the judgment dated 29-4-2000 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 1097 (R) of 1999-1104(R) of 1999, 1219-R to 1238(R) of 1999, 12613(R) to 1265(R) of 1999 and 1491(R) to 1493(R) of 1999).

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

----Ss. 2-A & 4---Sui Gas Transmission Company Limited Service Rules,. 1982, Rr.2.17, 6.1, 6.2- & 6.3---Constitution of Pakistan (1973). Art:212(3)---Termination from service---Non-statutory rules, enforcement of---Jurisdiction of Service Tribunal--- Principle of estoppels ---Applicability--­Respondents were employees of the petitioner- company who were inducted as trainee engineers, despite working for, more than four years they were not confirmed and their services were terminated---Service Tribunal. allowed appeals of the respondents/employees and directed the petitioner-Company to issue the letter of absorption to the respondents---Contention of the petitioner-company was that rules framed by the company were non­-statutory, therefore, the Tribunal had no jurisdiction to adjudicate the matter­--Validity---Petitioner was a Company owned and controlled by Federal Government, therefore, it could not be expected of the Government to enact rules and then not to enforce the same or to violate merely because the rules did not have the status of statutory rules ---Factum of the rules being statutory or non-statutory would not debar Service Tribunal to enforce the same--­Petitioner-company, under the principle of general law of estoppel, could not be allowed to object to the invocation of the rules by the employees/respondents and as such could not be permitted to violate and dis­honour their commitments/undertaking given by it---Service Tribunal could not be condemned in enforcing the rules which the Board of Directors of the petitioner-company had framed---Service Tribunal had enforced the application of the rules and had not flawed in any way---Neither there was any legal flaw in the judgment of the Service Tribunal, nor there was any substantial point of public importance---Leave to, appeal was refused by Supreme Court.

United Bank Limited through President v. Shahmim Ahmed Khan and 41 others PLD 1999 SC 990 distinguished.

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

----S. 4---Constitution of Pakistan (1973), Art. 212(3)---Time-barred appeal---Failure to raise such objection before Service Tribunal---Objection was neither taken up in the comments filed by the petitioner in, the Tribunal nor at the time of arguments before the Tribunal---Effect---Where the question of limitation involved factual controversy, Supreme Court refused to allow such objection to be raised---Petition for leave to appeal was refused.

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

----S. 4---Reinstatement---Service Tribunal, jurisdiction of---Employees worked with the employer company for four years as trainee engineers thereafter the services of the employees were terminated---Service Tribunal allowed the appeal filed by the employees and they were reinstated in service---Contention by the employer company was that the Tribunal had exceeded its jurisdiction as in terms of S.4 of Service Tribunals Act, 1973, the Tribunal could not direct the employer company to issue the letter of absorption of the employees---Validity---Tribunal had given such direction in context of termination order and it had not determined the fitness or otherwise of the employees to be appointed or to hold a particular post--­Contention was misconceived and the Tribunal had not exceeded its jurisdiction.

Ch. Muhammad Jamil, Advocate Supreme Court and Muzaffar Ali Khan, Advocate- on-Record for Petitioner.

Wasim Sajjad, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Respondents.

Date of hearing: 10th July, 2000.

2001 P L C (C.S.) 73

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, CJ, Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

NISARUL HAQ and another

versus

KARACHI ELECTRIC SUPPLY CORPORATION LTD. and another

Civil Appeals Nos.537 and 538 of 1998, decided on 20th December, 1999.

(On appeal from the judgment dated 31-12-1997 passed by Federal Service Tribunal in Appeals Nos.2496-K and 2638-K of 1997 respectively).

Constitution of Pakistan (1973)---

----Art. 212(3)---Dismissal of appeal by Service Tribunal---Failure to pass speaking order---Service Tribunal dismissed appeal in terms of its earlier decision, wherein the Tribunal formulated as many as nineteen propositions of law for decision---Service Tribunal failed to indicate as to which of the nineteen propositions framed by the Tribunal were applicable to appeal before it---Contention by respondent-Corporation was that appeal was dismissed on the point of retrospectively and limitation---Such-like position did not appear from the judgment of the Tribunal---Order of Service Tribunal was set aside and the case was remanded to the Tribunal for decision in accordance with law.

Hidayat Ullah, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate- on-Record (absent) for Appellants (in both Cases).

Raja Abdul Ghafoor, Advocate-on-Record for Respondents.

Date of hearing: 20th December, 1999.

2001 P L C (C.S.)77

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Mamoon Kazi, Wajihuddin Ahmed and Kamal Mansur Alam, JJ

FAYYAZ HUSSAIN

versus

NATIONAL RADIO TELECOMMUNICATION CORPORATION

Civil Appeal No.946 of 1998, decided on 20th December, 1999.

(On appeal from the judgment dated 1‑8‑1998 passed by Federal Service, Tribunal in Appeal No. 152(P) of 1998). '

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.212‑‑‑Dismissal from service‑‑‑Service Tribunal decided the appeal of civil servant on merits‑‑‑Contention by civil servant was that Service Tribunal had decided the appeal on question of limitation‑‑‑Validity‑‑‑No legal infirmity in findings of the Tribunal was found‑‑‑Appeal was dismissed by Service Tribunal on merits and the contention„ raised by civil servant was of no consequence as in spite of reversal of the findings of the Tribunal on question of limitation, the end result would be the same‑‑‑No case for interference with judgment of the Tribunal was made out‑‑‑Appeal was dismissed in circumstances.

Appellant in person.

Allah Bakhsh, Representative for Respondent.

Date of hearing: 20th December, 1999.

2001 P L C (C.S.).81

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J. and Mamoon Kazi, J

COLLECTOR OF CUSTOMS, HYDERABAD and another

versus

MUHAMMAD HAYAT

Civil Petition No. 142‑K of 1997, decided on 11th February, 1998.

(On appeal from the judgment of the Federal Service Tribunal dated . 20‑2‑1997 passed in Appeal No.80(K) of 1996).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Removal from service‑‑‑Refusal to extend medical leave‑‑­Civil servant was granted leave on medical grounds but such leave was not extended‑‑‑Period of unauthorised absence was treated as leave without pay‑‑‑Disciplinary proceedings were initiated against the civil servant and he was removed from service‑‑‑Service Tribunal while setting aside the order of removal from service was right in holding that once request for medical leave was granted, subsequent request for extension of such leave could not be declined without referring his case for a second medical opinion either to an officer, of the Health Department or a Medical Board‑‑‑Judgment of the Tribunal being not open to exception, leave to appeal was refused.

Akmal Wasim, Advocate Supreme Court. and A.A. Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Date of hearing: 11th February, 1998.

2001 P L C (C.S.) 85

[Supreme Court of Pakistan]

Present: Raja Afrasiab Khan and Ch. Muhammad Arif, JJ

MUHAMMAD IQBAL

versus

THE INSPECTOR GENERAL OF POLICE, PUNJAB, LAHORE

Civil Petition No.468‑L of 1999, decided on 10th August, 1999.

(On appeal from the judgment of Punjab Service Tribunal; Lahore dated 27‑1‑1999 passed in Appeal No. 558 of 1995).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Retirement from service‑‑‑Date of birth not corrected in the official record‑‑‑Civil servant got his date of birth corrected and a duplicate revised certificate of Matriculation was received in the office in the year 1964‑65 i.e. within a year of his joining service‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether the Service Tribunal was in error of jurisdiction in not adverting to the admitted position that the civil servant was not to blame for inaction of the Department‑‑­Order, of retirement of the civil servant was suspended in circumstances.

Mian Fazle Mahmood, Senior Advocate Supreme Court with Tanvir Ahmad, Advocate‑ on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 10th August, 1999.

2001 P L C (C.S.) 273

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Iftikhar Muhammad Chaudhry, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others

versus

MUHAMMAD AZAM ANJUM and others

Civil Petitions Nos. 957‑L and 850‑L of 2000, decided on 4th July, 2000.

(On appeal from the judgment dated 1‑3‑2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No.1610/98).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Charge of procedural irregularity‑‑‑Civil servant did not cause any loss to the Government, and the other civil servant proceeded against for similar charges had been exonerated of the charges‑‑‑Service Tribunal allowed the appeal of the civil servant‑‑‑Contention by the Authorities was that the Tribunal should have restored the punishment imposed, by the Competent Authority‑‑‑Validity‑‑‑Neither any legal flaw could be indicated in the judgment of the Tribunal, nor any substantial question of law of public importance was involved in the matter‑‑‑Leave to appeal was refused.

M. Anwar Ghuman, Advocate Supreme Court and Rao M. Yusuf Khan, Advocate‑ on‑Record for Petitioners (in C.P. No.957‑L of 2000).

M.A. Zafai, Advocate Supreme Court and Ch. Mehdi Khan Mehtab, Advocate‑on‑Record for Petitioners (in C.P. No.850‑L of 2000).

Nemo for Respondents.

Date of hearing: 4th July, 2000.

2001 P L C (C.S.) 275

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Deedar Hussain Shah and Hamid Ali Mirza, JJ

NATIONAL INVESTMENT TRUST LTD.

versus

SAMI ULLAH and another

Civil Petition for Leave to Appeal No. 285-K of 2000, decided on 3rd August, 2000.

(On appeal from the judgment of Federal Service Tribunal dated 8-4-2000 passed in Appeal No. 611 (K) of 1999).

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

----S. 2-A---Banks Nationalization Act (XIX of 1974), S.11---Employees of National Investment Trust---Status of civil - servant---Validity---Federal Government under the provisions of S. 11, Banks Nationalization Act, 1974 has the control, management and administration over the affairs of the Trust---Employees of the Trust are deemed to- be civil servants within the purview of S.2-A of Service Tribunals Act, 1973.

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

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S. 2-A---General Clauses Act (X of 1897), S. 6 (c)---Settlement of dues after retirement of civil servant---Voluntary Separation Scheme---Civil servant was initially an employee of Ministry of Finance and was later on selected as Officer Grade III in National Investment Trust---Voluntary Separation Scheme was offered by the Trust to its employees and the civil servant accepted the same---Period of service of the civil servant with the Federal Government in Ministry of Finance was not included for the purpose of retirement and settlement of dues pursuant to the Scheme---Service Tribunal, on appeal directed that period of service as civil servant in the. Ministry of Finance be included in his service---Validity---Civil servant who had applied for his appointment through proper channel and there was no break in his service was entitled to service benefits on voluntary retirement---Civil servant was also governed by S. 6(c) of General, Clauses Act, 1897 for computation of period of service for receiving settlement dues pursuant to the acceptance of option for Voluntary Separation Scheme---Service Tribunal was right in arriving at the conclusion by allowing the civil servant's appeal and the judgment of the Tribunal did not suffer from any inherent infirmity or jurisdictional error---Indulging of public functionaries in litigation at public expense instead of being fair and PLC (Service) reasonable towards civil servants was deprecated by Supreme Court---Public functionaries should act fairly, justly and equitably---Leave to appeal was refused by the Supreme Court.

Noor Muhammad Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd August, 2000.

2001 P L C (C.S) 280

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Munir A. Sheikh and Qazi Muhammad Farooq, JJ

AMJAD ALI and others

versus

BOARD OF INTERMEDAITE AND SECONDARY EDUCATION and others

Civil Petition Nos. 146-L, 150-L, 1731-L and Criminal Original Nos. l and 2-L of 2000 in Civil Petitions Nos. 146-L and 150-L of 2000, decided on 31st July, of 2000.

(On appeal from the judgment, dated 12-1-2000 passed in Writ Petition 6496 of 1996 and 22-6-2000 of the Lahore High Court passed in 1. C. A. No. 1102 of 1999).

Board of Intermediate and Secondary Education, Faisalabad Employees (Service) Regulations---

---- Relgn. 12(2)---Constitution of Pakistan (1973), Art.212(3)---Ad hoc appointment--- Termination---Failure to provide opportunity of hearing--­Vested right of ad hoc appointee---Petitioners were appointed on ad hoc basis and their services were terminated before expiry of period of probation--­Constitutional petition filed by the petitioners were dismissed by High Court---Contention by the petitioners was that no opportunity of hearing was provided to them before terminating their services---Validity---Opportunity of hearing to the petitioners in circumstances was not necessary as termination was made in accordance with terms and conditions of service as contained in their appointment letters and the same had been accepted by the petitioners---Where the terms and conditions of the appointment letter were invoked, the petitioners could not object to the same---Petitioners could not take any objection to their termination as they had not been even appointed on regular basis---Ad hoc appointment against a post was only for a fixed period---Appointee had no vested right to claim continuation in service and to challenge the act of termination of service---Leave to appeal was refused.

Malik Noor Muhammad Awan, Advocate Supreme Court, Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners (in Civil Petitiond 146-L and 150-L of 2000).

Qazi Mohyuddin, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondent (n Civil Petitions Nos. 146-L and 150-L of 2000).

Malik. Noor Muhammad Awan, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in Civil Petitions Nos. 1731-L of 2000).

Qazi Mohyuddin, Advocate Supreme Court and M. Aslam Ch., Advocate-on-Record for Respondents Nos. l and 2 (in Civil Petition Nos.1731-L 2000).

Malik Noor Muhammad Awan, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners (in Criminal Original Nos. l and 2-L of 2000).

Tanvir Ahmad, Advocate-on-Record for Respondents (in Criminal Original Nos. l and 2-L of 2000).

Date of hearing: 31st July, 2000.

2001 P L C (C.S.) 284

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

FEDERATION OF PAKISTAN

through Secretary, Establishment Division, Islamabad and others

versus

Maj. Retd.) MUHAMMAD AZAM and another3 of 1994, Civil Appeal No.723 of 1994decided on 13th May, 1997.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 23-4-1994, passed in Appeal No.401(R) of 1993).

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

----Art.212(3)---ESTACODE, 1989 Edn., Sl. Nos.112 & 115--­Probationer---Termination of service---Leave to appeal was granted to consider whether or not the service of the civil servant was terminated before expiry of extended period of probation in accordance with the provisions of relevant law/rules.

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

----S.4---ESTACODE, 1989 Edn., Sl. Nos. 112 & 115---Termination of service on last day of probation period---Civil servant was terminated from service on the last day when probation period was ending---Termination letter was handed over after the working hours on the same day---Contention by Government was that any order could be made by the Competent Authority in relation to the civil servant by midnight--- Validity- --Contention was without merit---Working hours having come to close on any given day, the status of employee had to be governed, thereafter, by the position on the basis of continuity in his period of employment, according to law---Where the services of civil servant had not been terminated up to afternoon of the day, then the same were to be treated as without taint up to midnight on that date and beyond---Findings of facts by Service Tribunal that services of the civil servant had not been terminated during the office hours on the last day of probation much less at any earlier date, in terms of S1.Nos.112 & 115 of ESTACODE, had not been shown to be suffering from any legal taint whatsoever---Peculiarities of the case of the civil servant were resolved in his favour, after considering the entire record, in presence of the parties--­Appeal was dismissed in circumstances.

Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others 1990 SCMR 1510 and Muhammad Saddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 ref.

Mian Tariq Mahmood, Deputy Attorney-General with Ejaz Muhammad Khan, Advocate- on-Record for Appellants.

Tanvir Bashir Ansari, Advocate Supreme Court with Ch. Akhtar Ali, Advocate- on-Record for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 3rd April, 1998.

2001 P L C (C.S.) 290

[Supreme Court of Pakistan]

Present: Ajmal Mian, C.J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD SHOIB KHAN

versus

SECRETARY, MINISTRY OF HEALTH, C-BLOCK, ISLAMABAD and 3 others

Civil Petition No.494 of 1997, decided on 20th March, 2000.

(On appeal from the judgment, dated 13-3-1997 by the Federal Service Tribunal, Islamabad in Appeal No.69(K) of 1997).

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

----S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service--- Time -barred appeal---Departmental appeal was delayed by more than one and a half years which was dismissed and result was conveyed to the civil servant---Memo. of appeal under S.4 of Service Tribunals Act, 1973, was beyond time and the same was dismissed as incompetent--­Validity---Civil servant was himself to blame for not persuing the matter with due diligence and order of his removal from service, dated 27-8-1995 was made subject-matter of departmental appeal by him only on 31-12-1996 and that too without showing sufficient cause for belated resort thereto--­Order of Service Tribunal had not been shown to be suffering from any taint whatever---Leave to appeal was refused.

The Chairman, PIAC and others v. Nasim Malik PLD 1990 SC 951 ref.'

Petitioner in person.

Nemo for Respondents.

Date of hearing: 10th March, 1998.

2001 P L C (C.S.) 301

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C. J., Nasir Aslam Zahid and Mamoon Kazi, JJ

SHAH MUHAMMAD CHAUDHRY

versus

FEDERAL SERVICE TRIBUNAL and others

Civil Petition No.363-K of 1999, decided. on 27th December, 1999.

(On appeal from the judgment. of the Federal Service Tribunal, dated 22-4-1999, passed in Appeal No.65-K of 1999).

Constitution of Pakistan (1973)----

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S.4---Appeal before Service Tribunal---Limitation---Appeal of the civil servant was dismissed by Service Tribunal being time-barred---Contention raised by the civil servant was that his case was pending before Reinstatement Review Committee and appeal was filed after the decision of Committee, thus, appeal before the Tribunal was not time-barred---Validity---Where the civil servant's case had been referred to the Committee and case remained there pending for decision, there was no occasion for the civil servant to approach the Service Tribunal unless final decision was taken in that regard---Service Tribunal had overlooked such fact of the case and the finding of the Service Tribunal that the case of civil servant was time-barred required reconsideration--­Judgment of Service Tribunal was set aside and Supreme Court converted petition for leave to appeal into appeal and remanded the case accordingly.

Ali Akbar, Advocate Supreme Court/Advocate-on-Record for Petitioner.

Date of hearing: 27th December, 1999.

2001 PLC(C.S.)316

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Nazim Hussain Siddiqui, JJ

ATTAULLAH SHEIKH

versus

WAPDA and others

Civil Appeal No.668 of 1999, decided on 20th September, 2000.

(On Appeal from the judgment, dated 1-9-1997 passed by the Federal Service Tribunal in Appeal No.295(L) of 1997).

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

----Art. 212(3)---Fundamental Rule No.54(b)---Leave to appeal was granted by Supreme Court to consider if the Fundamental Rule already having been declared as repugnant to Injunctions of Islam as per judgment of Supreme Court reported as Dr. Muhammad Islam, Instructor, Animal Husbandry In­ Service Training Institute, Daudzai, Peshawar District v. Government 'of N.­W.F.P. (1998 PLC (C.S.) 1430) could be invoked.

Dr. Muhammad Islam, Instructor, Animal Husbandry In-Service Training Institute Daudzai, Peshawar District v. Government of N.-W.F.P. 1998 PLC (C.S.) 1430 ref.

(b) Fundamental Rules---

----R. 54(b)---Pay and allowances, grant of---Period of absence from duty--­Entitlement of reinstated civil servant---Scope---Authority under the provision of R.54(b) of Fundamental Rules may withhold part of allowance and pay of a Government servant on his reinstatement---Rule 54(b) could be invoked by the Departmental Authority in appropriate cases---Where the civil servant is not honourably acquitted and his case is not covered by R.54(a) of Fundamental Rules, Revising or Appellate Authority may, under the provision of R.54(b) of Fundamental Rules, still grant to the civil servant for the period of his absence from duty such portion of such pay and allowances as the Authority deems fit---Normally the period of absence from duty in a case covered by R. 54(b) of Fundamental Rules is not to be treated as period spent on duty, but in deserving cases, the Revising/Appellate Authority can direct so.

(c) Acquittal--

---- All acquittals are "honourable" and there can be no acquittal which can be termed as "dishonourable".

Dr. Muhammad Islam, Instructor, Animal Husbandry In-Service Training Institute Daudzai, Peshawar District v. Government of N.-W.F.P. 1998 PLC (C.S.) 1430 ref.

(d) Fundamental Rules-

---- R. 54---Pay and allowances for period of suspension---Acquittal of civil servant from criminal case---Civil servant was reinstated in service after acquittal from a criminal case---Payment of subsistence allowance only to the civil servant---Validity---Where the criminal charges were not established before a competent Court of law and the civil servant was acquitted on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant and unjustified---Civil servant was acquitted by the competent Court of law which would mean that civil servant had not been suspended and would be entitled to all pay and allowances admissible under the rules, minus the amount which the civil servant had already drawn.

Dr. Muhammad Islam, Instructor, Animal Husbandry' In-Service Training Institute Daudzai, Peshawar District v. Government of N.-W.F.P. (1998 PLC (C.S.) 1430 and Government of N.-W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 ref.

Ch. Amir Hussain, Advocate Supreme Court for Appellant.

Muhammad Sharif, Advocate Supreme Court for Respondents.

Date of hearing: 20th September, 2000.

2001 P L C (C.S.) 341

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Qazi Muhammad Farooq, JJ, MUHAMMAD SIDDIQUE, STENOGRAPHER, FIA HEADQUARTERS, ISLAMABAD and another

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 5 others

Civil Petitions for Leave to Appeal Nos.114 and 115 of 1999; decided on 18th May, 2000.

(On appeal from the judgment, dated 3-11-1998 of the Federal Service Tribunal, Islamabad, passed in Appeals Nos.324 and 325(R) of 1998).

Civil Servants Act (LXXI of 1973)---

----S. 8(1)---Civil Servants (Seniority) Rules, 1993---Seniority list---Term "selection grade" ---Concept and scope---Selection grade, grant of---Claim of seniority on the basis of selection grade---Validity---Civil servants were granted selection grade prior, in point of time but they could not claim seniority over the respondents for the reason that they were not promoted from a lower to higher post---Grant of selection grade was not a promotion in strict sense of the word though the same had overtones of promotion in view of the financial benefit involved---Expression "selection grade" was confined to revision of basic pay scale and did not find mention in S.8 of Civil Servants Act, 1973 and Civil Servants (Seniority) Rules, 1993 under which seniority list of civil servants was required to be prepared with reference to a service, cadre or post and not grade.

1991 SCMR 696 distinguished.

Fazal Elahi Siddiqui, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioners.

Mansoor Ahmed, Deputy Attorney-General and Raja Abdul Ghafoor, Advocate- on-Record for Respondents, Date of hearing: 18th May, 2000.

2001 P L C (C.S.) 346

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Javed Iqbal and Hamid Ali Mirza, JJ

CIVIL AVIATION AUTHORITY and 3 others

versus

IZHAR AHMAD and 144 others

Civil Petition No. 1081 of 2000, decided on 14th September, 2000.

(On appeal from the judgment, dated 9-6-2000 of the Lahore High Court in Civil Revision No.295 of 2000).

(a) Words and phrases----

----"Abate"---Meaning.

Black's Law Dictionary, VIth Edn., p. 4, Col. 1 ref.

(b) Words and phrases---

----"Abatement"---Meaning.

The Oxford English Dictionary, Vol. 1, p. 9 ref.

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

----Ss.2-A & 6---Word "abate"---Scope---Word "abate" hay not been used in 'S. 6 of Service Tribunals Act, 1973, with the object of nullifying the effect of decree or orders passed prior to the insertion of S.2-A in Service Tribunals Act, 1973.

The State v. Dosso PLD 1958 SC 533 ref.

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

----Ss. 2-A & 6---Constitution of Pakistan (1973), Art. 212---Abatement of proceedings--- Insertion of S. 2-A in Service Tribunals Act, 1973---Effect--­Service matter was decreed by Civil Court prior to 10-6-1997---Authority preferred appeal before District Judge but during pendency of the appeal, S.2-A was inserted in Service Tribunals Act, 1973, consequently the appeal was dismissed as abated---Authority filed appeal under Ss.2-A & 6 of Service Tribunals Act, 1973, but the same was dismissed in limine---Civil servant filed execution application and the Authority resisted the same by filing objections---Executing Court overruled the objections and allowed execution--- Such order of the Executing Court was upheld by the Appellate Court as well as by the High Court in revision---Contention of the Authority was that as the appeal was continuation of the suit and the appeal having been abated by operation of law, the execution application had become infructuous as there was no decree for execution---Validity---Only the pending appeal had abated and the decree passed prior to the target date i.e. 10-6-1997 could not be said to have been .abated because of promulgation and insertion of S.2-A into Service Tribunals Act, 1973---Judgment and decree unless either set aside or reversed by the higher Court or was so declared to be nullity by operation of law, same could not be said to have become ineffective, inoperative and inexecutable when the decree-holder had acquired vested rights which could not be taken away subsequently because of abatement pending proceedings.

Messrs Sui Southern Gas Company Limited v. Khawaja Muhammad Munir and another 2000 SCMR 702; F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Wajid Ali v. Sayed Sajid Ali 1985 SCMR 401; Allaf Din v. Mst. Parveen Akhtar PLD 1970 SC 75; Muzaffar Ali v. Muhammad Shafi PLD 1981 SC 94; Commissioner of Income-tax v. Messrs Farrukh Chemical Industries 1992 SCMR 523; Glaxo Laboratories Limited v. Inspecting Assistant Commissioner of Income-tax PLD 1992 SC 549 and Zahiruddin v. Anjuman-e-Himayat-e-Islam 1989 MLD 480 distinguished.

The State v. Dosso PLD 1958 SC (Pak.) 533; Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 and Sardar Ali v. Muhammad Ali PLD 1988 SC 287 ref.

Fakhruddin G. Ebrahim, Advocate Supreme, Court and M.S. Khattak, Advocate- on-Record for Petitioners.

Dr. A. Basit, Senior Advocate Supreme Court for Respondents.

Date of hearing: 14th September, 2000.

2001 P L C (C.S.) 358

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

AZIMULLAH, EX-INSPECTOR

versus

CHAIRMAN, BOARD OF TRUSTEES, ABANDONED

PROPERTIES ORGANIZATION, ISLAMABAD and 2 others

Civil Petition No. 1239 of 1999, decided on 9th October, 2000.

(On appeal from the judgment dated 23-6-1999 of the Federal Service Tribunal, Islamabad, passed in Appeal No.984(R) of 1999).

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

----Ss. 2-A & 6---Limitation Act (IX of 1908), S. 5---Constitution of Pakistan (1973), Art. 212---Delay condonation of---Abatement of pending proceedings---Insertion of S. 2-A in Service Tribunals Act, 1973---Effect--­Civil servant who was dismissed from service filed Constitutional petition before High Court against the dismissal---Constitutional petition stood abated in view of S. 2-A in Service Tribunals Act, 1973 and was dismissed--­Appeal before Service Tribunal was time-barred as the delay was caused due to pursuing the remedy before incompetent forum even after 10-6-1997--­Service Tribunal refused to condone the delay and appeal was dismissed as time-barred--- Validity---Service Tribunal should have taken a lenient view while considering the application for condonation of delay in appeal filed before the Tribunal---Petition for leave to appeal was converted into appeal by Supreme Court and case was remanded to Service Tribunal to decide the application for condonation of delay afresh.

