PLCCS 2002 Judgments

2002 P L C (C.S.) 73

[Federal Service Tribunal]

Before Aftab Ahmad and Akbar M. Memon, Members

MUHAMMAD NASIM AKBER

versus

M.D., HOUSE BUILDING FINANCE CORPORATION, KARACHI and 2 others

Appeal No. 1055(K) of 1999, decided on 18th April, 2001.

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑R.4(1)(b)(iv)‑‑‑Dismissal from service‑‑‑After issuing show‑cause notice, charge‑sheeting and holding inquiry against civil servant on alleg4tion of misconduct, penalty of dismissal from service was imposed upon him‑‑‑Civil servant initially was appointed in a House Building Corporation as Lower' Division Clerk, and by dint of his hard work and efficient performance of his duty he earned promotion from time to time and was finally promoted as Manager of the Corporation‑‑‑Allegation against the civil servant was that he gave false statement in respect of construction on certain plots‑‑‑Civil servant out of 41 plots was found guilty in respect of only one plot‑‑‑Order of major penalty of dismissal from service was modified to that of compulsory retirement from service from the date of order enabling the civil servant to get all his pensionary benefits.

PLD 1977 SC 24 and 2000 PLC (C.S.) 1053 ref.

Niaz A. Khan for Appellant

S.M. Salam Kazmi for Respondents.

Date of hearing: 18th April, 2001.

2002 P L C (C.S.) 103

[Federal Service Tribunal]

Before Aftab Ahmed and Muhammad Ayub Khan, Members

JEHANGIR KHAN

versus

COMMISSIONER, AFGHAN REFUGEES, N.‑W.F.P., PESHAWAR and others

Appeals Nos. 241(P)/C.S. of 2000, Nos. 895(P), 896(P) of 1998; 237(P)/C.S. of 2000, 240(P)/C.S., 248(P)/C.S., 251(P)/C.S., 252(P)/C.S. of 253(P)/C.S., 254(P)/C.S., 255(P)/C.S., 256(P)/C.S. and 287(P)/C.S. of 2000, decided on 4th May, 2001.

Revised Leave Rules, 1980‑‑‑

‑‑‑R. 27‑‑‑Civil Service Regulations (C.S.R.), Regln. 407‑‑‑Leave granted on abolition of post of civil servant‑‑‑Counting of such leave towards length of service for pension‑‑‑Civil servants whose posts were abolished on account of general retrenchment and were granted leave under R.27 of Revised Leave Rules, 1980, had contended that leave granted to them could be counted towards length of their service for pension‑‑‑Rule 27 of Revised Leave Rules, 1980 was applicable to those civil servants whose services were terminated/retrenched in consequence of abolition of the post and were allowed concession of encashment of leave at their credit at the time of such termination/retrenchment‑‑‑Regulation 407 of Civil Service Regulations (C.S.R.) was applicable to those civil servants who were in service and the leave countable as service qualifying for pension referred to the leave granted to such civil servants during the period they had been in service‑‑‑Revised Leave Rules, 1980 and Civil Service Regulations (C.S.R.) were independent and could not be mixed together‑‑‑Leave sanctioned under R.27 of the Revised Leave Rules, 1980, was distinguishable from the leave granted to civil servants during the currency of their services‑‑‑Leave granted during currency of service was countable as service qualifying for pension‑‑‑Claim of the civil servants, whose posts had been abolished, for counting of the leave granted to them under R.27 of Revised Service Rules, 1980 towards service qualifying for pension being against the rules, was not maintainable.

Atiq-ur-Rehman Qazi for Appellant (in Appeals Nos.240 and 241 (P)/C.S. of 2000.

Niaz Wali Khan for Appellants (in Appeals Nos.237, 251 to 256 and 287(P)/C.S. of 2000).

Appellant in person (in Appeal No.895(P) of 1998).

Appellant in person (in Appeal No.896(P) of 1998).

Javed Aziz Sandhu, Standing Counsel for the Federal Government alongwith Ali Sber, S.O., Ministry of Finance.

Syed Asif Ali Shah for Afghan Refugees alongwith Fazale Hakeem, Legal Assistant, Afghan Refugees, Amir Khan, S.O. SAFRAN and Sabz Ali Khan, Senior Auditor, AGRP, Peshawar, D/Rs.

Date of hearing: 24th April, 2001.

2002 P L C (C.S.) 111

[Federal Service Tribunal]

Before Jalal-ud-Din Akbarji, Chairman, Dr. Akhtar Hasan Khan and Mahmoodul Haq Thanvi, Members

Rana AMAN ULLAH and 2 other

Versus

SECRETARY, MINISTRY OF FINANCE, ISLAMABAD and others

Appeals Nos.411(R)(C.S.) of 2000 to 413(R)(C.S.) of 2000, decided on 17th March, 2001.

Civil Servants Act (LXXI of 1973)---

----S.9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1977, R.3(2)---Promotion---Promotion in S.A.S. Cadre against 33% exemption quota on the basis of seniority-cum-fitness as provided by earlier letter, dated 24-7-1973, had ceased to remain in force on issuance of subsequent Notification No.S.R.O. 17(i)/2000 dated 21-1-2000---Civil servants who had not qualified the required S.A.S. or A.A.T. Examinations, had no vested right for promotion to S.A.S. Cadre after issuance of Notification dated 21-1-2000---No exception could be taken to the said notification duly issued either by its prospective application or retrospectivity of the rules for promotion to the higher post because the earlier letter dated 24-7-1973 was neither issued under any rules nor in conformity with S.9 of Civil Servants Act, 1973 whereas subsequent notification was issued under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.

1999 PLC (C.S. 531; Government of N.-W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzafar Iqbal and others 1990 SCMR 1321 and Muhammad Arshad Saeed, D.I.-G. Police v. Government of Pakistan through Secretary, Establishment Division and 29 others 1994 PLC (C.S.) 755 ref.

M. Shoaib Shaheen for Appellants.

M. Rafiq Kausar, Assistant Accounts Officer as D.R.

Date of hearing: 1st February, 2001.

2002 P L C (C.S.) 136

[Federal Service Tribunal]

Before Noor Muhammad Magsi and Abdul Hameed Khan Khattak, Members

Syed MUMTAZ AHMED BURNEY

versus

THE PRESIDENT OF ISLAMIC REPUBLIC OF PAKISTAN, ISLAMABAD and 2 others

Appeal No. 1613(K)‑of 1998, decided on 10th June, 1999.

(a) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑S.54‑‑‑Arrest without warrant‑‑‑If the accused was enlarged on bail either by Police Officer or the Court, Police or any Investigating Agency was at liberty to apprehend him under S. 54, Cr.P.C. as suspect in any other case and there was no need to obtain permission of any Court for that purpose‑‑‑If the accused was granted bail in a particular case, he was under legal obligation to join investigation in that case if and when called upon by the Investigating Officer.

(b) Criminal Procedure Code (V of 1898)‑‑‑

‑‑‑‑Ss. 512 & 514‑‑‑Holding trial against the accused in absentia‑‑‑Securing attendance of accused‑‑‑Accused was innocent unless he was proved guilty and to secure the safe administration of criminal justice, the provision of bail was provided in Criminal Procedure Code‑‑‑Attendance of an accused could be secured by proceedings against his surety under S.514, Cr.P.C. and even trial could be held against the accused in absentia under S.512, Cr.P.C.

(c) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑R.4(1)(b)(ii)‑‑‑Penalty of compulsory retirement‑‑‑Penalty was imposed on civil servant serving as Senior Superintendent of Police on allegation that Investigating Officer with his consent, released an accused on bail who was a notorious smuggler‑‑‑Investigating Officer had categorically stated that he was never forced nor directed by the civil servant to release the accused on bail, rather he had released the accused on his own due to his illness‑‑­Inquiry Report as well as observations made by the Authorised Officer had shown that action against the civil servant was a result of whims and conjectures and was shorn of valid reasons‑‑‑No cogent and convincing incriminating evidence existed to establish the allegations levelled against the civil servant‑‑‑Mere framing the charge‑sheet, holding of inquiry and issuance of final show‑cause notice to the civil servant, would not mean that allegations against him stood proved‑‑‑Authority having failed to' establish and prove allegations against the civil servant, order imposing penalty on him was set aside and he was reinstated into service from the date of his compulsory retirement with back benefits.

Abdul Rahim Bhatti for Appellant.

Syed Alamdar Raza for Respondents Nos.1 and 2 alongwith Mehboob Alam, S.O., Establishment Division.

Date of hearing: 7th June, 1999.

2002 P L C (C.S.) 148

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Syed Ekram Hussain Jafri, Members

ABDUL GHAFOOR

versus

MANAGING DIRECTOR, PAKISTAN INTERNATIONAL AIRLINES CORPORATION, KARACHI and another

Appeal No. 1132(K) of 1998, decided on 19th July, 2000.

Civil service---

----Termination of service---Reinstatement---Civil servant being a technical hand was fully qualified and having undergone training was found most suitable for the job as per recommendations of the Precision Engineering Department and was properly inducted in accordance with the rules on merits on the basis of test and interview---Civil servant was singled out alongwith two others out of the total strength of two hundred and fifty-nine incumbents and his services were terminated, without issuance of any show-cause notice, personal hearing and assigning any valid reason for the said termination--­Validity---Authority in terminating services of the civil servant not only had violated principles of natural justice, but also the law and the rules on the subject---Order terminating services of civil servant was set aside and he was ordered to be reinstated in service with back benefits.

1992 SCMR 197 ref.

Appellant in person. Masood A. Khan for PIAC.

Date of hearing: 18th July, 2000.

2002 P L C (C.S.) 474

[Federal Service Tribunal]

Before Aftab Ahmed and Muhammad Ayub Khan, Members

Dr. FIDA MUHAMMAD

versus

SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others

Appeal No. 52(P) of 1999, decided on 12th August, 2000.

(a) Limitation‑‑‑

------Delay‑‑‑Condonation‑‑‑Principles‑‑‑Limitation was the most important and crucial point in judicial system and ordinarily would take its smooth course‑‑‑Doors of justice were closed after lapse of prescribed period of limitation, and no plea of injustice, hardship or ignorance, could be of any avail to litigant unless delay in filing appeal etc. was justified/legally accounted for and litigant was legally bound to justify reasons for each day's delay‑‑‑Courts, in exceptional circumstances, were competent to condone delay in appropriate cases on compassionate grounds, if proved‑‑‑Limitation when once started in no case, could be stopped.

PLD 1990 SC 951; 1998 SCMR 882; 1999 PLC (C.S.) 25; 1988 SCMR 1354; 1998 PLC (C.S.) 1007; 1993 SCMR 17; 1998 SCMR 307; 1998 SCMR 785; 1999 MLD 330; PLD 1988 SC 144; PLD 1995 SC 396; 1987 SCMR 92; 1998 PLC (C.S.) 1089 and 1998 PLC (C.S.) 832 ref.

(b) Limitation‑‑‑

‑‑‑‑Principles‑‑‑Principles governing limitation are; (a) ignorance of law was no excuse; (b) delay would defeat equity; (c) time and fide would wait for none; (d) law would help vigilant and not the indolent.

Raja Muhammad Asghar Khan for Appellant„

M. Aslam Uns, Standing Counsel alongwith Maqbool Ahmed, Superintendent, Ministry of Health and Faqir Muhammad, Superintendent, PIMS, Departmental Representatives.

Date of hearing: 1st August, 2000.

2002 P L C (C.S.) 480

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Abdul Hameed Khan Khattak, Members

FUAD ASADULLAH KHAN

versus

FEDERATION OF PAKISTAN through Secretary, Establishment' Division; Islamabad and 2 others

Appeal No. 867(R) of 1997, decided on 16th August, 2000.

Civil service‑‑‑

‑‑‑‑Reversion‑‑‑Civil servant appointed as Director (B‑19) was reverted to post of Deputy Director (B‑18) on the ground that his appointment as Director was irregular and was procured through illegal manna ‑‑‑Validity‑‑­Appointment of civil servant as Director proved to be tainted with legal procedural infirmities of substantial nature which rendered same to be null and void and illegal ab initio for the reasons; firstly that before selection of civil servant, existing rule with regard to qualifications and experience for post of Director was Master's Degree in Engineering with 12 years' experience, but as civil servant was not so qualified, said rule was promptly changed, just to accommodate him‑‑‑Secondly as per recruitment policy minimum period for receipt of applications for that vacant post was thirty days from advertisement, but in case of civil servant only eight days were allowed, thus violating the recruitment policy‑‑‑Had thirty days' period been allowed for entertaining applications a lot more of aspiring candidates could have filed applications for the post; thirdly the only other contesting candidate was at higher footing qua civil servant as he had foreign Master's Degree in Engineering (Telecom) with snore than six years' experience as against civil servant who was having Simply five years' experience and was only a Graduate and despite that civil servant was given preference over contesting candidate which smacked of injustice; fourthly, no written test was conducted and no merit list was prepared and civil servant was seated simply on interview basis for which no record was maintained; and fifthly, as per Recruitment Policy, recruitment was to be made in the mouths of February and August each year whereas interview of civil servant was conducted during the month of March and advertisement was also floated in the same month‑‑No reason, unavoidable circumstances or urgency was shown for resorting to such hasty procedure‑‑‑One of the members of Interview Committee was close relative of the .civil servant‑‑‑Norms of justice and rules of transparency demanded that relative of civil servant should not, have acted as member of the Interview Committee‑‑­Interview/selection Committee was not properly constituted as the competent authority or its representative was not associated therein‑‑‑Appointment of civil servant as Director (B.P.S.19) being tainted with legal procedural infirmities, he was rightly reverted to his original post of Deputy Director (B. P. S.‑18)

Raja Muhammad Asghar Khan for Appellant.

Muhammad Aslam Uns, Standing Counsel for Respondents alongwith M. Saeed Akhtar, A.D. IB and Mustansir Haroon, Asstt. Establishment Division, DR.

Date of hearing: 11th August, 2000.

2002 P L C (C.S.) 488

[Federal Service Tribunal]

Before Aftab Ahmed and Muhammad Ayub Khan, Members

BASHIR AHMED and 2 others

versus

COLLECTOR, SALES TAX, COLLECTORATE OF SALES TAX, ISLAMABAD and 5 others

Appeals Nos.942, 943 and 944(R) of 1999, decided on 2nd August, 2000

Civil service‑‑‑

‑‑‑‑Seniority‑‑‑Determination‑‑‑Employees of Agriculture Census Organisation were declared surplus but after about one year were absorbed in Collectorate of Sales Tax‑‑‑Employees had claimed that they were entitled to count their seniority from the date of their regular appointment in their previous Department and that on being declared surplus they were entitled to carry their seniority with them and that they should have been granted seniority in the new Department‑‑‑Validity‑‑‑Seniority of employee on joining new Department after being declared surplus in their previous Department would be counted from date of their appointment in new Department when they were absorbed after being surplus‑‑‑After promulgation of Seniority Rules, 1993, old instructions/principles of seniority were no more attracted and after promulgation of the new Rules, seniority would be determined according to the said Rules‑‑‑Employees could not claim their seniority from the date of their appointment in the previous Department in circumstances.

1991 SCMR 514 and S.M. Farooq v. Muhammad Yar Khan 1999 SCMR 1039 ref.

Amin‑ur‑Rehman Khan for‑Appellants.

Syed Alamdar Raza, Advocate assisted by Mahboob Alam, Section Officer, Establishment Division, Amir Sultan, Law Officer and Tariq Mahmood Asad; UDC, D.Rs. for Respondent.

Date of hearing: 31st July, 2000.

2002 P L C (C.S.) 491

[Federal Service Tribunal]

Before Aftab Ahmed and Abdul Hameed Khan Khattak, Members

MURID KAZIM SHAH

versus

AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN through Chairman and another

Appeals Nos.57(R) C.E. of 2000, 1696(R), 1698(R), 1699(R), 1700(R), 1701(R). 1702(R), 1703(R), 1704(R), 1705(R), 1706(R), 1707(R), 1708(R), 1709(R), 1712(R), 1713(R), 1714(R), 1715(R), f716(R), 1717(R), 1718(R), 1719(R), 1720(R), 1766(R), 1770(R), 1809(R), 1812(R), 1819(R), 1820(R), 1821(R), 1822(R), 1823(R), 1836(R), 1842(R), 1860(R), 1869(R), 1898(R), 1946(R), 1947(R), 1948(R), 1949(R), 1998(R) of 1999, 67(R)/C.E. and 68(R)/C. E. of 2000, decided on 19th June, 2000.

Agricultural Development Bank Ordinance (IV of 1961)‑‑‑

‑‑‑‑S. 39‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Antedated promotion‑‑‑Entitlement‑‑‑Employee had claimed that he, despite being senior on merits and in service to co‑civil servant and having better and unblemished service record, had been ignored whereas co‑civil servant had been granted accelerated promotion‑‑‑Employee who was subsequently promoted claimed antedated promotion on the ground that one of co‑civil servants had been granted antedated promotion‑‑‑Authority granting accelerated promotion to co‑civil servant had justified its action contending that obtaining of approval of Federal Government was not legal requirement and there was no need for prior approval as the same was "one time exercise" under S.39, Agricultural Development Bank Ordinance, 1961‑‑‑Validity‑‑­Contention of Authority was repelled because under S. 39 of the Ordinance, it was not "one time exercise" but was "all/many times exercise"‑‑‑Bank Authority was obliged to obtain approval from Federal Government whenever any regulation was introduced with regard to terms and conditions of service of the Bank employees and unless said approval was sought, no regulation so introduced could take effect‑‑‑No prior approval having been sought by the Authority from Federal Government before or after framing Annual Promotion Policy about accelerated promotion same was violative of proviso to S.39 of the Ordinance, which was mandatory and obligatory in nature‑‑Employee who was also sailing in the same boat by claiming to be at par with those to whom accelerated promotion was granted, could therefore, not be benefited under the policy of accelerated promotion nor his ordinary promotion could be antedated on that account.

Abdur Rahim Bhatti for Appellants (in Appeals Nos. 1698 to 1709, 1716 to 1718, 1720, 1819 to 1823 and 1998(R) of 1999)

Abdur Rashid Saqib for Appellants (in Appeals Nos.1719,1869, and 1898(R) of 1999).

Fazal Hussain Choudhry for Appellants (in Appeals Nos. 1696, 1712, 1766 and 1770(R) of 1999).

Raja Muhammad Asghar Khan for Appellants (in Appeals Nos. 1713 to 1715(R) of 1999).

Azid Nafees for Appellants (in Appeals Nos. 1809 to 1860(R), 1812, 1836, 1842, 1860(R) of 1999, 67 and 68(R)/C.E. of 2000).

Syed Asad Ali Saeed for Appellants (in Appeals Nos. 1946 to 1949(R) of 1999).

Hafiz S.A. Rehman and Mr. G.N. Shahid alongwith Muhammad Tariq, Director, PPD, ADBP, D.R. for Respondents.

Dates of hearing: 13th and 14th June, 2000.

2002 P L C (C.S.) 498

[Federal Service Tribunal]

Before Jalal-ud-Din Akbarji, Chairman and Dr. Akhtar Hasan Khan, Member

MUHAMMAD RIAZ

versus

SECRETARY, MINISTRY OF KASHMIR AFFAIRS AND NORTHERN AREAS, ISLAMABAD and others

Appeal No.770(R)(CS) of 2000, decided on 9th December, 2000

(a) Civil service---

---- Persons employed for the Northern Areas only---Status---Transfer of such persons to other areas in Pakistan---Validity---Persons employed for the Northern Areas only were not and would not be in the service of Pakistan--­Services of the persons serving in said areas would not be transferred anywhere in Pakistan.

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

----Ss. 2(a), 4 & 5---Civil Servants Act (LXXI of 1973), S.2(1)(b)--­Constitution of Pakistan (1973), Arts. 1, 212, 240 & 260---Civil service --­Appeals filed by persons serving in. Northern Areas---Competency--­Jurisdiction of Service. Tribunal---Tribunal had been constituted under Art. 212 of the Constitution of Pakistan to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of persons who were or had been in service of Pakistan including, disciplinary matters under Service Tribunals Act, 1973--Service Tribunal had the jurisdiction to hear appeals of the "civil servants" as defined in S.2(a) of Service Tribunals Act, 1973 and S:2(t)(b) of Civil Servants Act, 1973---Tribunal on hearing appeals had power to confirm, set aside, vary or modify the order appealed against---Relevant provisions of Constitution of Pakistan (1973) and Service Tribunals Act, did not include civil servant employeed in and for Northern Areas only--Tribunal had the jurisdiction and powers of hearing and deciding appeals of a civil servant in service of Pakistan---Exercise of jurisdiction by Tribunal beyond the provisions of the Constitution of Pakistan and the Act, would be void, without jurisdiction and of no legal effect.

Abdul Rashid Saqib for Appellant.

Date of hearing: 1st December, 2000.

2002 P L C (C.S.) 506

[Federal Service Tribunal]

Before Aftab Ahmad, Abdul Hameed Khan Khattak and Mahmoodul Haq Thanvi, Members

MIRZA KHAN and another

versus

INSPECTOR‑GENERAL OF POLICE ISLAMABAD and others

Appeals Nos. 1163(R) of 1998 and 2(R) of 199 , decided on 26th August, 2000.

(a) Police Rules, 1934‑‑‑

‑‑‑‑Rr. 12.8 & 12.12‑‑‑Civil Servants (Seniority) Rules, 1993, R.6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Reversion‑‑‑Principle of locus poenitentiae‑‑‑Applicability‑‑‑Civil servants. who were competently promoted and confirmed as Inspectors and were duly admitted to List "F", were reverted to rank of Sub‑Inspectors by withdrawing earlier order of confirmation as Inspectors and their names were also removed from List "F" despite civil servants were declared senior to co­civil servants who were probationers ‑‑‑Authority had submitted that civil servants were shown senior to said probationers/co‑civil servants by mistake of Departmental functionaries and that said mistake hail been rectified by reverting the civil servants‑‑‑Validity‑‑‑Civil servants were not to suffer for alleged mistake of Departmental Authorities especially when showing of civil servants as senior to co‑civil servants was not a mistake, but in view of evidence on record they were rightly shown senior to co‑civil servants‑‑­Principle of "locus poenitentiae" would play its role effectively in case of civil servants‑‑‑For a long period of 15 years in which civil servants remained promoted in various ranks and their names were placed in seniority lists as well as in Lists "D", "E" and "F", Authority had never raised objection that civil servants were junior to ca‑civil servants or that they were mistakenly shown senior to said co‑civil servants‑‑‑After such a long period Competent Authority could not be allowed to undo seniority and promotion of civil servants with one stroke of pen for no fault of civil servants as they were never proceeded against for misconduct or inefficiency‑‑‑Civil servants having earned seniority and promotion through numerous ordeals, trials and tribulations, Authority was not legally and morally justified to put an end to the same simply on basis of its sweet‑will and whim‑‑‑Orders whereby civil servants were reverted and their names were removed from List "F" were set aside.

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

‑‑‑‑S. 21‑‑‑Locus poenitentiae, principle of‑‑‑Applicability‑‑‑Principle of locus poenitentiae, apart from provisions of S.21, General Clause Act, 1897, was available to Government or relevant Authority‑‑‑Existence of the power was necessary in case of all the Authorities empowered to pass orders to retrace wrong‑ steps taken by them‑‑ ‑Authority which had power to take an order had also power to undo it, but that was subject to exception that where order had taken legal effect and in pursuance thereof certain rights had been created in favour of any individual, such an order could not be withdrawn or rescinded to the detriment of those having such rights.

PLD 1969 SC 407; 1991 PLC (C.S.) 39 and 1983 PLC (C.S.) 1260 ref.

Dr. Atiq Mufti for Appellants.

Shujaat Hussain Naqvi, P.D.S.P. for the Official Respondents.

M. Shoaib Shaheen for the Private Respondent.

Date of hearing: 8th August, 2000.

2002 P L C (C.S.) 843

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

SAJJAD HUSSAIN BHATTI

Versus

POST MASTER GENERAL, PAKISTAN POST OFFICE METROPOLITAN, S.S.C. KARACHI and 2 others

Appeal No. 1227(K) of 1999, decided on 31st July, 2001.

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

‑‑‑‑Rr. 4, 5, 6 & 7‑‑‑Dismissal from service‑‑‑Summary dismissal order against civil servant was based upon Court judgment whereby civil servant was convicted by Special Judge in criminal case against him, but subsequently judgment of conviction was set aside and civil servant was acquitted of charge against him‑‑‑Grounds taken in dismissal order, in circumstances, were no more in field and order of dismissal could not be considered as a valid order‑‑‑Departmental proceedings ordered and conducted against civil servant were not at all in accordance with Government Servants (Efficiency and Discipline) Rules, 1973, as he was not given opportunity of defence and dismissal order was passed ex pane against him and without obtaining any defence from civil servant‑‑­Order of dismissal passed against civil servant was set aside in circumstances.

(b) Government Servants (Efficiency and Discipline) Rules; 1973‑‑‑

‑‑‑‑Rr. 3, 4 & 5‑‑‑Awarding punishment of dismissal from service with retrospective effect‑‑‑Final order of dismissal was passed, in 1999, but was given retrospective effect with effect from 1993‑‑‑Order of dismissal from service was illegal as awarding of punishment with retrospective effect was against rules particularly when order in respect of retirement of civil servant or retiring person passed prior to dismissal order neither was cancelled nor was withdrawn by Authority‑‑‑Order of retirement of civil servant would stand intact and would hold field.

(c) Government Servants (Efficiency and Discipline) Rules, 1973‑‑

‑‑‑‑Rr. 4, 5, 6 & 7‑‑‑Dismissal from service‑‑‑Inquiry proceedings‑‑Rule 5(ii) of Government Servants (Efficiency and Discipline) Rules, 1973 had made mandatory for Inquiry Officer or Committee to conduct inquiry as indicated in R. 6 of Government Servants Efficiency and Discipline Rules, 1973‑‑‑No alternative was left with Inquiry Officer, except to conduct inquiry strictly in accordance with provisions contained in R.6 of the Rules‑‑‑Inquiry in the present case, Officer had failed to abide by provisions of R.6 and had violated mandatory provisions by conducting inquiry in ex parte manner and denying opportunity of defence to civil servant despite charge‑sheet was issued against him.

(d) Practice and procedure‑‑‑

‑‑‑‑ If a particular act was deemed to be done in a particular manner, same would be done in such manner and not by any other manner or procedure.

Sanaullah Noor Ghouri for Appellant.

Niaz A. Khan, Standing Counsel alongwith Irshad Hussain, A.D. Legal, D.R.

Date of hearing: 8th January, 2001.

2002 P L C (C.S.) 965

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Ekram Hussain Jafri, Members

Syed SIKANDAR ALI SHAH

Versus

AUDITOR‑GENERAL OF PAKISTAN, ISLAMABAD and others

Appeal No. 1630(K) of 1998, decided on 27th July, 2000.

(a) Civil Servants (Confirmation) Rules, 1973‑‑‑--

‑‑‑‑R.6(2)‑‑‑Termination of lien‑‑‑Civil servant while posted as Senior Auditor under Directorate of Commercial Audit had himself adopted service under a Company which was an autonomous body under Federal Government‑‑‑Application of civil servant for retention of his lien under parent organization (Directorate of Commercial Audit) could not be accepted in view of provisions of R.6(2), Civil Servants (Confirmation) Rules, 1973 which had provided that civil servant would cease to hold lien against a post if he would take up appointment on selection in an autonomous body.

1987 PLC (C.S.) 508 and 1992 SCMR 1652 ref.

(b) Civil service‑‑‑

‑‑‑‑ Termination of service‑‑‑Services of civil servant were terminated on ground that not. only he was totally incompetent for post to which he was posted, but he was inducted due to political interference‑‑‑Services of civil servant were rightly terminated because political interference not only disturbs normal working of Government organization but also cultivates political culture which is not in public interest and frequent political interference adversely affects smooth functioning of Government organizations, public interest and merits as well.

1998 PLC (C.S.) 1089 and 1998 PLC (C.S.) 832 ref.

Appellant in person.

Niaz Ahmed Khan, Standing Counsel for Respondents Nos. 1 to 3.

Nawaz for Respondent No.4.

Date of hearing: 27th July, 2000.

2002 P L C (C.S.) 984

[Federal Service Tribunal]

Before Akbar M. Memon and

Barkat Ali Baloch, Members

MUHAMMAD ZAMAN CHACHAR and others

Versus

CHAIRMAN, PTCL, ISLAMABAD and others

Appeals Nos. 2562(K) to 2564(K), 2566(K) to 2572(K), 2574(K) to 2605(K), 2608(K) ,to 2612(K), 2614(K), 2657(K) to 2659(K), 2716(K) of 1997 and 32(K) to 34(K) of 1998, decided on 30th June, 2001.

(a) Civil service‑‑‑-

‑‑‑‑ Termination of services‑‑‑Services of civil servants were terminated without issuing them any show‑cause notice simply stating that their services were no more required as they were appointed during the ban period‑‑­During pendency of appeal filed by civil servants against their termination, some civil servants were taken back on duty by the Authority and those civil servants withdrew their appeals which had proved that the Authority had adopted policy of discrimination by making pick and choose whereby civil servants having identical grievance had been favoured by reinstatement and large majority had been made to fight out their grievance before Service Tribunal-‑‑Such policy of pick and choose had militated against interest of the Authority and had tilted balance of scale in favour of terminated civil servants and they could not be allowed to be left at mercy of whimsical, capricious and unbalanced approach of Authority towards different groups of its employees‑‑‑Orders terminating services of civil servants passed against principle of natural justice, in .discriminatory manner and with extraneous consideration were set aside being without lawful authority and of no legal effect.

Muhammad Asim and others v. Telecommunication and others 1997 PLC (C.S.) 1113; 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 SC 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; Khalil uz Zaman v. Supreme Appellate Court, Lahore and 4 others PLD 1964 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.

(b) Civil service‑‑‑

‑‑‑‑ Cancellation of appointment order‑‑‑Same Authority which had passed order in favour of civil servant could not be allowed and justify cancellation and withdrawal of the said order and benefits accruing therefrom on pretext that same was irregular and against rules.

Director Social Welfare, N.‑W.F.P. Peshawar v. Sadullah Khan 1996 PLC (C.S.) 927 ref.

(c) Appeal (civil)‑

‑‑‑‑ An appeal could either be time‑barred or premature, but it could not be time‑barred and premature at the same time as the two terms were contradictory to each other.

Shabbir A. Awan for Appellants.

Niaz A. Khan for Respondent (in Appeals Nos. 2574(K), 2581(x), 2584(x), 2585(x), 2605(x), 2612(x) of 1997, 33(x) and 34(x) of 1998).

Abdul Sattar Khokhar for Respondent (in rest of the Appeals).

Date of hearing: 26th February, 2002.

2002 P L C (C.S.) 1068

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

Syed MUHAMMAD ALI

Versus

MINISTRY OF INTERIOR, ISLAMABAD and 2 others

Appeal No. 18(K) (CS) of 2000, decided on 31st March, 2001.

Civil service‑‑‑

‑‑‑‑ Move‑over‑‑Both civil servant and co‑civil servant were promoted as Deputy Director on same date and both of them had reached maximum in B‑18 on same date, but co‑civil servant was given move‑over from B‑18 to B‑19 one year prior to civil servant without assigning any reason and civil servant was ignored and was given move‑over one year after grant of move-­over to co‑civil servant‑‑‑Said grant of move‑over to co‑civil servant and ignoring civil servant evidenced discrimination‑‑‑Authority was directed to grant move‑over to civil servant from date it was granted to co‑civil servant.

Appellant in person.

Niaz A. Khan, Standing Counsel for Respondents alongwith M. Alleemullah, A.D.D.R.

2002 P L C (C.S.) 1074

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Members

IQBAL HUSSAIN QURAISHIE

Versus

SECRETARY, MINISTRY OF DEFENCE and another

Appeal No. 539(K) of 1999, decided on 18th July, 2001.

Civil service‑‑‑

‑‑‑‑ Post retirement medical facilities‑‑‑Entitlement‑‑‑Retired civil servant who rendered services for 42 years in Naval Department claimed that he was entitled to indoor and outdoor medical treatment for himself and for his family from Military Hospital as same was being provided to him while he was in service‑‑‑Rules whereby medical facilities in Military Hospitals were given to retired officials, having altogether been changed prior to retirement of civil servant‑‑‑Post retirement medical facilities as claimed by retired civil servant, were rightly declined to him by Authorities.

Appellant in person.

Niaz A. Khan, Standing Counsel for Respondents.

Date of hearing: 16th May, 2001.

2002 P L C (C.S.) 1108

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Ekram Hussain Jafri, Members

MUHAMMAD ISMAIL and another

versus

MANAGING DIRECTOR, SUI SOUTHERN GAS COMPANY LTD., KARACHI

Appeals Nos. 525(K) and 526(K) of 1999, decided on 19th April, 2000.

Sui Gas Transmission Company Limited Executive Service Rules, 1982‑‑‑

‑‑‑‑R. 21.1‑‑‑Termination of service‑‑‑Appellants were appointed as Trainee Engineers for a period of six months only, extendable at the discretion of the company on the clear understanding that assignment was without commitment to provide employments to such person in the company at any stage‑‑‑Such appointees had rendered about five years service inclusive of training period‑‑‑Validity‑‑‑Rule 21.1 of Sui Gas Transmission Company Ltd. Executive Service Rules, 1982 where-under company could terminate services of an Executive not on probation at any time, without assigning any reason by giving three months notice‑‑‑Rule 21.1 was applicable had conferred no vested right or guarantee for continuation of service to such appointees under the company‑‑‑Services of the appointees were rightly terminated and such termination could not be interfered with.

1980 SCMR 1510; 1990 SCMR 1506 and 1993 SCMR 114 ref.

Appellant in person.

Date of hearing: 19th April, 2000.

2002 PLC (C.S.) 1111

[Federal Service Tribunal]

Before Jalal‑ud‑Din Akbarji, Chairman, Aftab Ahmed, Abdul Hameed Khan Khattak and Mahmoodul Haq Thanvi, Members

ALTAF AHMED SHEIKH

versus

FEDERATION OF PAKISTAN through the Secretary, Ministry of Petroleum, and Natural Resources, Government of Pakistan, Islamabad and another

Appeal No. 1225(R) of 1999, decided on 2nd May, 2000.

Civil Service: -----

‑‑‑‑Selection and appointment as Trainee Engineer‑‑‑Discontinuation of training assignment‑‑‑After about four years from the appointment as Trainee Engineer, the Authority discontinued the training assignment which was challenged by the civil servant alleging the, same to be illegal, void and arbitrary‑‑‑Contention of the Authority was that civil servant was offered only training assignment without any commitment to provide any employment to him and that civil servant was never appointed in accordance with the recruitment procedure but was taken as trainee‑‑‑Validity‑‑­Following the dictum laid down in Salim Mustafa Sheikh v. Federation of Pakistan (Appeal No. 1097(R) decided by the Full Bench of the Tribunal on 29‑4‑2000 the order of discontinuation of training was set aside by the Tribunal with direction to the Authority to absorb the civil servant in career executive cadre.

Abdur Rahim Bhatti for Appellant.

Ch. M. Jamil for respondent‑Company along with Irfan Ahmad Khan, Dy. Manager, Legal Affairs, Departmental Representative.

Date of hearing: 27th April, 2000.

2002 P L C (C.S.) 1113

[Federal Service Tribunal]

Before Muhammad Ayub Khan and Abdul Hameed Khan Khattak, Members

KHALID KARIM CHAUDHRY and others.

Versus

THE SECRETARY, MINISTRY OF FINANCE and 3 others

Appeals Nos.40(R), 112(R), 146(P), 270(R), 271(R), 359(R), 360(R), 361(R), 362(R), 374(R) of 1999, decided on 28th June, .1999.

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

‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Juiisdiciton‑‑Article 212 of Constitution of Pakistan (1973) had clearly ousted jurisdiction of all Civil Courts including High Court and had conferred exclusive jurisdiction to Service Tribunal in matters relating to terms and. conditions of civil servants‑‑‑An authority declared incompetent under 'Art.212 of Constitution of Pakistan (1973), could not adjudicate upon service matters for which competent forum was Service Tribunal.

1998 SCMR 2280; 1992 PLC (C.S.) 1020 and 1999 SCMR 784 ref.

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

‑‑‑S.4‑‑‑Appeal‑‑Limitation‑‑‑Civil servant feeling aggrieved from order passed by Authority against him, must file ‑a departmental appeal to Competent Authority within requisite period of limitation and after waiting for 90 days, could invoke provisions of S.4 of Service Tribunals Act, 1973, but after Departmental appeal had been responded/rejected, civil servant was required to file Service Appeal within 30 days before Service Tribunal ‑‑‑Civil servant in the present case instead of coming directly to Service Tribunal, filed Constitutional petition‑‑‑Validity‑‑‑Civil servant not only had violated legal obligations/ formalities under law, but also had wasted time, energy and money in litigation before incompetent forum.

PLD 1976 SC 195; 1999 PLC (C.S.) 67; 1980 SCMR 443; 1998 PLC (C.S.) 220; 1999 SCAR 92; 1998 PLC (C.S.) 1078; K.K. Afridi v. PIAC 1998 SCMR 2607; PLD 1983 SC 385; 1975 SCMR 259; 1985 SCMR 333; 1985 SCMR 890; 1991 SCMR 1841 and 1997 SCMR 1167 ref.

(c) Limitation Act (V of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Delay, condonation of‑‑‑Limitation would ‑always remain an important point in legal system against which no compromise was legally possible due to well known maxim; that delay defeats equity; that time and tide wait for none and that law helps vigilant and not indolent‑‑ ‑Delay of each day must be adequately and legally explained to satisfaction of Courts for seeking condo nation of delay‑‑‑Condo nation of delay was not a suo motu process, but had to be proved under law.

PLD 1988 SC 144; 1993 SCMR 17; PLD 1995 SC 396; 1998 SCMR 307; 1998 SCMR 785; 1999 MLD 330; 1990 SCMR 1519; 1999 SCMR 784; 1999 PLC (C.S.) 801 and 1987 SCMR 92 ref.

(d) Administration of justice‑‑‑

‑‑‑‑ Courts were supposed to act judicially without tilting towards one party against another for maintaining rule of law and for keeping scale of justice even.

(e) Administration of justice‑‑‑

Law helps the diligent and not the indolent.

1999 PLC (C.S.) 25 ref.

Syed Mazhar Naqvi for Appellant (in all Appeals except Appeal No. 146(P) of 1999).

Miss Shireen Saeed for Appellant (in Appeal No. 146 of 1999). Shahid Anwar Baiwa for HBL.

Date of hearing: 26th June, 1999.

2002 P L C (C.S.) 1194

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Nabi Bakhsh Bhatti, Members NAZAR KHAN

Versus

UNITED BANK LIMITED and others

Appeal No. 1626(L) of 1998, decided on 11th November, 2000.

Service Tribunals Act (LXX of 1973)‑‑‑

---S.4--Appeal‑‑Maintainability‑‑‑Civil servant aggrieved of his date of birth as recorded in his service record, filed declaratory suit and before his retirement obtained decree from Civil Court with the declaration of his date of birth as claimed by him--Said decree was upheld by Appellate Court as well as the High Court to which Authorities continuously remained reluctant to comply with---Decree passed in favour of civil servant could be got enforced and executed according to procedure laid down in Civil Procedure Code in that respect, but civil servant instead of getting decree enforced and executed from competent Civil Court, through execution proceedings. had invoked jurisdiction of Service Tribunal under S.4 of Service Tribunals Act, 1973‑‑‑Jurisdiction of Service Tribunal was limited within the parameter laid down under the law and it could not exercise jurisdiction which was not vested in it under the statute and could not assume the powers for the execution of the decree or order passed by Civil Court‑‑In case of non­compliance by the Authorities regarding declared date of birth of Civil Servant by Civil Court, he could press into service the provisions of law provided under Civil Procedure Code in this behalf, but appeal before Service Tribunal was not maintainable under law and facts.

1995 PLC (C.S.) 1041; 1986 SCMR 1950 1991 PLC (C. S.) 1202; 1991 MLD 824 and 1993 PLC 33 ref.

Farooq Zaman Qureshi for appellant.

Rasheedan Nawaz Kasuri for Respondents.

Date of hearing: 4th October, 2000.

2002 P L C (C.S)1298

[Federal Service Tribunal, Karachi]

Before Muhammad Raza Khan and Noor Muhammad Magsi, Members

MUHAMMAD QASIM

versus

DIRECTOR GENERAL (ADMN.) PTC, ISLAMABAD and 2 others

Appeal No.2710(K) of 1997, decided on 6th July, 1998.

Civil service‑‑‑

‑‑‑‑ Appointment against leave vacancy‑‑‑Termination of service‑‑‑Civil servant who was appointed against leave vacancy, continuously worked in the Department for more than four years without any break ‑‑‑Services of the civil servant were terminated after more than four years, without any cause and without providing him any opportunity of hearing, despite commitment of the Department that those having more than four years continuous service would not be relieved‑‑‑Validity‑‑‑Order terminating service of the civil servant was not based on solid legal footing‑‑‑If the employment to civil servant was given by committing same irregularity or during the period of ban as contended by the Authority, it was not the civil servant who was responsible for violation of the procedure but the Authority could be at fault and the civil servant could not be penalized for the default of Authority‑‑‑No show‑cause notice had been issued to the civil servant prior to the order of termination‑‑‑ Principle of natural justice, which had to be assumed as part and parcel of every statute, had been violated in case of civil servant‑‑‑Order terminating services of the civil servant being unjustified, was set aside with direction that civil servant should be restored to his position with consequential benefits.

Zamiruddin Ahmed for Appellant.

Niaz Ahmed Khan for Respondents.

Date of hearing: 24th June, 1998.

2002 P L C (C.S.) 1408

[Federal Service Tribunal]

Before Akbar M. Memon and Barkat Ali Baloch, Member

FIDA HUSSAIN and others

versus

CHAIRMAN, EMPLOYEES' OLD AGE BENEFITS INSTITUTION, KARACHI and others

Appeals Nos.431‑K of 1997, 118(K)(CE) to 131(K)(CE) of 2000, decided on 4th April, 2000.

Civil service‑‑‑

‑‑‑‑ Termination of services‑‑‑Civil servants though were appointed on temporary/ad hoc basis, but the word "ad hoc" did not find place in Rules of respondent Institution in which civil servants were appointed‑‑‑Civil servants served the institution for a period of more than a year and had earned good reports‑‑‑Civil servants after their appointment had undergone numerous training and refresher courses and it was not the case of the institution that they were found guilty of any misconduct or that they lacked required qualifications‑‑‑Civil servants having been appointed on clear vacancies they could not have been removed without holding proper inquiry‑‑‑Civil servants were not regularized in spite of the recommendation of the committee constituted for that purpose, but those who were working on deputation were regularized and case of the civil servants remained unattended and they were terminated despite they had worked satisfactorily for more than one year‑‑‑Civil servants, in circumstances, had been discriminated and had been removed from service with some ulterior motive‑‑‑Order terminating services of the civil servants was set aside with the direction to take them back on duty from the date they were terminated.

2001 PLC (C.S.) 212; PLD 2001 SC 355; 1999 SCMR 664; 1999 SCMR 1892; 1998 SCMR 1153; 2000. PLC (S.C.) 1; 1997 SCMR 1552; 1996 PLC 90; 2000 PLC (C.S.) 121 and 1993 SCMR 1287 ref.

Nawaz Sheikh for Appellant (in Appeals Nos.431‑K of 1997, 118 to 120 and 122 to 131(K)(CE) of 2000).

Gohar Iqbal for Appellant (in Appeal No. 121(K)(CE) of 2000).

Raja Faizul Hasan Director Law on behalf of EOBI.

Lateef Ansari for Respondent No. 2 (in Appeal No.43 I (K) of 1997.

2002 P L C (C. S.) 1416

[Federal Service Tribunal]

Before Aftab Ahmed and Muhammad Ayub Khan, Members

MUHAMMAD HASNAIN

versus

THE DIVISOINAL SUPERINTENDENT, PAKISTAN RAILWAYS, RAWALPINDI

Appeal No.506(R)/CS of 2000, decided on 18th November, 2000.

Civil service‑‑‑

‑‑‑‑Annual increment‑‑‑Entitlement‑‑‑Service Tribunal in its decision proposed grant of one annual increment to civil servant on completion of at least six months' service in the year of his retirement‑‑‑Effect of said decision was from calendar year 1998‑‑‑Decision being prospective and not retrospective, civil servant, who had retired prior to said year, would not be entitled to proposed increment.

Appellant in person.

Miss Shaista Altaf for Pakistan Railways alongwith Mushtaq Ahmed, UDC, D.R.

2002 P L C (S.C.) 1423

[Federal Service Tribunal]

Before Imtiaz Ali Khan and Nabi Bakhsh Bhatti Members

KHUSHI MUHAMMAD

versus

WAPDA through Chairman, WAPDA House, Lahore and 2 others

Appeal No. 1466(L) of 1998, decided on 10th April, 2001.

Civil service‑‑‑

Pro forma promotion‑‑‑Financial benefits of the higher post‑‑­Entitlement‑‑‑Civil servant despite the fact of having been granted pro forma promotion, was not paid difference of the pay and allowances of the higher post from the date of his pro form promotion‑‑‑Validity‑‑‑Civil servant, if granted pro forma promotion, was entitled to the financial benefits of the higher post‑‑‑Authority was directed to pay the financial benefits of the higher post to civil servant with effect from date he was granted the pro forma promotion.

1996 PLC (C.S.) 455; 1996 SCMR 1334 and 1998 SCMR 736 ref.

Mian Jaffar Hussain for appellant.

Aurangzeb Mirza for Respondents.

Date of hearing: 10th April, 2001.

2002 P L C (C.S.) 1428

[Federal Service Tribunal]

Before Aftab Ahmed and Muhammad Ayub Khan, Members

KHAN BACHA

versus

GENERAL MANAGER, HYDEL, WAPDA and 2 others

Appeal No. 153(P)/C.S. of 2000, decided on 25th April, 2001.

Civil service‑‑‑

‑‑‑‑Seniority‑‑‑Determination of‑‑‑Civil servant was senior to his co‑civil servant‑‑‑Both were declared surplus and co‑civil servant was adjusted in the other Project under the same authority earlier to the civil servant who was also adjusted in that project in the same capacity/cadre‑‑‑Civil servant despite being senior to the co‑civil servant was shown under the co‑civil servant in seniority list‑‑‑Validity‑‑‑Inter se seniority of officials declared surplus in a batch was to remain intact on joining other project in the same cadre‑‑‑Civil servant on joining project under the same Authority after being surplus in previous project, was entitled to retain inter se seniority with co‑civil servant though both of them were to be placed at the bottom of the list of the officials in the same cadre in new project wherein they were absorbed‑‑­Seniority list was directed to be amended /corrected placing the civil servant over the co‑civil servant.

Sheikh Riaz‑ul‑Haq for Appellant.

Sajjad Hussain Cheema counsel for Respondents.

Respondent No.3 in person.

Date of hearing: 27th March, 2001.

2002 P L C (C.S.) 1438

[Federal Service Tribunal]

Before Jalal‑ud‑Din Akbarji, Chairman and Barkat Ali Baloch, Member

ADBUL MAJEED

versus

SENIOR VICE PRESIDENT, U.B.L.,. KARACHI and others

Appeal No. 15(Q)(CE) of 2000, decided on 16th April, 2001.

Civil Service‑‑‑

‑‑‑‑ Transfer from one Department to another‑‑‑Counting of service rendered in previous Department‑‑‑Department of Agricultural Marketing and Storage wherein civil servant had rendered his services for 11 years, was wound up and his services were transferred to a Bank‑‑‑After serving in the Bank for about four years, civil servant was retrenched under the Golden Handshake Scheme and he received all emoluments under the said Scheme‑‑‑Civil servant had claimed that period of 11 years of service which he had rendered in Agricultural Marketing and Storage should be counted as regular employment of the Bank‑‑‑Validity-‑‑After winding up of previous department, appointment of civil servant in the Bank after his transfer was initially on probation and same was terminated under Golden Handshake Scheme and the civil servant after receiving all emoluments was no more in service of the Bank‑‑‑In absence of any statutory or non‑statutory rules to reckon the period of service rendered by the civil servant in previous Department‑‑‑The civil servant could not claim that period of 11 years in which he served in previous Department should be counted as regular employment of transferee Department‑Bank especially when his services in transferee Department were terminated under Golden Handshake Scheme.

Azam Jan Zarkoon for Appellant.

Shahid Anwar Bajwa for Respondents

Date of hearing: 16th April, 2001.

2002 P L C (C.S.) 1465

[Federal Service Tribunal]

Before Aftab Ahmed and

Abdul Hameed Khan Khattak, Members

HAZOOR‑UL‑ISLAM ABBASI

Versus

THE FEDERATION OF PAKISTAN through Secretary Ministry of

Finance, Pak Sectt. Islamabad and 2 others

Appeal No.234(R) of 1998, decided on 4th January, 2001.

Habib Bank Limited Staff Service Regulations‑‑‑

‑‑‑‑Reglns. 37 & 40‑‑‑Service Tribunals Act (LX of 1973), S.4‑‑‑Promotion, entitlement to‑‑‑Appeal, limitation for‑‑‑Bank though considered the appellant for promotion, but found him not fit for the same‑‑‑Bank accepted request of appellant for retirement under the Golden Handshake Scheme and the appellant was paid admissible dues‑‑‑Appellant filed appeal before Appellate Authority against order whereby he was retired under Golden Handshake Scheme‑‑‑Appellate Authority stated that non‑promotion of the appellant was not appealable ‑‑‑Appellant filed appeal before Service Tribunal against the order of Appellate Authority after more than four months from the order whereby the appellant was retired under Golden Handshake Scheme, which was time‑barred and was liable to be dismissed on that score alone‑‑‑Competent Authority after examining the record having not considered the appellant fit for promotion, such order could not be interfered with‑‑‑Appeal filed by the appellant which failed both on merits and limitation. was dismissed.

S. Kazim Hussain Kazmi for Appellant.

Shahid Anwar Bajwa for Respondent.

Date of hearing: 3rd January, 2001.