Muhammad Afzal v. K.E.S.C. 1999 SCMR 92; Aftab Ahmed v. K.E.S.C. 1999 SCMR 197; Tawab Khan and 8 others v. Pakistan Telecommunication Company Limited and others 2000 SCMR 179 and Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104 ref.

Hafiz S.A. Rehman, Senior Advocate Supreme Court instructed by M.A. Zaidi, Advocate-on-Record for Petitioner.

Mansoor Ahmed Khan, Deputy Advocate-General for Respondents.

Date of hearing: 9th October, 2000.

2001 P L C (C.S.) 368

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwan Das and Mian Muhammad Ajmal, JJ

ENMAY ZED PUBLICATIONS (PVT.) LIMITED through Director-General

versus

SINDH LABOUR APPELLATE TRIBUNAL through Chairman and 2 others

Civil Appeal No. 1298 of 1998, heard on 18th October, 2000.

(On appeal from the judgment, dated 5-1-1998 of the High Court of Sindh, Karachi passed in Civil Petition No. D-1857 of 1997).

(a) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Constitution of Pakistan (1973), Art. 185(3)---Termination of service--- Employment on contract basis---Contentions by the employer was that even in case the Tribunal was of the view that on account of length of service of employee, he was a permanent workman and was entitled to a notice as required by S. 4 of Newspaper Employees (Conditions of Service) Act, 1973, his services could nevertheless be terminated by the employer at any time on payment of wages in lieu of such notice, therefore, the judgment of High Court was liable to be reviewed and that the employee was informed through notice that the service contract was not to be renewed who accepted the same and vide his reply requested for settlement of his dues, consequently the conduct of the employee disentitled him to claim relief of reinstatement---Leave to appeal was granted by Supreme Court to consider the contentions raised by the employer.

(b) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Termination of service--- "Temporary workman" and "permanent workman"--- Distinction---Matters of termination of service of newspaper employee are governed by the provisions of S. 4, Newspaper Employees (Conditions of Service) Act, 1973, and the same does not make any distinction between "temporary workman" and "permanent workman" or "contract employee" ---Order of termination of service of employee has to be tested on the touchstone of the provisions of S.4 of the said Act and the same is justiciable if challenged by the employee before a Court of law--­Mandatory requirement of the provision is that the decision to terminate the service of newspaper employee must be based on good cause and termination would be made through a notice.

(c) Interpretation of statutes---

----Proviso attached to main section---Effect---Proviso to a section operates as an exception and cannot render redundant or ineffective the substantial provisions of the main section.

(d) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.12(3)---Termination of service--­Newspaper employee--- Provisions of S.0.12(3) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968--­Applicability---Provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 have not been excluded to the newspaper employees, therefore, the provisions would continue to apply to them unless the same is found to be either inconsistent or in conflict with any provision of Newspaper Employees (Conditions of Service) Act, 1973

(e) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Termination of service--- "Good cause" ---Termination of service has to be made in good cause---Mere fact that the employee was given service for fixed period under the contract and on expiry of that period service was terminated, was not a "good cause" for termination of service.

(f) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----S.4---Termination of service---Principle of estoppel ---Applicability--­Employment on contract basis---Employee at the time of termination, demanded that his dues should be paid after settlement of accounts---Such demand was not to operate as estoppel against the employee regarding his reinstatement---Mere demand by the employee that his dues should be paid after settlement of accounts would not operate as estoppel against him.

(g) Industrial Relations Ordinance (XXIII of 1969)---

----S.25-A---Newspaper Employees (Conditions of Service) Act (LVIII of 1973), S. 4---Grievance petition---Maintainability---Contract employee--­Termination of service--- Non-settlement of the accounts of the employee--­Employee had a right to approach the Labour Court for redressal of his grievance against the act of termination of his service.

(h) Newspaper Employees (Conditions of Service) Act (LVIII of 1973)---

----Ss. 4 & 19(2)---Termination of service---Contract employee---Failure to give any notice ---Validity---Terms of agreement of the employee with the employer as regards termination of service could not be regarded more favourable to him for under S.4 of Newspaper Employees (Conditions of Service) Act, 1973, the services of the employees could not be terminated except on "good cause" whereas a right was being claimed under the agreement that his services could be terminated at any time without .any reason merely because the period for which he was employed, had expired--­Appeal of the employer was dismissed.

M.L. Shahani, Advocate Supreme Court for Appellant.

Shahenshah Hussain, Advocate Supreme Court for Respondents.

Date of hearing: 18th October, 2000.

2001 P L C (C. S) 382

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Deedar Hussain Shah, JJ

MUHAMMAD ISHAQUE and others

versus

GOVERNMENT OF THE PUNJAB

through Chief Secretary, Civil Secretariat, Lahore and others

Civil Petition for Leave to Appeal No. 1935-L of 1999, decided on 22nd November, 2000.

(On appeal from the judgment/order, dated 16-9-1999, of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1992 of 1993).

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

--S. 4---Constitution of Pakistan (1973), Art.212(3)---Joint appeal before Service Tribunal---Delay in filing ok appeal---Rules which prevailed at the time of induction of civil servant in service---Applicability---Leave to appeal was granted by Supreme Court to consider as to whether the civil servants could legally claim to be governed by the Rules which prevailed at the time of their induction in service, or they had no vested right to claim so and they would be governed by the amended Rules; whether the appeal before Service Tribunal suffered from laches/undue delay and misjoinder of parties and whether joint appeal before the Tribunal by all the civil servants was not competent.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masood Akhtar, Advocate- on-Record for Petitioners.

Dr. Qazi Mohy-ud-Din, Advocate Supreme Court and Tanvir Ahmad, Advocate- on-Record for Respondents.

Date of hearing: 22nd November, 2000.

2001 P L C (C.S.) 394

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

NAZEER AHMED

versus

GOVERNMENT OF SINDH

through Chief Secretary, Sindh Secretariat, Karachi and 2 others

Civil Petitions for Leave to Appeal Nos.462-K and 484-K of 1999, decided on 9th October, 2000.

(On appeal from the order of the Sindh Service Tribunal at Karachi. dated 25-5-1999 passed in Appeal No.67 of 1998).

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

----S. 8---Sindh - Civil Servants (Probation, Confirmation and Seniority) Rules, 1975, R. 13---Constitution of Pakistan (1973), Art. 212(3)--­Seniority---Retrospective promotion--- Such promotion was made on the basis of notification-issued by Government and the petitioner civil servant was made senior to the 'respondent civil servant---Service Tribunal allowed appeal filed by the respondent civil servant and fixed the seniority in the light of order passed by Supreme Court in an earlier petition filed by the respondent civil, servant---Validity---Seniority could not be confirmed with retrospective effect unless such right was established---Government had the power to make retrospective promotion but there must exist some criteria for assignment of such right with retrospective effect---Seniority might be so assigned ,that -the seniority of senior was , not adversely affected---Dates of promotion could not be later than dates of actual promotion as valuable right accrued on promotion and the officials concerned could not be denied the benefits which had accrued to .them---Regularization of seniority from the retrospective date was not permitted and was beyond the power of Government---Notification in question which could not have been issued under R.13 of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 and which was a unique and classic example of misuse .of authority and abuse of power and uncalled attempt had been made by distorting legal position to frustrate the object and decision of Supreme Court---Such administrative tyranny was deprecated by Supreme Court--­Petitioner civil servant could have been promoted with the same batch but he could not be made senior to the respondent civil servant---View taken by the Service Tribunal was in accordance with Service Rules and settled norms of justice---When the petitioner civil servant got himself impleaded as intervenor, and proper opportunity of hearing was afforded to him, he could not say that he was condemned unheard---Supreme Court refused to interfere with the judgment of the Service Tribunal---Leave to appeal was refused.

Bashir Ahmed Khan v. Mahmud Ali Khan PLD 1960 SC 195; PLD 1991 SC 82 and 1985 SCMR 1201 ref.

(b) Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975---

----Rr.11 & 13---Seniority, fixing of---Provisional seniority list ---Validity--­Seniority in the grade to which a civil servant was promoted had to take effect from the date of regular appointment to a post in the grade---Civil servants who were selected for promotion to a higher grade in one batch on their promotion to the higher grade were to retain their inter se seniority as in the lower grade---No provisional seniority list could be continued for more than a period of six months during which objections might be invited, decided and provisional seniority list Was to be made final---Supreme Court showed grave concern over the continuation of provisional seniority list for years together which had resulted in endless litigation which was an extra burden on the meagre financial resources of Government servants on the one hand and wastage of precious time of the Courts on the other, besides its detrimental effects on the administration as a whole.

Abdul Rahim Kazi, Advocate Supreme Court and A. Aziz Khan, Advocate-on-Record for Petitioner (in C.P. No.462-K of 1999).

Mian Khan Malik, Additional Advocate-Genera for Respondent No. 1. (in C. P. No.462-K of 1999).

Haider Ali Pirzada, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record (absent) for Respondent No.3 (in C.P. No.462-K of 1999).

Mian Khan Malik, Additional Advocate-General and A.A. Siddiqui, Advocate-on-Record (absent) for Petitioners (in C.P. No-484-K of 1999).

Rao Shakir Ali Naqashbandi, Advocate Supreme Court for Respondent (in C.P. No.484-K of 1999).

Date of hearing: 27th July, 2000.

2001 P L C (C.S.) 403

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

MUHAMMAD SHOIB KHAN

versus

SECRETARY, MINISTRY OF HEALTH, ISLAMABAD and 3 others

Civil Petition No.494 of 1997, decided on 20th March, 1998.

(On appeal from the judgment, dated 13-3-1997 by the Federal Service Tribunal, Islamabad in Appeal No.69(K) of 1997).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service--- Time-barred appeal---Departmental appeal was delayed by more than one and a half years which was dismissed and result was conveyed to the civil servant---Memo. of appeal under S.4 of Service Tribunals Act, 1973, was beyond time and the same was dismissed as incompetent--Validity---Civil servant was himself to blame for not pursuing the matter with due diligence and order of his removal from service, dated 27-8-1995 was made subject-matter of departmental appeal by him only on 31-12-1996 and that too without showing sufficient cause for belated resort thereto--­Order of Service Tribunal had not been shown to be suffering from any taint whatever---Leave to appeal was refused.

The Chairman, PIAC and others v., Nasim Malik PLD 1990 SC 951 ref.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 20th March, 1998.

2001 PLC(C.S.)412

[Supreme Court of Pakistan]

Present: Ajmal Mian, C. J., Sh. Riaz Ahmed and Ch. Muhammad Arif, JJ

FEDERATION OF PAKISTAN

through Secretary, Establishment Division, Islamabad and others

versus

Maj. (Retd.) MUHAMMAD AZAM and another

Civil Appeal No.723 of 1994, decided on 13th May, 1998.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 23-4-1994, passed in Appeal No.401(R) of 1993).

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

----Art.212(3)---ESTACODE, 1989 Edn., Sl. Nos. 112 & 115--­Probationer---Termination of service---Leave to appeal was granted to consider whether or not the service of the civil servant was terminated before expiry of extended period of probation in accordance with the provisions of relevant law/rules.

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

----S.4---ESTACODE, 1989 Edn., S1. Nos.112 & 115---Termination of service, on last day of probation period---Civil servant was dismissed from service on the last day when probation period was ending---Dismissal letter was handed over after the working hours on the same day---Contention by Government was that any order could be made by the Competent Authority in relation to the civil servant by midnight---Validity--­Contention was without merit---Working hours having come to close on any givers day, the status of employee had to be governed, thereafter, by the position on the basis of continuity in his period of employment, according to law---Where the services of civil servant had not been terminated up to afternoon of the day, then the same were to be treated as without taint up to midnight-on that date and beyond---Findings of facts be Service Tribunal that services of the civil servant had not been terminated during the office hours on the last day of probation much less at any earlier date, in terms of S1.Nos.112 & 115 of ESTACODE had not been shown to be suffering from any legal taint whatsoever-- Peculiarities of the case of the civil servant were resolved in his favour, after considering the entire record, in presence of the parties---Appeal was dismissed in circumstances.

Syed Tahir Hussain Shirazi v. The Governor of the Punjab and others 1990 SCMR 1510 and Muhammad Siddiq Javaid Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 ref.

Mian Tariq Mahmood, Deputy Attorney-General with Ejaz Muhammad Khan, Advocate- on-Record for Appellants.

Tanvir Bashir Ansari, Advocate Supreme Court with Ch. Akhtar Ali, Advocate- on-Record for Respondent No. 1.

Nemo for Respondent No.2.

Date of hearing: 3rd April, 1998.

2001 P L C (C.S.) 421

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Munir A. Sheikh and Qazi Muhammad Farooq, JJ

AMJAD ALI and others

versus

BOARD OF INTERMEDIATE AND SECONDARY EDUCATION and others

Civil Petitions Nos. 146-L, 150-L, 1731-L and Criminal Original Nos. l and 2-L in Civil Petitions Nos. 146-L and 150-L of 2900, decided on 31st July, 2000.

On appeal from the judgment, dated 12-1-2000 passed in Writ Petition No.6496 of 1996 and 22-6-2000 of the Lahore High Court passed in I.C.A. No. 1102 of 1999).

Board of Intermediate and Secondary Education, Faisalabad Employees (Service) Regulations---

---- Relgn. 12(2)---Constitution of Pakistan (1973), Art, 212(3) --- Ad hoc appointment ---Termination---Failure to provide opportunity of hearing--­Vested right of ad hoc appointee---Petitioners were appointed on ad hoc basis and their services were terminated before expiry of period of probation--­Constitutional petitions filed by the petitioners were dismissed by High Court---Contention by the petitioners was that no opportunity of hearing was provided to them before terminating their services---Validity---Opportunity of hearing to the petitioners in circumstances was not necessary as termination was made in accordance with terms and conditions of service as contained in their appointment letters and the same had been accepted by the petitioners---Where the terms and conditions of the appointment letter were invoked, the petitioners could not object to the same---Petitioners could not take any objection to their termination as they had not been appointed on regular basis---Ad hoc appointment against a post was only for a fixed period and the appointee had no vested right to claim continuation in service and appointees had no vested right to challenge the act of termination of their service---Leave to appeal was refused.

Malik Noor Muhammad Awan, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners (in Civil Petitions Nos. 146-L and 150-L of 2000).

Qazi Mohyuddin, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Respondents.

Malik Noor Muhammad Awan, Advocate Supreme Court and Tanvir Ahmad, Advocate-on-Record for Petitioners (in Civil Petition No. 1731-L of 2000).

Qazi Mohyuddin, Advocate Supreme Court and M. Aslam Ch., Advocate-on-Record for Respondents Nos. 1 and 2.

Malik Noor Muhammad Awan, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate-on-Record for Petitioners (in Criminal Original Nos. l and 2-L of 2000)

Tanvir Ahmad, Advocate-on-Record for Respondents.

Date of hearing: 31st July, 2000.

2001 P L C (C.S.) 425

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Deedar Hussain Shah and Hamid Ali Mirza, JJ

NATIONAL INVESTMENT TRUST LTD.

versus

SAMI ULLAH and another

Civil Petition for Leave to Appeal No. 285-K of 2000, decided on 3rd August, 2000.

(On appeal from the judgment of Federal Service Tribunal dated 8-4-2000 passed in Appeal No. 611 (K) of 1999).

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

----S. 2-A---Banks Nationalization Act (XIX of 1974), S.11---Employees of National Investment Trust---Status of civilservant---Validity---Federal Government, under the provisions of S. 11, Banks Nationalization Act, 1974, has the control, management and administration over the affairs of the Trust---Employees of the Trust are deemed to be civil servants Within the purview of S.2-A of Service Tribunals Act, 1973.

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

----Art. 212(3)---Service Tribunals Act (LXX of 1973), S. 2-A---General Clauses Act (X of 1897), S. 6 (c)---Settlement of dues after retirement of civil servant---Voluntary Separation Scheme---Civil servant was initially an employee of Ministry, of Finance and was later on selected as Officer Grade-III in National Investment Trust---Voluntary Separation Scheme was offered by the. Trust to its employees and the civil servant accepted the ' same---Period of service of the civil servant with the Federal Government in Ministry of Finance 'was not included for the purpose of retirement and settlement of dues pursuant to the Scheme---Service Tribunal, on appeal, directed that period of service as civil servant in the Ministry of Finance be included in his service---Validity---Civil servant who had applied for his appointment through proper channel and there was no break in his service was entitled to service benefits on voluntary retirement---Civil servant was also governed by S. 6(c) of General Clauses Act, 1897 for computation' of period of service for receiving settlement dues pursuant to the acceptance of option for Voluntary Separation . Scheme---Service Tribunal was right in arriving at the conclusion 'by allowing the civil servant's appeal and the judgment of the Tribunal did not suffer from any inherent infirmity or jurisdictional error---Indulging of public functionaries iii litigation at public expense, instead of being fair and reasonable towards civil servants was deprecated by Supreme Court---Public functionaries should act fairly, justly and equitably---Leave to appeal was refused by the Supreme Court.

Noor Muhammad Shaikh, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd August, 2000.

2001 P L C (C.S.) 430

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Iftikhar Muhammad Chaudhry, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others

versus

MUHAMMAD AZAM ANJUM and others

Civil Petitions Nos. 957-L and 850-L of 2000, decided on 4th July, 2000.

(On appeal from the judgment dated 1-3-2000 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1610 of 1998).

Constitution of Pakistan (1973)---

----Art. 212(3)---Charge of procedural irregularity---Civil servant did not cause any loss to the Government and the other civil servant proceeded against for similar charges had been exonerated of the charges---Service Tribunal allowed the appeal of the civil servant---Contention of the Authorities was that the Tribunal should have restored the punishment imposed by the Competent Authority---Validity---Neither any legal flaw could be indicated in the judgment of the, Tribunal, nor any substantial question of law of public importance was involved in the matter---Leave to appeal was refused.

M. Anwar Ghuman, Advocate Supreme Court and Rao M. Yusuf Khan, Advocate- on-Record for Petitioners. (in C:P. No.957-L of 2000).

M. A. Zafar, Advocate Supreme Court and-Ch. Mehdi Khan Mehtab, Advocate- on-Record for Petitioners (in C.P. No.850-L of 2000).

Nemo for Respondents.

Date of hearing: 4th July, 2000.

200I P L C (C.S.) 591

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

Civil Appeals Nos. 1796 to 1798 of 1998

Messrs PAKISTAN STATE OIL CO. LTD.

versus

MUHAMAMD TAHIR KHAN and others

(On appeal from judgment dated 19-8-1998 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.21-P/98, 317-R/98 & 22-P/98).

Civil Appeal No. 378 of 1999.

ISHFAQ HUSSAIN

versus

PAKISTAN STATE OIL COMPANY LTD.

(On appeal from judgment dated 10-4-1999 passed by the Federal Service Tribunal, Islamabad in Service Appeal No. 42-L of 1999).

Civil Appeals Nos. 388 to 393 of 1999

FAZLE MANSOOR and others

versus

PAKISTAN STATE OIL COMPANY LTD. and others

(On appeal from judgment dated 4-11-1998 passed by the Federal Service Tribunal, Islamabad in Appeals Nos.298-P/98 to 300/98 and 302­P/98 to 305-P/98). -

Civil Appeals Nos. 23-K to 32-K of 1999

ALLAH DINO MIRANI and others

versus

FEDERAL SERVICE TRIBUNAL and others

(On appeal from judgment dated 17-10-1998 passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 790--K/98, 791-K/98, 812­x/98, 813-K/98, 814-K/98, 815-K/98, 920-K/98, 816-K/98, 237-K/98 and 238-K/98).

Civil Appeals Nos. 1707 of 1998 and 75 of 1999

ZAFAR ALI ARBAB and another

versus

PAKISTAN STATE OIL COMPANTY LTD. and others

(On appeal from judgment dated 4-11-1998 passed by the Federal Service Tribunal, Islamabad in Appeals Nos. 301-P/98 and 839-R/98).

Civil Appeals Nos.'947 to 954 of 1999

MUHAMMAD SIBITAIN BHATTI and others

versus

PAKISTAN STATE OIL COMPANTY LTD. and others

(On appeal from judgment dated 10-4-1999 passed by the Federal Service Tribunal, Lahore in Appeals Nos. 996-L/98, 775-1,798, 774-L/98, 1442- L/98,771- 1,/98, 773-1,/98,1341-L/98 and 918-L/98).

Civil Petition No.972 of 1999

MUHAMMAD AKRAM KHAN

versus

PAKISTAN STATE OIL COMPANTY LTD. and others

(On appeal from judgment dated 10-4-1999 passed by the Federal Service Tribunal, Islamabad in Appeal No.18-P/98).

Civil Petition No. 1147 of 1999

JOHN GEORGE

versus

ISLAMIC REPUBLIC OF PAKISTAN and others

(On appeal from judgment dated 10-4-1999 passed by the Federal Service Tribunal, Lahore in Appeal No. 772-L/98).

Civil Petition No. 129-K of 2000

SAJID AHMAD

versus

FEDERAL SERVICE TRIBUNAL

(On appeal from judgment dated 9-2-2000 passed by the Federal Service Tribunal, Islamabad in Appeal No: 1039-K/98). .

Civil Appeals Nos. 1796 to 1798 of 1998, 378 of 1999, 388 to 393 of 1999 and Civil Petitions Nos.23-K to 32-K of 1999, 1707 of 1998, 75 of 1999, 947 to 954 of 1999, 972, 1147 of 1999 and 129-K of 2000, decided on 1st December, 2000.

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

----Ss.7, 4 & 2-A---Appeal to Service Tribunal---Limitation---Delay in filing appeal before Service Tribunal could be condoned in view of the peculiar facts and circumstances of the case.

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

----Ss.2-A & 4---Employee of Corporation etc.---Trainee or probationer--­Termination of service---Show-cause notice---Necessity---If service of a trainee or a probationer was terminated on grounds of mala fide in law or fact, he was entitled to show-cause notice not on the basis of principles of natural justice but on the ground that the Authority concerned had abused the power vested in it.

(c) Administration of justice---

---- Every case is to be adjudged in the light of its own circumstances with reference to the applicable law.

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

----S.2-A---Rationale behind the insertion of S.2-A in the Service Tribunals Act, 1973---Intention of Legislature appeared to be to provide a forum to the employees of Corporations etc. against their arbitrary removal, discharge from service or other final orders that may be passed by such Corporation etc. adversely affecting the terms and conditions of their service.

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

----S.2-A---Employee of Corporation controlled by Government---Terms and conditions of service of the employee were not regulated by any statute or statutory rules---Employee was not civil servant within the meanings of the Civil Servants Act, 1973 and the Rules framed there under---No statutory Rules or Regulations had been framed in respect of the terms and conditions of service of the employee---Service Rules had not been framed by the employers regulating the terms and conditions of service even for the purposes of internal management---Terms and conditions of service of the employee were wholly regulated, by the contract of employment---Such an employee had a right to approach the appropriate Service Tribunal under S.2-A, Service Tribunals Act, 1.973 for protection of his right of employment flowing from the contract of service.

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

----S.2-A---Employee of a Corporation controlled by Government Dismissal from service-'on account of misconduct or improper conduct--­Service contract of employee of the Corporation showed terms and conditions providing therein that employer had the right to terminate the services of an. employee without assigning any reason, throughout the currency of his service, in lieu of payment of one month's salary---Held, in case of dismissal, however, for reasons of misconduct or improper conduct it was incumbent upon the employer to provide an opportunity to the employee to explain, in writing, the allegations against him as provided in the service contract.

(g) Interpretation of document---

----Service contract---No provision of the document has to be read in isolation or in bits and, pieces but the entire document is to be read as a whole to gather the intention of the parties.

(h) Constitution of Pakistan (1973)---

----Art. 212---Service Tribunals Act (LXX of 1973), S.2-A---Appeal to Supreme Court---Service contract between employer and employee, as a whole, indubitably showed that ordinarily an employee once recruited after successful completion of his probationary period, was entitled to continue in service till the age of 60 years except where he was removed earlier on the ground of misconduct or improper conduct---Employer, in the said contract, had also retained the power to terminate the services of an employee in the exigencies of service---Question as to whether the termination of employee's services was "simpliciter" or "dismissal in the garb of termination" necessitated an enquiry into facts which could not be undertaken by, the Supreme Court at appellate stage---Service Tribunal had not gone into the said aspect of the case---Supreme Court, in circumstances, remitted the cases to the Service Tribunal for disposal afresh on merits and in accordance with law in the light of the observations of the Supreme Court---Parties were also permitted to produce additional material in support of their respective pleas, if so advised.

Muhammad Nazir Malik v. S.A.T. Wasti and others 2000 SCMR 1255; Muhammad Afzal v. Karachi Electric Supply Corporation 1999 SCMR 92.; Furqan Habib and others v. Government of Pakistan and others C.Ps. Nos. 2049-L to 2051-L of 1998; Khan Muhammad v. Senior Superintendent of Police, Rawalpindi and others 1989 SCMR 589; Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296; Lt.- Col. Shujauddin Ahmad 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. P.I.A.C., Karachi 1971 SCMR 568; George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748; R.T.H. ' Janjua v. National Shipping Corporation PLD 1974 SC 146; Muhammad Yousaf Shah v. Pakistan International Airlines Corporation LTD 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; C.Ps. Nos. 391-K to 456-K of 1998; Ghiasuddin Sheikh and others v. Federation of Pakistan and others C.Ps. Nos. 507-K to 513-K of 1998; Syed Aftab Ahmad v. K.E.S.C. C.P.L:A. No. 1305-K of 1997; Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Al-Qur'an Majeed: Surah V, Al-Maidah : 1; Surah XVIII Bani Israil: 34; Ahmad Faraz v. Government of Pakistan 1991 PLC (C.S.) 407; Muhammad Sadiq Shah v. Government of N.-W.F.P. and others 1998 PLC (C.S.) 768; Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig PLD 1994 -Kar. 194; Habib Bank Ltd., Karachi v. Pakistan Industrial Promoters (Pvt.) Ltd. PLD 1996 Kar. 218; Abdul Karim v. The West Pakistan Province PLD 1956 SC (Pak.) 298; Pakistan v. Muhammad Abdul Ali PLD 1961 Dacca 543; The Secretary, East Pakistan Industrial Development Corporation, Dacca v. M.D. Serajul Haque 1970 SCMR 398; Pakistan (Punjab Province) v. Riaz Ali Khan 1982 SCMR 770; The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170; PLD 1992 SC 531-; ' The Secretary, Government of the Punjab 'v. Riaz ul Haq 1997 SCMR 1552;, Habib Bank Ltd. v. Ziaul Hassan Kazmi 1998 SCMR 60 and United Bank Ltd. and others v. Ahsan Akhtar and others 1998 SCMR 68. ref.

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Appellants (in Civil Appeals Nos. 1796 to 1798 of 1998).

A.H. Gillani, Advocate Supreme Court, Sh. Riaz-ul-Haq, Advocate Supreme Court with Ijaz Muhammad Khan, Advocate-on-Record for Respondent No. l (in Civil Appeals Nos. 1796 to 1798 of 1998).