2002 P L C (C.S.) 1472

[Federal Service Tribunal]

Before Aftab Ahmed sand Barkat

Ali Baloch, Members

MUHAMMAD TAUFIQUE

Versus

UNITED BANK LIMITED through President

and two others

Appeal No. 1269(K) of 1998, decided on 19th January, 2001

Civil service‑‑‑

‑‑‑‑Bank employee‑‑‑Retrenchment under Golden Handshake Scheme‑‑­Entitlement to the benefits of retrenchment‑‑‑Civil servant who was retrenched under the Golden Handshake Scheme was denied benefits under the Scheme on allegation of misconduct‑‑‑Allegations against the civil servant were that he had obtained unauthorized overdraft and he was not only habitual absentee, but had remained absent from duty without leave for a period exceeding 90 days‑‑‑Allegations against the civil servant had been proved in independent inquiry in which he had associated and had himself admitted allegation of absence from duty‑‑‑Golden Handshake Scheme specifically provided that officers who had obtained unauthorised overdraft or were absent without leave for a period exceeding 90 days or against whom disciplinary action in respect of any act of misconduct was pending, would not be entitled to the benefit under the Scheme‑‑‑Civil servant who was found having committed said misconduct, was not entitled to benefits under the Scheme and was rightly paid only substantive pay for the notice period and denied other benefits.

Kanwar Mukhtar Ahmed for Appellant.

Shahid Anwar Bajwa Faheem for Respondents Bank.

Date of hearing: 18th January, 2001.

2002 P L C (C.S.) 1480

[Federal Service Tribunal]

Before Abdul Hameed Khan Khattak and

Mahmoodul Haq Thanvi, Members

Malik MUHAMMAD TARIQ

Versus

AGRICULTURAL DEVELOPMENT BANK .OF PAKISTAN, HEAD

OFFICE, ISLAMABAD through Chairman and 8 others, Appeal.No.322(R) of 1999, decided on 20th April, 2000.

(a) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Opposing civil servants, despite being juniors to civil servants, were promoted and civil servant who not only was senior in rank but had unblemished 25 years' service record, was superseded on ground that civil servant had earned adverse remark in A.C.R. relating to one year‑‑­Civil servant during service career of 25 years had been earning excellent reports and had always been recommended for promotion except for relevant said period of one year‑‑‑Even in said A.C.R. Reporting Officer had recommended civil servant as fit for promotion, but Countersigning Officer had recorded adverse remarks against civil servant‑‑‑Reporting Officer or Countersigning Officer before recording adverse remarks against civil servant had neither issued any warning nor any counseling was done‑‑­Countersigning Officer while differing with opinion of Reporting Officer, was under obligation to give cogent reasons for not accepting report of Reporting Officer by giving specific instance with regard to work and conduct of 'civil servant, but Countersigning Officer' had not done so‑‑­Reporting Officer had numerous opportunities to closely watch work and conduct of civil servant and was best suited person to judge competence of civil servant who had worked under him for the reporting year in dispute‑‑­Whole of A.C.R. was not communicated to civil servant‑‑‑Disputed report against civil servant was only adverse report earned by him in whole of his long 25 years' service record‑‑‑Under relevant rules even minor punishment was not to be allowed to stand in way of promotion of a civil servant, but there should be some strong reason and justification to show that he had deteriorated his image by his unsatisfactory performance, which was absent in case of civil servant‑‑‑Injustice having been done to the civil servant for not granting him his due promotion, Authorities were directed to expunge adverse remarks from his dossier for the relevant year and he should be deemed as having been promoted to next higher grade from the date his juniors were promoted with all back benefits.

(b) Administration of justice‑‑‑

‑‑‑ Principles‑‑‑Any order, even an executive, order passed by a Competent Authority, must be speaking one and should be well‑reasoned.

Malik Shahzad Ahmed Khan for Appellant.

Muhammad Rashid Qamar for Respondents Nos. 1 and 2.

Date of hearing: 20th April, 2000.

2002 P L C (C.S.) 1490

[Federal Service Tribunal]

Before Justice (Retd.) Amanullah Abbasi, Chairman

and Akbar M. Memon, Member

NAFEES AHMED

Versus

DEPUTY POSTMASTER GENERAL HYDERABAD

and 2 others

Appeal No.247(K)(C.S.) of 2000, decided on 22nd March, 2002.

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

‑‑---‑Rr. 4 & 5‑‑‑Dismissal from service‑‑‑Conversion into compulsory retirement‑‑‑Major penalty of dismissal from service was imposed upon civil servant on allegation of misappropriation of amount‑‑‑Civil servant was charge‑sheeted in first instance, but earlier charge‑sheet was quashed from initial stage on account of change of statutory rules, whereafter civil servant was again charge‑sheeted‑‑‑Inquiry Officer in his report had mentioned that civil servant was not largely responsible for shortage of huge amount, but keeping in view Departmental rules he could not be let off absolutely from the responsibilities‑‑‑Report had also shown that certain amount was deposited by civil servant and in that regard Inquiry Officer has explained that civil servant had stated that he was called by his Senior Officer who asked the civil servant to deposit that amount else he would be handed over to police‑‑‑Civil servant in circumstances, was considered to be negligent to some extent as he did not inform the high authorities about payment of disputed amount to former Chief of department‑‑‑Civil servant though had acted in a negligent manner, but punishment imposed upon him was too harsh keeping in view length of service of civil servant‑‑‑Penalty of dismissal from service was converted into compulsory retirement from date when major penalty of dismissal from service was imposed upon him.

1999 PLC (C.S.) 1332; 1999 SCMR 1543; 1997 SCMR 1073; 2000 PLC (C.S.) 857; 1996 PLC (C.S.) 1; 1986 PLC (C.S.) 419; 1983 PLC (C.S.) 171; 2000 TD (Service) 361; 2002 PLC (C.S.) 843; 1987 PLC (C.S.) 395; 2002 PLC (C.S.) 430 and 2002 SCMR 433 ref.

Sanaullah Noor Ghouri for Appellant.

Niaz A. Khan, Standing Counsel with D.R. M. Ehsan, Assistant Superintendent for Respondents.

Date of hearing: 21st March, 2002.

2002 P L C (C.S.) 1516

[Federal Service Tribunal]

Before Justice (Retd.) Amanullah Abbasi, Chairman

and Muhammad Iqbal Khan, Member

MUNEERULLAH KHAN

Versus

WATER & POWER DEVELOPMENT AUTHORITY through

Chairman, WAPDA House Lahore and others

Appeal No.33(P)CS of 2001, decided on 2nd April, 2002.

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

‑‑‑‑R.12‑‑‑Powers of Authority to revise orders passed by Appellate Authority‑‑‑Authority under R.12 of Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978 was empowered to revise orders as passed by Appellate Authority‑‑‑ Such power, however, could not be exercised in an arbitrary and capricious manner‑‑­ Revising order should be self‑explanatory and should contain solid reasons and basis for major penalty of compulsory retirement‑‑‑No such reasons or basis having been given in show‑cause notice requirement of w, had not been met in the case.

1996 SCMR 248 and 1993 SCMR 1134 ref.

Sh. Riaz‑ul‑Haq for Appellant. .

Waqar Ahmed Seth for Respondents.

Date of hearing: 1st April, 2002.

2002 P L C (C.S.) 1541

[Federal Service Tribunal]

Before Akbar M. Memon and

Barkat Ali Baloch, Members

SHAH MUHAMMAD CHAUDHRY

Versus

CHAIRMAN, PAKISTAN STEEL MILLS CORPORATION

and 3 others

Appeal No.65(K) of 1999, decided on 8th December, 2000.

Civil service‑‑‑

‑‑‑‑Reversion‑‑‑Rule of‑"locus poenitentiae", applicability of‑‑‑Civil servant absorbed in the Department, had served for three years, but was reverted without charge‑sheet, show‑cause notice and without affording any opportunity to defend his case despite no adverse report was recorded against him‑‑‑Validity‑‑‑Once the order of absorption was passed, a valuable right had accrued to the civil servant and he could not be so reverted even on the principle of "locus poenitentiae"‑‑‑Order of reversion could not sustain in circumstances.

1992 PLC (C.S.) 1327; PLD 1958 Kar. 350; PLJ 1997 Tr.C. (Service) 612; PLJ 1992 Tr.C. (Service) 1090; PLD 1983 SC 341, 1995 SCMR 776; 1992 PLC (C.S.)1127; 1999 PLC (C.S.) 1023, 1995 SCMR 249; 2000 SCMR 1549; 1999 PLC (C.S.) 510; 1999 PLC (C.S.) 1458; 1995 PLC (C.S.) 803 and 1108; 1995 PLC (C.S.) 803 and 1999 T.D. (Service) 188 ref.

Sanaullah Noor Ghouri for Appellant.

Ms. Mahreen Nazar alongwith Abdul Manan Bhatti, Law Officer for Respondent.

Date of hearing: 27th November, 2000.

2002 P L C (C.S.) 1555

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Dr. Akhtar Hasan Khan, Members

S. SULAIMAN JAFFERI

Versus

SENIOR EXECUTIVE VICE PRESIDENT, UNITED BANK

LIMITED, KARACHI and 2 others

Appeal No. 100(K) of 1998, decided on 26th February, 1999.

Civil service‑------

‑‑‑‑ Dismissal from service‑‑‑Employee who was Branch Manager of a Bank, was dismissed from service after issuing him show‑cause notice, charge‑sheet and holding enquiry against him‑‑‑Enquiry established that employee has failed to exercise the precautions necessary for the Branch Manager and by his negligence had caused the loss of amount of more than three crores‑‑­Employee who was not condemned unheard, was rightly dismissed on recommendation of the Enquiry Committee‑‑‑Staff rules being not statutory in nature, employee could not be acquitted because of minor deviation from the said rules.

Zamiruddin for Appellant.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 24th February, 1999.

2002 P L C (C.S.) 1559

[Federal Service Tribunal]

Before Abdul Hameed Khan Khattak and

Akbar M. Memon, Members

ASLAM PAREKH

Versus

Messrs HABIB BANK LTD, Head Office, Karachi, and others

Appeal No. 1673(K) of 1998, decided on 23rd November, 2000

(a) Habib Bank Limited (Staff) Service Rules, 1981‑‑‑

‑‑‑‑R. 15‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Termination of service‑‑‑Appeal to Service Tribunal‑‑‑Maintainability‑‑‑Service of employee was terminated with immediate effect on the charge that he being not a national of Pakistan, but a citizen of India had procured service fraudulently/by misrepresentation, id connection with which a criminal case was registered against him and he was sent to jail‑‑‑Appeal earlier filed by the employee against termination of his service was dismissed by Service Tribunal and he did not assail order of Tribunal before Supreme Court‑‑­Order passed in earlier appeal having attained finality and being binding on the parties, subsequent appeal by the employee was hit by the doctrine of res judicata/estoppel and was not maintainable‑‑‑Service Tribunal having no power to review its earlier judgment, judgment passed in earlier appeal could not be reviewed by the Tribunal‑‑‑Charge against employee having been proved his service was rightly terminated‑‑‑Appeal otherwise being barred by time was dismissed.

PLD 1987 SC 145 ref.

(b) Review‑‑‑

‑‑‑‑ Right of review‑‑‑Right to claim review of any decision/judgment of a Tribunal or Court of law, like the right to appeal, was a substantive right and not a mere matter of procedure unless said right had been conferred by law.

PLD 1970 SC 1 ref.

Khadim Hussain for, Appellant.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 23rd November, 2000.

2002 P L C (C.S.) 1564

[Federal Service Tribunal]

Before Abdul Hameed Khan Khattak and

Akbar M. Memon, Members

ZAHID UMER FAROOQI and others

Versus

PRESIDENT UNITED BANK LIMITED, KARACHI and others

Appeal‑Nos.89(K) to 91(K), 99(K), 101(K) to 103(K) and 107 to 109(K) of 1998, decided on 23rd November, 2000.

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

‑‑‑‑Rr. 37 & 99‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Dimissai from service‑‑‑Appeal to Service Tribunal‑‑‑Employees were dismissed from service after issuing them show‑cause notice, charge‑sheet and holding enquiry on the charge that Bank had sustained loss to the extent of Rs.94 crores on account of their negligence‑‑‑Employees contended, that enquiry against them was not properly conducted as they were neither afforded opportunity to cross‑examine witnesses nor copy of inquiry report was supplied to them and no second show‑cause notice was given ‑‑‑Validity‑‑­Bank having no statutory rules, the theory of master and servant would apply in case of the employees‑‑‑United Bank Limited Staff Service Rules, 1981, had not provided the provision for personal hearing or the supply of copy of inquiry report and under the said Rules after inquiry was over, the report was to be submitted to the Authority for final decision of the matter‑‑‑Three of the similar appeals had already, been dismissed by the Tribunal and on the same facts both legal and factual, leave to appeal was refused by Supreme Court‑‑‑Charge against employees having been proved, order of their dismissal .passed could not be interfered with in appeal by the Tribunal.

PLD 1994 SC 72; 1999 CLC 1826; '1997 SCMR 1543; PLD 1997 SC 24; Anisa Rehman's case 1994 SCMR 2232; 1987 SCMR 602; 1987 SCMR 1774; 1993 SCMR 1864; 1998 PLC (C.S.) 1377; 1995 PLC (C.S.) 890; 1987 SCMR 1562; Fauzia Ahmed's case 1999 SCMR 1237; PLD 19&1 SC 225; PLD 1992 SC 531; 1998 SCMR 68 and 2000 PLC.(C.S.) 656 ref.

Manzoor Ali Khan for Appellant (in Appeal Nos. 89, 90 and 91 (K) of 1998).

Zamiruddin Ahmed for Appellants (in Appeals Nos.99, 101, 102, 103, 107 and 108(K) of 1998).

Niaz Ahmed Khan for Appellant (in Appeal No. 109(K) of 1998).

Shahid Anwar Bajwa for Respondent.

Dates of hearing 16th and 18th November, 2000.

2002 P L C (C.S.) 1582

[Federal Service Tribunal]

Before Muhammad Ayub Khan and

Syed Ekram Hussain Jafri. Members

HAFEEZ SHAH and 4 others

Versus

PRESIDENT UNITED BANK LTD, KARACHI and another

Appeals Nos.595,‑596, 597, 599 and 603(K) of 1997, decided on 26th April, 2000.

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 4 & 5‑‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑‑Dismissal from service‑‑‑Appeal before Service Tribunal‑‑‑Civil servant was dismissed from service on charge of misconduct after issuing show‑cause notice, charge sheet and holding ex parte enquiry against him‑‑‑Show‑cause notice was duly served upon civil servant calling upon him to submit his written explanation within specified period, which he failed to do‑‑‑Civil servant despite service also failed to join enquiry proceedings against him and due to his non­appearance Enquire Officer had to proceed ex parte against him‑‑‑Charge against civil servant having fully been proved, Authority had rightly dismissed him from service on the basis of enquiry report‑‑‑Civil servant having not pleaded in his appeal that order of his dismissal was bad for final show‑cause notice and personal hearing before its passing, he was not entitled to final/second show‑cause notice-‑‑Appeal was dismissed.

1999 SCMR 197; 1998 PLC (C.S.) 1359; 1999 SCMR 1237; PLD 1981 SC 225 and 1997 PLC (C.S.) 1044 ref.

Lateef Saghar for Appellants.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 25th April, 2000.

2002 P L C (C. S.) 1

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Muhammad Afzal Soomro, J

TILAT HUSSAIN and others

versus

CHAIRMAN, PIA and others

Constitutional Petitions Nos. D‑1587, 1588 of 1997, 801, 1420 and 1534 of 1999, decided on 2nd July, 2001.

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

‑‑‑‑S.2‑A‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Objection raised by the respondent‑Corporation was that since the provision of S.2‑A of Service Tribunals Act, 1973, was applicable to the employees of Pakistan International Airlines Corporation, therefore, matter was to be decided by Service Tribunal ‑‑‑Validity‑‑­Petitioners not having been issued appointment letters and not having served the respondent‑Corporation as its employees, would not fall within the category of civil servants as envisaged in S.2‑A of the Service Tribunals Act, 1973, and they would be competent to invoke the Constitutional jurisdiction‑of High Court under Art. 199 of the Constitution‑‑‑Constitutional petition was maintainable in circumstances.

Yousaf Ali v. Sher Malik and 3 others 1998 SCMR 1911 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Duty of petitioner‑‑‑Necessary for" a party to establish the existence of a right in his favour which has been violated by act of commission or omission of a public functionary resulting in legal injury or loss to such person.

Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161 and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Contractual employment‑‑‑Principle of master and servant‑‑‑Applicability‑‑‑Grievance of the petitioners was that after having successfully completed training with the Pakistan. International Airlines Corporation, the petitioners were denied employment in the Corporation‑‑‑Validity‑‑‑Respondent‑Corporation was governed by the principle of master and servant and employee or a person, who had failed to secure employment, would have no right to claim induction in the service of the respondent‑Corporation even if refusal to employ or induct him in service was not strictly in accordance with the provisions of rules and/or regulations‑‑‑Where the employment was to be governed by the principle of master and servant and not in accordance with any statute or rules made thereunder, the petitioners did not have any fundamental or legal right to claim employment/induction in the service of respondent‑Corporation‑‑­Constitutional petition would not lie for providing relief on account of violating of terms and conditions of a contract‑‑‑Constitutional petition was dismissed in limine.

Abdul Qayoom and 11 others v. Government of Sindh through Chief Secretary, Sindh, Karachi and 3 others PLD 1998 Kar. 192; Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karachi and others 1998 SCMR 2268; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Habib Bank Limited and others v. Syed Ziaul Hassan Kazmi 1998 SCMR 60; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Director, Social Welfare, N.‑W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106; Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department, Karachi and 3 others 2000 SCMR 907; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 504 and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1990 SC 691 ref.

(d) Master arid servant‑‑‑

‑‑‑‑‑Principle of‑‑‑Right of employee to continue in employment‑‑‑Wrongful decision of employer‑‑‑Remedy‑‑‑Where service is governed by the principle of master and servant or by a contract, the same does not confer a guaranteed right on the employee to continue in the employment and to seek reinstatement on being illegally dismissed or terminated‑‑‑On refusal of employer to provide employment as per terms of a contract of employment or service rules and regulations not having statutory force or sanction, an affected employee cannot approach a Court of law for seeking appointment even if he is refused employment illegally or in contravention of the service contract or non‑statutory rules/regulations‑‑‑Such person at the most can claim damages for illegal or wrongful decision refusing employment.

Abdul Majeed Pirzada for Petitioners.

Amir Malik for Respondent.

2002 P L C (C.S.) 89

[Karachi High Court]

Before Ghulam Nabi Soomro and S.A. Rabbani, JJ

IRAM MOIN and 2 others

versus

DIRECTOR, NON‑FORMAL EDUCATION, SINDH and 2 others

Constitutional Petitions Nus.D‑982 and D‑983 of 1999, decided on 12th September, 2000.

Civil service‑‑‑

‑‑‑‑ Payment of arrears of salary/honoraria‑‑‑Civil servants duly appointed were paid their salaries/honoraria for some period, but later on Authority denied civil servants' right to remuneration for their services‑‑‑Claim and entitlement of civil servants with regard to payment of honoraria for services rendered by them having not been denied, prayer of the civil servants for payment of arrears, was justified‑‑‑Authority was directed by High Court under its jurisdiction under Art. 199 of the Constitution to make payment to the civil servants as prayed for by them within stipulated period‑‑­Constitution of Pakistan (1973), Art. 199.

Messrs Wak Orient Power and Light Limited, Gulberg III, Lahore v. Government of Pakistan, Ministry of Water and Power and others 1998 CLC 1178 ref.

Amir Hani Muslim and Faisal Kamal for Petitioners.

Syed Zaki Muhammad Dy.A.‑G. Muhammad Sarwar Khan, Addl. A.‑G. for Respondents Nos. l and 2.

2002 P L C (C.S.) 106

[Karachi High Court]

Before Sabihuddin Ahmed and Zahid Kurban Alavi, JJ

MUNAWAR MIRZA

versus

FEDERATION OF PAKISTAN, MINISTRY OF DEFENCE through Secretary, Islamabad and another

Constitutional Petition No.lS‑910 of 1999, decided on 7th February, 2001.

(a) Civil service‑‑‑

‑‑‑‑ Retirement before attaining the age of sixty years‑‑ ‑Entitlement for foreign posting allowance‑‑‑Civil servant who was retired before attaining the age of sixty years pursuant to policy decision, was entitled to certain payments from the date of retirement to the date of reaching the sixty years of age‑‑‑Civil servant who was paid his salary and termination benefits in accordance with policy, had claimed foreign posting allowances which he was receiving before his retirement on account of being posted in a foreign country‑‑‑Validity‑‑‑Civil servant was entitled to receive foreign posting allowance only on account of the factum of his posting abroad and if he would be recalled for any reason he would cease to be entitled to such payment‑‑‑Civil servant who was retired before attaining age of sixty years under the policy, could not claim said allowance on his retirement as in that period he was not posted abroad.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Arts.199 8a 212‑‑‑Constitutional petition‑‑‑Departmental appeal filed by civil servant having not been decided within a reasonable time, civil servant was at liberty to move the competent Service Tribunal for redressal of his grievance‑‑‑Departmental appeal having not been decided within ninety days, civil servants, instead of moving the Service Tribunal, kept on waiting for almost two years‑‑‑No case for interference of High Court in its Constitutional jurisdiction was made out‑‑­Constitutional petition was dismissed.

Gohar Iqbal for Petitioner.

Amir Malik for Respondent No.2.

2002 P L C (C.S.) 117

[Karachi High Court]

Before Sabihuddin Ahmed and S.A. Rabbani, JJ

AIJAZ MUSTAFA SAMTIO, ADVOCATE

versus

GOVERNMENT OF SINDH and others

Constitutional Petition No.D‑1615 of 1998, decided on 7th September, 2000.

(a) Sindh Judicial Service Rules, 1994‑‑‑

‑‑‑‑Rr.2(e) & 5(1)‑‑‑Sindh Civil Servants Act (XIV of 1973), S.5‑‑­Appointment‑‑‑Appointments to posts of Civil Judges and Judicial Magistrates were to be made by initial appointment on the recommendation of the Provincial Selection Board as provided under R.5(1) of Sindh Judicial Service Rules, 1994‑‑‑Rule 2(e) of the said Rules provided that Provincial Selection Board would mean the Administrative Committee of the High Court or a committee of .got less than three High Court Judges specially constituted for the purposes of said rules by the Full Court‑‑‑Appointments to posts of Civil Judges were not made on the recommendation of Board so constituted, but were made on the recommendation of the Chief Justice of the High Court without considering the results of the third written test conducted by Authority in respect of appointment‑‑‑Appointments being not in accordance with the Rules, notification regarding said appointments issued in violation of the Rules, was of no legal effect‑‑‑Civil Judges so appointed, however, would be treated as appointed on ad hoc basis and would continue in that capacity till a fresh selection was made in accordance with the Rules.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitution of Pakistan (1962), Art. 98‑‑‑Comparison of Art.199 and Art. 98 of Constitution of Pakistan (1962), and distinguishing features between the two Articles stated.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Proceedings under Art. 199 of the Constitution‑‑‑Nature and scope‑‑‑Intention of Art. 199 of the Constitution is not to provide for a comprehensive proceeding and remedy parallel to civil suit.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), OXXXIX, Rr. 1 & 2‑‑­Interim stay order in Constitutional petition‑‑‑Scope‑‑‑If an interim stay order was necessary that could be passed in exercise of the Constitutional jurisdiction‑‑‑Article 199 has itself provided for a power to grant an interim order‑‑‑Interim stay prayed for through an application under OXXXIX, Rr.l & 2, C.P.C. neither was required nor could be legally entertained in a Constitutional petition‑‑‑Existence of cl. (4‑A) in Art. 199 had established that interim stay order in Constitutional petition was to be ordered under the same Article and not under OXXXIX, Rr. 1 & 2, C.P.C.

Per S.A. Rabbani, J.‑‑

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Civil Procedure Code (V of 1908), O.I, R.10 & O.XXXIX, Rr.l, 2‑‑‑Application of Civil Procedure Code to Constitutional proceedings‑‑‑Civil Procedure Code being not applicable to proceedings under Art. 199 of the Constitution of Pakistan (1973), application filed under 0.1, R.10, C.P.C. for impleading of party and under O.XXXIX, Rr.l & 2, C.P.C. for stay of order were not maintainable.

Per Sabihuddin Ahmed, J. disagreeing with S.A. Rabbani, J.‑‑

Agreeing generally with the conclusions drawn by S.A. Rabbani, J. disagreement was expressed on the point of application of provisions of C.P.C. in proceedings under Art.199‑‑‑Held, provisions of C.P,C. and particularly those contained in 0.1, R.10, C.P.C. were applicable to the proceedings under Art.199 of the Constitution‑‑‑In absence of any specific bar, Court could adopt those procedural provisions of C.P.C., which would foster the cause of justice‑‑‑Essential precondition for invoking the jurisdiction under Art.199 was the absence of adequate alternate remedy‑‑­Adequate remedy, in terms of Art. 199 would mean remedy which was efficacious, in terms of the time and money.

(f) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Adequate remedy‑‑‑Adequate remedy, in terms of Art.199, would mean remedy which was efficacious in terms of the time and money.

Hussain Bakhsh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Shabbir Ahmad Khan v. Akhtar Alam PLD 1994 SC 598; Sardar Noor Hussain v. Chief Settlement Commissioner PLD 1983 SC 62; Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463 and Federation of Pakistan v. Aftab Ahmad Khan Sherpao PLD 1992 SC 723 ref.

(g) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 199‑‑‑Unlawful holding of public office‑‑‑Aggrieved party‑‑­Limitation‑‑‑Unlawful holding of a public office is a continuing wrong, which can be called in question by any party at any time.

Fazal Quader Chowdhry and others v. Muhammad Abdul Haq PLD 1963 SC 486 rel.

(h) Interpretation of statutes‑‑

‑‑‑‑ Inclusion and exclusion of words or provisions in/or from an enactment could not be considered inconsequential.

Muhammad Nawaz Shaikh for Petitioner.

Ainuddin Khan, A.A.‑G, for the State.

Abdul Qadir Shaikh for Respondent No.6.

Munib Ahmed Khan for Respondent No.7.

Shahnawaz Awan for Respondents Nos. 10 and 35.

Saathi M. Ishaque for Respondent No.27.

Ali Muhammad Memon for Respondent No.40.

Abdullah Khatri for the Intervenor.

Date of hearing: 6th June, 2000.

2002 P L C (C.S.) 592

[Karachi High Court]

Before Saiyed Saeed Ashhad, C.J. and Muhammad Afzal Soomro, J

ASADULLAH MANGI and others

versus

PAKISTAN INTERNATION AIRLINES and another

Constitutional Petitions Nos. D‑1587, 1588 of 1997, 801, 1420 and 1534 of 1999, heard on 2nd July, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Contractual employment‑‑‑Principle of master and servant‑‑‑Applicability‑‑‑Petitioners were to be appointed/inducted in the service of Pakistan International Airlines Corporation as flight stewards on the basis of agreement or contract of employment in accordance with the rules/regulations of service of the Corporation‑‑‑Corporation did not find the petitioners fit for appointment after completion of their basic training, as a result they were not so appointed‑‑Plea raised by the petitioners was that their fundamental or legal right was violated‑‑‑Validity‑‑‑Rules/regulations of service of the Corporation did not have the status of statutory rules so as to confer a fundamental or legal right on the petitioners to claim employment as Flight Stewards, the violation or non‑observance of which could not give a right to the petitioners to invoke the Constitutional jurisdiction of High Court for enforcement thereof‑‑‑Documents/letters produced before the Court suggested that the employment of the petitioners was to be a contractual employment to be governed by the principle of master and servant and the service rules and regulations‑‑‑Petitioners, in the present case, had never been appointed or inducted in the service of the Corporation and were only being considered for appointment after successfully completing the conditions mentioned in the letter offering employment in the Corporation‑‑­On the basis of agreement/contract of employment arrived at between the parties, Constitutional petition for declaration was not maintainable‑‑­Constitutional petition would not lie for providing relief on account of violation of terms and conditions of a contract‑‑‑High Court declined to interfere with the orders passed by the Corporation‑‑‑Petition was dismissed in limine.

Yousaf Ali v. Sher Malik and 3 others 1998 SCMR 1911; Malik Asad Ali and others v. Federation of Pakistan and others PLD 1998 SC 161; Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504; Abdul Qayoom and 11 others v. Government of Sindh through Chief Secretary, Sindh, Karachi and 3 others PLD 1998 Kar, 192; Messrs Airport Support Services v. The Airport Manager, Quaid‑e‑Azam International Airport, Karach and others 1998 SCMR 2268; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Habib Bank Limited and others v. Syed Ziaul Hassan Kazmi , 1998 SCMR 60; United Bank Limited and others v. Ahsan Akhtar and others 1998 SCMR 68; Mrs. Anisa Rehman v. PIAC and another 1994 SCMR 2232; Director, Social Welfare, N..‑W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1350; PIAC v. Aliya Hashmi C.P.L.A. No. 1573 of 2000; Pakistan International Airlines (PIAC) through Chairman and others v. Nazir Jamal Malik and others Civil Appeals Nos.330 to 337 and 436 of 1999; Wali Muhammad and others v. Sakhi Muhammad and others PLD 1974 SC 106 and Abdul Haque Indhar and others v. Province of Sindh through Secretary Forest, Fisheries; Livestock Department Karachi and 3 others 2000 SCMR 907; Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304; Syed Ali Shah v. Abdul Saghir Khan Sherwani and others PLD 1990 SC 50,4 and Muhammad Baran and others v. Member (Settlement and Rehabilitation), Board of Revenue, Punjab and others PLD 1990 SC 691 ref.

(b) Constitution of Pakistan (1973)--

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Master and servant relationship‑‑­Termination of service by master‑‑‑Remedy for servant against such termination‑‑‑Seeking reinstatement in service through Constitutional petition‑‑‑Validity‑‑‑Service governed by the principle of master and servant or by a contract would not confer a guaranteed right on the employee to continue in the employment and to seek reinstatement on being illegally dismissed or terminated‑‑‑Affected persons, on refusal of the employer to provide employment as per terms of a contract of employment or service rules and regulations not having statutory force or sanction, could not approach Court of law for seeking appointment even if he was refused employment illegally or in contravention of the service contract or non statutory rules/regulations‑‑‑Servant, against termination of service by master, could claim damages for illegal or wrongful decision refusing the employment‑‑‑Constitutional petition was not maintainable in circumstances.

Abdul Mujeeb Pirzada for Petitioners.

Amir Malik for Respondents.

Date of hearing: 2nd July, 2001.

2002 P L C (C. S.) 614

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Wahid Bux Brohi, J

DEMOCRACTIC WORKERS' UNION C.B.A.

versus

STATE BANK OF PAKISTAN and others

Constitutional Petition No. D‑1892 of 2000, decided on 7th February, 2001

(a) State Bank of Pakistan Staff Regulations, 1999‑‑‑

‑‑‑‑Regln. 6‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Invoking of Constitutional jurisdiction of High Court in a representative capacity‑‑­Petitioner, a Collective Bargaining Agent of the employees could not claim locus standi to invoke the Constitutional jurisdiction of High Court for the alleged violation of legal or Fundamental Rights of its members as provisions of Art. 199 of Constitution, could not be invoked by a person in a representative capacity for redressal of a grievance of a third person.

Haji Mojakar Ali v. Regional Transport Authority, Sylhet and others PLD 1967 Dacca 6; The Punjab Miners Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum PLD 1972 Lah. 489; Ch. Jalal‑ud‑Din and another v. Settlement Commissioner, Lahore and others 1968 SCMR 995: Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Ardeshir Cowasj'ee and 20 others v. Karachi Building Control Authority, Karachi Metropolitan Corporation and 4 others 1999 SCMR 2883; Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 SC 388; Al‑Jehad Trust and others v. Federation of Pakistan and others PLD 1996 SC 324; Mian Muhammad Nawaz Sharif v. Federation of Pakistan and others PLD 1993 SC 374; Government of Balochistan through Chief Secretary v. Azizulah Memon and 16 others PLD 1993 SC 341; Abdul Jabbar Memon and others 1996 SCMR 1349; Pakistan Tabacco Company Ltd. and another v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others 1999 SCMR 382;. Dr. Muhammad Tahir Achakzai and others v. Government of Balochistan and others 1999 SCMR 1689; Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467; Sardar Farooq Ahmad Khan Leghari and others v. Federation of Pakistan and others PLD 1999 SC 57 and Multiline Associates v. Ardeshir Cowasjee and others 1995 SCMR 362 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 184(3)‑‑‑Public interest litigation‑‑‑Jurisdiction of the Supreme Court under Art. 184(3) of Constitution, was much more wider‑‑‑If it could be shown that the question raised was r‑,f a public importance and related to violation of Fundamental Rights guaranteed under the Constitution of a reasonable large section of people, public interest proceedings could be initiated by any person who had some interest in such proceedings without having any personal grievance.

Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Justice and Parliamentary Affairs, Islamabad and others PLD 1998 SC 161 and Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law. Justice and Parliamentary Affairs, Islamabad and others PLD 1999 SC 504 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Public interest litigation‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑High Court in exercise of its Constitutional jurisdiction could not entertain a petition relating to public interest litigation unless and until the person invoking the said jurisdiction succeeded in establishing a violation of any of his legal or Fundamental Rights‑‑‑High Court would not exercise its jurisdiction in respect of a petition wherein the petitioner sought violation of Fundamental Rights of a large section or a large number of people without specifying the personal grievance or injury suffered by him.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Civil service‑‑‑Promotion‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Promotion of civil servant was not a right and 'no Constitutional petition by a civil servant would be maintainable for obtaining a direction or order for his promotion.

M.A. Rafique v. Managing Director (Power), WAPDA and 7 others 1990 SCMR 927 and Province of West Pakistan v. Muhammad Akhtar Qureshi and others PLD 1962 SC 428 ref.

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

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Civil service‑‑­Constitutional jurisdiction, exercise of‑‑‑Status of the employees of petitioner trade union being that of a civil servant in view of S.2‑A of Service Tribunals, Act, 1973, the petitioner was precluded from invoking the Constitutional jurisdiction of High Court in relation to any matter relating to the terms and conditions of service of its members.

(f) State Bank of Pakistan Staff Regulations, 1999‑‑

‑‑‑‑Reglns. 6(ii)(iii) & .10‑‑‑Constitution of Pakistan (1973), Arts.4, 9, 18, 25 & 199‑‑‑Constitutional petition‑‑‑Appointment of Officers‑‑‑Validity‑‑­Appointments of officers made by the Governor of the Bank in pursuance of policy decision in consultation with the members of the Board of Directors/Central Board, had been challenged in Constitutional petition alleging that said appointments were mala fide, prejudicial to the interest of aggrieved persons, contrary to the provisions of law and in violation of vested, legal and Fundamental Rights of the petitioners ‑‑‑ Appointments were made in pursuance of a policy decision with a view to harmonize, improve and streamline the working of the Bank and to provide training and knowledge to the Officers of the Bank‑‑‑In absence of any mala fide, ill‑will element of favourtism, illegality, any, violation of any Fundamental Rights and any contravention of any provisions of the law or the Constitution, said appointments could not be challenged in Constitutional petition before High Court.

Mian Muhammad Nurullah and 2 others v. District Magistrate, Lahore and 3 others 1970 SCMR 214; Zohra and 5 others v. The Government of Sindh, Health Department through its Secretary, Sindh Secretarial, Karachi and another PLD 1996 Kar. 1; 1995 PLC (C.S.).251; 1990 PCr.LJ 121; PLD 1978 Lah. 273; PLD 1999 Kar. 472; 1991 SCMR 483; 1998 PLC (C.S.) 1175; 2000 YLR 4; PLD 1990 SC 295; 1992 SCMR 563; PLD 1992 SC 723 and 2000 CLC 148 ref.

Abdul Mujeeb Pirzada for Petitioner. K.M.A. Samdani for the State Bank of Pakistan. Syed Zaki Muhammad, Dy. A.‑G. for the Government of Pakistan.

Date of hearing: 7th February, 2001.

2002 P L C (C.S.) 655

[Karachi High Court]

Before Faiz Muhammad Qureshi and Muhammad Moosa K. Leghari, JJ

SHAHID ALI and 12 others

versus

ADMINISTRATOR, DISTRICT COUNCIL, LARKANA and another

Constitutional Petition No.131‑130 of 2000, decided on 16th May, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑‑Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Payment of salaries‑‑‑Petitioners who were appointed against the clear vacancies and had completed more than three years' service had prayed that direction be issued to the Authority to pay them their due salaries-‑‑Contention of the Authority was that petitioners being civil servants had no locus standi to maintain Constitutional petition‑‑‑Validity‑‑‑Relief claimed in the petition was with regard to issuance of direction to the Authority to pay salaries to the petitioners and order of termination of services of the petitioners had not been challenged in the petition‑‑‑Authority had not been able to substantiate that High Court was in any manner divested of the powers of issuing directions to the Authority, who was a person performing functions in connection with the office of local authority to do a thing which he was required by law to do within the jurisdiction of the Court‑‑‑High Court woulu be competen; in issuing the directions to the Authority to make payment of the salaries which petitioners were entitled to get‑‑‑Services of petitioners having already been terminated relief to restrain the Authority from termination of services of the petitioners, could not be granted because said relief fell within the ambit of terms and conditions of service and was barred under Art.212 of the Constitution of Pakistan (1973).

2000 SCMR 1183; 2000 SCMR 1783; 2000 SCMR 907; PLD 1974 SC 106; 2000 SCMR 917 and Administrator, District Council, Larkana v. Gulab Khan and others 2000 SCMR 556 ref.

Muhammad Ismail Bhutto for Petitioner.

Abdul Ghafoor Bhurgari for Respondent No. 1

Muhammad Bachal Tonyo. Addl. A.G. for the State.

Date of hearing: 16th May, 2001.

2002 P L. C (C.S.) 696

[Karachi high Court]

Before Mushir Alam and Muhammad Moosa K. Leghari, JJ

MUHAMMAD HUSSAIN SHAIKH and others

versus

UNIVERSITY OF SIND and others

Constitutional Petition No.D‑530 of 2000, Miscellaneous Application Nos. 1913 of 2000 and 397 to 403 of 2001, decided on 30th January. 2001.

(a) University of Sindh Act (XXIV of 1972)‑‑‑

‑‑‑‑S,23(r)‑‑‑Selection Board‑‑‑Jurisdiction‑‑‑Ascertainment of merit for promotion‑‑‑Basis‑‑‑Determination‑‑‑Delegation of power to Vice-Chancellor‑‑‑Validity‑‑‑Selection Board according to the provisions contained under S.23(r) of Sindh University Act, 1972, was authorised to consider the promotion cases and recommend the same to Syndicate‑‑‑Selection Board was meant for the purpose of scrutinizing the cases for promotion of the officers on the basis of seniority‑cum‑fitness‑‑‑Merit was to be ascertained on the basis of the appraisal of their Annual Confidential. Reports‑‑‑Selection Board was not authorised to delegate its powers to Vice‑Chancellor‑‑‑Such delegation of power to Vice‑Chancellor would be in excess of the authority vested in the Selection Board.

(b) University of Sindh Act (XXIV of 1972)‑‑‑

‑‑‑‑Ss. 14(3) & 23(r)‑‑‑Sindh Civil Servants Act (XIV of 1973) S.2(b)‑‑­Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Civil service‑‑‑Re‑consideration of fitness for promotion‑‑­Vice Chancellor on the basis of delegated powers of Selection Board promoted the petitioners on seniority‑cum‑fitness basis‑‑‑Syndicate constituted committee to review the cases of promotion of the petitioners‑‑­Validity‑‑‑Promotions, in the present case, were granted in a 'perverse and perfunctory manner, and in derogation of the relevant rules, whereby other eligible employees felt deprived of, their due right‑‑‑Where the committee was given a task to scrutinize the cases of all the promotees and to decide their cases strictly in accordance with the rules and regulations after providing those officers an opportunity of hearing, such action of the Syndicate to costitute the committee to review the cases of promotion, was bona fide‑‑‑No illegality was committed in rectifying a wrong‑‑‑High Court declined to interfere with the order passed by the Syndicate‑‑‑Petitioners were covered by the definition of 'civil servant' as provided under Sindh Civil Servants Act, 1973 and were amenable to the jurisdiction of Service Tribunal‑‑‑Jurisdiction of High Court or for that matter any Court was barred under Art. 212 of the Constitution in all matters relating‑ to the terms and conditions of a civil servant‑‑‑Constitutional petition was not maintainable in circumstances.

1999 SCMR 1004; 1999 NLR TD (Lab) 1.; 2002 PLC (C.S.) 1260; PLD 1992 SC 207 and 1999 MLD 3425 ref.

(c) General Clauses Act (X of 1897)‑‑‑

‑‑‑‑S. 21‑‑‑Locus poenitentiae, principle of‑‑‑Applicability‑‑‑Authority which can pass an order is entitled under S.21, General Clauses Act, 1897, to vary, amend, add to or rescind that order‑‑‑Locus poenitentiae is the powers of receding till a decisive step is taken‑‑‑Order once passed does not become irrevocable and a past and closed transaction‑‑‑Perpetual rights cannot be gained on the basis of illegal orders‑‑‑Where the orders have been acquired in illegal manner, the rule of locus poenitentiae will have no application.

Ardeshir Cowasjee v. Karachi ui ding Control Authority (KMC) 1999 SCMR 2883; The Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑‑Such jurisdiction is meant to be exercised in aid of justice‑‑‑Constitutional jurisdiction cannot be exercised by High Court to perpetuate the ill‑gotten gains.

Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Nawab Suyed Raunaq Ali and others PLD 1973 SC 230 and Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 ref.

Syed Fasahat Hussain Rizvi for Petitioners.

P.M. Amer and Kamaluddin for Respondents Nos. 1 and 2.

Masood Noorani, Addl. A.‑G. Sindh.

2002 PLC (C.S.) 710

[Karachi High Court]

Before Sabihuddin Ahmed and Muhammad Afzal Soomro, JJ

ORGANIZATION OF K.P.T. WORKERS through Secretary and 3 others

versus

THE TRUSTEES OF THE PORT OF KARACHI through Chairman and another

Civil Petition No.D‑244 of 2000, decided on 28th November, 2000.

Karachi Port Trust Act (VI of 1886)‑‑‑

-‑‑Ss. 4 & 6‑‑‑Constitution of Pakistan (19 rat. ‑‑‑Constitutional petition‑‑‑Appointment of Chairman of Karachi Port Trust‑‑‑Challenged in collateral proceedings‑‑Petitioner who was Secretary of Trade Union, had challenged the appointment of respondent as Chairman of Karachi Port Trust and alleged that he having not been appointed under provisions of S.6 of Karachi Port Trust Act, 1886, could not pass order terminating the services of employees‑‑‑Petitioner had further contended that under S.6, Government was empowered to appoint a Chairman Board of Trustees but by Notification issued by the Establishment Division, Government of Pakistan, the contract appointment of the respondent was extended as Chairman Karachi Port Trust thus he was not appointed in terms of said S.6 of the Act ‑‑‑Validity‑‑­Contention of petitioner was repelled, because a slight misdescription in the name of office could never be a ground to vitiate the appointment of a person as long as the appointment of. qualified person had been made by an Authority competent to do so‑‑‑Even if the appointment of respondent was found to be illegal, the order passed by him earlier would be protected by the doctrine of de facto and in any case if the appointment of respondent was presumed to be illegal the same could not be challenged in collateral proceedings.

Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738 and Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

Petitioner in person.

Mehmood Abdul Ghani for Respondent.

2002 P L C (C.S.) 718

[Karachi High Court]

Before Saiyed Saeed Ashhad, C. J. and Mushir Alam, J

AZHER JAMEEL

versus

FEDERATION OF PAKISTAN and others

Constitutional Petition No.D‑2201 of 2001, decided on 24th October, 2001.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Arts.199 & 212‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Petitioner who was a civil servant in terms of S.2‑A of Service Tribunals Act, 1973 was required to approach Service Tribunal for redress of his grievance relating to terms and conditions of service and was precluded from invoking Constitutional jurisdiction of High Court by virtue of Art.212 of the Constitution of Pakistan (1973)‑‑­Issuance of a show‑cause notice and initiation of proceedings under disciplinary rules against the civil servant, would not furnish him a cause of invoking jurisdiction of Tribunal or a Court and proper forum for him was to submit a reply thereto and face the, consequent proceedings if initiated‑‑‑Civil servant would not have any cause of action to challenge a show‑cause notice and inquiry proceedings initiated pursuant to show‑cause notice—­Objections issues with regard to mala fides, coram non judice, order being ultra vires and illegality of Authority issuing the order, could be raised before Service Tribunal and an aggrieved civil servant, could not bypass jurisdiction of Service Tribunal by adding said grounds/objection in his Constitutional petition.

Shagufta Begum v. The Inco ‑tax Officer, Circle XI, Zone‑B, Lahore PLD 1989 SC 360 and Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 ref.

Shiraz Iqbal Chaudhry for Petitioner

Date of hearing: 19th October, 2001.

2002 P L C (C.S.) 809

[Karachi High Court]

Before Syed Saeed Ashhad and Mushir Alam, JJ

M. SAEEDULLAH SHAIKH

Versus

GOVERNMENT OF PAKISTAN MINISTRY OF PRODUCTION, ISLAMABAD through Secretary and 4 others

High Court Appeal No. 129 of 2000 and Civil Miecellaneous Application No. 2355 of 2001, decided on 8th February, 2002.

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

‑‑‑‑S. 2‑A‑‑‑Intra‑Court Appeal‑‑‑Abatement of civil suit‑‑‑Plaintiff assailed his termination from service in civil suit on the ground that he was employee of a private corporation‑‑‑Judge in Chamber treated the plaintiff as a civil servant and the suit was abated‑‑‑Contention of the plaintiff was that he was not a civil servant, hence the suit was wrongly abated‑‑‑Validity‑‑‑By ordering abatement of the suit the Judge in Chambers had committed no illegality which had resulted in his deprivation from seeking the rightful and legal relief available to him‑‑‑By such order the suit of the plaintiff had not been adversely affected and he, in case it was established that he was not a civil servant, would be entitled to claim the relief from the private defendants ‑‑‑Intra‑Court Appeal was dismissed in circumstances.

Appellant in person.

Syed Zaki Muhammad, Dy. A.‑G. for Respondent No. 1

Khalid Javed for Respondent No.3.

S.M. Yaqoob for Respondents Nos.4 and 5.

2002 P L C (C.S.) 935

[Karachi High Court]

Before Shabbir Ahmed, J

IMRAN AHMED KHAN

versus

PAKISTAN INTERNATIONAL AIRLINES and another

Suit No. 809 of 2000, decided on 3rd December, 2001.

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

‑‑‑‑S.4‑‑‑Jurisdiction of Courts other than Service Tribunal would be ousted only in respect of matter in which Service Tribunal had jurisdiction under S.4, Sindh Service Tribunals Act, 1973‑‑‑Question of determination would be whether subject‑matter was in respect of terms and conditions of service.

Muhammad Idrees v. Government of Pakistan 1998 PLC (C.S.) 239; I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041; Irshadur Rehman v. Government of Pakistan PLJ 1996 Karachi 384; Amjad Latif v. C.B.R 1996 CLC 1422 and M.A. Jabbar v. Federation of Pakistan 1999 PLC (C.S.) 686 ref.

(b) Pakistan International Airlines Corporation Act (XIX of 1956)‑

‑‑‑‑Ss. 30 & 31‑‑‑Pakistan International Airlines Corporation Employees (Efficiency and Discipline) Regulations, 1985 framed under Pakistan International Airlines Corporation Act, whether statutory rules‑‑‑Pakistan International Airlines Corporation Employees (Efficiency. and Discipline) Regulations, 1985, framed by Board of Directors of Pakistan International Airlines Corporation had not been framed with previous sanction of the Central Government‑‑‑Regulations neither were gazetted nor laid down before the National Assembly‑‑‑Regulations, in circumstances, could not be treated as statutory rules, which could entitle employees of Pakistan International Airlines Corporation to claim relief of reinstatement on ground of breach of statutory provisions.‑‑‑Breach of regulations could not be equated with violation of statutory rules for a case, complaining breach of regulations before Civil Court, except for damages.

Abdul Rauf and another v. Abdul Hameed Khan PLD 1965 SC 671; Riazuddin v. Chairman, PIA PLD 1992 SC 531 and Javed Maqbool Bhatti v. Secretary, Irrigation and Power Department 1998 PLC (C.S.) 208 ref.

(c) Constitution of Pakistan (1973)‑

‑‑‑‑Art 13‑‑‑Civil service‑‑‑Principle of double jeopardy‑‑‑Applicability of‑‑­Civil servant had contended that in more than one inquiries he having been exonerated, could not be vexed again on same facts and ground‑‑‑Plea of Authority was that no final order had been passed and only a show‑cause notice had been issued to civil servant‑‑‑Plea of double jeopardy as raised by civil servant in the matter could not be determined unless High Court had the jurisdiction.

(d) Sindh Civil Servants Act (XIV of 1973)‑‑

‑‑‑‑S.9‑‑‑Sindh Service Tribunals Act (XV of 1973), Ss.3 & 4‑‑‑Question of eligibility‑‑‑Determination of‑‑‑Jurisdiction of Service Tribunal‑‑‑Question of eligibiligy which primarily related to terms and conditions of service for determination thereof, had not, been excluded from purview of jurisdiction of Service Tribunal‑‑‑Contention that eligibility was not a matter connected with terms and conditions of service, was repelled.

Abdul Rauf and another v. Abdul Hameed Khan PLD 1965 SC 671; Riazuddin v. Chairman, PIA PLD 1992 SC 531; Javed Maqbool Bhatti v. Secretary, Irrigation and Power Department 1998 PLC (C.S.) 208; Muhammad Anis v. Abdul Haseeb PLD 1999 SC 539 (sic); Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar 290; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 and Syed Badaurd‑ud‑Din and 10 others v. Government of N.‑W.F.P. through Agriculture, Forest and Cooperative, Peshawar and 11 others PLD 1994 SC 345 ref.