Remaining Respondents: Ex pane (in Civil Appeals Nos. 1796 to 1798 of 1998).

Ubaid-ur-Rehman, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellant (in Civil Appeal No. 378 of 1999).

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No. l (in Civil Appeal No. 378 of 1999).

Remaining Respondents: Ex parte (in Civil Appeal No. 378 of 1999). .

Riaz-ul-Haq, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Appellants (in Civil Appeals Nos. 388 to 393 of 1999).

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No. l (in Civil Appeals Nos. 388 to 39.3 of 1999).

Remaining Respondents: Ex parte (in Civil Appeals .Nos. 388 to 393 of 1999).

A.H. Lakhoo, Advocate Supreme Court for Petitioners (in Civil Petitions Nos. 23-K to 32-K of 1999).

Raja Haq Nawaz, Advocate Supreme Court for Respondent No.2 (in Civil Petitions Nos. 23-K to 32-K of 1999).

Fateh Muhammad Khan, Advocate-on-Record for Petitioner (in C.P. No. 1707 of 1998).

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No. l (in C. P. No. 1707 of 1998).

Sh. Riaz-ul-Haq, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner (in Civil Petition No. 75 of 1999). .

Raja Haq Nawaz, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Respondent No.l (in Civil Petition No. 75, of -1999).

Sh. Riaz-ul-Haq, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner (in Civil Petitions Nos. 947 to 954 of 1999)

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No. 1 (in Civil Petitions Nos. 947 to 954 of 1999).

Sh. Riaz-ul-Haq, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner (in Civil Petition No. 972 of 1999).

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No. l (in Civil Petition No. 972 of 1999).

Sh. Riaz-ul-Haq, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner (in Civil Petition No. 1147 of 1999).

Raja Haq Nawaz, Advocate Supreme Court with Ch. Akhtar Ali, Advocate-on-Record for Respondent No.1 (in Civil Petition No. 1147 of 1999).

A.H. Lakhoo-, Advocate Supreme Court for Petitioner (in C.P. No. 129-K of 2000).

Raja Haq Nawaz, Advocate Supreme Court for Respondent No.2 (in C.P. No. 129-K of 2000).

Date of hearing: 27th November, 2000.

2001 P L C (C. S.) 697

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Rana Bhagwan Das and Mian Muhammad Ajmal, JJ

GOVERNMENT OF N.-W.F.P and others

versus

RUHUL QUDOOS

Civil Appeal No. 787 of 1997, decided on 20th October, 2000.

(On appeal from the judgment, dated 25-7-1996 of the N.-W.F.P. Service Tribunal, Peshawar passed in Appeal No.619 of 1995).

North-West Frontier Province Civil Servants Act (XVIII of 1973)----

----S. 13(i)---Compulsory retirement from service---Past and closed transaction---Service Review Board, recommendations of---Civil servant, on a complaint, was suspended and later on compulsorily retired from service--­Complaint was withdrawn by the complainant during pendency of proceedings against the civil servant---Provincial Government constituted Service Review Board for redressal of grievances of civil servant---Board recommended reinstatement of the civil servant in his service---Government declined to accept the recommendation of the Board and the civil servant was not reinstated---Service Tribunal accepted the appeal of civil servant and-he was reinstated with full back benefits---Contention of the Government was that the original order of compulsory retirement of the civil servant having attained finality and having become past and closed transaction, could not have been reopened, by the Service Tribunal---Validity---Government itself had reopened the matter by providing to the aggrieved person remedy of making application within thirty days which could safely be construed to be an amendment in the relevant rules of departmental appeal and representation for limited purposes of providing another remedy of making representation afresh on which the entire matter stood reopened and the alleged finality, if any, attached to the original order had been done away with--­Recommendations of the Board and any order passed by the Competent Authority on the basis of the same, therefore, gave fresh cause of action to the aggrieved person who could approach the Service Tribunal if he felt aggrieved of the order passed by the Coma --tent Authority in relation to the recommendations by the Board---Contention of the Government was repelled--- Recommendations of the Board were based on the considerations under the relevant laws, the annual confidential reports of the entire period of service of the civil servant were found good and the complaint against the civil servant had also been withdrawn---No proof of any act of misconduct of the civil servant, thus, existed nor any reason was given while passing the order of his compulsory retirement and the same was a fanciful and whimsical order---Service Tribunal did not commit and illegality by accepting, the appeal of the civil servant and ordering his reinstatement in service with full back benefits.

Rashidul Haq Qazi, Additional Advocate-General, N.-W.F.P. for Appellants.

Respondent in person.

Date of hearing: 20th October, 2000.

2001 P L C (C.S.) 708

[Supreme Court of Pakistan]

Ajmal Mian, CJ., Mamoon Kazi and Wajihuddin Ahmed, JJ, FAZAL ILLAHI and others

versus

P.T.C. and others

Civil Petitions for Leave to Appeal Nos.259-K 288-K to 295-K, 311-K to 315-K, 328-K, 332-K, 339-K, 340-K, 342-K, 351-K, 352-K, 350-K to 362-K, 364-K, 370-K, 371-K, 375-K, 377-K, 381-K, 383-K, 388-K, 462-K, 474-K, 479-K, 529-K and 552-K of 1998, decided on 3rd August, 1998.

(On appeals from the judgment dated 25-2-1998 of the Federal Service Tribunal, Camp at Karachi, passed in Appeal No.690-K of 1997 and other connected appeals).

Constitution of Pakistan (1973)---

----Art. 212(3)---Petitions for leave to appeal---Conversion in appeals--­Delay ---Condonation of ---Supreme Court converted petitions for leave to appeal into appeals and remanded cases to Service Tribunal fo7 fresh decision---Some of petitions for leave to appeal were time-barred, but as all cases had been remanded, delay in said petitions was also condoned.

Petitioners in person (in C.Ps. Nos.259-K, 288-K to 295-K of 1998).

Ghulam Haider Chacher, Assistant Director, STR V, Sukkur for Respondents.

A.A. Siddiqui, Advocate-on-Record for Petitioners (in C.Ps. Nos.311-K, 312-K, 313-K, 314-K, 315-K, 351-K and 352-K of 1998).

Petitioners in person (in C.Ps. Nos. 332-K, 340-K, 342-K, 364-K, 375-K, 381-K and 529-K of 1998).

Raja Haq Nawaz, Advocate Supreme Court and M.S. Ghaury, Advocate-on-Record for Respondents (in C-Ps. Nos.351-K and 352-R of 1998).

Muhammad Mushaffy Ahmed, Deputy Manager, Pakistan Steels for Respondent (in Remaining Petitions).

Petitioner in person (in C.P. No. 328-K of 1998).

Nema for Respondent (in C.P. No. 328-K of 1998).

M.L. Shahani, Advocate Supreme Court and N.C. Motiani, Advocate-on-Record for Petitioner (in C.P. No. 339-K of 1998).

Nemo for Respondent (in C P. No. 339-K of 1998).

Petitioners in person (in C Ps, . Nos. 359-K, 360-K, 361-K, 370-K and 371-K of 1998).

Mehmood Khan, Superintendent, PAEC for Respondents (in C.Ps. Nos. 359-K, 360-K, 361-K, 370-K and 371-K of 1998).

Petitioner in person (in C P. No. 362-K of 1998).

A. Aziz Khan, Advocate-on-Record for Respondent (in C.P. No. 362-K of 1998).

M.M. Haque, Advocate Supreme Court and Faizanul Haque, Advocate-on-Record for Petitioner (in C.P. No.337-K of 1998).

S. Hassan Munawar, Assistant Manager Law for Respondent (in C. P. No. 377-K of 1998).

R.A. Qureshi, Advocate-on-Record for Petitioner (in C.P. No.383-K of 1998).

Nemo for Respondent (in C.P. No. 383-K of 1998)., Petitioner in person (in C.P. No. 388-K of 1998).

Nemo for Respondent (in C.P. No. 388-K of 1998).

Petitioner in person (in C.P. No. 462-K of 1998).

Muhammad Aslam Rao, Resident Director for Respondent (in C.P. No.462-K of 1998).

Petitioner in person (in C.P. No. 474-K of 1998).

Nemo for Respondent (in C.P. No. 474-K of 1998).

Petitioner in person (in C.P. No. 479-K of 1998).

M.S. Ghaury, Advocate-on-Record for Respondent (in C.P. No. 479-K of 1998).

Petitioner in, person (in C.P. No. 552-K of 1998).

Nemo for Respondent (in C.P. No. 552-K of 1998).

Date of hearing: 3rd August, 1998.

2001 PLC(C.S.)716

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

GOVERNMENT OF SINDH and another

versus

NISAR ALI BIJARANI and 10 others

Civil Petitions Nos.334‑K to 344‑K, of 2000, decided on 15th August, 2000.

(On appeal from the common order of the High Court of Sindh, dated 9‑12‑1999 passed in C.P. No.D‑431, D‑350, D‑349, D‑348, D‑347, D‑345, D‑344, D‑343, D‑342 and D‑241 of 1991 respectively).

Sindh Civil Servants (Regularization of Ad hoc Appointments) Act (XIX of 1994)‑‑‑‑

‑‑‑S. 3‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Ad hoc appointment, regularization of‑‑‑Order of regularization of ad hoc appointments was passed by the concerned Ministry and not by the Chief Minister of the Province‑‑‑Contention of the Provincial Government was that Special Committee was not properly constituted and orders with regard to regularization were to be passed by the Chief Minister of the Province‑‑­Validity‑‑‑Where the appointments were made on regular basis on the recommendation of Special Committee, the Provincial Government could not be permitted to take advantage of failure of Chief Minister to perform his duties and obligations ordained by law‑‑‑Order passed by High Court did not suffer from any illegality or material irregularity, therefore, was unexceptionable warranting no interference by Supreme Court‑‑‑Leave to appeal was refused.

Muhammad Iqbal Khokhar v. The Government of the Punjab PLD 1991 SC 35; Ahsanullah A. Memon v. Government of Sindh 1993 SCMR 982 and S.M. Farooq v. Muhammad Yar Khan 1999 SCMR 1039 distinguished.

Ainuddin, Additional A.‑G., Sindh for Petitioners.

Nemo for Respondents.

Date of hearing: 15th August, 2000.

2001 P L C (C.S.) 725

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan, Abdul Hameed Dogar and Tanvir Ahmad Khan, JJ

INSPECTOR-GENERAL OF POLICE, PUNJAB, LAHORE and others

versus

MUHAMMAD TARIQ

Civil Petition No.246-L of 1999, decided on 1st November, 2000.

(On appeal from the order, dated 20-10-1998 of the Punjab Service Tribunal passed in Appeal No.2257 of 1997).

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

----R.4---Proceedings in criminal case as well as before Departmental Authorities against civil servant---Acquittal in criminal cases does not debar the Departmental Authorities to take action against delinquent in accordance with law and rules---Such acquittal does not give to delinquent clean certificate of his absolvement from the departmental proceedings---Both the proceedings are conducted respecting the case registered against the delinquent while the departmental proceedings are regarding the charges of malversation and misconduct---Both the proceedings, however, can go side by side as their nature is totally different.

The Deputy Inspector-General of Police, Lahore and others v. Anis-ur-Rehman Khan PLD 1985 SC 134 and Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others 1996 SCMR 315 rel.

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

----R.4---Proceedings in criminal case as well as before Departmental Authorities against civil servant---Acquittal in criminal case---Bar of imposing of any penalty in departmental proceedings under Government Servants (Efficiency and Discipline) Rules, 1973---Validity---After the civil servant has been acquitted of criminal charge, there is no bar on imposing penalty under Government Servants (Efficiency and Discipline) Rules, Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar PLD 1987 SC 195 rel.

(c) Police---

---- Duties and functions of police force discussed.

Police Administration ref.

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

----R.4---Constitution of Pakistan (1973); Art. 212(3)---Dismissal from service--- Acquittal in criminal case---Proceedings in criminal case as well as before Departmental Authorities---Civil servant police official was departmentally proceeded against for committing Zina-bil-Jabr---Civil servant was found guilty in preliminary inquiry but in regular inquiry the Inquiry Officer exonerated him of the charge---Departmental Authorities dismissed the civil servant from the service as he was earlier involved in three other criminal cases also---Departmental appeal as well as revision were dismissed---Service Tribunal allowed the appeal and set aside the dismissal order---Validity---Civil servant was even earlier discharged from service and his punishment was subsequently converted into forfeiture of two years' approved service but he again started misusing his official position---Such-like person did not deserve to be retained in police force--­Supreme Court converted the petition for leave to appeal into appeal and set aside the judgment of the Tribunal.

Shawar Khilji, Advocate Supreme Court and Rao Muhammad Yousaf Khan., Advocate- on-Record for Petitioners.

Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad Aslam Ch., Advocate- on-Record for Respondent.

Date of hearing: 1st November, 2000.

2001 P L C (C.S.) 739

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

Civil Petitions Nos. 2110-L, 2111-L, 2113-L, 2117-L, 2119-L, 2120-L, 2128- L,2140- L;2144-L,2145-L,2165-L,2169-L, 2184-L to 2186-L, 2189-L, 2191-L, 2192-L, 2194-L to 2196-L, 201-L, 2203-L, 2207-L, 2230-L, 2488-L to 2492-L of 2000.

NASEER AHMAD KHAN and others

versus

PRESIDENT, UBL and others

(On appeal from the judgment dated 1-5-2000 of the Federal Service Tribunal, Lahore, passed in Appeals Nos. 1203-L, 1222-L, 1292-L, 1282-L, 1227-L, 1265-L, 1220-L, 1272-L, 1209-L, 1316-L, 1324-L, 1062-L, 1112-L, 1111-L,1216-L, 1240-L, 1266-L, 1263-L, 1219-L, 1271-L, 1269-L, 1235-L, 1270-L, 1293-L, 1310-L, 1684-L, 1624-L, 1623-L, 1616-L and 1390-L of 1998).

Civil Petitions Nos. 2092-L to 2109-L, 2112-L, 2114-L to 2116-L, 2118-L, 2121-L to 2127-L, 2129-L to 2139-L, 2141-L to 2143-L, 2146-L to 2164-L, 2166-L, 2167-L, 2168-L, 2170-L to 2183-L, 2188-L, 2190-L, 2193-L, 2197-L to 2199-L, 2202-L, 2204-L to 2206-L, 2208-L to 2229-L, 2231-L, 2243-L to 2245-L, 2200-L and 2333-L to 2335-L of 2000

SHAHID HAMEED BODLA---Petitioner

versus

U.B.L. and others---Respondents

(On appeal from the judgment dated 14-6-2000 of the Federal Service Tribunal, Lahore, passed in Appeals Nos.961-L, 960-L, 1059-L, 12045-L, 971-L, 962-L, 1020-L, 958-L, 848-L, 970-L, 963-L, 261-L, 1004-L, 1433-L, 959-L, 1432-L, 1506-L, 1271-L, 886-L, 964-L, 1235-L, 843-L, 1435-L, 1087-L, 849-L, 1413-L, 1003-L, 896-L, 1065-L,-893-L, 1058-L, 1028-L, 1067-L, 932-L, 1349-L, 927-L, 852-L, 1047-L, 884-L, 1034-L, 1042-L, 998-L, 1064-L, 1068-L,1088-L, 900-L, 838-L, 1035-L, 101-L, 810-L, 889-L, 941-L, 885-L,936-L, 928-L, 1484-L, 812-L, 890-L, 973-L, 1880-L, 1981-L, 855-L of 1998, 4-L of 1999, 1000-L, 1016-L of 1998, 1350-L, 1756-L, 915-L, 1837-L, 901-L, 872-L, 1839-L, 969-L, 899-L, 1720-L, 1002-L of 1998, 441-L of 1999, 892-L of 1998, 999-L, 938-L, 940-L, 933-L, 847-L, 1742-L, 1054-L, .891-L, 844-L, 882-L, 1722-L, 1412-L, 873-L, 1980-L, 877-L, 875-L, 1001-L, 943-L, 10037-L, 1021-L, 871-L, 975-L, 1410-L, 1011-L, 1409-L, 442-L, 934-L, 1468-L, 898-L, 883-L, 997-L, 926-L, 1530-L, 897-L, 1048-L, 902-L, 840-L, 1010-L, 1012-L, 6009-L, 966-L, 1027-L and 1026-L of 1998).

Civil Petitions Nos. 2110-L, 2111-L, 2113-L, 2117-L, 2119-L, 2120-L, 2128-L, 2140-L, 2144-L„ 2145-L, 2165-L, 2169-L, 2184-L to 2186-L, 2189-L, 2191-L, 2192-L, 2194-L to 2196-L, 2201-L, 2203-L, 2207-L, 2230-L, 2488-L to 2492-L of 2000, Civil Petitions Nos. 2092-L to 2109-L, 2112-L, 2114-L to 2116-L, 2118-L, 2121-L to 2127-L; 2129-L to 2139-L, 2141-L to 2143-L, 2146-L to 2164-L, 2166-L, 2167-L, 2168-L, 2170-L to 2183-L, 2187-L, 2188-L, 2190-L, 2193-L, 2197-L to 2199-L, 2202-L, 2204-L to 2206-L, 2208-L to 2229-L, 2231-L, 2243-L to 2245-L, 2200-L, 2333-L to 2335-L of 2000, decided on 23rd October, 2000.

Service Tribunals Act (LXX of 1973)---

----Ss.2-A & 6---Constitution of Pakistan (1973), Art.212(3)---Bank employees--- Termination of services under Retirement Scheme of employees of various categories of Bank ---Principle of consistency---Applicability--­Controversy raised in the petitions was pari materia with the controversy which was set at rest by Supreme Court in Akram Zaheer's case reported as 2000 SCMR 1232---Following the rule of consistency the Bank employees were also entitled to equal treatment---Parties by consent agreed that the cases be remanded to the Bank for disposal to the extent that adjustment of loans obtained by the employees from the respondent-Bank would be made strictly in accordance with the respective loan agreements executed between each of the employees and the Bank and grant of pensionary benefits would be available to the employees who were found entitled for the same in accordance with the Service Rules of the Bank in force at the time of termination of their services---Supreme Court while converting the petitions into appeals maintained the order of termination of employees but remanded the cases to the Bank for reconsideration to the extent of agreement arrived at between the parties---Any employee feeling aggrieved of the decision of the Bank to his extent would be within his right to approach the Service Tribunal after exhausting the departmental remedy in that behalf.

United Bank Limited through President v. Shahmin Ahmed Khan PLD 1999 SC 990 ref.

Akram Zahoor v. Federation of Pakistan 2000 SCMR 1232 fol.

Muhammad Akram Sheikh, Senior Advocate Supreme Court with Syed Abul Asim Jafri, Advocate-on-Record for Petitioners.

Raja Muhammad Akram, Senior Advocate Supreme Court for Respondents.

Date of hearing: 23rd October, 2000.

2001 P L C (C. S) 743

Present: Irshad Hasan Khan, C.J.

Ch. Muhammad Arif and Deedar Hussain Shah, JJ

SUI SOUTHERN GAS COMPANY LTD.

versus

Engr. NARAINDAS and others

Civil Review Petitions Nos. 79 to 221 of 2001 in Civil Appeals Nos.96 to 238 of 2001, decided on 30th March, 2001.

(On review from the judgment of this Court dated 2-2-2001, passed in Civil Appeals Nos.96 of 2001 to 238 of 2001).

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

----Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 1- --Review of Supreme Court judgment---Scope---Review petition is sustainable where a glaring omission or patent mistake has crept in the judgment under review on account of judicial fallibility---Where error in any decision floats on the surface and/or is manifest on the face of the record, which is so material that had the same been noticed prior to the rendering thereof, the conclusion would have been different, petition for review would be maintainable.

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

----S. 4---Constitution of Pakistan (1973), Art.199---Appeal---Scope--­Factum of the rules of service of appellant being statutory or non-statutory would not debar the Service Tribunal to enforce the same as that point would be relevant -in cases of exercise of writ jurisdiction because there the violation of statutory rules would be prerequisite for issuance of writ.

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

----Ss. 2-A & 5---If the services of any person covered by S.2-A, Service Tribunals Act, 1973 were wrongly/illegally terminated, his grievance could be appropriately remedied by the appropriate Service Tribunal under S.5, Service Tribunals Act, 1973.

(d) Master and servant---

----Rule of---Concept---Rule of master and servant is a common law concept which falls in the realm of contract.

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

----Ss. 4 & 5---Termination of service---Anneal---Jurisdiction of Service Tribunal--- Scope---Rule of master and servant being a common law concept which fell in the realm of contract, it was wrong to contend that on the theory of master and servant relationship the Service Tribunal was not authorised to reinstate an employee whose services had been illegally terminated.

(f) Civil service---

---- Termination of service---Employer, after having elected to apply the constraints of contract/temporary assignment against the employees, could not make a U-turn by placing reliance on the Service Rules of the establishment.

(g) Civil service--

---- Retrenchment---Scope---Termination of services of the employees was not only found wrongful/illegal but also discriminatory qua another particular section of the employees belonging to a particular region-- -Employer having also advertised vacancies in the Press, case of employer, therefore, was not that of retrenchment with the result that employer could ill-afford to rely on its alleged impecunious circumstances in that behalf.

(h) Constitution of Pakistan (1973)---

----Art. 188---Supreme Court Rules, 1980, O. XXVI, R. 1---Review of Supreme Court judgment---Scope---Petitioner for review could not be allowed to re-argue the case in the garb of review petition---Judgment sought to be reviewed did not call for review on any ground whatsoever--­Nothing had been overlooked by the Supreme Court nor the Court had failed to consider any important aspect of the matter while rendering the judgment under review---Review jurisdiction of Supreme Court could not be invoked as a matter of routine to re-hear a case which had already been decided.

(i) Supreme Court Rules, 1980---

----O. XXVI, R.7---Constitution of Pakistan (1973), Art.188 --- Review of Supreme Court judgment---Payment of cash security to the opposite-party--­Principles ---If a review is contested by the opposite-party and dismissed, the cash security of Rs.10,000 was to be paid to the opposite-party.

(j) Constitution of Pakistan (1973)---

----Art. 212---Termination of service---Supreme Court had ordered the employer to absorb the terminated employees in their respective disciplines on the same lines as had been done in another case decided by the Supreme Court reported as The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176---Counsel of the employees stated before the Supreme Court that notwithstanding the clear directions made in the judgment by the Supreme Court, the employer had not absorbed the employees so far---Supreme Court directed the employer to ensure that the order passed by the Court was implemented in letter and spirit within one week from the date of receipt of copy of this judgment, failing which the employer would expose itself to punitive action in accordance with law.

The Managing Director, Sui. Southern Gas Co. Ltd. v. Saleem Mustafa_ Shaikh PLD 2001 SC 176; Lt.-Col. Farzand Ali v. Province of West Pakistan 1980 SCMR 909; Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787; Chairman, WAPDA and 2 others v. Syed Jamil Ahmed 1993 SCMR 346; Muhammad Bashir and others v. Chairman, Punjab Labour Appellate Tribunal, Lahore and others 1991 SCMR 2087; Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531; Mrs. Anisa Rehman v: P.I.A.C. and another 1994 SCMR 2232; Zarghun Shah v. Surgeon-General and another 1997 PLC (C.S.) 4; Muhammad Ali v. Secretary, Ministry of Foreign Affairs, Islamabad and another 1997 PLC (C.S.) 6; The Secretary Government of the Punjab through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Obaidullah and another v. Habibullah and others PLD 1997 SC 835; Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi 1998 SCMR 60; Agha Salim Khurshid and another v. Federation of Pakistan and others 1998 PLC (C.S.) 1345; United Bank Limited through President v. Shahmim Ahmed Khan and 41 others 1999 PLC (C.S.) 1032; Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others 1999 PLC (C.S.) 1208; Inam Ali Bhutto and others v. Sui Southern Gas Company Limited and others 2000 PLC (C.S.) 459; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612;„Abdul Jabbar v. Sui Southern Gas Company Ltd. C.Ps: Nos.391-K to 456-K of 1999; Muhammad Tariq Pirzada v. Federation of Pakistan 1999 SCMR 2189; Abdul Ghaffar-Abdul Rehman v. Asghar Ali PLD 1998 SC 363; Chandra Kumar v. Union of India (1997) 3 SCC 261; Gunton v. London Borough of Richmond upon Thames (1980) 3 All FLR 577; R v. Civil Service Appeal Board, Ex Parte Bruce (1988) 3 All ELR 686 ref.

Fakhruddin G. Ebrahim; Senior Advocate Supreme Court with Barrister Ch. M. Jamil, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Petitioner.

Wasim Sajjad, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate- on-Record for Respondents.

Muhammad Akram Sh., Senior Advocate Supreme Court with M.A Zaidi, Advocate-on-Record for Respondents (in C.R.Ps. Nos.80 to 111 of 2001 and 136 to 174 of 2001).

Date of hearing: 29th March, 2001.

2001 P L C (C.S.) 804

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

AHMAD HUSSAIN and others

versus

DIRECTOR OF EDUCATION, ISLAMABAD and others

Civil Appeals Nos.834 to 842 and 861 of 1996, decided on 24th January, 2001.

(On appeal from the judgment dated 15-3-1995 of the Federal Service Tribunal, Islamabad in Appeals Nos. 102-R to 112-R of 1995).

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

----Art. 212(3)---Terms and conditions of service ---Upgradation of post--­Civil servants were serving as Secondary School Teachers (Trained Graduates i.e. B.A./B.Sc., B.Ed.) as such the post was upgraded but the same was not granted to the civil servants---Leave to appeal was granted by Supreme Court to consider; whether the civil servants could be discriminated from untrained graduate teachers/village workshop instructors who were not equal to them but were lower in category or at par with them---No reason was advanced by the Authorities to justify the refusal to grant upgradation to the civil servants and depriving them of such benefit.

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

----S. 4---Terms and conditions of service ---Upgradation of post---Post of Secondary School Teachers (Trained Graduates i.e. B.A./B.Sc., B.Ed.) was upgraded from Basic Pay Scale 15 to 16---Despite the fact that the upgradation was granted to the others, the same was denied to the civil servants---Appeals of said civil servants before the Service Tribunal were also dismissed---Validity---Where all the civil servants had been placed in Basic Pay Scale 16 with effect from upgradation of the post, the aggrieved civil servants could not be treated discriminately---Judgment of Service Tribunal was set aside and the aggrieved civil servants were upgraded from the date of general upgradation---Appeals were allowed.

Fazal Elahi Siddiqui, Advocate Supreme Court and Ejaz M. Khan, Advocate-on-Record for Appellants.

Mansoor Ahmad, Deputy Attorney-General for Respondents.

Date of hearing: 24th January, 2001.

2001 P L C.(C.S.) 810

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C.J., Ch. Muhammad Arif and Javed Iqbal, JJ

ABDUL QADIR ISMAIL and others

versus

STATE BANK OF PAKISTAN and others

Civil Petitions Nos. 12 to 63, 65 to 92, 112 to 180, 185, 950 to 1113 of 2001, 2020, 1974 and 1920 of 2000, decided on 3rd April, 2001.

(On appeal from the judgment dated 19-10-2000 passed by Federal Service Tribunal, Islamabad in Appeals Nos.1202(R), 1205(R), 1209(R), 1210(R), 1211(R), 1212(R), 1214(R), 1220(R), 1223(R), 1225(R), 1226(R), 1230(R), 1234(R), 1236(R), 1238(R), 1242(R), 1244(R), 1246(R), 1247(R), 1248(R), 1253(R), 1257(R), 1259(R), 1340(R), 1342(R), 1344(R), 1345(R), 1346(R), 1350(R), 1351(R), 1352(R), 1353(R), 1354(R), 1357(R), 1358(R), 1360(R), 1655(R), 1656(R), 1659(R), 1661(R), 1662(R), 1666(R), 1667(R), 1668(x), 277(x), 278(x), 279(x), 280(x), 281(x), 283(x), 284(x), 285(x), 288(x), 289(x), 290(x), 291(x), 293(x), 294(x), 295(x), 296(x), 297(x), 298(x), 299(x), 300(x), 301(x), 302(x), 303(x), 304(x), 305(x), 306(x), 307(x), 309(x), 347(x), 348(x), 349(x), 350(R), 483(P)/98, 1069(R), 1072(R), 1075(R), 1200(x), 1202(x), 1203(x), 1204(x), 1206(x), 1207(x), 1208(x), 1213(x), 1215(x), 1216(x), 1217(x), 1218(x), 1219(x), 1221(x), 1222(x), 1224(x), 1227(x), 1228(x), 1229(x), 1231(x), 1232(x), 1233(x), 1235(x), 1237(x), 1239(x), 1240(x), 1241(x), 1243(x), 1245(x), 1200(x), 1249(x), 1250(x), 1251(x), 1252(x), 1254(x), 1255(x), 1256(x), 1258(x), 1260(K)­ 1261(K), 1262(x), 1263(x), 1264(x), 1341(x), 1343(x), 1347(x), 1348(x), 1349(x), 1355(x), 1356(x), 1359(x), 1361(x), 1362(x), 1353(x), 1364(x), 1366(x), 1367(x), 1401(x), 1652(x), 1653(x), 1654(x), 1657(x), 1658(x), 1660(x), 1663(x), 1664(x),1665(x), 1669(x), 1670(x), 1653(x), 1199(x), 286(R) and 1198(x) of 1998.

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

----Art. 212(3)---State Bank of Pakistan Personnel Department Circular No.9 dated 23-10-1997---State Bank of Pakistan Personnel Department Circular No.12 dated 29-11-1997---State Bank of Pakistan Personnel Department Circular No.13 dated 29-11-1997---Petition for leave to appeal---Retirement benefits---Floating of Voluntary Golden Handshake Scheme and employees of the Bank holding different posts in the Bank exercised their option within the stipulated period and they were informed in writing on 3-12-1997 that their option had been accepted and that they would be relieved of their duties with effect from 15-12-1997---Bank, meanwhile, raised the salary structure vide its Circular No.12 dated 29-11-1997 which was to become effective from 1-12-1997 and certain other changes were also introduced vide Bank's Circular No.13 dated 29-11-1997---Employees continued performing their duties till 15-12-1997 they were relieved on the said date and were paid remuneration as per revised salary structure for the period 1-12-1997 to 15-12-1997 but prepared and calculated the emoluments to be paid to the employees under the Voluntary Golden Handshake Scheme not on the basis of last pay drawn i.e. having become effective from 1-12-1997 (revised pay structure) but on the basis of pay drawn on 22-11-1997 i.e. old pay structure---Contentions of the employees were that they were deprived of huge amounts by less payment under various heads; that option of Golden Handshake was obtained from them under threat and coercion and by misrepresenting the facts; that they were officially relieved from service of the Bank on 15-12-1997, therefore Service Tribunal erred in taking the view that the employees stood retired from the service of the Bank on 23-11-1997 i.e. the day after the last date for making an application to opt for voluntary retirement under the Scheme introduced by the Bank; that they were entitled to retirement benefits under Golden Handshake Scheme and the same were to be calculated in accordance with the salary structure in effect on the date on which they were relieved from their official duties i.e. 15-12-1997; that they were entitled to the increase in pension allowed by Bank's Circular No.9 dated 1-8-1998 and Circular No.4 dated 9-5-2000 which provided for calculation of pension on the basis of the salary structure in effect since 1-12-1997; that Service Tribunal had erred in failing to examine in depth the plea that Golden Handshake Scheme was introduced by suppressing the date of 23-10-1997 when the Bank had issued Circular No.9 introducing the Golden Handshake Scheme and had also taken a decision to increase the pay scale by 47 % and that since the decision to increase pay scales was kept hidden from the employees, therefore, the employees were entitled to reinstatement in the service of the Bank---Validity---Exercise of option by the employees in favour of the Scheme was accepted by the Competent Authority and by virtue of the said acceptance the employees were directed to be relieved from service with effect from the close of business on 15-12-1997---Bank had informed all its employees that the Central Board of the Bank m its meeting held on 22-10-1997 had approved a revised salary package for its employees effective from 1-12-1997 in respect of specified scales---Policy of revised salary of each employee was fixed in the new scales on the basis of his/her respective position in the present scale in accordance with the approved formula---All the aggrieved employees were in the employment of the Bank on 1-12-1997 when the revised salary structure became effective notwithstanding the fact, that they had earlier opted for Golden Handshake Scheme and the same was accepted by the Bank on 3-12-1979---All the aggrieved employees were paid the revised salary for the period 1-12-1997 to 15-12-1997 i.e. up to the date when they were relieved from the service under Golden Handshake Scheme---Supreme Court, converted the petitions for leave to appeal and disposed the same by modifying the impugned judgment of the Service Tribunal to the extent that pension admissible to the employees shall be calculated after bringing same to bear upon such calculation the number of days spent by them in service after their volition to abide by Voluntary Golden Handshake Scheme i.e. that all the pensionary benefits shall be calculated by taking into account the period between 1-12-1997 to 15-12-1997.

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

----Art. 212(3)--- Petition for leave td appeal to Supreme Court---Question of law of public importance---Determination---Principles---Persons who were adversely affected by the contrary decision were a group in themselves and for the purpose of resolution of the dispute to the extent of group/substantial number of the employees of the State Bank of Pakistan, the question of its general application was to be considered in the context of the situation---Cases of employees, thus involved a substantial question of law of public importance within the contemplation of Art.212(3) of the Constitution.

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

----Art. 212(3)---Petition for leave to appeal---Sole grievance of the employer-Bank was that observation of the Service Tribunal in the impugned judgment to the effect that "during the course of hearing, the departmental representative candidly submitted that the income-tax recovered from the appellants will be reimbursed to them" was based on erroneous assumption of fact in that neither any counsel for the employer-Bank nor any representative of the employer-Bank made any statement before the Service Tribunal during the course of proceedings that income-tax will be reimbursed to the employees---Supreme Court, with consent of the counsel of the parties, remitted the case to the Service Tribunal to examine the question afresh in the light of the affidavit of a functionary of the employer-Bank, after hearing the parties and holding such inquires the Tribunal may deem fit and if it was established that the such statement was made as attributed to the departmental representative of the employer-Bank, the observations of the Service Tribunal shah be deleted otherwise salve will remain intact.

Fakhruddin G. Ebrahim, Senior. Advocate Supreme Court with M. S. Khattak, Advocate- on-Record for Petitioners- (in C.Ps. Nos. 12 to 55 of 2001).

Abdul Mujeeb Pirzada, Senior Advocate Supreme Court with M.S. Khattak, Advocate- on-Record for Petitioners (in C.P No.2019 of 2000 and C. Ps. Nos. 112 to 180 of 2001)

Muhammad Munir Peracha, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate-on-Record for Petitioners (in C.Ps.Nos.56 to 63 of 2001 and C.Ps. Nos. 65 to 92 of 2001).

M. Bilal, Senior Advocate Supreme Court and K.M.A. Samadani, Advocate Supreme Court (on Court's Notice) for Respondents (in all Petitions) and Petitioners in C. Ps. W50 to 1113 of 2001.

Date of hearing: 2nd April, 2001.

2001 P L C (C.S.) 822

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

SHAMIM HAIDER KAZMI --- Petitioner

versus

PRESIDING OFFICER, IVTH SINDH LABOUR COURT, KARACHI and 4 others---Respondents

Civil Petition for Leave to Appeal No. 301-K of 2000, decided on 20th July, 2000.

(On appeal from the judgment dated 29-5-2000 of the Sindh High Court, Karachi, passed in-Constitutional Petition No.D-571 of 1996).

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

----Art. 185---Appeal to Supreme Court---Findings of facts---Interference by Supreme Court---Scope---Only where the findings of Tribunals of exclusive jurisdiction are based on insufficient evidence, misreading of evidence, non­-consideration of material evidence, erroneous assumption of facts, patent errors of law or abuse of jurisdiction, same can be interfered by Supreme Court.

1990 SCMR 837; PLD 1978 Quetta 17 and PLJ 1978 Quetta 72 rel.

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

----Art. l85(3)---Industrial dispute---Dismissal from service---Concurrent findings of fact by the Courts below---Interference of Supreme Court---Order of dismissal from service was assailed before Labour Court but without any success---Order of Labour Court was upheld by Labour Appellate Tribunal and High Court---Validity---Findings of Labour Appellate Tribunal were neither unjustified nor arbitrary and had rightly been kept intact by High Court---Judgment of High Court was free from any, legal infirmity and did not call for interference of Supreme Court---Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 20th July, 2000.

2001 P L C (C.S.) 836

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Deedar Hussain Shah, JJ

RAUF AKHTAR FAROOQI and others

versus

DIRECTOR-GENERAL, KARACHI DEVELOPMENT AUTHORITY

(KDA), KARACHI and others

Civil Petition for Leave to Appeal No. 197 of 2001, decided on 15th January, 2001.

(On appeal from the judgment/order, dated 4-12-2000, of the High Court of Sindh, Karachi, passed in HCA No.206 of 2000).

Constitution of Pakistan (1973)---

----Art. 212(3)---Sindh Service Tribunals Act (XV -of 1973), S.3-E [as .amended by Sindh Service Tribunals (Amendment) Act (XXXI of 1994))--­Terms and conditions of service---Employees of Karachi Development Authority---Inquiry report against the employees of. the Authority was assailed in civil suit before High Court---Plaint was rejected by High Court as the matter related to exclusive jurisdiction of Service Tribunal under the provisions of Art.212 of the Constitution---Validity---Authority was a statutory body working under Provincial Government and after insertion of S.3-E in Sindh Service Tribunals Act, 1973 by Sindh Service Tribunals (Amendment) Act, 1994, the employees were required to approach the proper forum for relief---Judgment passed by High Court was well-reasoned and based upon judicial principles and there was no misreading or non-­reading of evidence or any jurisdictional error and thus was not open to any exception---Leave to appeal was refused.

Abdur Rashid v. Additional District Judge 1983 CLC 443; Moinul Islam v. Government of Sindh 2000 PLC (C.S.) 1172; Abbasia Cooperative Bank v. Muhammad Ghaus PLD 1997 SC 3; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290 and Muhammad Azhar v. General Manager (Operation). Power, WAPDA PLD 1990 Lah. 352 distinguished.

Fazle Ghani Khan, Senior Advocate Supreme Court and M.S. Khattak, Advocate- on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 15th January, 2001.

2001 P L C (C.S.) 843

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Deedar Hussain Shah and Hamid Ali Mirza, JJ

GOVERNMENT OF SINDH

through Secretary, Services and General Administration Department, Government of Sindh, Karachi and 2 others

versus

GHULAM SARWAR SANGI and 10 others

Civil Petition No.363-K of 2000, decided on 30th August, 2000.

(On appeal from the judgment dated 23-5-2000 of the Sindh Service Tribunal at Karachi in Appeal No. 158 of 1999).

Constitution of Pakistan (1973)---

----Art.212(3)---Sindh Service Tribunals Act (XV of 1973), S.4---Seniority, fixation of---Failure to follow the Notification issued by Government--­Effect---Grievance of the civil servant was that his seniority was not fixed as directed by the Government in its Notification---Service Tribunal allowed the appeal and directed the Authorities to fix the seniority as directed by the Government---Notification of the Government in question had neither been recalled nor the same had been challenged by any of the civil servants---Judgment of Service Tribunal was well-reasoned and did not call for interference of Supreme Court---Leave to appeal was refused.

Ainuddin, Additional Advocate-General, Sindh for Petitioner.

Nemo for Respondents.

Date of hearing: 30th August, 2000.

2001 P L C (C.S.) 849

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUKHTAR AHMED SIDDIQUI

versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, MINISTRY OF FINANCE, ISLAMABAD and others

Civil Petition No.367-K of 2000, decided on 5th September, 2000.

(On appeal from the judgment of the Federal Service Tribunal dated 25-5-2000 passed in Appeal No. 1008(K) of 1998).

Constitution of Pakistan (1973)----

----Art.212(3)---Service Tribunals Act (LXX of 1973), S.4---Appeal before Service Tribunal---Locus standi---Assailing terms and conditions of service after retirement--- Post was upgraded after retirement of civil servant--­Grievance of the civil servant was that the benefit of upgradation was not given to him---Service Tribunal dismissed the appeal for the reasons that the civil servant had no locus standi to be benefited by such upgradation-- Validity---Civil servant did not have any cause of action as he stood retired from service on 1-7-1984 whereas upgradation of the post was notified in 1994 as such he had no locus standi to get any benefit of such upgradation--­Order of the Service Tribunal had no flaw or legal infirmity as the same way well-reasoned---Supreme Court declined interference---Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 5th September, 2000.

2001 P L C (C.S.) 856

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

IBRAR HUSSAIN and others

versus

GOVERNMENT OF N.W.F.P. through Secretary, Board of Revenue and others

Civil Appeals Nos. 114, 119, 120, 121, 122, 192, 224 and 225 of 2000, decided on 16th January, 2001.

(On appeal from the judgments dated 13-3-1999, 18-5-1999, 6-4-1999, 12-6-1999 and 30-6-1999 passed by the N.-W.F.P. Service Tribunal, Peshawar in Appeals Nos.340 of 1998, 1278 of 1997, 624 of 1999, 854 of 1997 and 327 of 1997 respectively).

(a) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S.5---Constitution of Pakistan (1973) Art. 212 (3)---Leave to appeal was granted by Supreme Court to consider, whether appeal of civil servant before the Tribunal was not maintainable in view .of the pendency of 'the departmental appeal before the Departmental Authority wherein statutory period of 90 days had not elapsed; whether Chairman of Service Tribunal could not finally hear and dispose of appeal on merits while sitting alone as the same was violative of the first proviso to S.5(1) of North-West Frontier Province Service Tribunals Act,. 1974.

(b) Interpretation of statutes---

----Proviso to a statute---Effect---Statute has to be read as a whole and not in bits and pieces---Functions ascribed to a proviso detailed.

Following three functions are ascribed to a proviso:--

(1) To exempt something from the enacting clause;

(2) to qualify or restrain its generality; and

(3) to exclude some possible misinterpretation of it as extending to cases not intended by Legislature.

It is, therefore, duty of the Court to reconcile the enacting clause and the proviso and to avoid repugnancy between 'the two; proviso must be considered with relation to the principal clause to which it is. Ordinarily, a proviso is governed by the operative portion of the section.

Special Reference No. l of 1957 by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan, 1956 PLD 1957 SC (Pak.) 219; Statutory Construction by Crawford, 1940 Edn.; pp.128-129; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Mst. Nawab Bibi and 3 others v. Ch. Allah Ditta and others 1998 SCMR 2381 and Bindra's Interpretation of Statutes, 7th Edn., pp. 74, 75, 77 ref.

(c) North-West Frontier Province Service Tribunals Act (I of 1974)---

----S.5---Chairman of Service Tribunal---Jurisdiction of---Disposal of appeals by the Chairman alone---Validity---Appeal could be heard at limine stage by the Chairman alone, or the Chairman and one or more members and while hearing such appeals the same may be dismissed in limine for reasons to be recorded---Where the appeal was admitted to regular hearing, the same could not be finally disposed of on merits by the Chairman alone---Disposal of appeal by the Chairman alone was not warranted under the .provisions of North-West Frontier Province Service Tribunals Act, 1974---No bar was placed on the Chairman or any of the Benches contemplated under S.5 of North-West Frontier Province Service Tribunals Act, 1974, to admit the appeal to regular hearing or to dismiss the same in limine for reasons to be recorded in writing---Orders of the Chairman were coram non. judice and were of no legal effect and the same were quashed---Judgment of Service Tribunal was set aside and case was remanded to the Tribunal for decision afresh on merits by the appropriate Bench to be nominated by the Chairman---Supreme Court observed that orders passed by the Chairman alone stood on a different footing and were hit by the doctrine of past and closed transaction.

Khushdil Khan, Advocate Supreme Court and Zahoor Qureshi, Advocate-on-Record for Appellants (in C.As. N 3s.114 and 119 of 2000).

S. Safdar Hussain, Advocate-on-Record for Appellant (in C.A. No. 120 of 2000).

Javaid A. Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate-on-Record for Appellant (in C.A. No. 121 of 2000).

Haji M. Zahir Shah, Advocate-on-Record (in C. A. No. 122 of 2000) for Appellant.

M. Asif, Advocate Supreme Court for Appellant (in C.A. No. 192 of 2000), K.G. Sabir, Advocate-on-Record (absent) for Appellants (in C.As. Nos.224 and 225 of 2000).

Imtiaz Ali, Addl. A.G., N.-W.F.P. for Respondents.

Respondent No. 3 in person. (in C. A. No. 120 of 2000).

Date of hearing: 16th January, 2001.

2001 P L ‑C (C.S.) 873

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

WALI MUHAMMAD KHOKHAR

versus

GOVERNMENT OF SINDH and others

Civil Petition No.305‑K of 2000, decided on 21st July, 2000.

(On appeal from the order, dated 22‑5‑2000 of the Sindh Service Tribunal, Karachi, passed in Appeal No.330 of 1999).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.212(3)‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑­Termination of service‑‑‑Appeal before Service Tribunal‑‑‑Limitation‑‑­Ignorance of law, ‑plea of‑‑‑Validity‑‑‑Civil servant's service was terminated and he having been unsuccessful in his departmental appeal, another appeal before the Department and thereafter filed review petition without success‑‑­Appeal tiled before Service Tribunal was dismissed being time‑barred‑‑­Contention of the civil servant was that he was unaware about the time limit regarding filing of appeal‑‑‑Validity‑‑‑Ignorance of law was no excuse‑‑‑No provision for review or second appeal or third appeal was provided in law‑‑­Civil servant had resorted to ways and means which were not prescribed under the law resulting in inordinate delay of nine months‑‑‑Such delay had not been condoned by the Service Tribunal as no reasonable justification was available for such delay‑‑‑Service Tribunal had arrived at the decision with full application of mind and appreciation of facts of the case‑‑­Judgment of Service Tribunal did not suffer from any infirmity justifying interference by Supreme Court‑‑‑Where the Service Tribunal had dismissed the appeal on the ground of limitation without touching upon the merits of the case, the same would not render the order under appeal legally infirm, so as to warrant interference by Supreme Court‑‑‑Leave to appeal was refused.

1996 SCMR 280 and PLD 1990 SC 692 ref.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 21st July, 2000:

2001 P L C (C.S.) 875

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

AURANGZEB

versus

Messrs GOOL BANO Dr. BURJOR ANKALSERIA and others

Civil Petition No. 12-K of 2000, decided on 21st August, 2000.

(On appeal from the judgment of the High Court of Sindh, dated 20-10-1999 passed in R.A. No.203 of 1995).

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

----S. 42---Suit for declaration that order of reversion of employee was illegal---Master and servant, relationship of----Employment on contract--­Wrongful reversion--- Remedy---Where relationship between the parties was that of master and servant, a person serving under such contractual employment at the best could claim damages for his wrongful reversion to a lower post---Suit for declaration was not maintainable.

(b) Master and servant---

---- Principle of master and servant---Applicability---Exception---Contractual employment--- Statutory rules---Effect of--Where the relationship was based on a contract freely entered into by the parties then the principle of master and servant was applicable---Such principle was not applicable if some law or statutory rules intervened and placed fetters upon freedom of the parties in the matter of the terms of the contract.

Anwar Hussain v. Agricultural Development- Bank of Pakistan PLD 1984 SC 194 ref.

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

---Art. 185(3)---Master and servant, relationship of---Concurrent findings of facts by the Courts below---Petitioner was employee of charitable trust and was reverted to lower post---Such order of reversion was assailed in civil suit---Trial Court dismissed the suit and appeal before High Court was also dismissed---Validity---Judgment of the High Court was neither arbitrary nor in violation of the settled principles of law---Supreme Court declined interference---Leave to appeal was refused.

Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 ref.

Shafaat Hussain, Advocate Supreme Court for Petitioner.

M.G. Dastgir, Advocate Supreme Court and A.A. Siddiqui, Advocate-on-Record for Respondents.

Date of hearing: 21st August, 2000.

2001 P L C (C.S.) 888

[Supreme Court of Pakistan]

Present: Deedar Hussain Shah and Hamid Ali Mirza, JJ

Dr. GULSHAN ALI and 4 others

versus

SINDH PUBLIC SERVICE COMMISSION through Chairman and 8 others

Civil Petitions Nos.304-K to 308-K of 1999, decided on 17th August, 2000.

(On appeal from the judgment, dated 16-3-1999 of the High Court of Sindh in Constitutional Petitions Nos.D-164, D-165, D-166, D-167, D-168 and D-169 of 1998).

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

----Rr. 3 & 10---Constitution of Pakistan (1973), Art.185(3)--­Appointment--- Appointment of respondents was challenged by petitioners on the ground that advertisement was initially made for inviting applications for three posts of Assistant Professors, but through a subsequent advertisement applications for six posts were invited with a view to accommodate respondents who had links with highly influential political persons and that petitioners were more suitable than the respondents---Validity---Mere fact that the posts were re-advertised, would not by itself be sufficient to hold that it was done malafidely to accommodate the respondents---Petitioners did ' not dispute the eligibility of respondents for the advertised posts, but had simply contended that they were better suited for the said jobs---Petitioners had failed to show that Authority in appointing the respondents had acted dishonestly, mala fidely and unlawfully--- Opinion/recommendation of the Authority for the appointment of respondents with regard to their fitness and suitability falling within the competence of the Authority, could not be interfered with in absence of good reasons---Petition for leave to appeal was dismissed.

Amir Hani Muslim, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 17th August, 2000.

2001 P L C (C.S.) 890

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Iftikhar Muhammad Chaudhry and Rana Bhagwan Das, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC) through Chairman and others

versus

NASIR JAMAL MALIK and others

Civil Appeals Nos. 330 to 337 and 436 of 1999, decided on 6th November, 2000.

(On appeal from the judgment dated 21-1-1999 and 1st March, 1999 passed by Federal Service Tribunal, Islamabad; in Appeals Nos. 719, 720, 722, 723, 739, 740, 742 and 743 (R) of 1998).

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

----S. 2-A---Constitution of Pakistan (1973), Art. 212(3)---Employees of Pakistan International Airlines Corporation---Jurisdiction of Service Tribunal---Scope---Leave to appeal, was granted by Supreme Court to consider whether Service Tribunal was right in ordering the reinstatement of the employees of P.I.A. into service.

Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232 and United Bank Limited v. Ahsan Akhtar 1998 SCMR 68 ref.

(b) Pakistan International Airlines Corporation Act (XIX of 1956)---

---Ss. 29 & 31---Pakistan International Airlines Corporation (Service) Regulations, 1985---Pakistan International Airlines Corporation (Service) Regulations, 1985 have no statutory backing---Regulations were neither framed with the previous sanction of the Federal Government nor were laid before the National Assembly---In case of non-adherence to S.31 of Pakistan International Airlines Corporation Act, 1956, the Regulations would not have the protection of the Act, and therefore, same could not be termed to be the Regulations having statutory lacking.

Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232 rel.

(c) Pakistan International Airlines Corporation Act (XIX of 1956)---

----Ss. 29, 30 & 31---Corporation and its employees ---Relationship--­Principle of master and servant---Applicability---Where Service Regulations and Rules had not been promulgated in terms of Ss.29, 30 & 31 of Pakistan International Airlines Corporation Act, 1956, relationship between the employer and employees in the organization of the Corporation was governed by the principle of master and servant.

1999 PLC (C.S.) 1539 rel.

(d) Master and servant---

---- Maxim "audi alteram partem"---Applicability---Employer, who itself had framed Rules as well as Regulations for its domestic purposes, was bound to strictly follow/adhere to the same---Deviation from such Rules and Regulations is bound to violate principles of natural justice enshrined in the maxim "audi alteram partem" i.e. no one is to be condemned unheard---Where adverse action is being contemplated to be taken against the person/persons, he/they would have at least right to defend such action.

Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Chief Commissioner, Karachi v. Mrs: Dina Sohrab Katrak PLD 1959 SC (Pak.) 45; Messrs Faridsons Limited, Karachi and another v. Government of Pakistan and another PLD 1961 SC 537; Abdur Rehman v. Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SV 461; Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SC 673; University of Dacca v. Zakir Ahmad PLD 1965 SC 90; Muhammad Hayat v. Province of West Pakistan PLD 1964 SC 321; Messrs East-End Exports, Karachi v. The Chief Controller of Imports and Exports, Rawalpindi and another PLD 1965 SC 605; Pakistan and others v. Public-at-Large and others PLD 1987 SC. 304; Khaliluz Zaman. v. Supreme Appellate Court, Lahore and 4 others PLD 1994 SC 885; Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer, N.A. 158, Naushero Feroze and others 1994 SCMR 1299 and Faqir Ullah v. Khalil-uz-Zaman and others 1999 SCMR 2203 ref.

(e) Master and servant---

----Natural justice, principles of---Termination of service---Stand taken by the appellants before Federal Service Tribunal reflected mala fide of the appellants in removing the respondents from their services---Where before termination order no opportunity was given to the employees to defend themselves against unilateral adverse action intended to be taken against them, services of the employees were terminated in violation of principles of natural justice.

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

----Ss. 2-A & 4---Termination of service---Locus poenitentiae, principle of--­Relationship of master and servant---Failure to give show-cause notice--­Employees of statutory Corporation were terminated from service without any prior notice---Service Tribunal allowed the appeals and the employees were reinstated in their service---Contention of the employer Authorities was that the relationship between the employer and employees was that of master and servant and services could be terminated without any notice ---Validity--­Competent Authority, in view of principle of locus poenitentiae was empowered to rescind or cancel earlier order passed by it, if no decisive steps had been taken or if it was shown that the order was illegal, then no perpetuity could be attached to it---Employees had served for a period of more than six months and the Appointing Authority withheld the reasons for terminating their services---Where the appointment letters were issued contrary to the rules, the Authorities could exercise jurisdiction to cancel such appointment letters, but the employees should have been provided opportunity to defend against the action of the Authorities---Authority were directed to reinstate the employees in service---Authorities would, however, be at liberty to initiate fresh action against the employees if so advised in view of observation made by the Court.