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

‑‑‑‑Ss. 3 & 4‑‑‑Constitution of Pakistan (1973), Arts.199 & 212 Jurisdiction of Service Tribunal‑‑‑Ouster of jurisdiction of other forum‑‑Where Legislature had ousted jurisdiction of a forum such forum was devoid of having any jurisdiction in the matter even in a case where action of Executive Authority was challenged on ground of same being mala fide, ultra vires or coram non judice‑‑‑All grounds of attack including ground of mala fides, ultra vines or coram non judice were to be urged before Service Tribunal and Civil Court including High Court had no jurisdiction to entertain mattes covered by Art. 212 of Constitution of Pakistan (1973)‑‑­Even vires of show‑cause notice could not be brought under Constitutional jurisdiction of High Court.

Agha Syed Ali Raza Shah and 11 others v. Pakistan International Airlines Corporation through Managing Director, Karachi and 2 others 1998 PLC (C.S.) 1239; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; State v. Zia‑ur‑Rehman PLD 1973 SC 49; Shagufta Begun v. The Income‑tax Officer, Circle‑XI, Zone‑B, Lahore PLD 1989 SC 360; Asadullah Rashid v. Muhammad Munir 1998 SCMR 2129; Khalid Mehmood Wattoo v. Government of Punjab 1998 SCMR 2280 and Dr. Muhammad Rashid Chaudhry v. Chairman, Sheikh Zayed Hospital and 3 others 2000 PLC (C.S.) 1093 ref.

(f) Jurisdiction----

‑‑‑‑Civil original jurisdiction of High Court and Appellate jurisdiction of Supreme Court‑‑‑Civil original jurisdiction of High Court could not be equated with Appellate jurisdiction exercised by Supreme Court.

Muhammad Anis v. Abdul Haseeb PLD 1999 SC 539 ref.

(g) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Sindh Service Tribunals Act (XV of 1973), Ss.3 & 4‑‑‑Civil Procedure Code (V of 1908), O.VII, R.11‑‑‑Suit for declaration‑‑­Maintainability‑‑‑Rejection of plaint‑‑‑Plaintiff/civil servant in his suit filed before High Court had challenged show‑cause notice issued to him by defendant‑Authority‑‑‑High Court had no jurisdiction in the matter as same related to terms of service‑‑‑Suit was not maintainable and plaint was liable td be rejected under O.VII, R.11, C.P.C.

Yawar Farooqui for Defendants.

Date of hearing: 15th November, 2001.

2002 P L C (C.S.) 1037

[Karachi High Court]

Before Muhammad Moosa K. Leghari and Faiz Muhammad Qureshi, JJ

MUHAMMAD AKRAM MALIK

Versus

PROVINCE OF SINDH through Chief Secretary

Government of Sindh, Karachi and 2 others

Civil Petition No. D‑550 of 1999, decided on 22nd March, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Interpretation of Art. 199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Maintainability of Constitutional petition has to be judged in the light of provisions contained in Art. 199 of the Constitution of Pakistan (1973)‑‑‑Clause (1) of Art. 199 contains three distinct sub‑clauses (a), (b) & (c) conferring thereby specific powers on High Court to make orders of different kinds in different situations‑‑‑While sub‑clause (a) is prefaced with words "on application of an aggrieved party" and sub‑clause (c) is prefaced with words "on application of an aggrieved person", but sub‑clause (b) significantly has omitted phrase "aggrieved party"‑‑‑For purpose of applications contemplated under sub‑clause (b) petitioner does not have to be an aggrieved party, but can be "any person" ‑‑‑Reason for the distinction between position of petitioner under sub‑clauses (a) & (c) on the one hand and sub‑clause (b) on the other hand is that matters contemplated by sub­clause (b) are of public importance and interest and it is enough that they are brought to notice of Court without petitioner having any personal interest in the matter.

PLD 2000 Pesh. 1; 1997 SCMR 167; 1992 SCMR 1843; 1996 SCMR 1649; 1999 SCMR 784; 1998 SCMR 1948 and M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228 ref.

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

‑‑‑‑Art. 199(1)(b)(ii)‑‑‑‑Public office‑‑‑Public office is an office created by State, by charter of, by statute. when duties attached to that office are of public nature.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1)(b)(ii)‑‑‑‑Writ of quo warranto‑‑‑Issuance of‑‑‑Order/writ in nature of quo warranto could be issued against holder of a public office, which was created by State.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199(1)(b)(ii)‑‑‑‑Writ of quo warranto‑‑‑Jurisdiction of High Court to issue‑‑‑Scope‑‑‑High Court in exercise of its Constitutional jurisdiction was, competent to enquire from any person, holder of public office to show as to under what authority he was holding that office‑‑‑Where a writ in nature of quo warranto was instituted, in such‑like case duty of petitioner was to lay information before High Court that such and such officer had no legal authority to retain such office‑‑‑Petitioner who acted as informer, was not required to establish his locus standi to invoke jurisdiction of the Court‑‑­Writ of quo warranto in its nature was an information against a person who claimed or usurped an office, franchise or liberty and was intended to inquire from him about the authority by which he was holding that office so that his right to that office could be determined‑‑‑Writ of quo warranto could be moved by any person who might not be an aggrieved party‑‑‑Any person could move High Court to challenge unauthorised occupation of a public office and on any such application, Court had not only to see that incumbent was holding office under order of Competent Authority, but it had to go beyond that and see as to whether he was legally qualified to hold office or to remain in office‑‑‑Court had also to see if statutory provisions had been violated in making appointment.

PLD 1996 SC 324; Malik Asad Ali and others v. Federation of Pakistan PLD 1998 SC 161; Capt. (Retd.) Muhammad Naseem Hijazi v. Province of Punjab and 2 others 2000 SCMR 1720; Masood‑ul‑Hassan v. Khadirn Hussain and another PLD 1963 SC‑203; M.U.A. Khan v. Rana Muhammad Sultan and another PLD 1974 SC 228; Ali Hussain Bukhari and 39 others v. Azad Jammu and Kashmir Government through Chief Secretary and 2 others 1992 PLC (C.S.) 289; Al‑Jehad Trust through Raeesul Mujuhideen Habib‑ul‑Wahab‑ul‑Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324 and Malik Asad Ali and others v. Federation of Pakistan through Secretary Law, Justice and Parliament Affairs, Islamabad and others PLD 1998 SC 161 ref.

(e) Civil service‑‑‑

‑‑‑‑Transfer‑‑‑Validity‑‑‑Transfer fell within ambit of terms and conditions of civil servant and a civil servant could not ask for posting of his choice‑‑­Transfer could not be challenged by invoking Constitutional jurisdiction of High Court.

(f) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Mode of making appointment‑‑‑Appointment of a civil servant could be made by three modes; viz. by way of initial recruitment; by way of promotion, and by way of transfer.

(g) Constitution of Pakistan (1973)‑‑

‑‑‑‑Arts. 199 & 212(2)‑‑‑Constitutional petition‑‑‑'Transfer' fell within terms and conditions of Civil Servant‑‑‑Transfer could not be challenged by invoking Constitutional jurisdiction of High Court.

(h) Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974‑‑‑

‑‑‑‑R. 3‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Appointment in violation of rules‑‑‑Effect‑‑‑Government would be the sole judge to appoint any person against any post subject to qualifications as prescribed under rules‑‑‑Appointment of opposing civil servant against post of Director‑General was in contravention of provisions contained in Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974 as he did not possess requisite qualifications as prescribed by said rules‑‑‑Notification to the extent of appointment of opposing civil servant against post of Director‑General, was declared null and void, without lawful authority and of no legal effect, but all actions taken and orders passed by opposing civil servant in his capacity as Director‑General from date of his appointment till date of judgment whereby his appointment was declared null and void, would be deemed to have been validly taken and passed and would not be open to any challenge on ground of defect in his appointment.

Malik Asad Ali v. Federation of Pakistan PLD 1998 SC 161 ref.

Jhamat Jethanand for Petitioner.

Masood Ahmed Noorani, Addl. A.‑G. for Respondent No. 1.

Ejaz Ali Hakro for Respondents Nos.2 and 3.

Date of hearing: 22nd March, 2001.

2002 P L C (C. S.) 1219

[Karachi High Court]

Before Sabihuddin Ahmed, J

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

Versus

MUHAMMAD AFZAL MALIK

Civil Revision Application No. 45 of 1998, decided on 21st April, 2002.

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

‑‑‑Ss. 42 & 54‑‑‑Limitation Act (IX of 1908), Arts. 115 & 120‑‑‑Suit for declaration and mandatory injunction‑‑‑Limitation‑‑‑Where plaintiff did not seek compensation for breach of contract terms, but merely sought declaration with consequential relief of preventive and mandatory Injunctions, provisions of Art.120 and not Art.115 of Limitation Act, 1908, would apply.

F. A. Khan v. Government of Pakistan PLD 1964 SC 520 ref.

(b) Provident Funds Act (XIX of 1925)‑‑‑

‑‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), Art.102‑‑‑Provident fund dues, recovery of‑‑‑Limitation‑‑‑Computation‑‑‑Employee was dismissed from service and his departmental appeal was also dismissed‑‑‑Effect‑‑‑Starting point of limitation for suit for recovery of provident fund dues was the date of dismissal of departmental appeal and not the original order of dismissal of the employee.

F. A. Khan v. Government of Pakistan PLD 1964 SC 520 ref.

(c) Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S. 42‑‑‑Pakistan Essential Services (Maintenance) Act (LIII of 1952), S.3‑‑‑Dismissal from service‑‑‑Master and servant relationship of‑‑‑Plaintiff was a flight engineer in Pakistan International Airlines Corporation who resigned from service‑‑‑Corporation declined resignation of the plaintiff for the reason that there was shortage of flight engineers and under the provisions of Pakistan Essential Services (Maintenance) Act, 1952, the plaintiff was directed to join his duties‑‑‑Plaintiff sought long leave and started working elsewhere without permission‑‑‑On failure of plaintiff to join his service Corporation dismissed him from service‑‑‑Order of dismissal was assailed in a declaratory suit which was decreed by the Trial Court‑‑­Judgment and decree passed by the Trial Court was maintained by Appellate Court‑‑‑Plea raised by the Corporation was that under Pakistan Essential Service (Maintenance) Act, 1952, the plaintiff could not leave employment without reasonable excuse‑‑‑Validity‑‑‑When employment was governed by the contract of master and servant, employees like employer was also entitled to terminate his service after giving reasonable notice to the employer who could not enforce the contract of employment but could only claim compensation for breach of contract terms‑‑‑Where Pakistan Essential Service (Maintenance) Act, 1952, casts a statutory duty upon employee not to leave employment without reasonable excuse, corresponding duty is also imposed on employer not to terminate service of employee without reasonable escuse‑‑‑While the plaintiffs resignation was rejected, the need to ensure the continued presence for the purpose of maintenance an essential services was not felt by the Corporation and extensions of his secondment to abroad were liberally granted and his services were also eventually dispensed with‑‑‑Corporation failed to show anything perverse in. the concurrent findings of fact by the Courts below so as to warrant interference under the provisional jurisdiction of High Court‑‑‑High Court declined to interfere with the judgments and decree passed by the Courts below.

Amir Malik for Applicant.

Mumtaz Ahmad Shaikh for Respondent.

Dates of hearing: 4th and 11th February, 2002.

2002 P L C (C.S.) 1324

[Karachi]

Before Justice (Retd) Abdul Ghani Shaikh, Chairman Ghulam Sarwar Kher, Member‑I and Muhammad Iqbal Kazi, Member‑II

NADEEM AHMED KHANZADA

versus

INSPECTOR‑GENERAL OF POLICE and 2 others

Appeal No. 31 of 2000, decided on 18th January, 2002.

Sindh Police (Efficiency and Discipline) Rules, 1988‑‑‑

‑‑‑‑R.6(3)(b)(i)‑‑‑Police Rules, 1934, 8.16.32‑‑‑Dismissal from service‑‑­Civil servant was dismissed from service after issuing him show‑cause notice, but without holding any inquiry against him in respect of serious allegations levelled against him‑‑‑Civil servant having denied such allegation it was incumbent upon the Authority to conduct full‑fledged inquiry, but same was dispensed with and civil servant was awarded major penalty of dismissal from service in a haphazard manner and adopting shortcut method which was not warranted by law‑‑‑Two allegations against civil servant on basis of which he was dismissed from service though were of very serious nature, but Authority failed to prove the same through reliable evidence‑‑‑If allegations against civil servant were of serious nature and if civil servant had denied the same„ a regular inquiry could not be dispensed with and findings of fact could not be recorded without examining witnesses in support of the charges‑‑‑Action of Authority in dispensing with inquiry being not warranted by law, order of dismissal from service passed by Authority against civil servant, was set aside with direction to reinstate him in service.

1995 PLC (C.S.) 134; Basharat Ali v. Director, Excise and Taxation Lahore and another 1997 SCMR 1543 and Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 PLC (C.S.) 868 ref.

Shabbir Ahmed Awan for Appellant.

Muhammad Qasim Mirjat, Asstt. A.‑G. for Respondents.

Date of hearing: 26th November, 2001.

2002 P L C (C.S.) 1506

[Karachi High Court]

Before Mushir Alam, J

TALAT QAMAR

Versus

ZAFAR IQNAL, COLLECTOR CUSTOMS

(PREVENTIVE) and 3 others

Suit No. 1312 and Civil Miscellaneous Applications Nos. 8750 and 8265 of 2000, decided on 27th August, 2001.

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

‑‑‑‑S. 9‑‑‑Punjab Civil Servants Act (VIII of 1974), S. 8‑A‑-‑Out of turn promotion‑‑‑Object and scope‑‑‑Principles‑‑‑Out of turn promotion is departure from the general law of promotion as envisaged under S.9 of the Civil Servants Act, 1973, which provides that a civil servant possessing prescribed qualification is eligible for promotion to a post for the time being reserved under the rules for departmental promotion‑‑‑Promotion on selection post is made on the basis of seniority‑cum‑fitness, whereas, out of turn promotion is in fact accelerated promotion provided as an incentive, motivation or reward in appreciation of acknowledgement of some extraordinary, meritorious performance in discharge of duties by a public servant‑‑‑Such out of turn promotion is regulated under law (e.g. S.8‑A in Punjab Civil Servants Act, 1974) or rules/scheme .framed under' the Civil Servants (Appointment, . Promotion and Transfer) Rules, 1973.

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

‑‑‑‑S. 9‑‑‑Notification No.S.R.O. 266(I)79, dated 22‑3‑1979‑‑‑Out of turn promotion in Customs Department‑‑‑Criteria, method and qualification‑‑­Notification was issued' for out of turn promotion of Preventive Officers of Collectorate of Customs (Preventive) Customs House having to their credit 5 years continuous service in such grade to the higher post of Preventive Inspector‑‑‑Criteria for the promotion being exceptional merit; outstanding performance; recorded in writing; good and sufficient reason and consultation of appointing authority within the Establishment Division‑‑­Candidate or incumbent aspiring for out of turn promotion in terms of Notification No. S.R.O. No.266(I)/79, dated Z2‑3‑1979, must possess all such qualifying conditions to his credit.

(c) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S. 8‑A‑‑‑Notification No. S.R.O. 266(I)/79, dated 22‑3‑1979‑‑‑Out of turn promotion‑‑‑Provisions of S.8‑A of Punjab Civil Servants Act, 1974 and Notification S.R.O. 266(I)/79, dated 22‑3‑1979‑‑‑Distinction‑‑‑Parameter for out of turn promotion as provided for under S.8‑A of Punjab Civil Servant Act, 1974 are different than those provided in the said Notification.

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

‑‑‑‑S. 9‑‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.7‑‑‑Promotion‑‑‑Eligibility, determination of‑‑‑Procedure for promotion‑‑‑Where the promotion is claimed either under S.9 of the Civil Servants Act, 1973, or under the special provisions of the Act or rules or scheme or conditions framed under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, it is the appointing or competent Authority that is competent to determine the eligibility of the incumbent for promotion to a higher grade provided he qualifies the criteria laid down for such promotion or out of turn promotion as the case may be and then it is upto the Departmental Promotion Committee to recommend the incumbent for such promotion to the competent Authority.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Promotion of civil servant‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Dispute as to whether a civil servant is qualified, for promotion to next higher grade, being relateable to terms and conditions of his service, falls within exclusive jurisdiction of Service Tribunal.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129; Chief Secretary, Government of Punjab v. Mumtaz Ahmed 1996 SCMR 1945 and Badrud Din v. Government of N.‑W.F.P. PLD 1994 SC 345 rel.

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

‑‑‑‑S. 9‑‑‑Notification No. S.R.O. 266(I)79, dated 22‑3‑1979‑‑‑Specific Relief Act (I of 1877), Ss.42 & 54‑‑‑Civil Procedure Code .(V of 1908), O.VII, R.11‑‑‑Rejection of plaint‑‑‑Out of turn promotion‑‑‑Civil Court, jurisdiction of‑‑‑Civil servant being employed in customs department claimed out of turn promotion‑‑‑Relying on the Notification NO.S.R.O.266(I)79, dated 22‑3‑1979, the civil servant invoked the jurisdiction of civil Court in declaratory suit of enforcement of such right‑‑‑Validity‑‑‑Whether it was a regular promotion under general law or out of turn promotion under some special provision or incentive scheme, both were questions of eligibility to be determined accordingly in terms set out for each type of promotion under relevant law/rules‑‑‑Eligibility to promotion, being a matter relatable to terms and conditions of service could not be questioned before a civil Court‑‑‑Plaint was rejected in circumstances.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 175(3) & 212‑‑‑Service Tribunals Act (LXX of 1973), S.4(b)‑‑­Matter relating to terms and conditions of service‑‑‑Jurisdiction of Service Tribunal‑‑‑For enforcement of right of out of turn promotion the civil servant filed appeal before Service Tribunal but the Tribunal declined to exercise its jurisdiction in the matter‑‑‑Civil suit was filed by the civil servant on the plea that as the Service Tribunal had declined to decide the matter, therefore, civil Court had jurisdiction to adjudicate upon the matter‑‑­Validity‑‑‑Refusal of Service Tribunal in the matter would not bestow civil Court with any jurisdiction to decide a controversy‑‑‑Courts, under Art. 175(3) of the Constitution, exercise such jurisdiction as was conferred by law‑‑‑Where exclusive jurisdiction was conferred upon the Service Tribunal, under Art.212 of the Constitution read with S.4(b) of the Service Tribunals Act, 1973, against any order whether original or appellate in respect of any of the terms and conditions of civil servant the jurisdiction of the civil Court was barred accordingly.

Government of Punjab through Chief Secretary v. Raja Muhammad Iqbal 1993 SCMR 1814 = 1993 PLC (C.S.) 1381; Dr. Wasim Ismat Chaudhary v. Chairman and Dean Shaikh Zyed Hospital Lahore 1999 SCMR 2364; Badaruddin v. Government of N.‑W.F.P. PLD 1994 SC 345; PLD 1994 SC 539; PLD 1981 Kar. 299; M. Rahim Khan v. Chief Secretary N: W.F.P. 1999 SCMR 1605 = 1999 PLC (C.S.) 1368; Government of Punjab v. Muhammad Iqbal 1977 PLC (C.S.) 435 and Muhammad Zafarullah v. Inspector‑General of Police 1992 PLC (C.S.) 1029 ref.

Farough Naseem for Plaintiff.

Rasheed A. Rizvi and Zia‑ul‑Haq Makhdoom for Defendants.

Date of hearing: 29th March, 2000.

2002 P L C (C.S.) 1527

[Karachi High Court]

Before Zahid Kurban Alvi and

Muhammad Mujeebullah Siddiqui, JJ

SAMINA MASOOD and 12 others

Versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

through Chairman and 2 others

Constitutional Petition No.364 of 1999, heard on 22nd August, 2001.

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

‑‑‑‑Regln. 25‑‑‑Service Tribunals Act (LXX of 1973), R.4‑‑‑Cdnstitution of Pakistan (1973), Arts.25, 27 & 199‑‑‑Constitutional petition‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Matters pertaining to Service Rules or terms and conditions of service to be referred to Service Tribunal, but that could be done only when a final order was passed‑‑‑If no such final order existed and merely an enactment or, general act and its vires were challenged then High Court would have jurisdiction‑‑‑Petitioner, having assailed Regln. 25 of Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985 only and not the terms and conditions of service, High Court had the jurisdiction to hear the matter.

Asadullah Rashid v. Haji Muhammad Munir 1998 SCMR 2129; Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416; I.A. Sherwani v. Government of Pakistan 1991 SCMR 141 and Dr. Muhammad Tahir Achakzai v. Government of Balochistan 1999 SCMR 1689 ref.

Abdul Mujeeb Pirzada and Khalid Shah for Petitioners.

Muhammad Arif Khan for Respondents.

Date of hearing: 22nd August, 2001.

2002 P L C (C.S.) 1594

[Karachi High Court]

Before Sabihuddin Ahmad and Wahid Bux Brohi, JJ

ZULFIQAR ALI SHEIKH

Versus

FEDERAL PUBLIC SERVICE COMMISSION and others

Civil Petitions Nos.D‑461 of 2000, 1119, 1938, 1894, 2072 and 3331 of 1999, decided on 8th August, 2000.

Federal Public Service Commission Rules of Competitive Examinations, 1997‑‑‑--

‑‑‑‑R. 6(a)(iii)‑‑‑Constitution of Pakistan (1973), Arts.25, 27 & 199‑‑­Constitutional petition‑‑‑Appointment against quota of vacancies on basis of permanent residence or domicile of father of candidate‑‑‑Rule 6(a)(iii) of Federal Public Service Commission Rules of Competitive Examination, 1997 which ha empowered Service Commission to allocate seats on basis of permanent residence or domicile of fathers of candidates and not on basis of permanent residence of candidates themselves, was ultra vires the first proviso to, Art.27(1) of Constitution ‑‑‑ If a candidate's right to enter public service to be inevitably tied down to his father's place of birth or origin, then then fundamental right guaranteed to every citizen to reside or settle in any part of Pakistan, would be completely nullified ‑‑‑ Article 27 of Constitution could not be read in isolation and Constitution must be read and construed as an organic whole‑‑‑Was anomalous that a person could be entitled as of right to appointment under a Provincial Government, but would be debarred from seeking employment against quota of that Province in a Federal Service though he might have been born and lived in that Province all his life merely because his father hailed from a different Province‑‑‑Tying down a candidate to an a of birth or origin of his father, in circumstances, was not permissible upon any rational basis and was liable to be struck down as being violative of Art.25 of Constitution‑‑‑High Court allowing Constitutional petitions filed by candidates directed the Federal Public Service Commission to allocate seats to different candidates on basis of their permanent residence or area in which they had lived and acquired a substantial part of their education irrespective of area to which their fathers belonged.

Miss Sumaeea Zareen v. Selection Committee Bolan Medical College, Quetta 1991 SCMR 2099; Miss Salma Mughal. v. Selection Committee Bolan Medical College, Quetta 1993 SCMR 2083; Mushtaque Ahmed Muhal v. The Honourable Lahore High Court 1997 SCMR 1043; Shireen Munir v. Province of Punjab PLD 1990 SC 292; Griswold v. Connecticut (1965) 381 US 479 and Pardeepjain v. Union of India AIR 1984 SC 1428 ref.

Munib Ahmed for Petitioners (In C. P. Nos. 1119 and 1938 of 1999 and 461 of 2000).

Muhammad Nawaz Shaikh for Petitioner (In C.P. 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.

2002 P L C (C.S.) 57

[Lahore High Court]

Before Ch. Ijaz Ahmad, Nasim Sikandar and Jawwad S. Khawaja, JJ

Dr. MUHAMMAD AZHAR

versus

Dr. TARIQ MAHMOOD MALIK and 2 others

Writ Petitions Nos.23702, 9745 of 1996, 1700 of 1997 and Civil Miscellaneous No. 579 of 2001, heard on 8th June, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 212(2)‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Service matter‑‑‑Jurisdiction of High Court‑‑‑Induction into service‑‑‑Jurisdiction of High Court was gusted in a matter which pertained to the terms and conditions of a civil servant and which could be competently dealt with by Service Tribunal on appeal‑‑‑Even on the ground of jurisdiction and mala fides the proceedings were to be taken before Service Tribunal and not before the High Court under Constitutional jurisdiction‑‑‑Where the question was not of the terms and the conditions of civil servants rather it was the induction in service, such question did not fall within the purview of Art.212(2) of the Constitution and Constitutional petition was maintainable on that issue.

Dr. Ahmed Suleman's case PLD 1997 SC 382; Muhammad Afzal and other's case 1995 PLC (C.S.) 567; Ali Hussain Bokhari and 39 others case 1992 PLC (C.S.) 289; Muhammad Latif Khan's case 1993 PLC (C.S.) 297 and Stateman (P.) Ltd. v. H.R. Deb AIR 1968 SC 1495 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 212(2) & 199‑‑‑Terms and conditions of service‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Once a person has been validly inducted into service and has become member of the same the question thereafter concerning the terms and conditions of his service is examined by the Service Tribunal and not by the High Court.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Writ of quo warranto‑‑‑Locus standi‑‑‑Writ of quo warranto can be maintained by any person as the contents of Art.199 of the Constitution do not impose condition that such a person should be interested or aggrieved person and a Civil Servant can also file a petition for writ of quo warranto.