Mrs. Anisa Rehman v. P.I.A.C. and others 1994 SCMR 2232; United Bank Limited v. Ahsan Akhtar 1998 SCMR 68; 1999 SCMR 894; 1999 SCMR 1526; PLD 1999 SC 1106; PLD 1990 SC 666: Mahmood Hussain v. Pakistan International Airlines and others 1989 PLC (C.S.) 549; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Abdul Haque Indhar and others v. Province of Sindh through Secretary, Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907 ref.

Anwar Kamal, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocateon-Record for Appellants (in Appeals Nos. 330 to 337 of 1999).

Naeem Bokhari, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate- on-Record for Appellant (in Appeal No. 436 of 1999).

Raja M. -Asghar, Advocate Supreme Court, Hafiz S.A. Rehman, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents (in all Cases).

Date of hearing: 6th November, 2000.

2001 P L C (C.S.) 943

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB and another

versus

ABDUL MAJEED

Civil Appeal No.968 of 1997, decided on 12th April, 2001.

(On appeal from judgment dated 3-9-1996 passed by Punjab Service Tribunal, Lahore in Appeal No.614 of 1994).

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 10---Constitution of Pakistan (1973), Art.212(3)---Ad hoc appointment--- Termination---Reinstatement in service---Civil servant was ad hoc appointee and his service was terminated but he was reinstated by Service Tribunal---Validity---Contention of the Authorities was that the civil servant had no vested right to continue in service as an ad hoc appointee, inasmuch as, the procedure prescribed for recruitment of such appointments under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, was not observed and that, in view of the observations made by Supreme Court, in the case of Munawar Khan v. Niaz Muhammad reported as 1993 SCMR 1287, the Service Tribunal was wrong in reinstating the civil servant in service and that in any case, termination of ad hoc appointment of the civil servant was not violative of the provisions contained in S. 10 of the Punjab Civil Servants Act, 1974---Leave to appeal was granted by Supreme Court to consider the contentions raised by the Authorities.

Munawar Khan v. Niaz Muhammad 1993 SCMR 1287 ref.

(b) Punjab Civil Servants Act (VIII of 1974)---

----S.10---Ad hoc appointee---Termination of service---Procedure---Ad hoc appointee can be terminated under the provisions of S. 10(3) of Punjab Civil Servants Act, 1974, even before the appointment of a person on regular basis against the recommendations of the Selection Authority, however, subject to notice of 30 days or pay in lieu thereof---Such appointee enjoys no vested rights in the service till the time selection on regular basis on the post against which he is working is made by the Selection Authority, because ad hoc appointee at the time of induction in service accepts the condition that his service can be terminated at any moment even before the expiry of the period for which an appointment has been made.

(c) Punjab Civil Servants Act (VIII of 1974)---

----S.10---Ad hoc appointment---Termination of service prior to regular appointment of a person on such post---Seeking of back benefits after appointment on regular basis---Civil servant had accepted the condition that on expiry of period of one year his service was liable to be terminated automatically and the same was implemented by the Authorities---Service Tribunal allowed the appeal and the civil servant was reinstated in service--­Validity--Though the tenure of service of the civil servant was extended but by issuing a fresh appointment letter containing the same conditions including that his service was liable to be terminated at any time without notice and without assigning any reason, in view of such situation the civil servant had no case at all to remain in service till the time selection 'of a candidate was made against the post by the Selection Authority---Order passed by the Service Tribunal whereby the civil servant was reinstated in service was set aside---Where the civil servant had been appointed on regular basis, he would be free to avail departmental remedy, if any, to seek the benefit of the period during which he was holding ad hoc appointment and the Department was directed to consider his request.

Munawar Khan v. Niaz Muhammad 1993 SCMR 1287; Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408 and Government of .the Punjab v. Ghulam Rasool Zahid 1985 SCMR 1614 ref.

Tariq Mehmood Khokhar, Additional Advocate-General and Rao Muhammad Yusuf Khan, Advocate-on-Record (absent) for Appellants.

Ch. Muhammad Anwar Khan, Advocate Supreme Court and Ch Mehdi Khan Mehtab, Advocate-on-Record (absent) for Respondent.

Date of hearing: 12th April, 2001.

2001 P L C (C.S.) 961

[Supreme Court of Pakistan]

Present: Munawar Ahmed Mirza and Khalil-ur-Rehman Khan, JJ

Mst. KHUB-UN-NISA

versus

ENGINEER-IN-CHIEF’S BRANCH G.H.Q., RAWALPINDI and 3 others

Civil Petition for Leave to Appeal No.89-K of 1996, decided on 4th June, 1997.

(On appeal from the judgment of Federal Service Tribunal, dated 24-12-1995 passed in Appeal No.81-K of 1995 (148-K of 1995)).

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

----R.4---Civil Servants Act (LXXI of 1973), S.19---Constitution of Pakistan (1973), Art.212(3)---Removal from service---Payment of pension---Civil servant was removed from service on the ground of unauthorised absence and order of his removal was upheld by Service Tribunal- --Supreme Court, in view of serious illness of civil servant had observed that order of removal seemed to be harsh and that Authority should consider his case sympathetically and should grant him disability pension---Authority undertook to pay to civil servant 2/3rd of pension on account of permanent disability suffered by him---Civil servant being satisfied with the undertaking, agreed not to press his petition any further---Petition for leave to appeal was disposed of accordingly.

A.A. Siddiqui, Advocate-on-Record for Petitioner.

Mubarak Hussain Siddiqui, Deputy Attorney-General for Respondents.

Date of hearing: 4th June, 1997.

2001 P L C (C.S.) 989

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

SIBTE AKHTAR

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Managing Director

Civil Petition No. 361-K of 2000, decided on 29th November, 2000.

(On appeal from the judgment/order dated 23-5-2000 passed by Federal Service Tribunal, Islamabad, in Appeal No. 1058-K of 1999).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art.212(3)---Appeal to Service Tribunal--- Terms and conditions of service---Filing of appeal nine years after retirement---Dispute was with regard to the Group in which the employee was retired---Employee claimed to be retired in Group-VII instead of Group-VI---Representation before the Authorities as well as the appeal before Service Tribunal were dismissed---Validity---Employee slept over his said right for nine years and thereafter started agitating for the same--­Supreme Court declined to interfere with the, judgment passed by Service Tribunal---Leave to appeal was refused.

K.M. Nadeem, Advocate Supreme Court and Akhlaq Ahmad Siddiqui, Advocate-on-Record for Petitioner.

Qamar Abbas, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondent.

Date of hearing: 29th November, 2000.

2001 P L C (C.S.) 990

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

GULAB ALI SAHITO

versus

DIRECTOR-GENERAL INTELLIGENCE BUREAU, ISLAMABAD and 2 others

Civil Petition No. 464-K of 2000, decided on 6th December, 2000.

(On appeal from the judgment/order dated 22-5-2000 passed by Federal Service Tribunal in Appeal No. 1060-K of 1999).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Art. 212---Terms and conditions of service---Appeal before Service Tribunal---Limitation---Final order was passed on 5-7-1997 and communicated to the civil servant on 30-9-1999--­Appeal before Service Tribunal was preferred on 28-10-1999---Validity--­Such appeal was within 30 days and the same was within time---Petition for leave to appeal was converted into appeal and the same was allowed---Case was remanded to the Service Tribunal for decision on merits.

Ahmadullah Faruqi, Advocate-on-Record for Petitioner.

S. Zaki Muhammad, Deputy Attorney-General for Respondents.

Date of hearing: 6th December, 2000.

2001 P L C (C.S.) 991

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das and Javed Iqbal, JJ

ADMINISTRATOR, DISTRICT COUNCIL, LARKANA and another

versus

GHULAB KHAN and 5 others

Civil Petition No. 167‑K of 2000, decided on 10th July, 2000.

(On appeal from the order dated 10‑3‑2000 of the High Court of Sindh, Circuit Court, Larkana, passed in C.P. No.D‑24 of 2000).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3) & 199‑‑‑Constitutional petition before High Court under Art. 199 of the Constitution‑‑‑Salaries of employees, withholding of‑‑‑High Court, in exercise of Constitutional jurisdiction, directed the Authorities to pay the salaries of the employees‑‑‑Contention by the Authorities was that the appointments of employees was illegal and made in violation of relevant recruitment rules‑‑‑Validity‑‑‑Salaries could not be withheld on such ground‑‑‑Action should have been initiated against those who were sitting at the‑helm of affairs for such irregularities‑‑‑Employees could not be held responsible for the same‑‑‑Where substantial justice had been done, the same could not be disturbed on mere technicalities‑‑‑Direction to withhold the salaries of the employees suffered from inherent vice, same was void ab initio and could not be given effect to‑‑‑Leave to appeal was refused.

(b) Administration of justice‑‑‑

‑‑‑‑Legal formalities‑‑‑Scope‑‑‑Principal object behind all such formalities is to safeguard the paramount interest of justice‑‑‑Legal precepts are devised with a view to. impart certainty, consistency and uniformity to the administration of justice and to secure same against arbitrariness, errors of individual judgment and mala fides.

2000 SCMR 556 ref.

Mazhar Ali B. Chohan, Advocate Supreme Court and Ahmedullah Faruqui, Advocate‑ on‑Record for Petitioners.

Nemo for Respondents.

Date of hearing: 10th July, 2000

2001 P L C (C.S.) 993

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

COTTON EXPORT CORPORATION OF PAKISTAN, FINANCE AND TRADE CENTER-through Secretary and 3 others

versus

F.G. ALVI and others

Civil Petition No.488-K of 2000, decided on 1st December, 2000.

(On appeal from the judgment/order dated 19-7-2000 passed by Federal Service Tribunal, Islamabad, in Appeal No.925-K of 1998).

Service Tribunals Act (LXX of 1973)---

----Ss.2-A & 6---Limitation Act (IX of 1908), S. 5---Constitution of Pakistan (1973), Art. 212(3)---Appeal to Service Tribunal ---Limitation---Condonation of delay---Employee of Cotton Corporation---Termination of service was challenged by a civil suit---Abatement of suit---Filing of departmental appeal after abatement of the suit or proceedings under the provisions of S.6 of Service Tribunals Act, 1973---During the pendency of the suit, S.2-A was added to Service Tribunals Act, 1973, and the proceedings before Civil Court were abated---Employee filed appeal before the Authorities and after the rejection of the same, appeal to Service Tribunal was filed---Appeal to Service Tribunal was delayed by nine months but the delay was condoned by Service Tribunal on the ground that the period was consumed in filing departmental appeal---Employee was reinstated in service by Service Tribunal---Contention by the Cotton Corporation was that there was no statutory requirement for filing of departmental appeal in a case where the suit had abated and that on account of introduction of S. 2-A in Service Tribunals Act, 1973, right of filing of appeal before the Tribunal was available but the same was filed with inordinate delay and the condonation of delay was not in accordance with law---Validity---Leave to appeal was granted by Supreme Court to consider the contention by the employer Corporation.

M.L. Shahani, Advocate Supreme Court and K.A Wahab, Advocate-on-Record for Petitioners.

Nemo for Respondents.

Date of hearing: 1st December, 2000

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2001 P L C (C.S.) 1224

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and Javed Iqbal, JJ

MUHAMMAD SARFARAZ and 174 others

Versus

GOVERNMENT OF PUNJAB through Secretary, Education Department, Civil Secretariat, Lahore and others

Civil Petitions for Leave to Appeal Nos.1084-L to 1165-L, 1173-L to 1179-L, 1188-L to 1196-L, 1244-L to 1246-L, 1255-L to 1258-L, 1260-L to 1264-L, 1271-L to 1274-L, 1320-L to 1330-L, 1346-L to 1374-L, 1384-L to 1389-L, 1423-L, 1426-L, 1432-L to 1434-L, 1474-L, 1565, 1570, 1620, 1690-L, 1710-L, 1792-L, 1855-L, 1856-L and 1857-L of 2001, decided on 20th June, .2001.

(On appeal from the judgment dated 26-2-2001 of the Lahore High Court, Lahore passed in Writ Petitions Nos.16955, 9516, 17380, 18043, 17253, 19467, 3924, 17378, 17405, 20581, 17374, 17423, 9410, 2058, 9275, 17056, 17423, 18920, 19024, 9495, 13766, 17761, 168q53, 17658, 17992, 4229, 9348, 17577, 9622. 9362, 17128, 18973, 3943, 17412, 18139, 9272, 18233, 12828, 17431, 9240, 9350, 13768, 9269. 16851, 17379, 9249, 13797, 13402, 9338, 17255, 16849, 17373, 17500, 9087, 7854, 20325, 17447, 17187, 18919, 16375, 17991, 17258, 17254, 17159, 20905, 13767 of 2000, 5961 of 1999, 17578, 9242, 13769, 17017, 9040, 12838, 9241. 3942, 9472, 16850, 17129, 9544, 9471, 9284, 17414, 9547, 9037, 16971, 3903, 9010, 18348, 4013, 9274, 3902, 18436, 16850, 17654, 16852, 9276, 9360, 9586, 17992, 17017, 17053; 17373, 1995, 2044, 2152, 16447, 3958, 17582, 4013, 1308, 2099, 2014, 2130, 2022, 17374, 20325, 9549, 9273, 9275, 20905, 5961, 11401, 2000, 2058, 20183, 12829, 9547, 9405, 18918, 9409, 12872, 9011; 17130, 9370, 17127, 17126, 17256, 9360, 17253, 20006, 9271, 5961, 18796, 17359, 12873, 17579, 17578, 3924,9562,9277,20183,17575 4013,18287,17414,3326,16955,17405, 20922, 4013, 19893, 17592, 5961, 3921 of BWP, 17412, 20668, 2099, 2058, 16955, 3938 of 2000, 8044, 4204 of 2001, 18910, 18911 and 18913 of 2000, respectively).

(a) Punjab Civil Servants Act (VIII of 1974)------

----S. 2(1)(a)----- Ad hoc appointment---Status---Such appointments belong to the family of 'officiating', 'temporary' and 'until further orders'.

Federation of Pakistan v. Rais Khan 1993 SCMR 609 ref.

(b) Punjab Civil Servants Act (VIII of 1974)-----

----Ss. 2(1)(a) & 10---Punjab Service Tribunals Act (IX of 1974), S.2(ba)----­Ad hoc employee whether a civil servant---Such employee is a civil servant as he holds a civil post in connection with the affairs of a Province, is clot included in the persons excluded from the definition of civil servant and is governed by Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, having not been excluded from its operation, as well as S.10 of Punjab Civil Servants Act, 1974, having been described as a civil servant qua termination of service---Ad hoc employees are, therefore, civil servants within the contemplation of Punjab Service Tribunals Act, 1974.

(c) Punjab Civil Servants Act (VIII of 1974)------

----S.2(1)(a)---Punjab Service Tribunals Act (IX of 1974), S.4---Constitutitia of Pakistan (1973), Arts.185(3), 199 & 212---Ad hoc employees.. Termination of service---Remedy---Invoking of Constitutional jurisdiction of High Court under Art. 199 of Constitution---Service of the petitioners ware terminated as they were ad hoc appointees---Order of termination w,, assailed before High Court by Constitutional petition and the same was dismissed in view of bar contained in Art.212 of the Constitution and they were advised by High Court to approach the Service Tribunal for redress of their grievance---Validity---In all cases related to terms and conditions of service remedy available to an aggrieved civil servant was by filing an appeal before Service Tribunal and not by. invoking Constitutional jurisdiction of High Court---Petitioners were civil servants at the time of termination of their service and their grievance was traceable to the terms and conditions of their service, therefore, they were obliged to seek redress of their grievance from Service Tribunal ---Supreme Court declined to interfere with the order passed by High Court---Leave to appeal was refused.

I.A. Sharwani and others v. Government of Pakistan through Secretary, - Finance Division, Islamabad and others 1991 SCMR 1041. Muhammad Shahbaz Cheema N~. Province of Punjab and others 1981 SCMR 469; WAPDA and 2 others v Muhammad Hussain Gul 1993 SCMR 2331; Muhammad Azam Ali and 35 others v. Government of the Punjab through Chief Secretary and another 1985 SCMR 1408 and Syed Mazhar Hussain Bukhari v . Secretary, Government of Punjab, Local Government and Rural Development, Lahore 1998 SCMR 1948 rel.

1999 SCMR 2786; 1991 SCMR 1041; 1999 SCMR 819; Federation of Pakistan and others v. Rais Khan 1993 SCMR 609; Shaheen Akhtar v. Government of Punjab and others 1998 PLC (C.S.) 70; Ghulam Sarwar Province of Punjab 1982 SCMR 46 and Muhammad Afzal Sohail and 11others v. Government of Punjab and others 1983 SCMR 859 ref.

A.K. Dogar, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1084 to 1165-L, 1173 to 1179-L, 1330-L, 1374-L, 1385-L, 1986-L, 1388-L, 1690-L and 1710-L of 2001).

Arif Chaudhry, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1188 to 1196-L, 1244 to 1246-L, 1261 to 1264-L, 1432 to 1434-L and 1474-L of 2001).

S.M. Zafar, Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1255 to 1258-L, 1271 to 1274-L, 1320 to 1329-L, 1373-L, 1384-L, 1423-L, 1426-L and 1792-L of 2001).

Syed Najamul Hassan Kazmi, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Petitioners (in C. Ps. Nos. 1346 to 1372-L and 1389-L of 2001).

Mahmudul Islam, Advocate-on-Record for Petitioner (absent) (in C.P. 1260 of 2001).

C.M. Lateef, Advocate-on-Record for Petitioner (in C.P. No. 1387­L of 2001).

Petitioner in person (in C. P. No. 1620 of 2001).

Ch. Mehdi Khan Mchtab, Advocate-on-Record for .Petitioners (absent) (in C.Ps. Nos. 1855 to 1857-L of 2001).

Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.Ps. 1565 and 1570 of 2001).

Tariq Mehmood Khokhar, Additional Advocate-General, Punjab for Respondents (on Notice in all Petitions).

Dates of hearing: 11th and 12th June, 2001.

2001 P L C (C.S.) 1242

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif

and Rana Bhagwan Das, JJ

TARIQ AZIZ and others

Versus

MUHAMMAD KHAN and others

Civil Appeal No. 1704 of 1996, decided on 14th June, 2001.

(On appeal from the judgment of Balochistan Service Tribunal, Quetta, dated 25-8-1996 passed in Appeal No.56 of 1993).

(a) Public functionaries---

---- Illegality on the part of public functionaries can be brought to light by any aggrieved party or person interested therein.

(b) Balochistan Excise and Taxation Department (Grade 1 to 15) Service Rules--

--- -Appendix, para. 2---Promotion---Direct appointments were made in contravention of Recruitment Policy---Departmental candidates were ignored during the process---Record of the Authorities did not spell out that at any stage the departmental candidates, who had put in required length of service and possessed requisite academic qualifications, were ever considered for promotion---Advertisement inviting applications for the disputed posts showed neither the number of vacancies nor was it disclosed that the departmental candidates were eligible to apply for the posts or they were totally unfit and unsuitable for promotion---Effect---Injustice had been done to the promotion quota as the vacancies of departmental candidates had been illegally diverted to the initial recruitment quota without reason or justification in the eyes of law---Departmental candidates promoted subsequent to direct appointees stood senior to them as the departmental candidates were wrongly excluded from consideration for appointment though they were legally entitled to promotion as of right subject to seniority-cum-fitness:--Service Tribunal by directing the consideration of pro forma promotion of the departmental candidates had neither acted illegally nor arbitrarily---Appeal was disposed of accordingly.

S.A.M. Quadri, Advocate-on-Record for Appellant. Nemo for Respondent No. 1.

Dil Muhammad Tarar, Advocate Supreme Court for Respondents Nos.2 to 4.

Date of hearing: 14th June, 2001.

2001 P L C (C.S.) 1247

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Syed Deedar Hussain Shah

and Hamid Ali Mirza, JJ

PAKISTAN STEEL MILLS CORPORATION, KARACHI and others

Versus

SHAH MUHAMMAD CHAUDHRY and another

Civil Petition for Leave to Appeal No.83-K of 2001, decided on 22nd May, 2001.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 8-12-2000, passed in Appeal No.65(K) of 1999).

Constitution of Pakistan (1973)---

Art. 212(3)---Reversion to lower post after retirement---Failure to give show-cause notice---Civil servant was originally working in one Department and later on was absorbed in the other Department---Authorities assuming the case of the civil servant as that of promotion instead . of absorption without any charge-sheet/show-cause notice and without affording any chance to the civil servant to defend his case reverted him from the post of Deputy General Manager to the post of Superintending Engineer---Service Tribunal allowed appeal filed by the civil servant and directed the Authorities to pay difference of pay and so also the pensionary benefits right from the day when he was reverted till the date he retired---Validity---Judgment passed by Service Tribunal was based on well-settled principles and there was no misreading or non-reading of evidence or misconstruction of law--­No question of public importance involved in the petition, Supreme Court

1. declined to interfere with the judgment passed by Service Tribunal---Leave to appeal was refused.

M.G. Dastgir, Advocate Supreme Court and Akhlaq A. Siddiqui, Advocate-on-Record (absent) for Petitioners.

Ali Akbar. Advocate-on-Record for Respondents.

Date of hearing: 22nd May, 2001.

2001 P L C (C.S.) 1253

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Qazi Muhammad Farooq

and Hamid Ali Mirza, JJ

LAHORE HIGH COURT, LAHORE through its Registrar

Versus

K.M. SOHEL

Civil Appeals Nos. 1687 to 1689 of 1999, decided on 31st May, 2001.

(On appeal from the judgment dated 21-6-1999 passed by Punjab Subordinate Judiciary Service Tribunal, Lahore in Service Appeals Nos.2 to 4 of 1998).

(a) Constitution of Pakistan (19'73)---

----Art.212(3)---Leave to appeal was granted to consider; whether adverse remarks recorded beyond the time schedule prescribed by Provincial Government through instructions for recording Annual Confidential Reports lost their efficacy in view of the dictum of Supreme Court in case titled Government of Punjab and another v. Ehsan ul Haq Sethi reported as PLD 1986 SC 684 and Chief Secretary. Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar reported as 1999 SCMR 1587; whether instructions issued by the Provincial Government for recording Annual Confidential Reports could be varied by the. High Court keeping in view the exigencies of service of persons of Punjab Subordinate Judiciary to advance the principle of independence of judiciary; whether the Tribunal was right in holding that the affected judicial officers should have been afforded a personal hearing in support of their representations and consideration of their representations in absentia by the Administrative Committee did not conform to the principle of audi alteram partem and whether the judgments passed by Service Tribunal were in deviation of the 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 and another 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; Chief Secretary, Government of the Punjab, Lahore and 2 others v. Muhammad Saeed Zafar and another 1999 SCMR 1587; F.Q. Matiullah Khan Alizai v. Chief Secretary, Government of N. :W.F.P. and 5 others 1994 SCMR 722;

Shaukat Javed Farooqi, Under-Secretary, Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and another 1999 SCMR 2141 ref.

(b) Civil service---

---- Annual Confidential Reports---Punjab Government Notification No.S(R)­3542-S&GAD 4-8/65-SO-XIII, dated 12-2-1968---Time frame for writing the reports---Instructions given in the Notification are directory in nature and non-compliance of time frame mentioned therein entails no consequences.

(c) Civil service---

Judicial Officers---Administration of justice---Evaluation of work of Judicial Officer---Parameter.

Judicial Officer remains constantly under supervision of his superiors through his judgments which are generally examined by higher forums while occupying elevated position like the Appellate or Revisional Courts. To assess/evaluate the work of Judicial Officer there cannot be any other parameter except his own judicial performance which can speak a lot itself. Possibility of settling of factual controversy as well as interpretation of law can vary between two judicial forums acting under the same hierarchy but application of relevant law remains same and if an inherent deviation from it is committed it shows that either the officer is inefficient or for some extraneous considerations law has been misquoted and such act on his part is sufficient to unfold true picture about the conduct of the officer. Judicial Officer exercising an authority under a law is bound to deliver correct and lawful judgments. 1f any Judicial Officer exercising powers under whatever capacity pronounces a wrong decision by applying incorrect law on the subject he makes himself liable for answer to his superiors as per Rules.

PLD 1987 SC 427 and 2001 SCMR 424 (sic) ref.

(d) Civil service---

---- Punjab Government Notification No.S.(R)-3542-S GAD4-8/65-SO-XIII, dated 12-2-1968---Annual Confidential Reports of Judicial Officers --- Time frame for writing of such report---Directions issued by Provincial Government---Non-compliance of such directions---Integrity of a Judicial Officer has to be assessed by the reporting officer o the basis of credible information which can also be linked or counter checked with his performance in the Court---To achieve such objects comparatively to assess overall performance as well as reputation of a Judicial Officer a longer time is -required than writing Annual Confidential Report of an officer of the executive---Essentially in judicial system no methodology has been evolved so far to assess overall performance of a Judicial Officer promptly or for any other reason one of them has been cited hereinbefore or for any other reason including lack of time at the disposal of reporting officer who himself is a Judicial Officer and he remains busy in his own judicial work, therefore, to collect information before writing Annual Confidential Reports from the place where the Judicial Officer is posted consumption of more time cannot be ruled out---Strict compliance of the instructions cannot be impressed upon strictly clue to nature of the job of a Judicial Officer and the commitments of the reporting officer as such the instructions of Provincial Government regarding writing of Annual Confidential Reports are directory

in nature.

Government of the Punjab and another v. Ehsanul Haq Sethi P L D 1986 SC 684 ref.

(e) Constitution of Pakistan (1973)—­

---- Preamble & Art.2A ---Judiciary, independence of ---Connotation--­ Independence of judiciary does not only mean that its incumbents should give decisions independently without any fear and favour but equally means that its member must exhibit through his performance both on the judicial as well as administrative side that there is no complaint against him of any nature.

(f) Civil service-----

­

---- Judicial Officers---Annual Confidential Reports ---Instructions--­respective High Courts being independent institutions "instead of applying old instructions on the subject of writing Annual -Confidential Reports can through their Administrative Committees competently frame fresh instructions keeping in view the nature of the job of their Subordinate Judicial Officers.

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 Shaukat Javed Farooqi,. Under-Secretary, Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and another 1999 SCMR 2141 ref.

(g) Maxim-----

----"Audi alteram partem"---Applicability---Principle of natural justice as enshrined in maxim "audi alteram partem" i.e. no one should be condemned unheard, is considered impliedly or expressly integral part of a statute--­ Even administrative/executive Authorities are required to adhere to the principle but At the same time it is not a principle which is recognized universally---Subject to nature of proceedings arid category of the action contemplated to be taken against an individual said rule can be extended or denied.

Ghulam Mustafa Jatoi v. Additional District and Sessions Judge\Returning Officer, N.A. 158, Nushero Feroze and others 1994 SCMR 1299 rel.

(h)Civil service------

----Departmental representation---Rules not framed---Effect---For disposal of departmental representations, where no rules have been framed, no obligation can be placed on the Department to provide civil servant necessarily right of hearing.

(i) Punjab Subordinate Judiciary Service Tribunals Ordinance (II of 1991)---

----S.8---Expunction of adverse remarks in Annual Confidential Reports--­Recording- of such remarks beyond the time schedule prescribed by Government---Adverse remarks were recorded in the Annual Confidential Report of Judicial Officer---Department, without providing opportunity of hearing dismissed the representation---Subordinate Judiciary Service Tribunal allowed the appeal and remanded the case to the Department for deciding departmental representation afresh, after providing him opportunity of hearing---Validity---Under the hierarchy of judicial set-up a representation was also disposed of by the members of superior judiciary having presumably no malice against \ the Judicial Officer unless pleaded otherwise---Extending right of hearing to a member of subordinate judiciary while disposing of his departmental representation was not mandatory because if representation so submitted by an officer was decided against him then the member of subordinate judiciary could agitate his grievance before a judicial forum i.e. where he could fully avail right of hearing to persuade the said Tribunal that the adverse report or order under challenge was not sustainable---Departmental appeal, review or representation filed by a Judicial Officer could be -disposed of by the Administrative Committee of High Court without hearing the individual concerned---Where the Judicial Officer was aggrieved against the order of the Administrative Committee, he could agitate his view-point before the Subordinate Judiciary Service Tribunal where he would be allowed full opportunity to explain his case--­Order passed by Subordinate Judiciary Service Tribunal was set aside and anneal was allowed.

Government of the Punjab and another v. Ehsariul 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, Ex­Additional District and Sessions Judge v. Government of the Punjab through the Chief Secretary, Lahore 1994 PLC (C.S.) 113; Chief Secretary, Government of Punjab, Lahore and 2 others v. Muhammad Saeed Zafar and another 1999 SCMR 1587; F.Q, Matiullah Khan Alizai v. Chief Secretary, Government of N.-W.F.P. and 5 others 1994 SCMR 722; Shaukat Javed Farooqi, Under-Secretary, Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and another 1999 SCMR 2141; Noor Ellahi v. Director of Civilian Personnel, Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749 and Abdul Haq Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3. others 2000 SCMR 907 ref.

(j) Civil service--

---- Subordinate Judicial Officer---Annual Confidential Report---Reporting Officer---Duty of---With reference to cases of Judicial Officer, the reporting officer himself enjoying the elevated position is bound to follow all norms of justice without being biased is any manner, because unless any mala fide is attributed against reporting officer presumption would be that performance of subordinate judicial officer has been evaluated transparently.

Malik Muhammad Azam Rasul, Advocate Supreme Court and Rao Muhammad Yousuf Khan, Advocate-on-Record (absent) for Appellant (in all Cases).

Nemo for Respondent (in all Cases).

Date of hearing: 31st May, 2001.

2001 P L C (C.S.) 1263

[Supreme Court of Pakistan]

Present: Rana Bhagwan Das, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

WATER AND POWER DEVELOPMENT AUTHORITY, through Chairman, WAPDA House, Lahore

Versus

M. SHOUKAT HAYAT QAZI

Civil Petition for Leave to Appeal No.45-K of 2001, decided on 2nd April, 2001.

(On appeal from the judgment/order, dated 13-11-2000, passed by the Federal Service Tribunal, Islamabad, in Appeal No. 1053(K) of 1999).

Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978-----

----Rr. 2(5) & 6---Constitution of Pakistan (1973), Art. 212(3)---Compulsory, retirement from service---Civil servant was compulsorily retired from service on allegation that he after transfer had not joined his new posting and having remained absent from duty was guilty of misconduct---Service Tribunal on appeal ordered reinstatement of civil servant from the date he was so retired---Validity---Civil servant had submitted an application to the Authority concerned stating that he was unable to join duty due to his family problems, but despite that explanation was called from him to which he submitted a reply alongwith medical certificate and ground of ailment of his sister---Absence of civil servant could not in any case be termed as wilful absence or desertion from duty, as it was due to compelling circumstances---Judgment of Service Tribunal reinstating civil servant being based on sound reasoning and no important question of law as contemplated under Art. 212(3) of Constitution of Pakistan (1973), being involved, petition for leave to appeal was dismissed.

WAPDA v. Shan Elahi NLR 1999 Lah. 1 ref.

Siddique Mirza, Advocate Supreme Court with Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Dote of hearing: 2rld April, 2001.

2001 P L C (C.S.) 1267

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Qazi Muhammad Farooq

and Tanvir Ahmed Khan, JJ

Civil Appeals Nos. 251 to 278 of 2000

MUHAMMAD RASHID and others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Government of Pakistan, Rawalpindi and others

Civil Appeals Nos. 278 of 2000 and 1277 to 1280 of 1999

SECRETARY MINISTRY OF DEFENCE, GOVERNMENT OF

PAKISTAN, RAWALPINDI and 2 others

Versus

MUHAMMAD SARWAR RAZA and others

(On appeal from judgment dated 31-3-1999 and 19-8-1998 passed by the Federal Service Tribunal, Islamabad in Appeal No.790(R) of 1998 and 688 to 691(R) of 1997 respectively).

Civil Appeals Nos. 251 to 278 of 2000 and 1277 to 1280 of 1999; decided on 8th December, 2000.

(a) Civil Servants (Seniority) Rules, 1993---

----R.6---Constitution of Pakistan (1973), Art. 212(3)---Seniority, fixation of---Contention raised by the Government was that Service Tribunal wrongly relied on R.6 of Civil Servants (Seniority) Rules, 1993, as the disputed seniority pertaining to the year 1985, could not be, governed thereunder retrospectively---Further contention was that the Tribunal failed to appreciate that the departmental appeals of civil servants were barred by nearly twelve years---Relying on the principle of locus poenitentiae, it was contended that the vested rights accrued to the promoted civil servant could not be denied after a lapse of twelve years ---Leave-to appeal was granted by Supreme Court to consider the contentions.

Federation of Pakistan and others. v. Muhammad Sharif Sabir and others 1999 SCMR 185 ref.

(b) Civil Servants (seniority) Rules, 1993---

----R. 6---Constitution of Pakistan (1973), Art. 212(3)---Seniority, fixation of---Contention raised by the Government was that inter se seniority of the civil servants remained the same in all the three seniority lists published in the years 1987, 1994 and 1997 and therefore, objection, if any, to the seniority assigned to the respective civil servant in the list should have been raised at the very initial stage when the first list was published in the year 1987; as such the same having not been done the question of seniority amongst the civil servants attained finality and the matter became past and closed accordingly, representation of the civil servants, their departmental appeals and the service appeals before Service Tribunal were not maintainable and were barred by time---Leave to appeal was granted by Supreme Court to consider the contentions of the Government.

(c) Civil Servants (Seniority) Rules, 1993---

----R. 6---Civil Servants Act (LXXI of 1973), S.8(4)---ESTACODE, 1989, 1).225----Seniority, fixation of---Direct appointees and departmental promotees---Dispute was among the seniority of the two categories of civil servants---Draft Seniority List prepared by the Authorities was assailed before Service Tribunal and the appeal was allowed---Validity---Authorities failed to make any effort in the past to resolve the controversy between the direct recruits and the promotees, therefore, their inaction could neither furnish a ground for any one of the sides here nor cause prejudice to any of them-- -Seniority amongst the direct recruits and the promotees was to be re?fixed in view of the observations made by Supreme Court in case titled Muhammad Yousaf reported as 1996 SCMR 1297---Seniority of departmental promotees was to be reckoned from the date of their regular appointment in the post as required by S.8(4) of Civil Servants Act, 1973--?Draft Seniority List of 1997 was defective as the same had closed the doors of bringing everything on the right track for the purposes of resolving the dispute between the direct recruits and the departmental promotees on the ground that the cases already settled could not be re-opened as the same were time-barred---Judgment passed by Service Tribunal was set aside by Supreme Court, and the case was remanded to the departmental Authorities to decide the dispute of seniority afresh---Appeal was allowed accordingly.

Federation of Pakistan and others v. Muhammad Sharif Sabir and others 1999 SCMR 185 and Muhammad Yousaf and 4 others v. Abdul Rashid and others 1996 SCMR 1297 ref.

Appellants in person (in C.As. Nos.251 to 277 of 2000).

Tanvir Bashir Ansari, D.A.-G. for Respondents Nos.l and 2 (in C.As. No.251 of 2000 and for Respondent No. 1 in all CAS.).

Fazal Elahi Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No.6 (in C.A. No. 255 of 2000), for Respondent No.9 (in C.A. No. 263 of 2000), for Respondent No.7 (in C.A. No.268 of 2000), for Respondent No.l (in.CA No. 278 of 2000) and for Respondents Nos. l to 4 (in C. A. No. 1277 of 1999).

Respondent No.6 in person ((in C.As. Nos.251 to 254, 256, 258 and 260 of 2000').

Respondent No.9 in person (in C.As., Nos.262, 266 and 275 to 277 of 2000).

Respondent No.7 in person (in C.As. Nos.267 to 269, 273 and 274 of 2000).

Tanvir Bashir Ansari, D.A.-G. and Anwar H. Mir, Advocate-on-?Record for Appellant (in C.A. No.278 of 2000).

Tanvir Bashir Ansari, D.A.-G, and Raja Abdul Ghafoor, Advocate-?on-Record for Appellants (in C.As. Nos. 1277 to 1280 of 1999).

Fazal Elahi Siddiqui, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Respondent No. l (in C.As. Nos.278 of 2000 and for Respondents Nos. 1 to 4 in C. A. No. 1277 of 1999)

Remaining Respondents: Ex parte.

Date of hearing: 4th December, 2000.

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2001 P L C (C. S.) 1298

[Supreme Court of Pakistan]

Present: Mian Muhammad Ajmal

and Abdul Hameed Dogar, JJ

MUHAMMAD ASLAM, A.S

Versus

D.I.-G. POLICE, FAISALABAD RANGE, FAISALABAD and 10 others

Civil Petition No. 1627 of 2000, decided on 11th July, 2001.

(On appeal from the judgment dated 11-9-2000 in Appeal No. 259 of 1995 passed by the learned Punjab Service Tribunal, Lahore).

Punjab Civil Servants Act (VIII of 1974)----

----S.8---Constitution of Pakistan (1973), Art.212(3)---Annual Confidential Report---Adverse entry---Promotion---Civil servant had adverse entries in his Annual Confidential Reports pertaining to the years 1975-76, 1979-80 and 1982---Such adverse entries were never expunged and contained remarks of very serious nature---Civil servant was also awarded punishments of censure and forfeiture of service in different years---Department denied promotion to the civil servant and 'his appeal before Service Tribunal was dismissed---Contention of the civil servant was 'that the adverse remarks in the Annual Confidential Reports were not communicated to him, therefore, the matter was not agitated at the appropriate time--­Validity---Promotion was made on the basis of seniority-cum-fitness and the rules regarding grant of pro forma promotion did not allow persons with the chequered record of service to claim promotion as of right---Where the civil servant did not raise the plea before the Service Tribunal that he was not communicated adverse remarks, as such, he could not agitate the same before Supreme Court---Civil servant could not claim promotion as of right and the giving or refusal of promotion was a matter within exclusive discretionary domain of executive authorities conferred in the matter---Supreme Court declined to interfere with the findings of Service Tribunal and the same were accordingly maintained---Leave to appeal was refused.

Secretary, Government of Sindh Education Department and others v. Riyazul Hassan Zaidi and another 1986 SCMR 64 ref.

Muhammad Aslam Uns, Advocate Supreme Court with M.A. Zaidi, Advocate-on-Record for Petitioner.

Nemo for Respondents.

Date of hearing: 11th July, 2001.

2001 P L C(C.S.) 1

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi J

Civil Appeal No 95 of 1999

SALEEM AHMAD and another

versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary and 5 others

(On appeal from the order of the High Court, dated 29-5-1999 in Writ Petition No. 153 of 1999).

Civil Appeal No 78 of 1999

AZAD KASHMIR MINERAL AND INDUSTRIAL

DEVELOPMENT CORPORATION through Chairman and 2 others

versus

Raja AATIF AKRAM

(On appeal from the order of the High Court, dated 2-4-1999 in Writ Petition No. 152 of 1999).

Civil Appeals Nos.95 and 78 of 1999, decided on 17th May, 2000.

(a) Azad Jammu and Kashmir Civil Servants (Appointments and Conditions of Service) Rules, 1977--

­

----Rr.10-A & 10-B---Azad Jammu and Kashmir Mineral and Industrial Development Corporation Service Rules, 1974, Rr. 5 & 24---Promotion--­Entitlement---Writ jurisdiction, exercise of --Appellants who were senior to respondent were ignored for promotion and respondent despite being junior to the appellants was promoted as Secretary of the Corporation by its Chairman---Order of promotion by Chairman was challenged by appellants/petitioners in writ petition before High Court on the grounds firstly that they being senior were entitled to promotion and secondly that order of promotion could be passed only by Board of Directors of the Corporation and not by its Chairman and thirdly that Azad Jammu and, Kashmir Civil Servants Appointment and Conditions of Service Rules, 1977 being applicable to the parties, promotion could only be ordered under R 10-A of said Rules on acting charge/officiating basis, but it had not been done accordingly---Seniority of appellants was not disputed by respondent---Writ petition filed by appellants/petitioners was dismissed by.. High Court in limine holding that Chairman who had power to make transfer .of officers, could validly make order-of promotion subject to approval of the Board of Directors of the Corporation---High Court had also found that according to R.24 of Azad Jammu and Kashmir Mineral and Industrial Development Corporation Service Rules, 1974, rules applicable to civil servants also being applicable to employees of Corporation with regard to their appointments, promotion etc., respondent would be deemed to be civil servant and High Court had no writ jurisdiction in the matter---Respondent had conceded that as Authorities were going to fill in the post in dispute by promotion' under R.5 of Azad Jammu and Kashmir Mineral and Industrial Development Service Rules, 1974, appeals could be disposed of by Supreme Court accordingly to save the parties from inconvenience which they could face in remand of their case to High Court---Employees of Corporation were not civil servants and High Court had jurisdiction to exercise its writ jurisdiction in the matter of employees of said Corporation---Supreme Court accepted the appeal, remanded case to High Court to decide the matter afresh taking into consideration stand taken by appellants.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 42---Appeal before Supreme Court---Until and unless the matter was finally decided by the High Court in the light of the pleadings of the parties, filed before it, Supreme Court was not legally competent to finally decide the matter as a Court of appeal.

Shaheen Asad v. Azfar Yaseen Civil Appeal No.44 of 1999 ref.

M. Tabassum Aftab Alvi for Appellants (in C.A. No.95 of 1999).

Kh. Attaullah, Additional Advocate-General and Ghulam Mustafa Mughal for Respondents.

Ghulam Mustafa Mughal for- Appellants (C.A. No.78 of 1999).

Raja Muhammad Hanif Khan for Respondent.

Date of hearing: 15th May,. 2000.

2001 P L C (C.S.) 11

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, J

Civil Appeal No.89 of 1999

Messrs JABEER HOTEL, MIRPUR through Proprietor

versus

KASHMIR COUNCIL, ISLAMABAD through Secretary and 4 others

(On Appeal from the judgment of the High Court, dated 15-2-1999 in Writ Petition No.58 of 1997).

Civil Appeal No.90 of 1999

KASHMIR COUNCIL, ISLAMABAD through Secretary and 3 others

versus

Messrs JABEER HOTEL, MIRPUR through Proprietor and another

(On Appeal from the judgment of the High Court, dated 15-2-1999 in Writ Petition No.58 of 1997).

Civil Appeal No.91 of 1999

ASSISTANT COLLECTOR GRADE-1, JHELUM and another

versus

Messrs HAFIZ TEXTILE MILLS LIMITED, MIRPUR

through Managing Director

(On Appeal from the judgment of the High Court dated 13-2-1999 in Writ Petition No.24 of 1991).

Civil Appeals Nos. 89, 90 and 91 of 1999, decided on 28th April, 2000.

(a) Interpretation of statutes---

----Enactment and enforcement of law---No hard and fast rule can be laid down as to the manner in which a law is made by a Legislature---Referential Legislation is a reorganised form of making, law wherein a law made by any other Legislature is enforced by law-makers without reproducing the phraseology of the already existing law and it is declared that a particular law specified in Legislation would come into force---Such legislation some times mentioned that it shall stand adapted and some time other phraseology is used---No particular words are necessary for enacting a law---Necessity was that it should be clear that Legislature had provided that a known set of legal provisions, even if did, not form part .of enactment, were intended to be operative within the realm of enacting Legislature---Mere use of word "extension" by itself would not vitiate a Legislation.

Messrs Spintex Limited, Mirpur and others v. Income Tax Officer, Government of Azad-Jammu and Kashmir, Mirpur and others 1998 PTD 2567-ref.

(b) Employees Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir) Act (X of 1980)--

----Ss.l & 2---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Preamble, Ss. 12, 19, 21, 31, 42 & 44---Nature and function of Constitution---Powers of Executive Authority---Delegation of powers ---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974) was enacted to provide for better Government and administration of Azad Jammu and Kashmir until such time as the statute of Jammu and Kashmir was determined through a plebiscite to be held under auspicious of the United Nations--­Azad Jammu and Kashmir Interim Constitution Act was enacted with concurrence of Government of Pakistan and the Act had postulated that two legislative bodies would be working in, Azad Jammu and Kashmir---One was Azad Jammu and Kashmir Council headed by Prime Minister of Pakistan which terms would include Chief Executive of Pakistan and other Legislative Body was Azad Jammu and Kashmir Legislative Assembly consisting of forty-eight elected members---Such Assembly had powers to make laws in all residuary matters which were included in Concurrent Legislative List ---Azad Jammu and Kashmir Council had executive authority which vested in Chairman and executive functions of the Council could be delegated to its officers---Unlike said Council, Legislative Assembly did not have any executive power ---Azad Government of State of Jammu and Kashmir enjoyed executive power in respect of subjects which were within legislative competence of the Assembly---Executive authority of Azad Jammu and Kashmir would be exercised by Government consisting of Prime Minister and Ministers---Executive authority of Council and Government could be delegated to Officers and Authorities subordinate to them, but Azad Jammu and Kashmir Interim Constitution Act did not postulate that executive authority of Azad Jammu and Kashmir Council would be exercised by functionaries or officers of Government of Pakistan Prime Minister of Pakistan while performing functions as Chairman of the Council, could not delegate any function of Council to an Officer or Authority in Government of Pakistani Azad Jammu and Kashmir being not part of, Pakistan, laws of Pakistan were no applicable to liberated territory of Jammu and Kashmir--­Functionaries appointed under aparticular law which was in force in Pakistan; would not have jurisdiction to function in Azad Jammu and Kashmir Institution called Employees' Old-Age Benefits Institution, constituted under Employees' Old-Age Benefits Act, 1976 in Pakistan and which was extended - to whole of Pakistan would not perform functions in Azad Jammu and Kashmir---Azad Jammu and Kashmir Employees' Old-Age Benefits (Extension of Functions to Azad Jammu and Kashmir Act, 1980) was not competently, enacted by Azad Jammu and Kashmir Council and was. void from its very inception, in circumstances.

Kh. Ali Muhammad, Advocate .for Appellant (in C.A. No.89 of 1999).

Zafar Hussain Mirza, Advocate for Respondents (in C.A. No.89 of 1999).

Zafar Hussain Mirza, Advocate for Appellants (in C.A. No.90 of 1999).

Kh. Ali Muhammad, Advocate for Respondent No.1 (in C.A. No.90 of 1999).

Zafar Hussain Mirza, Advocate for Appellants (in C.A. No.91 of 1999).

Respondent: Ex parte (in C. A. No. 91 of 1999).

Date of hearing: 20th April, 2000.

2001 P L C (C.S.) 28

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD AFTAB KHAN---Appellant

versus

DISTRICT EDUCATION OFFICER SECONDARY and 2 others----Respondents

Civil Appeal. No.29 of 2000, decided on 9th June, 2000.

(On appeal from the judgment of the High Court, dated 28-1-2000 in Writ Petition No. 234 of 1999).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R.17---AzadJammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Appointment, cancellation of---Post of Naib Qasid to which appellant was appointed by Headmaster of the School did not exit, but was created by the Headmaster/Education Officer, cancelled the appointment of appellant and instead appointed another person which was challenged by appellant in writ petition before High Court which was dismissed by High Court in terms that post in question should be filled in after advertising the same and calling for application---Authority in pursuance of direction of the High Court, advertised the post, constituted a Selection Committee which, after taking test and interview, appointed a person who was not party in the case---Appellant who participated in test and-interview which were held in pursuance of the order of the High Court but failed to obtain appointment on merits, had challenged order of High Court in appeal before Supreme Court that High Court was not legally justified to direct to advertise the post and holding test and interview and that his appointment which was made by the Headmaster, could not be cancelled by the education Officer without hearing him---When appellant had participated in proceedings taken in pursuance of judgment of High Court and failed to obtain appointment he couldnot be allowed to challenge the judgment of High Court passed in exercise of the writ jurisdiction---Party could not be allowed to blow hot and cold in the same breath---Appeal filed by appellant before Supreme Court had become redundant because appellant had sought his grievance against the person who was appointed in place of appellant by the Headmaster after cancelling his appointment and not against the person who was duly appointed after taking test and interview in pursuance of direction of the High Court---After appointment of said person, it was preposterous to suggest that appellant still had right to seek remedy against said person who was no more holding the appointment---Appellant having been appointed by Headmaster without complying with R.17 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, no notice was necessary prior to cancellation of his appointment.

(b) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R.17---Interpretation of R.17 does not imply that publication of advertisement in the newspaper was not necessary at all.

Muhammad Arshad Khan v. Azad Government through its Chief Secretary and others Civil Appeal No.56 of 1999; Umer Hayat v. Azad Government and 3 others 1999 PLC (C.S) 78; Muhammad Rashid Choudhry v. Chairman, AKLASC and others 1993- PLC (C.S.) 1201; Prime Minister Secretariat, Azad Government of the State of Jammu and Kashmir, Muzaffarabad and others v. Muhammad Aslam and 5 others 2000 .PLC (C.S.) 155; Abdul Qadir v. Abdul Karim 1999 PLC (C.S.) 947; Ghulam Mustafa v. Azad Government and 2 others 1996 MLD 355 and Rashid Hussain v. Gul Afsar Khan and 3 others 1999 PLC (C.S.) 1248 ref.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Mumtaz Hussain Naqvi, Advocate for Respondent No.2.

Date of hearing: 7th June, 2000.

2001 P L C (C.S.) 34

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR and 2 others---Appellants

versus

ASHFAQUE AHMAD HASHMI---Respondent

Civil Appeal No. 105 of 1999, decided on 12th May, 2000.

(On appeal from the judgment of the High Court, dated 6-5-1999 in Writ Petition No. 153 of 1996).

(a) Azad Jammu and Kashmir Civil Servants Act, 1976----

----S.22---Termination of service---Services of civil servant were terminated on recommendations of high powered committee constituted by Government to consider legality of various appointments of civil servants as a result of judgment of Supreme Court whereby it was held that S.22 of Azad Jammu and Kashmir Civil Servants Act, 1976 did not authorise Government to appoint a person without recommendation of Public Service Commission--­Civil servant; who was appointed without recommendation of the Commission, his services were terminated being violative of law without serving him the show-cause notice---High Court in exercise of writ jurisdiction set aside termination order holding that order of termination passed without serving show-cause notice upon civil servant was without lawful authority as he was condemned unheard---Government had no power to exempt a person from appearing before Public Service Commission--­Government was obliged to terminate services of civil servant who was appointed without recommendation of Public Service Commission---Services of civil servant even if were terminated without first issuing him show-cause notice or without hearing him, such legal defect could not make appointment of civil servant valid which itself was illegal---Civil servant, in circumstances, was not entitled to a show-cause notice before termination of his service---Services of civil servant having been terminated alongwith other such-like civil servants civil servant could not plead any discrimination in his case---Supreme Court accepted the appeal and vacated judgment of High Court.

Abdul Khalil v. Manzoor Ahmad 1998 PLD (C.S.) 1396; Rashid Hussain v. Gul Afsar Khan and 3 others 1999 PLC (C.S.) 1248; Syeda Shamim Zohra v. Massarat Shaheen Civil Appeal No. 122 of 1998; Malik Zafar Ali v. Inspector-General of Police 1995 SCR 234; Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir and others PLC (C.S.) 1047 and Shabir Ahmad v. Azad Government and another1997 PLC (C.S.) 478 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss.42 & 44---Constitutional jurisdiction, exercise, of---Appeal before Supreme Court---Point which was not raised earlier before High Court in Constitutional petition, was raised in appeal before Supreme Court in concise statement and some documents had also been attached---Said point was a factual, ground and it could not be raised for the first time before Supreme Court-in appeal in concise statement and documents also could not be filed in the Supreme Court---Such details could be given in writ petition and all necessary documents could be filed in the High Court and same could not be done for the first time in appeal before the Supreme Court.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.44---Civil service---Writ jurisdiction; exercise of---Illegal appointment of civil servant which was terminated as such could not be restored by High Court in exercise of its writ jurisdiction.

Raja Shiraz Kayani, Advocate-General for Appellants.

Ghulam Musatafa Mughal, Advocate for Respondent.

Date of hearing: 11th April, 2000.

2001 P L C (C.S.) 50

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh, and Muhammad Yunus Surakhvi, JJ

MANZOOR AHMAD

versus

MUHAMMAD SABBIR and 2 others

Civil Appeal No. 161 of 1999, decided on 12th May, 2000.

(On appeal from the judgment of the Service Tribunal, dated 24-7-1999 in Service Appeal No.20 of 1996).

(a) Azad Janunu and Kashmir Service Tribunal Act (XXII of 1975)----

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Appeal to Supreme Court---Limitation---Starting point--­Appellant was not impleaded as respondent ii, appeal earlier filed before Service Tribunal---Appellant being aggrieved of order passed by Service Tribunal had filed appeal before Supreme Court i7hich was barred by time--­Appellant in his application for condonation of delay had furnished convincing explanation for the delay wherein ht stated that he did not know about judgment of Service Tribunal and that after coming to know about said judgment he filed appeal within prescribed period of limitation---Appeal filed by appellant was not time-barred because if application was filed by a person who was not a party before Court below, limitation would run from date of the knowledge.

(b) 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), S.42---Appointment made without advertisement---Validity---Appeal to Supreme Court---Post to ' which respondent was appointed was not advertised---Appointment would not create any right in respondent because R.17 of Azad Jammu and Kashmir Civil servants (Appointment and Conditions of Service) Rules, 1977 had provided that when it was intended to fill in a vacant post, vacancy had to be advertised in the newspapers and then appointments had to be made on tie basis of examination or test to be held by appropriate committee or the Board---Advertising of post being a mandatory requirement of law, if it was not complied with, any proceedings taken by Selection Board would be void and all proceedings for selection or appointment would be coram non judice---Provisions of R.17 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 had ensured that people would be appointed to Government service on basis of merit and open competition.