Muhammad Zia‑ul‑Haq's case 1996 PLC (C.S.) 134 ref.

(d) Discretion‑‑‑

‑‑‑‑Exercise of‑‑‑Discretion is to be exercised on sound judicial principles and not arbitrarily, capriciously or in violation of Rules in force on the subject.

Aman Ullah Khan's case PLD 1990 SC 1092 ref.

(e) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.22‑‑‑Punjab Civil Servants (Appointment and Service) Rules, 1974, R.23‑‑‑Power to relax Rules and Regulations‑‑‑Preconditions‑‑‑Provisions of S.22 of Punjab Civil Servants Act, 1974, and R.23 of Punjab Civil Servants (Appointment and Service) Rules, 1974, do not permit the Chief Minister/Governor to relax the Rules and Regulations through omnibus order but it is a condition precedent for the Governor to pass order under S.22 of Punjab Civil Servants Act; 1974 keeping in view that the same is just and equitable.

(f) Words and phrases‑‑‑

???"Just and equitable" ‑‑‑Connotation.

Black's Law Dictionary; Utility Stores Corporation Pakistan Ltd.'s case PLD 1987 SC 447; Shahi Bothers (Pvt.) Ltd.'s case 1993 SCMR 1370 and Muhammad Hussain's case PLD 1970 Azad J&K 97 ref.

(g) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.5‑‑‑Acts of public functionaries‑‑‑Public functionaries have to act within the framework of Constitution‑‑‑Even Chief Executive of Pakistan is bound to obey the Constitution and Jaw as the same is the basic obligation of every citizen.

Zahid Akhtar's case PLD 1995 SC 530 and Ch. Zahoor Elahi's case PLD 1975 SC 383 ref.

(h) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.22‑‑‑Punjab Civil Servants (Appointment and Service) Rules, 1974, R.23‑‑‑Constitution of Pakistan (1973), Arts.199 & 189‑‑‑Constitutional petition‑‑‑Writ of quo warranto‑‑‑Appointment of civil servant ‑‑‑Relaxation of Rules and Regulations‑‑‑Powers of Chief Executive of Pakistan‑‑‑Petitioner was aggrieved of the appointment of the respondent as Professor of Cardiology at a Medical College‑‑‑Contention of the petitioner was that the appointment was against the Rules and Regulations‑‑‑Validity‑‑‑Actions of the Authorities which were taken in violation of the law and Constitution amounted to usurpation of authority of other functionaries‑‑‑If the notification, two summaries and parawise comments of the Government were put in juxtaposition alongwith annual reports of the Provincial Public Service Commission, it was clear that the authority had not relaxed one or two or three rules which had directed absorption in relaxation of rules en bloc which was illegal exercise of the power‑‑‑Appointment of the respondent was set aside and High court directed the Authorities to fill the post in accordance with law‑‑‑Constitutional petition was allowed accordingly.

Province of Punjab v. Dr. S. Muhammad Zafar Bokhari PLD 1997 SC 351; Zia‑ur‑Rehman's case PLD 1973 SC 49; Mian Nawaz Sharif's case PLD 1993 SC 473; Human Rights' Case No. 104 of 1992; 1996 SCMR 1349; Chatmabasavih's case AIR 1965 SC 1293; Muhammad Iqbal Khokhar's case PLD 1991 SC 35; Abdul Qayyum's case PLD 199‑'. SC 184; Akram Bus Service's case PLD 1963 SC 564; Capt. (Rtd.) Abdul Qayyum's case PLD 1992 SC 184 and Dr. Shaheen Nusrat's case 1997 CLC 1308 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 189‑‑‑Dictum laid down by Supreme Court‑‑‑Non‑observation of‑?Effect‑‑‑Where the legislators and executive fail to give due respect to the dictum of Supreme Court, as such the same is not congenial and conducive for the existence of the country and to run the State smoothly on mutual co?operation, respect and understanding‑‑‑Such situation will create chaos‑‑?Each organ must work within its limits prescribed by the Constitution and law.

M. Abid Hassan Minto for Appellant.

Dr. Abdul Basit and Mushtaq A. Mohal for Respondent.

Date of hearing: 8th June, 2001.

2002 P L C (C.S.) 87

[Lahore High Court]

Before Maulvi Anwarul Haq, J

Mrs. FARKHANDA ARIF, PRINCIPAL, L.D.A. MODEL HIGH SCHOOL, LAHORE

versus

THE LAHORE DEVELOPMENT AUTHORITY through Director‑General, L.D.A. Plaza, Egerton Road, Lahore and 2 others

Writ Petition No.23369 of 1999, heard on 3rd July, 2001.

Civil service‑‑‑

‑‑‑‑ Advance increments, withdrawal of‑‑‑Rule of locus poenitentiae‑‑­Application‑‑‑Three advance increments granted to the civil servant under Punjab Finance Department's Circular dated 25‑8‑1983 were withdrawn on the audit objection‑‑‑Circular of Provincial Government had provided payment of six advance increments to a teacher who possessed or acquired M.Ed. Degree and also a master degree in any academic subject‑‑‑Civil servant first obtained B.Ed. Degree and then M.Sc. Degree‑‑‑Civil servant though was not holding‑M.Ed. Degree but having obtained M.Sc. Degree during the service was rightly granted three increments as she had attained higher qualification ‑‑‑Once the increments had been granted, the rule of locus poenitentiae would come into play in the case of civil servant‑‑‑Order withdrawing increments was declared without lawful authority.

Punjab Employees' Social Security Institution, Lahore and others v. Manzoor Hussain Khan and others 1992 SCMR 441 and Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 ref.

Muhammad Zaman Qureshi for Petitioner.

Muhammad Rashid Ahmad for Respondents.

Date of hearing: 3rd July, 2001.

2002 P L C (C.S.) 91

[Lahore High Court]

Before Karamat Nazir Bhandari, J

TANVEER AKHTAR

versus

SECRETARY EDUCATION, GOVERNMENT OF PUNJAB, LAHORE and 4 others

Writ Petition No.4443 of 2000, heard on 19th June, 2000.

Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Civil servant had claimed that she was not considered for appointment despite she being qualified and placed at No.5 of the merit list‑‑‑Civil servant had failed to prove her claim‑‑‑Civil servant who had failed to produce P.T.C. Certificate issued by the Controller of Examinations, her application was rightly rejected.

Shahid Hussain Qadri for Petitioner.

Muhammad Amin Dar, Asstt. A.‑G., Punjab for Respondents.

Date of hearing: 19th June, 2001.

2002 P L C (C. S.) 94

[Lahore High Court]

Before Ijaz Ahmed Chaudhry, J

AMAN ULLAH

versus

SENIOR SUPREINTENDENT, POLICE

Writ Petition No. 12051 of 2001, decided on 29th June, 2001

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutional petition---Maintainability---Appeal to Service Tribunal---Scope---Matter relating to the terms and conditions of service would not come within the jurisdiction of the High Court---Even if a statutory rule was ultra vires, the Service Tribunal would have the jurisdiction to strike down the same--­Interlocutory orders such as issuance of show-cause notice, were in a nature of step towards a final order eventually to be passed and would be merged with the final order which could be challenged before the Service Tribunal--­High Court could not interfere in such interlocutory orders as well--­Question that a sitting Judge of High Court could not be the Chairman of Service Tribunal, could also be raised before the Service Tribunal because objection with regard to constitutionality of the Tribunal could only be raised before the Tribunal.

Khalil Ahmed v. Government of Pakistan PLD 1981 Kar. 750; Mir Nabi Bakhsh Khan v. Branch Manager, NBP and others 2000 SCMR 1017; A.R. Niazi and others v. Pakistan through Secretary and others PLD 1968 SC 119; Virasat Ullah v. Bashir Ahmed, Settlement Commissioner and others 1969 SCMR 154; Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Muhammad Anis v. Abdul Haseen PLD 1964 SC 539; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance, Division Islamabad and others 1991 SCMR 1063; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 PLC (C.S.) 1371; Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290; Habib Bank Ltd. v. Syed Zia ul Hasan Kazmi 1998 SCMR 60; 1998 SCMR 2280; Abdul Bari's case PLD 1981 Kar. 290; Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance 1984 CLC 142; Nazir Ahmed Sheikh v. Government of Sindh through Secretary, S&GAD, Sindh, Karachi and another 1998 PLC (C.S.) 607 and PLD 1984 Kar. 462 ref.

S.M. Masud for Petitioner.

Maqbool Elahi.Malik, A.-G. for Respondent.

2002 P L C (C.S.) 109

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUSHTAQ AHMAD, STENOGRAPHER and 3 others

versus

PROVINCE OP PUNJAB through Secretary to Government of the Punjab, Cooperatives Department, Lahore and 4 others

Writ Petitions Nos.5924 of 2000 and 6262 of 1998, decided on 11th June, 2001.

Constitution of Pakistan (1973)---

----Art. 199---Constitutional petition---Maintainability---Alternate remedy, non-availing of---Civil service---Dispute was with regard to the promotion of the petitioners, as the same was denied by the Authorities---Contention of the Authorities was that the petitioners had more than one alternative remedies either to approach the Registrar or Government under the provisions of Cooperative Societies Act, 1925---Validity---Where the petitioners had alternative remedy available, they were at liberty to avail such remedy---Constitutional petition was not maintainable in circumstances.

Raghunath Prasad Singh's case 1989 MLD 2153; Muhammad Ali Qureshi's case 1994 PLC (C.S.) 449; PLD 1959 SC 212; Zainul Abidin's case PLD 1966 SC 445; PLD 1966 SC 864; Faiz Ahmad's case PLD 1962 SC 315 and Muhammad Zubair Akram's case PLD 2000 Lah. 489 ref.

Shehzad Shaukat for Petitioner.

Muhammad Ilyas Khan for Respondents.

2002 P L C (C.S.) 163

[Lahore High Court]

Before Asif Saeed Khan Khosa, J

EMPLOYEES WELFARE ASSOCIATION, B.I.S.E., DERA GHAZI KHAN through President and 231 others

versus

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

Writ Petitions Nos.4307, 3131, 3300 of 1994 and No.8771 of 1997 heard on 25th April, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Civil service ‑‑‑Withdrawal of allowance‑‑‑Grievance of petitioners was that the Secretariat Allowance given to them was withdrawn by the Provincial Government‑‑‑Petitioners assailed the order of withdrawal of the allowance in Constitutional petition‑‑­Validity‑‑‑Withdrawal of an allowance by Government could not be challenged by an employee of Government on any legal plane‑‑‑High Court expressed its inability to allow the petition and to direct the Provincial Government to keep on extending the benefit of the Secretariat allowance to the petitioners‑‑‑Petition was dismissed in circumstance.

Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad and another 1997 SCMR 1026 fol.

Muhammad Khalid Alvi for Petitioners.

Muhammad Qasim Khan, Asstt. A.‑G. for Respondents Nos.l and 2.

Allah Bakhsh Khan Kulachi, Legal Advisor to Respondent No.3.

Ch. Abdul Majid, Superintendent, Board of Intermediate and Secondary Education, Dera Ghazi Khan and Tariq Mehmood, Assistant, Legal Cell, Board of Intermediate and Secondary Education, Multan.

Date of hearing: 25th April, 2001.

2002 P L C (C.S.) 200

[Lahore High Court]

Before Ch. Ijaz Ahmad and Mian Saqib Nisar, JJ

IFRAN ALI BHATTI, DEPUTY DIRECTOR, DIRECTORATE OF LAND DEVELOPMENT, LAHORE DEVELOPMENT AUTHORITY, LAHORE

versus

CHAIRMAN, LAHORE DEVELOPMENT AUTHORITY/CHIEF MINISTER, PUNJAB, LAHORE through Director‑General, Lahore Development Authority, LDA Plaza, Egerton Road, Lahore and 3 others

Intra‑Court Appeal No. 525 of 1999 in Writ Petition No.23844 of 1997, heard on 2nd July, 2001.

Civil service‑‑‑

‑‑‑‑ Conditional transfer‑‑‑Acceptance of condition by concerned civil servant ‑‑‑Effect‑‑‑Estoppel by conduct ‑‑‑Scope‑‑‑Approbate and reprobate, principle of‑‑‑Applicability‑‑‑Civil servant serving as Deputy Director in special cadre applied for his transfer to general cadre‑‑‑Application of civil servant was allowed subject to the condition that he would reckon loss in seniority list of the employees in the general cadre‑‑‑Civil servant accepted the condition and on transfer started serving in the general cadre‑‑‑Other civil servants serving in special cadre filed Constitutional petitions praying that they were also entitled to be considered for promotion to the post of Director which was not confined to the civil servants of general cadre which petitions were finally accepted‑‑‑Constitutional petition filed by civil servant who had been transferred to general cadre against the judgment of acceptance of writ petitions was dismissed on the ground that he had already been in general cadre on his transfer from special cadre which transfer order had been acted upon‑‑‑Civil servant, in circumstances, was estopped by his own conduct to file Constitutional petition and High Court was justified to dismiss the Constitutional petition as nobody should be allowed to approbate and reprobate especially when judgment had prospective and not retrospective effect.

Ghulam Sarwar Khan's case 1980 SCMR 566; Ghulam Rasul's case PLD 1971 SC 376 and Muhammad Yousaf's case PLD 1968 SC 101 ref.

Ch. Mushtaq Masood for Appellant.

Nemo for Respondent.

Date of hearing: 2nd July, 2001.

2002 P L C (C.S.) 302

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

MUHAMAMD SHAKIR and others

versus

ADMINISTRATOR, DISTRICT COUNCIL, RAJANPUR and another

Constitutional Petition No. 2811 of 1997, decided on 25th September, 2000.

Civil service‑‑

‑‑‑‑ Grant of advance increments‑‑‑Withdrawal of‑‑‑Locus poenitentiae. principle of‑‑‑Applicability‑‑‑Authorities granted increments to the petitioners on the basis of their higher qualifications but after about six years the increments were withdrawn and the petitioners were directed to refund the amount of increments received by them in instalments ‑‑‑Validity‑‑­Authority which had passed the order though could recall or withdraw the same till a decisive step was taken and Authority competent to make order had power to undo the same, but order could not be withdrawn or rescinded once it had taken effect and certain rights were created in favour of any individual‑‑‑Where amount was paid on the basis of incorrect order and the recipient had received the same on a bona fide belief that he was entitled‑to it, the payer was not entitled to recover the same from the payee during the period when incorrect order remained in field and principle of locus poenitentiae would be applicable to the case‑‑‑Authorities, in circumstances, had no competence to recover the amount from the petitioners.

Pakistan through Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 and The Engineer‑in‑Chief Branch through Ministry of Defence v. Jalaluddin PLD 1992 SC 207 ref.

Nishat Ahmad Siddiqui for Petitioners. Fayyaz Ahmad Shaheen for Respondents. Yaqoob Ayyaz Siddiqui for the State.

Date of hearing: 25th September, 2000.

2002 P L C (C.S.) 324

[Lahore High Court]

Before Dr. Munir Ahmad Mughal, J

Prof, Dr. MUHAMMAD SAEED and another

versus

SHEIKH ZAYEDHOSPITAL and others

Writ Petitions Nos.879 and 2189 of 2000, decided on 4th October, 2000.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Arts.199 & 212‑‑­Constitutional petition ‑‑‑Civil servant‑‑‑Petitioner who was serving as Professor and Head of the Department was transferred and relegated to the post of O.S.D and respondent was appointed in his place‑‑‑Petitioner in his Constitutional petition had sought declaration that said orders and all subsequent actions of the Authority were illegal, arbitrary, void and ineffective to the right of petitioner‑‑‑Validity‑‑‑Employees of the organisation had been declared to be civil servants amenable to the jurisdiction of Service Tribunal‑‑‑Petitioner being a civil servant, High Court had no jurisdiction in his case in view of bar contained under Art.212 of the Constitution of Pakistan (1973), Mrs. M.N. Arshad and another v. Miss Naeema Khan PLD 1990 SC 612; Ghazala Perveen v. Federation of Pakistan 1994 PLC (C.S.) 684 and Dr. Rashid Anwar v. Federation of Pakistan 1996 SCMR 1572 ref.

Muhammad Sair Ali for Petitioner (in Writ. Petition No. 879 of 2000).

Muhammad Hussain Awan for Petitioner (in Writ Petition No:2189 of 2000).

Syed Abrar Hussain, Law Officer for Respondents Nos. l to 3.

Ch. Aamar Rehman for Respondent No.4.

2002 P L C (C.S.) 363

[Lahore High Court]

Before Amir Alam Khan, J

Sheikh TARIQ MEHMOOD, PRIVATE SECRETARY, LAHORE HIGH COURT, LAHORE

versus

ACCOUNTANT‑GENERAL, PUNJAB, LAHORE

Writ Petitions Nos. 7744 and 7528 of 2000, heard on 4th May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 2A & 175‑‑‑Objectives Resolution‑‑‑Independence of judiciary‑‑­- Officers and servants of High Court‑‑‑Status of‑‑‑Officers and servants of High Court cannot be equated with civil servants, otherwise employed by Government‑‑‑While giving the separate status to the employees of High Court the mandate of Art. 175 of the Constitution and the command in the Objectives Resolution which is a substantive part of the Constitution, regarding independence of judiciary has been kept in mind.

Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan through Prime Minister of Pakistan and another PLD 1989 Kar. 404 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑-Art. 208‑‑‑Officers and servants of Courts‑‑‑Provisions of An.208 of the Constitution‑‑‑Object and scope‑‑‑Object of Art. 208 of the Constitution is that as far as possible the judiciary should be free from interference in its affairs by the executive.

Mst. Nusrat Elahi and others v. Registrar, Lahore High Court, Lahore and others 1991 MLD 2516 ref.

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

‑‑‑R. 14‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Withdrawal of advance increment‑‑‑Power of Accountant-­General‑‑‑Locus poenitentiae, principle of‑‑‑Applicability‑‑‑Petitioners were employees of High Court and they had to undergo a competitive test thereby showing their efficiency in type writing and shorthand and on basis thereof the petitioners were selected and at the time of their employment they were either Matric or F.A.‑‑‑Petitoners were not possessed of higher qualification at the relevant time while they did improve their qualification during the course of their service‑‑‑Four advance increments were recommended to such employees by the Chief Justice‑‑‑Accountant‑General withdrew the increments awarded to the petitioners although the same were recommended by the Chief Justice‑‑‑Validity‑‑‑Basic qualification being graduate was introduced much later than the original notification issued in that regard and that the increments which were granted pursuant to the original notification could not have been withdrawn as the Accountant‑General, had no locus poenitentiae to retrace his steps as also to nullify the effect of the recommendations made by the Chief Justice‑‑‑Employees of High Court were governed by entirely independent and distinct rules needing no approval of ratification, the change made in the notification could not be applied in the case of the employees of the High Court‑‑‑Refusal on the part of the Accountant‑General was uncalled for, illegal and unsustainable‑‑­Constitutional petition was allowed accordingly.

Abdur Rauf Khan v. Government of N.‑W.F.P. through Chief Secretary and 3 others PLD 1991 SC 236; Muhammad Yaqub Butt, Additional Registrar, Lahore, High Court v. Government of the Punjab through Chief Secretary and another PLD 1992 Lah. 527 and Muhammad Akram Bhatti and others v. Government of Punjab and others 1997 PLC (C.S.) 936 ref.

Muhammad Shahzad Shaukat for Petitioner.

Muhammad Mazhar Shah for Respondent.

Date of hearing: 4th May, 2001.

2002 P L C (C.S.) 382

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD SHARIF

versus

CHAIRMAN, BOARD OF TECHNICAL EDUCATION, and another

Writ Petition No. 19887 of 2000, decided on 23rd May, 2001.

(a) Civil service‑‑‑

‑‑‑‑Departmental or criminal. proceedings‑‑‑Departmental or criminal proceedings can go side by side and are not dependent upon each other.

Muhammad Tufail v. Assistant Commissioner/Collector 1989 SCMR 316; Amir Abdullah v. Superintendent of Police and others 1989 SCMR 333; Talib Hussain v. Anar Gul Khan and others 1993 SCMR 2177; Deputy Inspector‑General of Police and others v. Anisur Rehman Khan PLD 1985 SC 134 and 1996 SCMR 315 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art: 199‑‑‑Constitutional petition‑‑‑Orders passed by Authorities‑‑­Validity‑‑‑Where the orders were passed in accordance with the rules and regulations of the Authorities, the Constitutional petition was not maintainable against such orders.

Muharram Ali v. Government of Punjab 1984 SCMR 433 and Board of Intermediate and Secondary Education, Sargodha v. Abdur Rehman 1988 SCMR 1711 ref.

(c) Mala fides‑‑‑

‑‑‑‑ Allegation of mala fides‑‑‑General allegation of mala fides is not sustainable in the eye of law.

Saeed Ahmad Khan's case PLD 1974 SC 151 and Aman Ullah Khan's,case PLD 1990 SC 1092 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Necessary parties, non‑impleading of ‑‑‑Effect‑‑‑Mala fide, allegation of‑‑‑Grievance of the petitioner was that termination of his service was not in accordance with law‑‑‑Petitioner made general allegation of mala tides against Inquiry Officer and Authorised Officer‑‑‑Validity‑‑‑Where the petitioner had alleged mala fides, against the officer but he did not implead them as respondents, Constitutional petition was not maintainable.

Azhar Ali's case PLD 1971 Lah. 972 and Rameez‑ul‑Haq's case PLD 1991 1992 SC 551 fol.

Muhammad Sharif Chaudhry for Petitioner.

Shahid Waheed for Respondents.

2002 P L C (C.S.) 394

[Lahore High Court]

Before Mumtaz Ali Mirza, J

MUNIR AHMED SHEIKH

versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division and another

Writ Petitions Nos. 659, 660, 536, 895, 896, 399, 400, 403, 448, 449, 450, 401, 452, 453, 605, 606, 607, 608, 323; 324, 325, 326, 327, 328, 329, 330, 363, 48, 496, 498, 486, 488, 489, 490, 491, 378, 398, 609, 610, 611, 530, 531, 532, 533, 534, 537, 619, 620, 621, 558, 559, 560, 561, 562, 563, 564, 781, 497, 397, 402, 451, 749, 760, 758, 762, 750, 751, 759, 763, 764, 765, 752, 754, 755, 753, 756, 761, 757, 260, 261, 262, 265, 539, 601, 602, 603, 492, 493, 494, 316, 578, 310, 482, 483, 259, 535, 469, 312, 313, 314, 315, 891, 600, 785 of 2001, 2846, 2902, 2548, 2904, 2913, 2965 and‑2864 of 2000, decided on 22nd March, 2001.

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

‑‑‑‑S. 2(1)(b)‑‑‑'Civil servant'‑‑‑Definition‑‑‑'Civil servant' has been defined as a person who is a member of an All‑Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.1.99 & ‑212‑‑‑Civil service‑‑‑Excluding jurisdiction of High Court under Art. 199 of the Constitution‑‑‑Principles‑‑‑To exclude jurisdiction of High Court under Art. 199 of the Constitution, the dispute must relate to the terms and conditions of service; the terms and conditions of service must be of a civil servant; there should be a Service Tribunal to entertain the dispute relating to the terms and conditions of the civil servant; the dispute should be such as the Service Tribunal should be competent to entertain‑‑‑Where the said conditions are met, the jurisdiction of the High Court under Art. 199 of the Constitution, to entertain any such dispute which relates to the terms and conditions of service, of civil servants, and for entertaining which there is Service Tribunal and the said Tribunal is competent to entertain the dispute, is completely ousted by virtue of the bar contained in Art.212 of the Constitution.

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

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Suspension of civil servant‑‑‑Ousting the jurisdiction of High Court under Art.199 of the Constitution‑‑‑To oust the jurisdiction of the High Court under Art. 199 of the Constitution what needs to be shown is that the petitioners are civil servants; that the order of suspension as passed against the petitioner is an order which relates to the terns and conditions of service of the petitioners; that the order of the suspension is an order which is appealable before Service Tribunal; that there exists a Service Tribunal of exclusive jurisdiction to entertain the appeal of the aggrieved civil servants with respect to the order of suspension.

(d) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑

‑‑‑‑S. 4‑‑‑Civil Servants Act (LXXI of 1973), S.16‑‑‑Suspension of civil servant‑‑‑Matter related to terms and Conditions of service‑‑‑Order of suspension was passed under S.4 of the Removal from Service (Special Powers) Ordinance, 2000, in connection with the disciplinary proceedings set afoot against the civil servants‑‑‑Validity‑‑‑Applying definition as given in S.16 of the Civil Servants Act, 1973, such order of suspension, therefore, qualifies to be an order which relates to the 'terms anti conditions of service' of the civil servant.

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

‑‑‑‑Ss. 3, 9, 10 & 11‑‑‑Civil servant aggrieved of final order‑‑‑Remedies available under the provisions of Removal from Service (Special Powers) Ordinance, 2000‑‑‑Where the civil servant feels himself aggrieved of final order within the contemplation of S.9 of the Removal from Service (Special powers) Ordinance, 2000, the civil servant has' a right of appeal before the Service Tribunal notwithstanding anything to the contrary contained with respect to the filing of appeal against such a final order in. any other law.

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

‑‑‑‑S. 4 [as amended by Ordinance (XVIi of 1997)]‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑?maintainability‑‑‑Civil service‑‑‑Bar to jurisdiction of High Court‑‑?Principles‑‑‑Where remedy of appeal was available to the petitioners under S.4 of the Service Tribunals Act, 1973, as amended by Ordinance XVII of 1997, ouster of. jurisdiction of the High Court under Art. 199 of the Constitution was complete by virtue of the express language of Art.212 of the Constitution‑‑‑High Court had no jurisdiction to entertain the Constitutional petition filed by the petitioners under Art.199 of the Constitution as the same was barred by the express language of Art.212 of the Constitution.

Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290; Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another 1990 SCMR 999; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; Khalid Muhammad Wattoo v. Government of Punjab and others 1998 SCMR 2280 and Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545 ref.

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

‑‑‑‑S. 10‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Appeal before Service Tribunal‑‑‑Maintainability‑‑‑Suspension order‑‑‑Suspension order passed under S.10 of the Removal from Service (Special Powers) Ordinance, 2000 being not a final order, the same was nonetheless appealable before the Service Tribunal under S.4 of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997.

(h) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑

‑‑‑‑S. 10 [as amended]‑‑‑Service Tribunals Act (LXX of 1973), S.4 [as amended by, Ordinance XVII of 1997)‑‑‑Suspension order‑‑‑Appeal before Service Tribunal‑‑‑Provisions of S.10 of the Removal from Service (Special Powers) Ordinance, 2000 [as amended]‑‑‑Applicability‑‑‑Order of suspension is appealable before Service Tribunal under S.4. of the Service Tribunals Act, 1973 as amended by Ordinance XVII of 1997 and the provision of S.10 of the Removal from Service (Special Powers) Ordinance, 2000 [as amended] which provide for an appeal only against a final order have no application for the purpose of the appeal against such order.

(i) Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 5 & 6‑‑‑Disciplinary action against civil servant‑‑‑Procedure‑‑‑Inquiry before inquiry‑‑‑Validity‑‑‑When a civil servant is proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, the first step is to frame charge against the accused civil servant and at the time of framing the charge, no inquiry has to be held‑‑‑Inquiry is held only when charges have been communicated to the accused civil servant and the inquiry Officer or the Inquiry Committee is appointed for the purpose of Inquiry, where evidence is led before the Inquiry Officer or the Inquiry Committee, in support of the charges‑‑‑Civil servant who was proceeded against under the Government Servants (Efficiency and Discipline) Rules, 1973, had never demanded holding of an inquiry prior to the framing of charges nor had he ever alleged to have been condemned unheard on account of such an inquiry nor having been held as there could not be an inquiry before inquiry or a trial before trial.

(j) Removal from Service (Special Powers) Ordinance (XVII of 2000)‑‑‑

‑‑‑‑S. 4‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Arts.199 & 212‑‑‑Constitutional petition ‑‑‑Maintainability‑?Civil service‑‑‑Illegal order passed by Authorities‑‑‑Jurisdiction of High Court‑‑‑Civil servants were suspended under S.4. of the Removal from Service (Special Powers) Ordinance, 2000‑‑‑Instead of filing appeal before Service Tribunal, the civil servants preferred. Constitutional petition before High Court under Art.199 of the Constitution‑‑‑Validity‑‑‑Remedy of the aggrieved civil servants was to challenge the order of suspension in appeal before the Service Tribunal and have it struck down on the grounds of being illegal and violative of the provisions of Removal from Service (Special Powers) Ordinance, 2000 [as amended]‑‑‑Illegality of the action of the Government would not have the effect of conferring jurisdiction on High Court to entertain their petitions with respect to a dispute which fell squarely within the jurisdiction of the Service Tribunal in view of the express bar contained in Art.212 of the Constitution‑‑‑Constitutional petition was not maintainable in circumstances.

Muhammad Sadiq Khokhar v. Engineer‑in‑Chief, Pakistan Army, G.H.Q. and another 1985 SCMR 63; Akhtar Ali v. Province of Punjab PLD 1992 Lah. 127; Province of Punjab and another v. Ch. Muhammad Ashraf and another 2000 PLC (C.S.) 118 and Imran v. Presiding Officer, Punjab Special Court No.VI, Multan and 2 others PLD 1996 Lah. 542 ref.

(k) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Appeal before Service Tribunal‑‑‑Maintainability‑‑‑Infringement of Fundamental Rights‑‑?Contention of the civil servants was that the infringement of fundamental rights was a question which could not be gone into by the Service Tribunal and the appropriate forum for entertaining the dispute relating thereto was the High Court in its Constitutional jurisdiction‑‑‑Validity‑‑‑Such contention of the civil servants was misconceived‑‑‑Civil servant cannot by pass Service Tribunal by adding ground of violation of Fundamental Rights‑‑‑Service Tribunal shall have jurisdiction on a case which is founded on 1lre terms and conditions of service, even if it involves a question of Fundamental Rights‑‑‑Appeal before Service Tribunal was maintainable in circumstances.

I.A. Sharvani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 and Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others PLD 1977 Lah. 549 distinguished.

(l) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑-‑Vires of statute‑‑‑Jurisdiction' of Service Tribunal‑‑‑Scope‑‑‑Service Tribunal is competent to go into the vires of the statute or the statutory rules.

Iqnan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153 ref.

Sardar Muhammad Aslam and Amjad Hameed Ghauri for Petitioners.

Mansoor Ahmad, Dy. A.‑G. for CBR alongwith Raja Iftikhar Ahmad Javed, Standing Counsel for the Federal Government.

Sh. Izharul‑ul‑Haq and Vakeel Ahmad Khan, Member Administration, CBR.

Dates of hearing: 13th, 14th, 15th, 16th, 17th, 19th, 20th, 21st and 22nd .March, 2001.

2002 P L C (C.S.) 424

[Lahore High Court]

Before Muhammad Farrukh Khan, J

ADEEL YOUSUF and others

versus

THE DISTRICT HEALTH OFFICER SAHIWAL

Writ Petitions Nos. 7335 and 7336 of 2001 decided on 28th August, 2001.

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

‑‑‑‑Rr. 4 & 6‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212(3)‑‑­Constitutional petition‑ ‑‑Removal from service‑‑‑Civil servants who were removed from service after issuing show‑cause notice had challenged the order directly in Constitutional petition before High Court‑‑‑Validity‑‑‑Civil servants had efficacious remedy by way of filing an appeal before Appellate Authority and in case they were not satisfied with the decision of Appellate Authority, could approach the Service Tribunal and judgment of Tribunal could also be challenged before the Supreme Court after obtaining leave as laid down in Art.212(3) of Constitution of Pakistan (1973), but such course had not been adopted by the civil servant‑‑‑High Court having no jurisdiction to interfere in matters relating to the terms and conditions of service of civil servants‑‑‑Constitutional petition was not maintainable, which was dismissed, in circumstances.

Rai Ahmad Ali v. Province of Punjab and others 1999 SCMR 1832; Sajjad Ahmad paved Bhatti v. The Secretary, Establishment Division and 11 others 1999 SCMR 2186; Province of the Punjab through Secretary, Health Department v. Dr., S. Muhammad Zafar Bukhari PLD 1997 SC 351; Manzoor Hussain and others v. Deputy Commissioner/District Collector, Layyah and others 1997 PLC (C.S.) 965: Shah Abdur Razzaq Gillani v. Secretary, Government of N.‑W.F.P., Agriculture, Forests and Cooperative Department, Peshawar and 2 others 1988 PLC (C.S.I 361 and Amjad Latif and others v. C.B.R. and others 1996 CLC 1422 ref.

Ch. Muhammad Siddique Safdar for Petitioner.

2002 P L C (C.S.) 442

[Lahore high Court]

Before Ch. Ijaz Ahmad, Syed Jamshed Ali and Ijaz Ahmad Chaudhary, JJ

MUZAFFAR HUSSAIN

versus

THE SUPERINTENDENT OF POLICE, DISTRICT SIALKOT

Writ Petitions Nos. 10758, 11611, 11610, 10638„ 11614,. 10630, .12848, 10756, 10637, 10752, 11628, 11613, 11615, 10821, 10816, 10819, 10817, 13458, 10624, 13457, 10828, 10823,13459, 13456, 10837, 11774, 11776, 11773, 10829, 10825, 10820, 10818, 13455, 10822, 11627, 10755, 10620, 10631,10757, 11617, 11616, 11622,11619, 11620, 11621, 10632, 11623, 11625, 11626, 13818, 10750, 10629, 10636, 11545, 11544, 11543, 11795, 13453, 11793, 11794, 11586, 11582, 10576, 10824, 13905, 10520, 11792, 12364, 10623, 11618, 10754, 10749, 10619, 10621, 11624, 10751, 10622, 10760, 10753, 11542, 11612, 11056, 10432, 10433, 11775, 10836, 10563, 10839, 10562, 10682, 10565, 10840, 10768, 10838, 13556,13558, 11085; 110°2, 11083, 11080,13833, 11705, 11703, 11698, 11717, 13251,12470, 125:'‑1, 12132, 12121, 11735, 11783, 12790, 13392, 13381, 13389, 13390, 13387, 13386, 13382, 13384, 13385, 13388, 13383, 13391, 12715, 12824, 12822, 12825, 12823, 13915, 13914, 13917, 13389, 13400, 13460, 13656, 11557, 13420, 13394, 12615, 13396, 13682, 11449, 11821, 13413, 13395, 14304 of 2001, decided on 15th August, 2001.

(a) Bias‑‑‑

‑‑‑‑Concept‑‑‑Opinion expressed by a Judge in a particular case does not constitute bias‑‑‑‑Views formed by a particular Judge in a particular case depend upon circumstances of each case and the assistance rendered by the counsel.

Ghulam Rasool and others v. Crown PLD 1951 FC 62 and Islamic Republic of Pakistan v.‑ Abdul Wali Khan PLD 1976 SC 57 distinguished.

Ms. Benazir Bhutto v. The President of Pakistan and another 1992 SCMR 140 and Black's Law Dictionary, 6th Edn. ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 212(1)(a) & 199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Matter relating to terms and conditions of service‑‑‑Disciplinary action against civil servant‑‑‑Bar contained in Art.212 of the Constitution‑‑‑Applicability‑‑‑Such action is part of terms and conditions of service of civil servant as envisaged in Art.212(1)(a) of the Constitution‑‑Where issue raised in the Constitutional petition is germane to terms and conditions of service of petitioner, any grievance with regard thereto attracts the ouster clause of Art. 212 of the Constitution.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Matter relating to terms and conditions of service‑‑‑Interim order, assailing of‑‑‑Jurisdiction of High Court when final order cannot be interfered by High Court, interference in an interim order will manifestly frustrate the object of law‑‑­Even if no final order has been passed, High Court does not have jurisdiction under Art. 199 of the Constitution which is subject to the other provisions of the Constitution‑‑‑Provisions of Art.212 of the Constitution have the effect of curtailing jurisdiction of High Court under Art. 199 of the Constitution in respect of a matter to which the jurisdiction of the Tribunal extends.

Federation of Pakistan v. Sh. Abdul Aziz 1998 SCMR 91; Muhammad Azhar v. General Manager Operation PL.D 1990 Lah. 352; Turaj Ahmad Khan v. D.I.‑G. Police, MUltan.PLD 1982 Lab. 464; Ahsan Saleem v. I.G. Police, 1988 PLC ‑(C.S.) 193 and Dr. Ali Sana Shakir Bokhari v. Sabah Mohy‑ud‑Din 2000 PSC 103 distinguished.

Abdul Wahab Khan v. Government of the Punjab and others PLD 1989 SC 508; Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 290 and Abdul Rahim v. Government of Pakistan and others 1993 PLC (C.S.) 1364 ref.

(d) Interpretation of statutes-‑‑

‑‑‑‑ While interpreting provisions of a statute no such construction should be placed which may run counter to the object of tie law or. to render a provision of statute redundant.

(e) Constitution of Pakistan (1973)‑‑‑

Arts. 247 & 270‑A‑‑‑Bar of jurisdiction of Courts‑‑‑Scope‑‑‑Ouster contemplated in Arts.247 & 270‑A of the Constitution is total without providing any remedy to an aggrieved person.

(f) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 225 & 199‑‑‑Constitutional petition‑‑‑Bar of jurisdiction of High Court‑‑‑Election dispute‑‑‑Invocation of jurisdiction of High Court‑‑‑Ouster of jurisdiction under Art.2.25 of the Constitution is implied which has been given effect to by the superior Courts‑‑‑Where a person is disenfrenchized and is, therefore, not in a position to challenge election through election petition such person can competently invoke the Constitutional jurisdiction of High Court.

Wukala Mahaz Barai Tahafaz Dastoor v. Federation of Pakistan PLD 1998 SC 1263 ref.

(g) Constitution of Pakistan (1973)‑‑‑

. ‑‑‑‑Arts. 184(3) & 199‑‑‑Fundamental Rights, enforcement of‑‑‑Jurisdiction of Supreme Court‑‑‑Scope-‑‑Constraint of Art. 199 of the Constitution is not applicable in case of exercise of jurisdiction by the Supreme Court under Art. 184 of the Constitution for enforcement of Fundamental Rights.

Abdul Bari v. Government of Pakistan and 2 others PLD 1981 Kar. 2,90 and M: Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22 ref.

(h) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Service Tribunal, jurisdiction of‑‑‑Departmental Authority‑‑‑Distinction‑‑‑For the purposes of jurisdiction of Service Tribunal, distinction has to be drawn between an Authority who is not Departmental Authority and the Authority who is not, competent Departmental Authority‑‑‑Where order was passed by incompetent Departmental Authority, such order was appealable before the Tribunal.

Government of the Punjab and others v. Saleem Hussain Gardezi 1985 SCMR 443 and Muhammad Aslam Bajwa v. Federation of Pakistan PLD 1974 Lah. 545 ref.

(i) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 260(2)‑‑‑Act of Provincial Assembly‑‑‑Scope‑‑‑Ordinance is included in the definition of an "Act of the Provincial Assembly" under the provisions of the Constitution.

(j) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 128‑‑‑Provisional Constitution Order (I of 1999), Preamble‑‑‑Punjab Removal from Service (Special Powers) Ordinance (IV of 2000), S. 2‑‑­Promulgation of Ordinance by Governor ‑‑‑Vires of Punjab Removal from Service (Special Powers) Ordinance, 2000‑‑‑Vires of law could only be challenged on the ground of legislative incompetence or violation of any provision of the Constitution‑‑‑High Court in view of various provisions of Provisional Constitution Order, 1999 was unable to find either the legislative incompetency of the Governor or violation of any provision of the Constitution because with the promulgation of Provisional Constitution Order No.1 of 199, and various orders issued by the Chief Executive the provisions of the Constitution would be deemed to have been altered as even the power to amend the Constitution by the Chief Executive had been recognised by the Supreme Court‑‑‑Governor, in accordance with the provisions of Provisional Constitution Order No. 1 of 1499, was bound to act in accordance with the instructions of the Chief Executive, therefore, the. promulgation of the Punjab Removal from Service (Special Powers) Ordinance (IV of 2000) by the Governor was not in violation of Art. 128 of the Constitution.

(k) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)‑‑‑

‑‑‑‑Preamble‑‑‑Vires of Punjab Removal from Service (Special Powers) Ordinance, .2000 challenged on the ground that since the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, were already in existence there was no justification for promulgation of the Ordinance ‑‑‑Validity‑‑­Legislative Authority was not precluded from promulgating any legislative measure even in the occupied field‑‑‑In any case, the Punjab Removal from Service (Special Powers) Ordinance, 2000, had brought within its fold the employees of the Corporations of the Punjab Government which otherwise provided a justification for the said Ordinance.

Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 and Federation of Pakistan and others v. Muhammad Nawaz Khokhar and others PLD 2000 SC 26 ref.

(1) Vires of Legislation‑‑‑

‑‑‑‑ Vires of legislative measure is not open to the scrutiny of the superior Courts on the alleged ground of mala fides because legislative measures are presumed to be bona fide.

Fauji Foundation and another v. Shamim‑ur‑Rehman PLD 1983 SC 457 ref.

(m) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Vires of legislation‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Examination of vires of a law under which action is taken against a civil servant is within the competence of the Service Tribunal‑‑‑Validity of action against civil servant is required to be determined in the light of the relevant facts and the law applicable thereto‑‑‑Where the Tribunal finds that the law under which action is taken against a civil servant is not validly made, the action taken thereunder can be struck down.

Pir Sabir Shah v. Shad Muhammad Khan and others PLD 1995 SC 66; Fazal Ellahi Ijaz's case PLD 1977 Lah. 549: Iqan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153; Muhammad Asif v. 'Secretary to the Government of Punjab 1990 PLC (C.S.) 257 and J.B. Chopra and others v. Union of India AIR 1987 SC 357 ref.

(n) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)‑‑‑

‑‑‑‑S. 10‑‑‑Punjab Civil Servants Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Employees of a Corporation‑‑‑Provisions of Art.212 of the Constitution‑‑‑Applicability‑‑‑Where, by virtue of S.10 of Punjab Removal from Service (Special Powers) Ordinance, 2000, right of appeal has been provided to employees of Corporations of the Punjab Government against, any final order passed under the provisions of the Ordinance, in such cases as well the bar of jurisdiction as contained in Art.212 of the Constitution is applicable as the jurisdiction of the Punjab Service Tribunal stands enlarged and extends to the grievance of the servants of the Corporations of the Punjab Government‑‑‑Employees of Corporations were deemed to be civil servants for the purpose of Punjab Service Tribunals Act., 1974, and therefore, no separate declaration either in the Civil Servants Act. 1973 or in the Punjab Service Tribunals Act, 1974, was required to be made.

(o) Punjab Removal from Service (Special Polders) Ordinance (IV of 2000)‑‑‑

‑‑-‑Ss. 2 & 9‑‑‑Constitution of Pakistan (1973),. Art.190 ‑‑‑ Constitutional petition--- Maintainability-‑‑Employees of Corporation‑‑‑Master and servant relationship‑‑ ‑Provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000‑‑‑Effect‑‑‑In case of the employees of Corporations (WASA, FDA or Social Security Institute etc.), their services were not governed by any statutory rules and in case any action was taken against them, they could not invoke the Constitutional jurisdiction because their services were governed by the rule of master and servant‑‑‑Remedy provided under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000, was in the nature of an inroad on the principle of master and servant.

(p) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 175, 202, 203 & 212‑‑‑Service Tribunal not a parallel judicial system‑‑‑Service Tribunals are constituted under Art.212 of the Constitution‑‑‑To condemn a system as a parallel judicial system it should be one which is not backed by Arts. 175, 202, 203 or 212 of the Constitution‑‑­As appeals against the judgments of the Service Tribunal lie before the Supreme Court under Art.212(3) of the Constitution, the Service. Tribunals are not beyond the judicial system contemplated by the Constitution so as to constitute a. parallel judicial system.

PLD 1998 SC 1455; Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Maharram Ali v. Sh. Liaqat Hussain knd others v. Federation of Pakistan PLD 1999 SC 504 and Jamaat‑I‑Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111 ref.

(q) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑S.3(3)‑‑‑Chairman of Service Tribunal‑‑‑Qualification‑-‑Sitting Judge of High Court‑‑‑Eligibility threshhold, according to the provisions of S.3(3) of the Punjab Service Tribunals Act, 1974, is that the Chairman should be a person who is qualified to be a Judge of the High Court‑‑‑In absence of any specific prohibition, sitting Judge of High Court is not, therefore, excluded from the provision of S.3(3) of the Punjab Removal from Service (Special Powers) Ordinance, 2000.

(r) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑S.3(3)‑‑‑Punjab Service Tribunals‑--(Qualification of Members) Rules, 1978, R.2‑‑‑Appointment of Members of Service Tribunals‑‑­Consultation with Chief Justice of High Court‑‑‑Such appointment as is contemplated by S.3(3) of the Punjab Service Tribunals Act, 1974, and the Punjab Service Tribunals (Qualification of Members) Rules, 1978, a Member of the tribunal is to be a person who is not below the, status of the Secretary of the Provincial Government with at least 18 years' sere ice in Grade‑I7 aid above‑‑‑‑Service Tribunal is constituted by law framed under Art.212 of the Constitution and it cannot be inferred from Art.212 of the Constitution or the Punjab Service Tribunals Act, 1974 that the Members of the Tribunal should be appointed in consultation with the Chief Justice of High Court or they should belong to the judicial service.

(s) Punjab Service Tribunals Act (IX of 74)‑‑-

‑‑‑‑S.3(3)‑‑‑Constitution of Pakistan 11973;. Art.212 ‑‑‑Vires of S.3(3) of Punjab Service Tribunals Act. 1974‑‑‑Punjab Service Tribunals Act, 1974 is neither contrary Art.212 of the Constitution nor is in excess of legislative competence of' he Provincial Legislature.

(t) Punjab Service Tribunals Act (IX of 1974)‑‑‑

‑‑‑‑Ss. 3 & 3‑A‑‑‑Disposal of cases by Service Tribunal‑‑‑Administration of justice‑‑‑Guidelines to Provincial Government‑‑‑High Court observed that if one Member who belonged to the executive constituted .a Tribunal, it was likely that some cases in which the orders of the Governor or senior officers were attacked, the member might not be able to act fairly, justly and independently, thereby eroding the concept of fair administration of justice‑‑­Object of S.3‑A of the Punjab Service Tribunals Act, 1974, was to enable the Tribunal to dispose of large number of cases because if every case was required to be heard by the Tribunal as contemplated by S.3 of the Punjab Service Tribunals Act, 1974, the disposal of cases before the Tribunal might be retarded‑‑‑High Court being conscious of the fact that the composition of the Tribunal to hear a particular case should be such as to inspire public confidence and ensure that the stream of justice flowed unpolluted advised that the situation where the order before the Tribunal was passed by Governor or by any senior officers could be remedied by the Chairman of the Tribunal by directing distribution of work of the Tribunal in such a manner that such cases were to be heard by Tribunal comprising, inter alia, the Chairman and that the Tribunal should also have equal number of judicial members from amongst the persons qualified to be Judge of High Court and to be appointed after meaningful consultation with the Chief Justice of High Court and every Bench should l,e headed by at least one judicial member so as to eliminate any misgiving or apprehension of aggrieved persons as regards the independent working of the Tribunal‑‑‑High Court clarified that the advice was not to be construed as a direction of High Court to legislate but to improve the quality of justice by the Tribunal, the same Was required to be done.

(u) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)‑‑‑

‑‑‑‑Ss.2 & 9‑‑‑Constitution of Pakistan (1973), Arts.199' & 212‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Service matter‑‑‑Employees of corporations‑‑‑Show‑cause notices were issued to the petitioners under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000‑‑‑Such notices were assailed before High Court in exercise of Constitutional jurisdiction‑‑‑Validity‑-‑Where on account of bar of Art.212 of the Constitution the Constitutional petition was not maintainable, it was not necessary to examine the question as to the maintainability of Constitutional petition against a show‑cause notice or the other grounds of attack‑‑‑Petition was dismissed in circumstances.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Alamgir v. Divisional Forest Officer, Multan and others 1993 . SCMR 603; Sh. Mudasar Ahmad v. Government of Pakistan and others 1991 PLC (C.S.) 1047; Government of the Punjab and another v. S. Tassudaq Hussain Bokhari PLD 1986 SC 162; Muhammad Ashraf and others v. The State 1995 SCMR 626; Muhammad Akbar v. S.S.P., Peshawr and others 1995 PLC (C.S.) 349; Pakistan and others v. Public at Large PLD 1987 SC 304; SYed Zafar Ali Shah and others v. General Pervaiz Musharaf and others PLD 2000 SC 869; Administrator, District Council, Larkana v. Gulab Khan and 5 others 2001 SCMR 1320; Secretary to Government of N.‑W.F.P. v. Sadullah Khan 1996 SCMR 413; A.D.B.P. v. Muhammad Anwar Bajwa and others 1994 SCMR 852; Muhammad Afzal Khan v. Karachi Development Authority and 6 others PLD 1984 Kar. 114; Edulji Dinshaw Limited v. Income Tax Officer PLD 1990 SC 399; Ataullah Mehr v. Punjab ' Government 1983 CLC 2903; Messrs East & West Steampship Company v. Pakistan and others PLD 1958 SC 41; Subedar Major Gul Zaman v. The Settlement, Commissioner, Lahore PLD 1976 Lah. 1454; I.A. Sherwani's case 1991 SCMR 1041; The State v. Zia‑ur‑Rehman and others PLD, 1973 SC 49; Federation of Pakistan and another v Malik Ghulam Mustafa Khar PLD 1989 SC 26; Malik Ghulam Mustafa Khar v. Pakistan and others PLD 1988 Lah. 49; Nabi Bakhsh and another v. The State and others PLD 1991 Pesh. 10; Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1992 SC 473; Aftab Shahban Mirani v. President of Pakistan and others 1998 SCMR 1863; Messrs Chenab Cement Product (.Private) Ltd. v. Banking Tribunal, Lahore and others PLD 1996 Lah. 672; Government of Sindh v. Sharaf Faridi and others PLD 1994 SC 105; Al‑Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; S.P. Sampath Kumar v. Union of India and others AIR 1987 SC 386; Syed Aftab Ahmad v. K.E.S.C. and others 1999 SCMR 197; Nabi Bakhsh Khoso v. Branch Manager, National Bank of Pakistan 2001 SCMR 1017; A.R. Niazi, Advocate v. Pakistan and others PLD 1968 SC 119; Virasat Ullah v. Bashir Ahmad & another 1969 SCMR 154; Nazir Ahmad Sheikh v. Government of Sindh and another 1998 PLC (C.S.) 607; Khalil‑ur‑Rehman and others v. Government of Pakistan and others PLD 1981 Kar. 750; Shaheen Akhtar v. Government of Punjab and others 1998 PLC (C.S.) 70; Tahira Fazeelat and others v. Province of Punjab and others 1998 PLC (C.S.) 268; Muhammad Ashraf Chaudhry v. Chairman, CBR 2001 PLC (C.S.) 781; Inspector-­General of Police v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159; Haji Ghulam Mustafa v. Secretary, Agriculture Department, Punjab 1973 PLC 308; Mian Muhammad Abdullah v. The Road Transport Corporation, Lahore PLD 1964 Lah. 743; Major Muhammad Nawaz v. Pakistan PLD 1970 Lah. 811; PLD 2001 SC 568; Jamaat‑I‑Islami Pakistan v. Federation of Pakistan PLD 2000 SC 111; PLD 2001 SC 607; Khalid Mahmood Wattoo v. Government of the Punjab and others 1998 SCMR 2280; Syed Mazhar Hussain Bukhari v. Secretary, Government of Punjab and others 1998 SCMR 1948; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129; National Bank of Pakistan v. Malik Manzoor Ahmad 1995 CLC 267; Habib Bank Limited and others v. Syed Zia‑ul-­Hassan Kazmi 1998 SCMR 60 and Waseem Sajjad v. Federation of Pakistan through Secretary PLD 2001 SC 2‑33 ref.