Muhammad Fayyaz v. Arshid Gillani 1999 PSC.567 ref.

Ashfaque Hussain Kayani, Advocate for Appellant.

Farooq Hussain Kashmiri and Abdul Hamid Khan Shahid, Advocate for Respondents. .

Date of hearing: 6th April, 2000.

2001 P L C (C.S.) 93

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

SHAHEEN ASAD, ASSISTANT MANAGER

FINANCE/ACCOUNTS, AZAD KASHMIR

LOGGING & SAWMILL CORPORAITON, MUZAFFARABAD

versus

AZFAR YASEEN, ASSISTANT MANAGER, FINANCE AND ACCOUNTS, AZAD KASHMIR LOGGING

AND SAWMILL CORPORATION, MUZAFFARBAD and 4 others

(On appeal from the judgment of the High Court, dated 26-1-1999 in Writ Petitions Nos.337 and 376 of 1996)

(a) Azad Jammu and Kashmir Logging and Sawmill Corporation Employees Service Rules, 1977---

----R. 27---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---Show-cause notice---Cabinet took decision that all civil servants including employees of Statutory Corporations appointed-in. derogation of law would be removed from service---Employee was called upon to show cause as to why he should' not be relieved from service as post held by him was not advertised which was a violation of Azad Jammu and Kashmir Logging and Sawmills Corporation Employees Service Rules, 1977 and that he did not possess minimum qualification for the post held by him---High Court quashed the show-cause notice under its writ jurisdiction---Validity---, Show-cause notice could be challenged through writ petition only if the same had been issued without lawful authority, but it could not be so challenged if issued by a Competent Authority---Writ jurisdiction conferred on High Court was supervisory in nature under which High Court could issue a declaration that an act done or proceedings taken were without lawful authority and of no legal effect---High Court was also authorised to issue writ of prohibition to stop a person from performing an act which that person was not allowed by-law to do---High Court had no jurisdiction to transfer proceedings pending before an executive or judicial officer and decide the same itself---While exercising writ jurisdiction, High Court could not substitute its own opinion for the opinion of an administrative officer---Show-cause , notice having been issued competently and legally, interference of High Court in matter of issuance of show-cause notice was not warranted by law---Supreme Court set aside judgment of High Court and remanded the case to decide the same afresh in accordance with law.

(b) Azad Jammu and Kashmir Logging and Sawmills Corporation Employees Service Rules, 1977---

----R. 27---Azad Jammu and Kashmir Public Service Commission Act, 1976, S.7---Status of Officers of Azad Jammu and Kashmir Logging and Sawmills Corporation ---Officers of Corporation were not civil servants even for the purposes of Azad Jammu -and Kashmir Civil Servants Act, 1976 as well as Azad Jammu and Kashmir Public Service Commission Act, 1974---Public Service Commission under S.7 of Azad Jammu and Kashmir Public Service Commission Act, 1976 had to conduct test and examination of recruitment to the Civil Services of Azad Jammu and Kashmir and other specified posts in connection with affairs of Government---Service in the Corporation was not civil service of Azad Jammu and Kashmir and posts in the Corporation were not related to affairs of Government---Recruitment in the Corporation was to be made in accordance with Azad Jammu and Kashmir Logging and Sawmills Corporation Act and rules made there under which had envisaged that recruitment would be made through Selection Board constituted within Corporation.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--

----S.44---Writ jurisdiction of High Court---Scope---Writ jurisdiction conferred on High Court was supervisory in nature under which High Court could issue a declaration that an act done or proceedings taken were without lawful authority and of no legal effect---High Court was also authorised to issue writ of prohibition to stop a person from performing an act which that person was not allowed by law to do---High Court had no jurisdiction to transfer proceedings pending before an executive or judicial officer and decide -the same itself---While exercising writ jurisdiction, High Court could not substitute its own opinion for the opinion of an administrative officer.

Abdul Rashid Abbasi for Appellant.

Raja Muhammad Hanif Khan for Respondent No. 1.

Muhammad Farid Khan for Respondents Nos.2 to 4.

Date of hearing: 19th May, 2000.

2001 P L C (C.S.) 105

[Supreme Court (AJ&K)]

Before Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

ABDUL RASHID, FIRE SUPERINTENDENT, MUNICIPAL CORPORATION, MIRPUR, AZAD JAMMU AND KASHMIR

versus

MUHAMMAD ASJAD and 7 others

Civil Appeal No.5 of 2000, decided on 30th June, 2000.

(On appeal from the judgment of the High Court dated 9-12-1999 in Writ Petition No. 81 of 1999).

Azad Jammu and Kashmir Local Council Service (Appointment and Conditions of Service) Rules, 1989----

----R. 5---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Civil service---Appointment---Validity of---Appeal before Supreme Court---Order of Mayor Mirpur appointing respondent as Fire Officer in B.8 was set aside by Azad Jammu and Kashmir Local Government Board on grounds that said appointment was in violation of quota allocated for recruitment, that post was neither advertised nor any test and interview was held; that respondent did not possess qualifications prescribed for the post and that appointment was made in violation of rules and regulations and without taking into consideration fact that respondent was not domiciled of respective District---High Court set aside order of said Board simply on ground that respondent was not afforded an opportunity of hearing before setting aside his appointment order---Validity of judgment of High Court--­Order of appointment of respondent itself being illegal and passed in violation of rules and regulations it was not necessary to afford respondent opportunity of hearing before setting aside illegal order--­Even otherwise illegal appointment could not be restored by High Court in exercise of Constitutional jurisdiction---Order of High Court restoring appointment of respondent, was set aside in appeal by Supreme Court.

Rehana Mahmood and 3 others v. Azad Government and 5 others PLJ 1997 SC (AJ&K) 180; Azad Government and others v. Ashfaque Ahmad Hashmi Civil Appeal No. 105 of 1999, Rashid Hussain v. Gul Afsar Khan and 3 others 1999 PLC (C.S.) 1248 and Raja Abdul Razzaq v. Dil Khuram Abbasi and others Civil Appeal No. 36 of 1999 ref.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Ch. Muhammad Reaz Alam, Advocate for Respondents.

Date of hearing: 26th June, 2000.

2001 P L C (C.S) 127

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

CHAIRMAN, M.D.A. and 4 others

versus

MUHAMMAD AJMAL QURESHI and another

Civil Appeal No. 141 of 1998, decided on 24th March, 1999.

(On appeal from the judgment of the High Court, dated 5-10-1998 in Writ Petition No. 57 of 1998).

Azad Jammu and Kashmir Civil Servants Act, 1976---

----S.2(B)---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975); S.2 [as amended by Azad Jammu and Kashmir Service Tribunal (Amendment) Act (I of 1993)]---Mirpur Development Authority Establishment Service Rules, 1991, R.15---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.2, 42 & 44---Dismissal from service---Writ petition---Competency---Competency of writ petition against order of dismissal from service passed by Chairman of Departmental Appellate Authority, had been challenged on the ground that civil servants could not file writ petition in respect of terms and conditions of their service---Civil servant according to amended S.2 of Azad Jammu and Kashmir Service Tribunal Act, 1975 was one who was appointed to any service or was holding a civil post in service of Azad Jammu and Kashmir, employed in connection with affairs of the State but such employees who had not been employed in connection with affairs of the State or who ceased to be civil servants were not entitled to go to Service Tribunal for redressal of their grievance---Only course open for such employees was to get their grievances redressed by filing writ petition in the High Court which was not precluded from exercising its jurisdiction.

Ch. Lal Hussain, Advocate for Appellants.

Ch. Muhammad Sharif Tariq, Advocate for Respondents.

Date of hearing: 17th March, 1999.

2001 P L C (C. S.) 141

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J

Syed WAQAR HUSSAIN

versus

NAEEM AHMAD KHAN and 2 others

Civil Appeal No.70 of 1998, decided on 17th July, 1998.

(On appeal from the judgment of the High Court, dated 30-3-1998 in Writ Petition No.269 of 1997).

University of Azad Jammu and Kashmir Act---

---- S. 38---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Civil service---Promotion---Appeal before syndicate of University---Respondent had filed appeal before Syndicate of the University against promotion of the appellant to the post of Superintendent of University, but appeal having not been decided by the Syndicate despite sixteen months had elapsed, respondent filed writ petition before High Court---Validity---Respondents, before filing writ petition had filed appeal before Syndicate according to law, but the same having not been decided despite sixteen months had passed, exercise of Constitutional power of High Court could not be postponed indefinitely ---Order passed by High Court warranting the writ petition did not suffer from any illegality warranting interference of Supreme Court at preliminary stage.

Muzaffar Hussain v. Azad Jammu and Kashmir University and others 1999 PLC (C.S.) 239 and Sardar Khizar Hayat Khan v. Vice-­Chancellor and others Civil Appeal No. 28 of 1993 ref.

Ghulam Mustafa Mughal, Advocate for Appellant.

Sardar Rafique Mahmood Khan, Advocate for Respondent No. 1.

Syed Muhammad Siddique Shah Bukhari, Advocate for Respondents Nos.2 and 3.

Date of hearing: 9th July, 1998.

2001 P L C (C.S.) 146

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvi, J

MUKHTAR AHMED

versus

Raja MUHAMMAD YUNUS and 2 others

Civil Appeal No.20 of 1999, decided on 25th November, 1999.

(On appeal from the judgment of the High Court, dated 23-2-1999 in Writ Petition No.86 of 1997).

Civil service---

---- Allotment of living accommodation---Cancellation---Allotment of house to civil servant by the Chairman of the Allotment Committee, was cancelled by Allotment Committee who allotted the same, to co-civil servant--­Validity---Chairman was not vested with power to make allotment as said power was vested with the Allotment Committee---Allotment made by Chairman in favour of civil servant itself being nullity in the eye of law same was rightly cancelled by the Allotment Committee and house was rightly allotted by the Committee in favour of co-civil servant.

Ch. Muhammad Azam Khan, Advocate for Appellant.

Muhammad Yunus Tahir, Advocate for Respondent No. 1.

Date of hearing: 23rd November, 1999.

2001 P L C (C.S.) 153

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

MUHAMMAD FAROOQ KHAN

versus

MUHAMMAD SHAKEEL KHAN and 3 others

Civil Review Petition No. 13 of 1998, decided on 7th May, 1999.

(In the matter of review from the judgment of the Supreme Court, dated 11-8-1998 in Civil Appeal No.77 of 1998).

Civil Procedure Code (V of 1908)---

----S.114 & O.XLVII, R.1---Review of Supreme Court judgment---Civil service--- Appointment---Respondents alongwith others applied for one of the advertised posts---Public Service Commission after conducting test and interview, declared the respondent suitable for the post and recommended him for one of the posts---Petitioner who had also applied for the post subsequently filed a certificate alongwith his application showing that he had got first position in the University and Public Service Commission on the basis of said certificate includes the name of petitioner in the list of those who were recommended for appointment---Said certificate having been found vague and not legible, petitioner was directed to produce another certificate in support of his claim that he actually had got first position in the University---Petitioner on filing the fresh copy of certificate got preference over respondent and was recommended by the Concession accordingly--­Validity---Certificate on which petitioner had placed reliance, should have been furnished by him on the date specified in the advertisement, but certificate submitted by petitioner alongwith his application having been found vague and not legible, application of petitioner should have been treated as irregular and Commission was not competent to demand from the petitioner any certificate after the specified date---Commission was also net competent to change its result which was finalised earlier by it and that too without providing opportunity, of hearing to those who were to be affected adversely---Marks given to petitioner on basis of subsequent certificate were not validly allowed to the petitioner---Finding with regard to vagueness of certificate of petitioner having itself been given by Commission said finding could not be substituted by High Court or Supreme Court---Once finding was given and recommendations were made, Commission was not vested with any jurisdiction to change previous recommendations---Petitioner having failed to point out any patent error or defect in the judgment under review, review petition was dismissed.

Ch. Muhammad Ibrahim Zia, Advocate for Petitioner.

Ghulam Mustafa Mughal, Advocate for Respondent No. 1.

Date of hearing: 8th January, 1999.

2001 P L C (C.S.) 162

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

Kh. MAHBOOB-UR-REHMAN

versus

ISHFAQ AHMED and 2 others

Civil Appeal No. 152 of 1998, decided on 11th March, 1999.

(On appeal from the order of the Service Tribunal, dated 8-8-1998 in Service Appeal No.889 of 1995).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S.4---Promotion---Appeal before Service Tribunal---Delay, condonation of---Both appellant and respondent were appointed as Agricultural Officer on same date, but appellant was promoted as Horticulture Assistant in BPS-17 as in seniority list his name figured above the name of the respondent---Cases of both appellant and respondent were sent to Selection Board alongwith their A.C.Rs. for consideration of their promotion but A.C.Rs. of both were not sent by the Authority to Selection Board ---A.C.Rs. of appellent were sent for the years 1985 to 1987 whereas in the case of respondent for 1987 to 1989 and Selection Board on the basis of A.C.Rs. of respondent for the year 1988 which were adverse to the credit of respondent superseded him and promoted the appellant---Service Tribunal, on appeal set aside promotion order of appellant and ordered promotion of respondent---Validity---Head of Department was obliged to send all A.C.Rs. of contesting officers to Selection Board for its perusal, but same had not been done---Relevant bio­ data of both appellant and respondent having not been produced before Selection Board, same was not considered correctly by Selection Board for purpose of promotion---Order of Selection of the appellant was set aside with directive that matter of promotion of appellant and respondent would be considered afresh by Selection Board after taking into consideration all A.C.Rs. of the contesting officers ---A.C.R. for year 1988 which was adverse to the credit of respondent would also be considered by Selection Board and would give its finding as to how same had deprived respondent from promotion---Delay, if any, in filing appeal before Service Tribunal was condoned as same was not intentional.

Shabbir Ahmed's case 1996 SCR 382 and Ch. Muhammad Hussain v. Azad Government of the State of Jammu and Kashmir and others 1997 PLC (C.S.) 1047 ref.

Ghulam Mustafa Mughal, Advocate for Appellant.

M. Tabassum Aftab Alvi, Advocate for Respondent No. 1.

Kh. Attaullah, Additional Advocate-General for Respondents Nos.2 and 3.

Date of hearing: 4th March, 1999.

2001 P L C (C.S.) 169

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ

Syed SUBTAIN HUSSAIN KAZMI

versus

Syed TASAWAR HUSSAIN SHAH and another

Civil Petition for Leave to Appeal No. 119 of 1998, decided on 6th August, 1998.

(On appeal from the order of the Service Tribunal, dated 30-4-1998 in Service Appeal No.81 of 1997).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

-----S.4----Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 47---Appeal before Service Tribunal---Pro forma respondent---Impleading as appellant---Appeal filed by respondent before Service Tribunal against order of. Departmental Authority in which petitioner was impleaded as pro forma as respondent, was decided on the basis of compromise arrived at between respondents and as a result respondentwas declared senior to other respondents---Petitioner who had not challenged the order was not found entitled to any relief---Petitioner sought to be impleaded as an appellant before Service Tribunal. through an application contending that provisions of Civil Procedure Code being applicable to the proceedings before Service Tribunal, he could be transposed in line of appellant---Service Tribunal in its order had found that petitioner being pro forma respondent having not challenged the impugned order, he was not entitled to any relief---Validity---Service Tribunal though enjoyed powers of a Civil Court, but it would not imply that all provisions contained in Civil Procedure Code were applicable to the proceedings before Service Tribunal without having regard to substantive provisions of Azad Jammu and Kashmir Service Tribunal Act, 1975 which had envisaged that appeal by an aggrieved 'civil servant to Service. Tribunal was competent only after exhausting departmental remedy within prescribed period of limitation---Irrespective of the condition as laid down in the said Act, a person could not be transposed as an appellant from line of pro forma respondents merely because he was impleaded as such---If an aggrieved civil servant failed ,to exhaust Departmental remedy, he was debarred to move Service Tribunal for redressal of his grievance.

Pakistan Banking Council and another v. Ali Moohtaram Naqvi and others 1985 SCMR 714 ref.

Raja Muhammad Hanif Khan, Advocate for Petitioner.

M. Tabbasum Aftab Alvi, Advocate for Respondents.

Date of hearing: 5th August, 1998.

2001 P L C (C. S) 202

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ

MUHAMMAD RAFIQUE

versus

MUHAMMAD SHAFI DAR and 2 others

Civil Petition for Leave to Appeal No.34 of 1999 decided on 5th May, 1999.

(On appeal from the judgment of the Service Tribunal dated 28-12-1998 in Service Appeal No. 84 of 1996).

Azad Jammu and Kashmir Interim Constitution Act (VIB of 1974)---

----S. 47---Petition for leave to appeal against judgment of Service Tribunal---Delay, condonation of---Sufficient cause---Notice served- on counsel was stated to be misplaced---Petition for leave to appeal was barred by seventeen days---Affidavit to the effect that notice served on counsel for petitioner was misplaced would not constitute sufficient cause for excusing delay because even if notice was lost, counsel for the petitioner had the knowledge of announcement of decision and he could further confirm the matter from office of Service Tribunal---Affidavit to the effect that counsel for the petitioner appearing before Service Tribunal could not inform the petitioner about the decision, because notice was misplaced, would not bring the case within ambit of a bona fide mistake, but that was a case of negligence which could not be condoned---Contention that as C.P.C. was not applicable to the proceedings of Service Tribunal, strict view should not be taken, had no merits, because question of delay ,in filing petition for leave to appeal was to be seen in view of law of limitation and Supreme Court Rules and not in view of provisions contained in C.P.C.

Azad Jammu and Kashmir Council v. Abdur Rashid and 9 others PLD 1997 SC (AJ&K) 17; Rahmat Bibi and 4 others v. Ghazanfar Hussain and another PLD 1983 SC (AJ&K) 25; Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223; Dr. Muhammad IqbaJ Qureshi v. Azad Government and others 1993 SCR 111; Mahboob and another v. Muzaffar Din 1992 SCR 338; Khadim Hussain Khan v. The State PLD 1982 SC (AJ&K) 13 and Azad Government of the State of Jammu and Kashmir v. Ch. Muhammad Latif PLD 1983 SC (AJ&K) 70 ref.

Abdul Rashid Abbasi, Advocate for Petitioner.

M. Tabassum Aftab Alvi, Advocate for Respondent No. 1.

Date of hearing 5th May, 1999.

2001 P L C (C.S.) 236

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

RAKHSHANDA KOKAB and 4 others

versus

KANEEZ AKHTAR and 11 others

Civil Appeal No. 117 of 1998, decided on 13th November, 1998

(On appeal from the order of the High Court, dated 20-6-1998 in Writ Petition No.250 of 1998).

Azad Jammu and Kashmir Service Tribunal Act (XXH of 1975)---

-----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42, 44 & 47---Reversion---Civil servants in their writ petition had prayed that Authorities be prohibited to revert them as such reversion would cause serious injury to them---Writ petition was admitted by High Court with order for status quo---Validity---Promotion, reversion, posting and transfer admittedly being terms and conditions of service of civil servants, High Court under S.47 of Azad Jammu and Kashmir Interim Constitution Act, 1974, had no jurisdiction in the matter of reversion---High Court by issuing a stay order had passed order prohibited by S.47 of Azad Jammu and Kashmir Interim Constitution Act, 1974 which had clearly laid down that no Court would grant an injunction, make any order or entertain any proceedings in respect of any matter to which jurisdiction of Administrative Court or Tribunal extended---Order granting status quo by High Court, was vacated and their application for interim relief in High Court, was dismissed in circumstances.

Muhammad Naseer Jahangiri and 13 others v. Abdus Sarni Khan and another 1997 PLC (C.S.) 1115; AJ&K Government and others v. Mujahid Hussain Naqvi 1996 SCR 305; Mrs. Iffat Ara Saleem v. Sardar Muhammad Khrushid and 36 others 1996 SCR 254; Ch. Muhammad Amin v. Mehboob-ur-Rehman and 2 others Civil Appeal No.35 of 1994; Muhammad Rashid Chaudhry v. Chairman AKLASC and others 1993 PLC (C.S.) 1201; Dr. Khawaja Mushtaq Ahamd v. Azad Government and others 1995 PLC (C.S.) 410 and Kh. Manzoor Ahmad Butt and 2 others v. Sardar Muhammad Khurshid and4 others (Civil Appeal No.78 of 1998 ref.

Raja Muhammad Hajif Khan, Advocate for Appellant.

Sardar Rafiq Mahmood Khan, Advocate for Respondent No. I., Ghulam Mustafa Mughal, Advocate for Respondents Nos. 1 to 5, 11 and 12.

Date of hearing: 10th August, 1998.

2001 P L C (C.S.) 243

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan CJ. and Muhammad Yunus Surakhvi, JJ

Kh. MUHAMMAD AHSAN

versus

MANZOOR ALI KHOKHAR and another

Civil Review Petition No.7 of 1998, decided on 15th August, 1998.

(In the matter of review from the judgment of the Supreme Court, dated 15-6-1998 in Civil Appal No.49 of 1998).

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R. 8---Civil Procedure Code (V of 1908), S.114 & O.XLVII, R.1--­Seniority---Review petition---Petitioner was appointed against relevant post in question by order of High Court passed in writ petition filed by petitioner, but he was not given seniority from the date his other batch-mates were given---Service Tribunal had dismissed appeal relating to seniority of petitioner, but petitioner did not file any appeal before Supreme Court against the judgment of Service Tribunal---Validity---Claim of seniority from the date when the petitioner was not in service being not envisaged by R.8 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---Review petition was dismissed as not competent.

Ch. Nazir Muhammad v. Government of Punjab through the Secretary, Irrigation and Power Department, Lahore and 11 others 1986 SCMR 715 and Ghulam Akram and 5 others v. Syed Shabbir Hussain Shah and 10 others PLD 1986 Azad J&K 56 ref.

Ashfaque Hussain Khan and Kh. Shahad Ahmad for Petitioners.

Date of hearing: 13th August, 1998.

2001 P L C (C.S.) 256

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Basharat Ahmad Shaikh, JJ

TANVEER AHMAD

versus

ROSHAN DIN and 2 others

Civil Appeal No.202 of 1998, decided on 12th March, 2000.

Civil service----

----Appointment---Civil servant despite being more educated than the opposing civil servant, was ignored and opposing civil servant was appointed, by the Authority under instructions from some unspecified Authority, without advertising the post---Post against which the appointment was made, was not one of the posts which were advertised, but it fell vacant due to promotion of civil servant working on the said post---Post in question having not been advertised which was a mandatory requirement of law, and such mandatory requirement of law having not been fulfilled, appointment was declared to be illegal---Authority was directed to advertise post and to fill the same in accordance with law.

Abdul Rashid Tarrabi v. Azad Government of the State of Jammu and Kashmir and others Civil Appeal No. 169 of 1998.

Raja Muhammad Hanif Khan for Appellant. Ch. Muhammad Ibrahim Zia for Respondent No. 1.

Date of hearing: 15th February, 1999.

2001 P L C (C.S.) 264

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

NAEEM FEROZE

versus

Raja IQBAL RASHID MINHAS and 4 others

Civil Appeal No.89 of 2000, decided on 20th October,' 2000.

(On appeal from the judgment of the High Court, dated 19-6-2000 in Writ Petition No.308 of 1999).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977--

-----R. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44---Ad hoc appointment---Mode of making---Provision of R.3 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977 had provided that ad hoc appointment could be made by advertising said post; after test and interview of all persons who applied in response to said advertisement; after sending requisition to Public Service Commission and a certificate had to be appended with appointment order that the case had been referred to Public Service Commission---Civil servant having been appointed on ad hoc basis without fulfilling conditions contained in said S.3 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, his appointment was bad in law and was rightly set aside by High Court.

Azad Jammu and Kashmir Government and others v. Muhammad Yubnus Tahir and other 1994 CLC 2339 and Dr. Mahmood Hussain Kiani v. Azad Government and 26 others 1996 SCR 165 (169) ref.

(b) Azad Jammu and Kashmir Public Service Commission Act, 1974----

----S. 7---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, R.3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44---Appointment on ad hoc basis---Post of Assistant Superintendent of Police could only be filled in through Public Service Commission and through a Selection Board, but Authority got advertisement published in newspapers inviting application for filling said post which was violative of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977--Post in question being within purview of Public Service Commission, High Court had rightly found that the post could only be filled on basis of examination and test to be held by Public Service Commission.

Sardar Aftab Ahmad and 5 others v. Maj (Retd.) Muhammad Aftab Ahmad and 3 others 1999 MLD 187 and Azad Jammu and Kashmir Government v. Javed Iqba1 Khawaja and another 1996 PLC (C.S.) 155 ref.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss.42 & 44---Appeal to Supreme Court---New plea---Point not raised earlier--- Appellant had contended that respondent who had filed writ petition not being an aggrieved person could not file petition for writ of certiorari--­Petition for leave to appeal had shown that said point had not been taken in memo. of appeal and had also not been included in concise statement---New point, held, could not be raised during arguments.

Sardar Rafique Mahmood Khan, Advocate for Appellant.

M. Tabassum Aftab Alvi, Advocate for Respondent No.

Date of hearing: 31st July, 2000.

2001 P L C (C.S.) 292

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Basharat Ahmad Shaikh, J

MUHAMMAD SHAFIQUE KHAN

versus

AJ&K GOVERNMENT and 6 others

Civil Appeal No. 141 of 1999, decided on 14th January, 2000.

(On appeal from the order of the High Court, dated 7-7-1999 in Writ Petition No.517 of 1998).

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

----S. 35-A---Azad Jammu and Kashmir Interim Constitution Act (VII of 1974), Ss. 42 & 44---Compensatory costs---Imposition of---Civil servant was appointed as Research Officer B-17 and subsequently when post of "Entomologist Sericulture" B-18 fell vacant, he applied to be promoted to the said post, but instead he was promoted to that post on current charge basis--Letter issued by Deputy Director to Director had shown that co-civil servant was promoted as Assistant Entomologist and not as Entomologist Sericulture B-18, civil servant having entertained wrong belief with regard to promotion of co-civil servant, he was suggested to withdraw writ petition filed by' him against the promotion of co-civil servant, but he did not do so---High Court dismissed writ petition of the civil servant imposing rupees five thousand as compensatory costs on him for filing a frivolous and vexatious petition--­Validity---Held, under provisions of S.35-A, C.P.C. before a party could be imposed exemplary compensatory costs there must be a finding that averments made by one party or the other were patently vexatious which had no legal foundation for prosecution' or defence of a particular cause---No finding of High Court was on record to the effect that letter by Deputy Director to Director could not give any impression to civil servant for filing writ petition especially when he was not aware of contents of the working papers---Mere fact that civil servant did not withdraw writ petition, would not justify to hold that initial averments regarding promotion of co-civil servant were without any foundation and were vexatious---Section 35-A, C.P.C. had not been amended in Azad Jammu and Kashmir and amount of compensation in case of exemplary costs could not be awarded more than one thousand rupees.

Sardar Rafique Mahmood Khan, Advocate for Appellant: Raja Shiraz Kayani, Advocate- General for Respondents Nos. l to 6.

Date of hearing: 12th January, 2000.

2001 P L C (C.S.) 303

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvi, J

Civil Appeal No.20 of 2000

NAZAR AHMED KHAN

versus

Syed SABIR HUSSAIN NAQVI, CIRCLE REGISTRAR

COOPERATIVE DEPARTMENT OF AZAD GOVERNMENT

OF THE STATE OF JAMMU AND KASHMIR, MUZAFFARABAD and 3 others

(On appeal from the judgment of the Service Tribunal dated 15-12-1999 in Service Appeal No. 130 of 1998).

Civil Appeal No.25 of 2000

Syed SABIR HUSSAIN NAQVI, CIRCLE REGISTRAR/DEPUTY

REGISTRAR, COOPERATIVE DEPARTMENT, AJ&K, MUZAFFARABAD

versus

NAZAR AHMED KHAN, CIRCLE REGISTRAR, COOPERATIVE DEPARTMENT, AI&K, MUZAFFARABAD and 3 others

(On appeal from the judgment of the Service Tribunal dated 15-12-1999 in Service Appeal No. 130 of 1998).

Civil Appeals Nos.20 and 25 of 2000, decided on 14th November, 2000.

Civil service-

---- Ante-dated promotion---Grant of---Competent Authority had discretion to order ante-dated promotion of a civil servant provided it was just, equitable and did not adversely affect rights of another civil servant---Such rule, however, was not of universal application, but would differ from case to case.

Kalsoom Akhtar Hamdani v. The Chairman; AJ&K Council, Islamabad 1994 SCR 173; Prof. Dr. Raja Muhammad Ayub Khan v. Azad Jammu and Kashmir Government and others 1990 MLD 1283; Sardar Sabir Hussain Khan Abbasi v. Azad Government and others Civil Appeal No. 16 of 1999; Kh. Muhammad Ahsan v. Manaoor Ali Khokhar and another Civil Appeal No.49 of 1998; Muhammad Javaid v. Secretary Home and-others Civil Appeal No.200 of 1999; Sh. Manzoor Ahmed v. Azad Government and another 1995 PLC (C.S.) 59 and Muhammad Arshad Khan and another v. Azad Government and others Civil Appeal No. l of 1999 ref.

Abdul Rashid Abbasi, Advocate for Appellant (in C.A. No. 20 of 2000):

Syed Nazir Hussain Shah Kazmi, Advocate for Respondent No. l (in C.A. No. 20 of 2000).

Syed Nazir Hussain Shah Kazmi, Advocate for Appellant (in C.A. No.25 of 2000).

Abdul Rashid Abbasi, Advocate for Respondent No. l (in C.A. No.25 of 2000).

Date of hearing: 6th November, 2000.

2001 P L C (C.S.) 321

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

Khawaja GHULAM MUHAMMAD, EXECUTIVE ENGINEER, LOCAL GOVERNMENT, EID-GAH ROAD, MUZAFFARABAD

versus

AZAD GOVERNMENT through Chief Secretary and another

Civil Appeal No.22 of 2000, decided on 17th November, 2000.

(On appeal from the judgment of the Service Tribunal dated 28-11-1999 in Service Appeal No-935 of 1995).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S. 4---Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991, R.4---Jurisdiction of Service Tribunal to consider vires of Departmental Rules ---Scope---Vires of Departmental Rules could be gone into by Service Tribunal only if the Rules had been interpreted to -the disadvantage of a civil servant adversely affecting terms and conditions of his service.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S. 4---Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991, RA ---Departmental appeal challenging Departmental Rules ---Competency--- Appeal to the concerned Authority was competent only when an order was passed regarding terms and conditions of service of a civil servant---No provision existed in the Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991 or Azad Jammu and Kashmir Service Tribunal Act, 1974 to the effect that Departmental Rules could be challenged even if same were not interpreted to the disadvantage of a civil servant.

Fida Hussain v. The Secretary, Kashmir Affairs and Northern Affairs Division, Islamabad 1996 PLC (C.S.) 44; Iqan Ahmed Khurram v. Government of Pakistan PLD 1980 SC 153; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Raja Atta Ullah v. Shabbir Ahmad Chughtai 1998 SCMR 259; Ghiasul Haq v. Azad Government of the State of Jammu and Kashmir PLD 1980 SC (AJ&K) 5; Muhammad Azim Jamali v. Government of Pakistan 1992 PLC (C.S.) 637; Azad Jammu and Kashmir Government v. Muhammad Younas Tahir 1994 CLC 2339; Muhammad Imtiaz Khan v. Azad Government of the State of Jammu and Kashmir Civil Appeal No.18 of 1995; Azad Government of the State of Jammu and Kashmir v. Muhammad Hameed Mughal Civil Appeal No.56 of 1993; Muhammad Umar Malik v. Federal Service Tribunal PLD 1987 SC 172; S. Sarwat Haider v. Central Board of Revenue 1987 SCMR 899; Muhammad Siddique Nasim v. The Secretary, Government of the Punjab, Irrigation and Power Department, Lahore 1987 SCMR 302; Falak Sher Khan v. Mukhtar Ahmad PLD 1989 SC 262; Mst. Rehana Aziz v. Mst. Shakeela Ashraf 1998 SCR 281; Dr. Muhammad Tahir Achakzai v. Government of Balochistan 1999 PLC (C.S.) 1360 and Pakistan Diploma Engineers Federation (Regd.) v. Federation of Pakistan 1994 PLC (C.S.) 1105 ref.

(c) Civil service---

----Promotion---Power of Government to amend rules governing promotion--- Government, could amend rules governing promotion of civil engineers in its service, irrespective of provisions contained in Pakistan Engineering Council Act, 1975 as adapted by Azad Jammu and Kashmir Government.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Raja Shiraz Kayani, Advocate-General for Respondent No. 1.

Ghulam Mustafa Mughal, Advocate for Respondent No.2.

Date of hearing: 13th November, 2000.

2001 P L C -(C.S.) 332

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

JAMIL AHMAD

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

through Chief Secretary, Muzaffarabad and another

Civil Appeal No.48 of 2000, decided on 20th October, 2000.

(On appeal from the judgment of the Service Tribunal dated 24-1-2000 in Appeal No. 137 of 1998).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)----

----S. 4---Azad Jammu and Kashmir Civil Servants Act, 1976, Ss.2, 4 & 8--­Promotion---Civil servant who initially joined the Department as Chowkidar, was promoted on recommendation of Departmental Selection Committee as cook in Grade BPS-4---Order of promotion was cancelled by Competent Authority after a period of one year but on appeal order of cancellation passed by Competent. Authority; was set aside by Appellate Authority restoring earlier order of promotion---Opposing civil servant who had not challenged order of promotion in appeal, filed application after seven months of acceptance of appeal of the civil servant praying that he should be promoted in place of civil servant as cook and competent Authority treating the application of opposing civil servant as an appeal accepted same and demoted the civil servant to his original post of Chowkidar---Validity--­Departmental Rules did not contain any provision debarring a Chowkidar from promotion to Grade BPS-4 because Item 26 of Sched. to said Rules related to appointment of Head Bearer in Grade B-5 and not a cook/bearer in Grade B-4---Sections 2, 4 & 8 of Azad Jammu and Kashmir Civil Servants Act, -1976, provided that. a vacancy in civil service of State could be filled in only in prescribed manner---Vacancy of cook in Grade BPS-4 could not be .filled in by promotion without first amending Departmental Rules, 1984 and making necessary provision in that respect---Authorities, in circumstances, were not justified in tilling in vacancy of cook in Grade B-4 by promoting opposing civil servant, in absence of any provision in that regard---Order promoting opposing civil servant was cancelled in circumstances.

Syed Sajid Hussain v. Ch. Muhammad Latif 1992 PLC (C.S.) 421 ref.

Sardar Rafique Mahmood Khan, Advocate, for Appellant.

Kh. Attaullah, Additional Advocate-General for Respondents Nos. l to 4.

Date of hearing: 19th October, 2000.

2001 P L C (C.S.) 376

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ and Muhammad Yunus Surakhvi, J

ASIF DURRANI and 13th others

versus

Malik SHAHID IQBAL and 2 others

Civil Appeal No. 137 of 2000, decided on 16th February, 2001.

(On appeal from the judgment of Service Tribunal dated 29-2-2000 in Service Appeal No.49 of 1999).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S.47---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Civil service---Accelerated, promotion---Entitlement---Appeal before Supreme Court, maintainability of---Respondent who was junior to appellants, was granted out of turn/accelerated promotion earlier but concerned Authority declined to accept the promotion---Departmental appeal filed by respondent against said order was dismissed and same treatment was meted out to respondent's appeal before Service Tribunal-- -No further appeal having been filed by respondent, order of Service Tribunal attained finality---Service Tribunal on subsequent proceedings ordered promotion of respondent and appellants who were not parties to the earlier proceedings filed appeal before Supreme Court contending that out of turn promotion of respondent would adversely affect their rights-of promotion---Validity--­Respondent was not competent to avail the remedy for the second time when the previous judgment passed by the Service Tribunal against him had attained finality---Appellants admittedly being senior to the respondent, it could not be said that they were not aggrieved by order of Service Tribunal granting out-of-turn promotion to respondent or that same did not adversely affect their rights---Order granting promotion to respondent for which he was not entitled, was set aside by Supreme Court, in circumstances.

Azad Jammu and Kashmir Government v. Habibullah Lone PLD 1984 SC (AJ&K) 13; Government of Pakistan v. Gul Zaman PLD 1993 SC (AJ&K) 8 and Nisar Ahmed Kiani, Ex-Superintending Engineer, Electricity Department v. Azad Jammu and Kashmir Government 1999 PLC (C.S.) 1002 ref.

Ashfaque Hussain Kiani, Advocate for Appellants.

M. Tabassum Aftab Alvi, Advocate for Respondent No. 1.

Raja Shiraz Kayani, Advocate General for Respondents Nos.2 and 3.

Date of hearing: 12th February, 2001.

2001 P L C (C. S.) 400

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhvi, JJ

Mst. NAZIRAN BIBI

versus

DIRECTOR-GENERAL HEALTH and 2 others

Civil Appeal No.76 of 1999, decided on 15th October, 1999.

(On appeal from the judgment of the High Court dated 4-5-1999 in Writ Petition No.525 of 1998).

Civil service---

----Appointment---Government vide its Notification NO.Admn./50/6/1111­-261/94, dated 9-2-1994 had laid down rule that post under Azad Government of Jammu and Kashmir falling in Basic Pay Scale Nos.1 to 5 would be filled from respective constituencies on the basis of merit---Said order of Government being of general nature and having binding force, appointment of junior most opposing civil servant belonging to different constituency should have been terminated and persons belonging to said constituency should have been appointed in place of opposing civil servant.

Sh. Abdul Aziz, Advocate for Appellant.

Raja Ibrar Hussain, Advocate for Respondents Nos.2 and 3.

Date of hearing: 5th October, 1999.

2001 P L C (C. S.) 445

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

MUHAMMAD ILYAS KHAN and 6 others

versus

Sardar MUHAMMAD HAFEEZ KHAN and 3 others

Civil Appeal No. 119 of 2000, decided on 8th December, 2000.

(On appeal from the judgment of the Service Tribunal dated 25-4-2000 in Service Appeal No. 135 of 1997).

(a) Civil service---

---- Promotion ---Civil servant could render himself fit for promotion by his performance.

(b) Civil service-

---- Seniority, reckoning of---Seniority would be reckoned from the date of regular appointment in a grade.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)----

----S.42---Inherent powers of Supreme Court---Scope---Inherent powers could only be resorted to if no specific provision was on the statute book dealing with a situation.

Inspector-General Prisons, Azad Jammu and Kashmir and others v. Ghulam Muhammad Lolabi and others 2000 YLR 2133; Mst. Safya and another v. Muhammad Rafique and 6 others PLD 1993 SC 62; Said Mian and another v. Mian Said Baghdad and another 1980 SCMR 420 and Ch. Abdul Hamid v. Deputy Commissioner and others 1985 SCMR 359 ref.

(d) Administration of justice-

----Principles---Courts of law were not the Courts of equity---Justice was to be administered according to law--Inherent powers of Court could only be invoked to supplement the law on the statute book and not to decide the cases irrespective of the statutory provisions in that regard.

Ghulam Mustafa Mughal, Advocate for Appellants.

Sardar Rafique Mahmood Khan, Advocate for Respondent No. 1.

Kh. Attaullah, Additional Advocate-General for Respondents Nos.2 and 3.

Date of hearing: 4th December, 2000.

2001 P- L C (C. S.) 452

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvi, JJ

Sh. MUHAMMAD YAQOOB

versus

CHAIRMAN, AZAD JAMMU AND KASHMIR COUNCIL

through Secretary, AJ&K Council and 3 others

Civil Appeal No.46 of 2000, decided on 13th December, 2000.

(On appeal from the judgment of Federal Service. Tribunal dated 3-2-2000 in Appeal No. 947(R) of 1999).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 47---Promotion---Case of civil servant alongwith opposing civil servant was referred to the Selection Board for promotion in B-20 which was considered, but the Board did not find the civil servant fit for promotion---Validity---Question of fitness for promotion being within the exclusive domain of Board, Service Tribunal or Supreme Court could not substitute their view for that of the view of Board.

Abdul Latif v. Secretary, Azad Jammu and Kashmir Council and 4 others 1999 PLC (C.S.) 244; Sarwar Hussain Shah v. Azad Government and others 1997 PLC (C.S.) 302 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 47---Promotion---Eligibility and fitness---Eligibility of civil servant for promotion related to terms and conditions of his service and Service Tribunal would have jurisdiction in that respect while question of fitness for promotion was a subjective evaluation on the basis of objective criteria where substitution for an opinion of the Competent Authority was not possible by that of Service Tribunal or of a Court---Tribunal would have no jurisdiction on the question of fitness.

Sardar Rafique Mahmood Khan; Advocate for Appellant.

Ghulam Mustafa Mughal, Advocate for Respondents.

Date of hearing: 11th December, 2000.

2001 P L C (C.S.) 457

[(Azad J&K)]

Before Khawaja Muhammad Saeed. C.J. and Syed Mansoor Hussain Gillani, J

ABDUL HAMID SIDYDIQUI

versus

BOARD OF DIRECTORS, AKLASC, through Chairman and 3 others

Writ Petition No. 108 of 1993, decided on 14th November, 2000.

(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)----

----S.23---Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, Rr.5, 6, 7 & 8---Azad Jammu and Kashmir Industrial Relation Ordinance, 1974, S.30---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition ---Competency-­-Writ petition was resisted on the ground that petitioner had alternate remedy before Labour Court under S.30 of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974---Authority, a statutory corporation, was functioning under the supervisory control of the Government and the high-­ups of Corporation were appointed through transfer by the Government--­Employees of the Corporation were performing their functions in connection with the affairs of the State within the meaning of S.44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974---Azad Jammu and Kashmir, Civil Servants Act, 1976 and Azad Jammu and Kashmir Civil Servants ( Efficiency and Discipline) Rules, 1977 having been made applicable to employees of Corporation by its Board of Directors, employee of Corporation not being "worker" or. "workman" was not entitled to avail remedy under Azad Jammu and Kashmir Industrial a lions Ordinance 1974before Labour Court.

Rafque Akhtar Choudhary's case PLD 1982 SC (A1&K) 1 4; 1983 PLC 887; 1983 PLC 498; 1992 PLC 632; 1997 PLC 367; 1998 PLC (Labour) 390: 1999 PLC 428; Muhammad Rashid Choudhary v. Chairman, AKLASC and others 1993 PLC (C.S) 1201; Personnel Manager, Bata (Pakistan) Ltd.. Lahore v. Muzaffar Ali 1985 PLC 786; 1984 PLC 1105 and Income Tax Officer, Central-III, Karachi v. Eruck maneckji and others 1991 SCMR 1447 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Rr. 5, 6, 7 & 8---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44---Writ petition---Civil servant---Inquiry proceedings--­Appointment of Authorised Officer and Inquiry Committee being directly in conflict with the provisions of the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, all the proceedings conducted against the petitioner under provisions of said Rules, were coram non judice---Proceedings against petitioner having been conducted in flagrant disregard of the mandatory procedure prescribed under the Rules, order passed against petitioner was null and void.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Rule that the High Court would not entertain the writ petition when any other appropriate remedy was available was not a rule of law barring the jurisdiction of the High Court, but a rule by which the Court would regulate its own jurisdiction.

Messrs S.S. Salar & Co. v. Ch. Muhammad Sarfaraz and 2 others PLD 1984 SC (AJ&K) 77 rel.

(e) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 5,6, 7 & 8---Disciplinary action against civil servant ---Procedure--­Authority and Authorised Officer had to exercise the power in respect of disciplinary action against an accused civil servant---Initially it was for the Authority to decide as to whether any disciplinary action against a civil servant was to be taken under the provisions of the Rules or not---If in the opinion of the Authority proceedings against civil servant were necessary, it would appoint an Authorised Officer and direct him to proceed against civil servant under the Rules---Authority, after giving such directions would be out of picture and Authorised Officer would emerge and play a prominent role under the Rules and would decide whether or not inquiry against civil Authority---Authority in such circumstances would again emerge on scene and after providing -right of hearing to the civil servant, would be competent to pass order as deemed proper.

(f) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 5, 6, 7 & 8---Inquiry proceedings---Objective behind making the provision for the Authority, Authorised Officer and Inquiry Officer or Inquiry Committee and of assigning each one of them distinct functions in the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline Rules, 1977 was to ensure the scrutiny of the charge against any civil servant at different levels by different persons independently of each other.

(g) Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 5, 6, 7 & 8---Inquiry proceedings---Inquiry Committee simply relied upon applications received by it by post and prepared inquiry report without recording, statements of persons who had sent the applications---Mandatory for the Inquiry Committee to record statement of said persons in presence of the accused civil servant giving him opportunity to cross-examine them before relying on those applications--- Enquiry having been conducted against the spirit of Azad Jammu and Kashmir Civil Servants (Efficiency of Discipline) Rules, 1977, order based on said inquiry report and on the recommendation of a person who was not legally competent to act as an Authorised Officer, was devoid of any legal force.

Chief Administrator, Auqaf v. Muhammad Ramzan and others PLD 1991 SC 102 and Pakistan and others v. Public-at-large and others PLD 1987 SC 304 ref.

Abdur Rashid Abbasi for Petitioner.

Advocate-General and Raja Muhammad Hanif Khan for Respondents.

2001 P L C (C.S.) 474

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Malik ZAFAR ALI and another

versus

MUHAMMAD RIAZ, ASSISTANT SUB-INSPECTOR and 19 others

Civil Appeal No. 143 of 2000, decided on 6th December, 2000.

(On appeal from the order of the Service Tribunal dated 27-5-2000 in Service Appeal No.374 of 1999).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)--

----Ss. 4, 5 & 10---Seniorty---Validity---Appeal---Impleading of party as appellant--- Person who had not challenged the Seniority list departmentally, filed application before Service Tribunal for transposing him as an appellant, which application was accepted by the Tribunal and he was transposed as appellant ---Appellant in the memorandum of his appeal, had nowhere stated that his interests and that of applicant were equal or common in any way but instead appellant had specifically claimed his seniority against all respondents, including the applicant---Effect---If applicant had filed an appeal independently, that would have been hit by the bar of limitation--­Applicant having adopted a course of illegal device to circumvent the law, he could not be arrayed in the line of. appellants.

Syed Subtain Hussain Kazrni v. Syed Tasawar Hussain Shah and another 1999 SCR 164 ref.

Ghulam Mustafa Mughal for Appellants.

Sardar Rafique Mahmood Khan for Respondents Nos. l and 2.

Raja Shiraz Kayani for Respondents Nos.3 to 5.

Date of hearing: 5th December, 2000.

2001 P L C (C.S.) 650

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

AZAD JAMMU & KAHMIR COUNCIL and 2 others

versus

Ch. MUHAMMAD BASHIR and 4 others

Civil Appeal No..126 of 1999, decided on 28th February, 2000.

(On appeal from the judgment of the High Court dated 22-9-1999 in Writ Petition No. 155 of 1997).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Preamble & S.2---Income-tax Department was part of Azad Government of State of Jammu and Kashmir, but with the promulgation of Azad Jammu and Kashmir Interim Constitution Act, 1974, subject of income-tax was given within purview' of Legislative and Executive Authority of Azad Jammu and Kashmir Council:

Zulfiqar Ali Mirza and another v. Azad Jammu and Kashmir Council and 2 others Civil Appeal No.82 .of 1996 and Abdul Latif v. Secretary, A1&K Council and others Civil Appeal No.86 of 1996 ref.

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

----R.3(2)---Azad Jammu and Kashmir Council Notification, dated 22nd May, 1994---Appointment and promotion ---Azad .Jammu kid Kashmir , Council was empowered to lay down qualifications and, other conditions for appointment of civil servants---Notification issued by the Council had laid down that Inspector in B-14 would be eligible for promotion if he had five year's service to his credit and had passed Departmental Examination but it had not provided that the obtaining of 50%. marks was a condition for promotion---Said Notification was a self-contained provision and had suspended any other order or rule which was previously in operation.

(c) Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979---

----S.4---Provisions of S.4 of Azad Jammu and Kashmir Council Adaptation of Laws Act, 1979 had provided that law as provided in Rules, 1962 had ceased to have effect after 12th of July, 1979 when the amended law was adapted in Azad Jammu and Kashmir.

Ch. Muhammad . Afzal and Manzoor Hussain, Advocates for Appellants.

M. Riaz Tabassum, Advocate for Respondent No. 1.

Date of hearing: 26th February, 2000.

2001 P L C (C.S.) 684

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

SAGHIR AHMED MUGHAL

versus

MUNAWAR HUSSAIN and 4 others

Civil Appeal No. 176 of 2000, decided on 15th January, 2001.

(On appeal from the judgment of the High Court, dated 28-6-2000 in Writ Petition No.321 of 1999).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----Ss. 44 & 47---Civil service---Appointment---Appointment order whereby respondent was directly appointed was challenged by petitioner in writ petition---Authority in its written statement had stated that appointment order of the respondent had been withdrawn by notification and that services of respondent had been terminated---Said notification was not challenged by respondent---Subsequently, summary was submitted to the Government by Authority for cancellation. of said notification---Petitioner in his writ petition had prayed that notification should not be revoked---Authority having undertaken not to cancel notification, mere fact that a summary was processed by the Authority apprehending that petitioner might be adversely affected, writ of prohibition should not have been issued by High Court.

Mahmood-ur-Rehman v. Atta Ullah Atta and 3 others PLD 1998 SC (AJ&K) 1 and Azad Jammu and Kashmir University and another v. Muhammad Malik and others 1998 CLC 783 ref.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--

----S. 44---Writ, issuance of---Writ could only be issued on the application of aggrieved person directing a person or local authority to refrain from doing an act, which was not permitted by law to do.

(c) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44(2)(a)(ii)--,Writ petition--- "Act done" or "proceedings taken"--­Meaning of---If a letter or notice was issued without lawful authority, same could be termed as "act done" or "proceedings taken" within the meaning of S.44(2)(a)(ii) of Azad Jammu and Kashmir Interim Constitution Act, 1974 and a declaration that it was of no legal effect could be given.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)--­-

---S. 42---Leave to appeal before Supreme Court---Plea though was raised in the written statement, but same was not argued before High Court---If the point had been argued before the High Court and not resolved, it was enjoined upon the appellant to file an affidavit in support of his petition for leave to appeal before Supreme Court.

(e) Azad Jammu and Kashmir- Interim Constitution Act (VIII of 1974)---

----S. 44---Writ of mandamus---Issuance of---Authority .had undertaken not to cancel disputed order---Contention that even if an illegal action was not taken, Authority and its functionaries could be stunned by issuing a writ of mandamus to refrain from doing an act, was repelled being devoid of any legal force---If in future some illegal action was taken by Authority and its functionaries to cancel said order, petitioner would be free to challenge same and get the illegal act annulled but no writ could be issued in anticipation of an apprehended illegal act.

(f) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction---Scope---Question of forgery and fraud could not have been gone into by High Court in exercise of writ jurisdiction--­Question of forgery and fraud needed detailed inquiry and being a question of fact, could not have beets resolved by High Court in exercise of writ jurisdiction---Findings of High Court on fraud and forgery were quashed.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Ghulam Mustafa Mughal, Advocate and Kh. Attaullah, Additional Advocate-General for Respondents.

Date of hearing: 9th January, 2001.

2001 P L C (C.S.) 963

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

NIGHAT YASMEEN NIZAMI

versus

SHAHEEN MANZOOR and 4 others

Civil Appeal No. 43 of 2001, decided on 20th April, 2001.

(On appeal from the order of Service Tribunal dated 3-3-2001 in Service Appeal No. 86/2001).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S.6(5)----Proceedings taken by a Single Member or Chairman of the Service Tribunal---Validity---Provisions of S.6(5) of Azad Jammu and Kashmir Service Tribunal Act, 1975 though had provided that the Service Tribunal would consist of a Chairman and one Member, but no proceedings of the Tribunal would be rendered illegal and ineffective simply for the reason that such proceedings were taken by a Single Member or Chairman of the Tribunal---Contention that after retirement of Chairman of the Tribunal no one having been appointed in his place, Single Member of the Tribunal had no jurisdiction to pass order was repelled.

Sardar Khan and another v. Sh. Attaullah and 10 others 1989 CLC 1845 ref.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 47---Interim order passed by Service Tribunal---Appeal before Supreme Court---Order of suspension of transfer of respondent passed by Tribunal being in nature of interim relief subject to objections to be filed by the appellant, said order normally could not be made a subject of appeal before the Supreme Court unless some patent illegality was shown or it was shown that the order was passed in excess of jurisdiction---Supreme Court would decline to interfere with interim orders in exercise of its discretionary powers as non-interference with the interim orders passed by the Court of competent jurisdiction was a rule and interference was -an exception.

Ramzan Sugar Mills Ltd. and others v. Mian Meraj-ud-Din and others 1994 SCMR 2281; Mohtarma Benazir Bhutto, M.N.A. v. The State 1999 SCMR 1447; Government of Punjab through Secretary, Finance v. Punjab Public Service Commission Employees' Association, Lahore and 12 others 1992 SCMR 1847 ref.

(c) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)---

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 47---Interim order---Appeal before Supreme Court---Suspension of transfer order of respondent which was in nature of interim order was passed by Tribunal keeping in view principles for grant of said relief which were, having a prima facie case, the balance of convenience and causing irreparable loss and subject to objections by the appellant---Service Tribunal had committed no error in passing said order and the same could not be interfered with by Supreme Court in exercise of its appellate jurisdiction.

Raja Muhammad Hanif Khan, Advocate for Appellant.

M. Tabassum Aftab Alvi, Advocate for Respondent No. 1.

Date of hearing: 18th April, 2001.