Maqbool Elahi Malik, A.‑G. (Punjab) and Shan Gull with Fauzi Zafar, A.A. ‑G. for Respondent.

Dates of hearing: 19th, 23rd to 26th, 30th and 31st July, 2001.

2002 P L C (C.S.) 606

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD ASLAM ZIA

versus

ADMINISTRATOR, PUNJAB AGRICULTURAL DEVELOPMENT AND SUPPLIES CORPORATION (DEFUNCT). 4‑LYTTON ROAD, LAHORE and 4 others

Writ Petition No. 20772 Of 2001, decided on 14th January, 2002.

(a) Punjab Office of the Ombudsman Ordinance (IV of 1997)‑‑‑

‑‑‑‑Ss. 9 & 32‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Provincial Ombudsman, jurisdiction of‑‑‑Matters relating to terms and conditions of service‑‑‑Time‑barred appeal‑‑‑Petitioner was being proceeded against on the charge of embezzlement, and during the proceedings the petitioner accepted Golden Handshake Scheme ‑‑‑ Authorities withheld the terminal benefits of the petitioner‑‑‑Complaint was filed before the Provincial Ombudsman against the act of the Authorities‑‑‑Ombudsman allowed the complaint while in appeal the order passed by the Ombudsman was set aside and that of the Authorities was restored‑‑‑Plea raised by the petitioner was that the appeal was time‑barred‑‑‑Validity‑‑‑Ombudsman had no jurisdiction to entertain matters relating to terms and conditions of service‑‑‑Where the Ombudsman failed to show that he had the jurisdiction to entertain the complaint and he had passed the order which was without jurisdiction, such order passed by the Ombudsman was void and without jurisdiction‑‑‑Petitioner having failed to show whether the Ombudsman had the authority or power to adjudicate upon the matter relating to the terms and conditions of service, High Court declined to interfere with the orders passed by the Authorities‑‑‑Constitutional petition was dismissed in circumstances.

Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Munawar Kashan and another v. Government‑ of Balochistan and 2 others 2000 MLD 2015; Farooq Ahmad Mehesar v. Government of Sindh and another 2001 PLC (C.S.) 555; Mst. Parveen Begum v. Habib Gul and another 1997 MLD 2473 and Mustajab Hasan and others v. Director, Trade Organizations and others 1996 CLC 1725 ref.

(b) Void order‑‑‑

‑‑‑‑Limitation‑‑‑Where appeal was filed after lapse of time against void order, the appeal could be decided on merits by Appellate Authority as the limitation did not run against the void order.

Munawar Kashan's case 2000 MLD 2015 and Farooq Ahmad Mehesar's case 2001 PLC (C.S.) 555 ref.

Nazir Ahmad Ghazi for Petitioner.

Hameed Ullah Khan for Respondents.

M. Shan Gul, Advocate on behalf of A.‑G.

2002 P L C (C.S.) 634

[Lahore High Court]

Before Muhammad Sair Ali, J

Mst. ZAITOON BIBI

versus

ACCOUNTANT‑GENERAL, PUNJAB, LAHORE and 2 others

Writ Petition No.4751 of 1994, heard on 11th June, 2001.

(a) Punjab Civil Servants Act (VBI of 1974)‑‑‑

‑‑‑‑S. 18‑‑‑Civil Services Pension Rules, 1963, Rr.4.7 & 4.9‑‑‑Pension and gratuity‑‑‑Family of civil servant‑‑‑Entitlement‑‑‑Family of a Government servant is entitled to receive gratuity from the Government after his death under the provisions of S. 18 of Punjab Civil Servants Act, 1974, and R.4.9 of Civil Services Pension Rules, 1963‑‑‑Where the deceased Government servant does not leave a valid nomination or a‑family as defined in R.4.7(1) of Civil Services Pension Rules, 1963, the Government is not obliged to pay such gratuity.

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.‑18‑‑‑Civil Services Pension Rules, 1963, R.4.7(l)(c)(d) ‑‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Gratuity, payment of‑‑‑"Family"‑‑‑Definition‑‑‑Children and widow of deceased Government servant are included in definition of family in ternV of cls. (c) & (d) of R.4.7(1) of Civil Services Pension Rules, 1963‑‑‑Government servant died just after few days of his retirement‑‑‑Children and widow of the deceased Government servant were denied payment of gratuity by Authorities‑‑-Validity‑‑‑Children and widow of the Government servant are included in the definition of family as defined under cls. (c) & (d) of Civil Servants Pension Rules, 1963, and they are entitled to receive gratuity after the death of the Government servant‑‑‑Where the deceased Government servant was unable to apply and fulfil the formality, such inability could not be equated with inaction or failure‑‑‑Procedural technicality should not be allowed to stand in the way of substantial justice and grant of right‑‑‑Constitutional petition was allowed accordingly.

(c) Words and phrases‑‑‑

‑‑‑‑"Failure to perform act"‑‑‑Connotation "Failure" in law involves neglect inaction; inordinate delay, indolence and deliberate non‑performance.

Abdul Aziz Qureshi for Petitioner.

Mrs. Salma Malik, A.A.G. for Respondent.

Date of hearing: 11th June, 2001.

2002 P L C (C.S.) 647

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD KHAN

versus

DIRECTOR (MALIK SHER MUHAMMAD), LOCAL GOVERNMENT AND RURAL DEVELOPMENT, SARGODHA DEVISION, SARGODHA through Secretary and another

Writ Petition No.2751 of 1996, heard on 12th December, 2001.

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

‑‑‑‑Rr. 4, 6 & 7‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑­Constitutional, petition‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service after issuing hint show‑cause notice for his wilful absence from duty for a long period‑‑‑Validity‑‑‑Civil servant could have availed the remedy by filing an appeal against his dismissal order before the Competent Authority or before the Service Tribunal‑‑­Constitutional petition directly filed by the civil servant was not maintainable on account of bar under Art.212 of the Constitution of Pakistan (1973).

Abdul Wahab's case PLD 1989 SC 508; I.A. Sherwani's case 1991 SCMR 1041; 1998 SCMR 1948; Dr. Ahmad Suleman Waris's case PLD 1997 SC 382; 1994 SCMR 2213; Zahid Akhtar's case PLD 1995 SC 530; Syed Mazhar Hussain Bukhari's case 1998 SCMR 1984 and Khalid Mahmood Wattoo's case 1998 SCMR 2280 ref.

Ch. Manawar Ahmed Javed for Petitioner.

Muhammad Shan Gul for Respondents.

Date of hearing: 12th December, 2001.

2002 P L C (C.S.) 665

[Lahore High Court]

Before Tanvir Bashir Ansari, J

RAHMATULLAH

versus

MUSHTAQ AHMED

Civil Revision No. 3‑D of 1989/BWP, decided on 25th May, 2001.

Specific Relief Act (I of 1877)‑‑‑

‑‑‑‑S.42‑‑‑Punjab Municipal Act (III of 1911.), S.1 [as‑‑amended by Punjab Municipal (West Pakistan (Amendment) Act (VIII of 1973)]‑‑Punjab Municipal Committees Service Rules, 1969, Rs. 5, 6 & 7‑‑‑Suit for declaration‑‑‑Maintainability‑‑‑Jurisdiction of Civil Court‑‑‑Whether employees of Municipal Committee were civil servants‑‑‑Plaintiff had claimed that he was senior to the defendant on account of his prior appointment‑‑‑Claim of plaintiff was resisted by the defendant on the ground that plaintiff being a civil servant, Civil Court had no jurisdiction in respect of the terms and conditions of his service‑‑‑Both the Courts below decreed suit holding that the employees of Municipal Committee were not civil servants and that the Civil Court had the jurisdiction in the matter‑‑­Validity‑‑‑Municipal Committee constituted under relevant municipal law, functioned as a body corporate having a perpetual succession‑‑‑Municipal Committee was an independent entity and more or less autonomous body distinct and separate from the Government and would not function as a department of the Government and its employees were not appointed by the Provincial Government‑‑‑Plaintiff or the defendant not belonging to the Local Council Service, could not be said to be civil servants‑‑‑Both the Courts had come to a concurrent finding of fact that the plaintiff having been inducted .into service earlier' in point of time as compared to the defendant, was entitled to claim ‑seniority as against the defendant‑‑‑In absence of any misreading or non‑reading of evidence and legal infirmity in concurrent judgments of the Courts below, revision against said judgment was dismissed:

Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC 45; Government of West Pakistan v. Fateh Ullah Khan PLD 1960 SC 105; Province of West Pakistan v. Muhammad Akhtar Quresht and others PLD 1962 SC 428; Manzur Ahmad and others v. Ch. Muhammad Ishaq and others PLD 1964 SC 17 and Dr. Abdul Hafeez v. Chairman. Municipal Corporation, Lahore and others PLD 1967 Lah. 1251 ref.

M.M. Bhatti for Appellant.

Rana Sardar Ahmed for Respondent No. 1.

Mian Muhammad Bashir, Asstt: A.‑G. for Respondent No.3.

Date of hearing: 23rd May, 2001.

2002 P L C (C.S.) 670

[Lahore High Court]

Before Muhammad Saeed Akhtar, J

NADEEM HASAN TABANI through Attorney

versus

FEDERATION OF PAKISTAN through Ministry of Finance, Islamabad and 3 others

Writ Petitions Nos.592 of 1998 heard on 6th February, 2002.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199-‑‑Constitutional petition‑‑‑Bank employee‑‑‑Retrenchment policy‑‑‑Termination of service‑‑‑Service benefits‑‑‑Petitioners were employed by the Bank in foreign country and all benefits according to the law of that country were given to the petitioners at the time of termination of their services‑‑‑Petitioners claimed from the Bank the benefits given to its employees in Pakistan under the retrenchment scheme‑‑‑Validity‑‑‑Where the petitioners had availed all their benefits under the laws of the foreign country available to them, and received the payments/benefits under the law, they could not be allowed to have a volte face and say that the benefits given to the employees of the Bank based in Pakistan should also be offered to them‑‑‑Petitioners having accepted the compensation, as permissible to them abroad no benefit could be given to them in accordance with the retrenchment policy applicable in Pakistan‑‑‑Constitutional Petition was dismissed in circumstances.

United Bank Ltd. v. Shahmim Ahmed Khan and 41 others PLD 1999 SC 990 ref.

Abid Hassan Minto for Petitioners.

Shahid Anwar Bajwa for Respondents.

Date of hearing: 6th February, 2002.

2002 P L C (C.S.) 682

[Lahore High Court]

Before M. Javed Buttar, J

AURANGZEB

versus

CHAIRMAN, IMPROVEMENT TRUST, MURREE and 2 others

Writ Petition No.626 of 1988, heard on 7th June, 2001.

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

‑‑‑‑Rr. 3(a), 4(1)(b)(iv) & 8‑‑‑Revised Punjab Leave Rules, 1981, R.35‑‑­Punjab Town Improvement Trusts Service Rules, 1945, R.21‑‑‑Constitution of Pakistan (1973), Art. 199‑‑-Constitutional petition‑‑‑Dismissal from service‑‑‑Wilful absence‑‑‑Petitioner was dismissed from service after charge‑sheet on allegations of wilful absence from duty and false claim of leave on medical grounds‑‑‑Fact of petitioner's illness was thoroughly probed into by the Enquiry Officer and petitioner's story in that regard, his a witnesses and the medical certificate, were all proved to be false and dubiously manoeuvred and it was also shown that petitioner was off and on habitual absentee‑‑‑Such findings of fact were not open to interference by High Court in exercise of its Constitutional jurisdiction‑‑‑Allegations of wilful absence and false claim of leave on medial grounds having been proved against the petitioner major penalty of dismissal from service was rightly imposed or him.

Dr. Ahdul‑‑Majeed Memon v. Province of Sindh through Secretary to Government of Sindh, Health Department and 2 others 1984 PLC (C.S.)) 518; Cashier, United Bank Limited v. The State 1987 PLC (C.S.) 122 and Allah Ditta Waheed v. L.M.C. and another 1983 PLC (C.S.) 67 ref.

Muhammad lkram Ch. for Appellant.

Waqar Hanif Bhatti for Respondents.

Date of hearing: 7th June, 2001.

2002 P L C (C.S.) 705

[Lahore High Court]

Before Tanvir Bashir Ansari, J

DIRECTOR, PUNJAB EMPLOYEES

versus

UNION SOCIAL SECURITY

Writ Petition No. 36 of 1990/BWP, heard on 16th May, 2001.

Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑S. 3‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 1(3)(f), 2(ix), (xiv), 7 & 8(3)‑‑‑Social Security Institution whether an Industry or Establishment‑‑‑Registration of trade union‑‑‑Registrar of Trade Unions refused the registration of trade union of the workers of Social Security Institution on ground that Institution in question did not fall within the ambit of Industrial Relations Ordinance, 1969 for the purpose of registration of the trade union‑‑‑Labour Court setting aside order of the Registrar, Trade Unions, directed the registration of trade union‑‑‑Validity‑‑‑Social Security Institution squarely fell within definition of "industry" and "establishment" as defined in S.2(ix) & (xiv) of Industrial Relations Ordinance, 1969 and was not excluded under S.1(3)(f) of said. Ordinance and its employees could lawfully form and register their trade union in accordance with the provisions of Industrial Relations Ordinance, 1969.

Punjab Employees' Social Security Non‑Gazetted Staff Union, Lyallpur v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1979 Lah. 448 and K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097 ref.

Muhammad Jaffar Hashmi for Petitioner.

Shamsher Iqbal Chughtai for Respondent.

Date of hearing: 16th May; 2001.

2002 P L C (C.S.) 712

[Lahore High Court]

Before Syed Jamshed Ali, JJ

MUHAMMAD AZAM

versus

SENIOR SUPERINTENDENT OF POLICE, LAHORE

Writ Petition No.49 of 2000, heard on 25th October, 2001.

Civil service‑‑‑

‑‑‑‑ Selection for appointment‑‑‑Mode of‑‑‑Selection solely on basis of interview without regard to performance in written examination, could not be said to be an acceptable mode of selection because in that case Appointing Authority would have absolute discretion to reject or acccpt a candidate at its sweet‑will, besides rendering written examination a meaningless formality‑‑­When selection .was to be based on written examination and interview, then marks allocated for interview should bear a reasonable proportion to marks for written examination because allocation of excessive marks for interview could also invest arbitrary discretion in the Selection Authority‑‑‑Total marks obtained by a candidate in written examination and interview should be the basis for selection.

Dr. Ihsan‑ul‑Haq for Petitioner.

Malik Akhtar Hussain Awan, Addl. A.G. with Shahid Rashid Inspector Estab, S.S.P. Office for Respondent.

Date of hearing: 25th October, 2001.

2002 P L C (C.S.) 720

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

IFTIKHARULLAH KHAN, SUB DIVISIONAL OFFICER and others

versus

THE SERCRETARY, IRRIGATION AND POWER DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 3 others

Writ Petitions Nos.9073, 22034, 22430, 8119, 19710, 19635, 9173, 21678 and 19709 of 1999, decided on 1st February, 2002.

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

‑‑‑‑S.11‑‑‑Punjab Civil Servants (Appointment and Conditions) Rules, 1974, R.10(b)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Seniority‑‑‑Current charge basis‑‑‑Reversion without notice‑‑­Dispute of the civil servants was with regard to the preparation of seniority list‑‑‑Contention of the civil servant, was that they had been promoted on current charge basis and while preparing the seniority list their seniority was not maintained on the basis of the promotion‑‑‑Validity‑‑‑Where a civil servant was posted on current charge basis against stop‑gap arrangement, such civil servant could be reverted without any notice under R. 10(b) of the Punjab Civil Servants Act (Appointment and Conditions) Rules, 1974 read with S.11 of the Punjab Civil Servants Act, 1974‑‑‑Civil servants, in the present case, had no case and the seniority lists were rightly prepared by the Department in accordance with the Rules‑‑‑High Court declined to issue any direction to the Authorities for considering the civil servants for promotion by ignoring the seniority lists‑‑‑Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Seniority list of civil servants, preparation of‑‑‑Validity‑‑‑Preparation of a seniority list is a matter which relates to the terms and conditions of civil servant and High Court has no jurisdiction to entertain the same in Constitutional jurisdiction under Art. 199 of the Constitution.

L.H. Shaikh v. General Manager, Karachi Telecommunication Region and others 1974 SCMR 82; Province of West Pakistan v. Muhammad Akhtar Qureshi and others PLD 1962 SC 428; Manzur Ahmad P.F.S. v. Muhammad Raft, P.F.S. PLD 1961 SC 166; Zahid Akhtar's case PLD 1995 SC 530; Pervaiz Aslam v. Ilyas Hussain Shah 1999 SCMR 784 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 ref.

Ch. Mushtaq Ahmad and Sh. Munir Ahmad for Petitioners.

Muhammad Shan Gull for A.‑G.

2002 P L C (C.S.) 750

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUHAMMAD ASLAM

versus

PUNJAB SMALL INDUSTRIES CORPORATION and others

Writ Petition No. 18346 of of 2000, decided on 15th September. 2000

Punjab Small Industries Corporation Act (XV of 1973)‑‑‑

‑‑‑‑S. 15‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Suspension of employee of Corporation‑‑­Validity‑‑‑Employee had challenged his suspension contending that order had been passed by incompetent Authority‑‑‑Suspension being temporary deprivation of one's office or position, employee was well within his right to raise all legal and factual objections before the Competent Authority and Authority was duty‑bound to consider the objections at the time of passing final order against him ‑‑‑Suspension was not a penalty and the punishment, if any, was to be imposed on the suspended employee only after the completion of the inquiry and on the basis of the result of the inquiry.

Mian Munawar‑ud‑Din's case PLD 1979 Note 80 at p.56: M.S. Khawaja's case PLD 1966 Lah. 1006; Mian Muhammad Hayat's case PLD 1964 SC 324: W.P No.4162 of 1987; M. Nauman's case PLD 1964 Dacca 671; Mosharuff Hussain's case PLD 1968 Dacca 133; Muhammad Haroon's case PLD 1978 Lah. 1108; Mian Muhammad Hayat's case PLD 1964 SC 321: Sayed Zameer‑ud‑Din's case 1977 PLC (C.S.) 702; Akhtar Ali's case PLD 1992 Lah. 127; Abdul Karim's case 1986 CLC 1942 and Ghulam Dastagir Bari's case PLD 1987 Lah. 39 ref.

Syed Najaf Hussain Shah for Petitioner.

M.N. Baig for Respondents.

2002 P L C (C.S.) 762

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

Rao FAISAL SIKANDAR

versus

PAKISTAN INTERNATIONAL AIRLINES CORPORATION through Chairman, Karachi and 4 others

Writ Petition Nos. 7518, 25483, .75.19 of 1998 .anti 210 of 1999, heard on 30th January, 2002.

(a) Service Tribunals ActAXX of 1973)‑--

‑‑‑‑S.2‑A‑‑‑Employees of Pakistan International Airlines Corporation‑‑­Status‑‑‑Such employees after insertion of S.2‑A in the Service Tribunals Act, 1973, are civil servants.

(b) Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 19136‑‑-

‑‑‑Regin. 85‑‑‑Constitution, of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Alternate remedy‑‑‑Service Rules applicable to the petitioners provided for filing of appeal to the Managing Director under Regln. 85 of the Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1986, which governed the terms and conditions of the Pakistan International Airlines Corporation's employees‑‑‑Adequate remedy was available to the petitioners by filing of appeal before Managing Director‑‑‑Constitutional petition was not maintainable in circumstances.

PIA and others v. Koural Channa and others 1999 PLC (C.S:) 1539 ref.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 212‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitutional petition‑‑ ‑Service matter‑-‑Jurisdiction of High Court in exercise of Art.199 of the Constitution‑‑‑Scope‑‑‑Even if the orders passed are mala fide, ultra vires, cbram non judice or without jurisdiction, the same come within the ambit of Service Tribunal and the jurisdiction of High Court is excluded due to bar contained in Art.212 of the Constitution.

I.A. Sharwam and others v. Government of Pakistan 1991 SCMR 1041; United Bank Limited v. Mian ManzoPr Ahmad and others 2000 SCMR 749; Asadullah Rashid v. Haji Muhammad Munir and others 1998 SCMR 2129; Miss Rukhsana Ijaz v. Secretary, Education Punjab and others 1997 SCMR 167 and Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 ref.

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

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Issuance of show‑cause notice‑‑‑Petitioners were employees of Pakistan International Airlines Corporation and were issued show‑cause notices for removal from service ‑‑‑Validity‑‑‑Inerference by High Court in Constitutional jurisdiction was barred` as the petition had been filed only against show‑cause notice, issued to the petitioners‑‑‑Issuance of show‑cause notice was no adverse action and it was an interim order and an interim order was step towards final order eventually to be passed, which could only be challenged before Service Tribunal‑‑‑High Court declined to interfere with such interim orders‑‑‑Constitutional petition was dismissed in circumstances.

Writ Petition No. 1062 of 1998; Maqsood Ahmad v. Province of N.‑W.F.P. through Chief Secretary 2001 PLC (C.S.) 1031; Pakistan v. Muhammad Himay Ataullah.Farrukh PLD 1969 SC 407; Chief Secretary v. Sher Muhammad Makhdoom PLD 1991 SC 973; I.A. Sharwani and others v. Government of Pakistan 1991 SCMR 1041; Mushtsq Ahmed Sabto and others v. Federation of Pakistan 2001 PLC (C.S.) 623; Mujeebullah Aijaz v. Director‑General PLD 1980 Quetta 58; Muhammad Yar Buttar and 4 others v. Board of Governors 1999 SCMR 819; Mubin‑ul‑Haq Siddiqui v. Muhammad Iqbal and others PLD 1964 (W.P.) Lah. 23; Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Maj.‑Gen. (Retd.) Mian Ghulam Jilani v. The Federal Government PLD 1975 Lah. 65; Jamshed Ahmad Khan v. Aurangzeb Khan and 47 others PLD 1964 (W.P.) Pesh. 250; AIR 1959 SC 814; S.M. Ismail _ Naqvi and 238 others v. Federation of Pakistan 2000 PLC (C.S.) 1135; kbdur Rehman v. Secretary, Economic Affairs Division 1983 PLC (C.S.) 98; Raziuddin v. Chairman, PIAC and 2 others PLD 1992 SC 531; Munawar Ali v. Government of Sindh and 2 others 1989 PLC (C.S.) 61; Pakistan Engineering Council and 2 others v. Engr. I. A Osmani and 3 others 1991 SCMR 654; Syed Afzal Husain Shah and another v. Director‑General 1996 PLC (C.S.) 628; Civil Appeals Nos.330 to 337, 436 of 1999; Abdul Bari's case PL.D 1981 Kar. 290; Muhammad Mahmood Ali v. Pakistan through Secretary, Ministry of Finance 1984 CLC 142 and Nazir Ahmed Sheikh V. Government of Sindh through Secretary, S&GAD Sindh, Karachi and another 1998 PLC (C.S.) 607 ref.

Sh. Tallat Farooq and Asmat Kamal Khan for Petitioner.

Anwar Kamal and Ch. Abdul Saftar for Respondent.

Date of hearing: 30th January, 2002.

2002 P L C (C.S.) 779

[Lahore High Court]

Before Karamat Nazir Bhandari, J

TARIQ JAMIL RANA

versus

PROVINCIAL OMBUDSMAN (MOHTASIB), PUNJAB 2‑BANK ROAD, LAHORE and others

Writ Petition No. 18483 of 1998, decided on 12th April, 1999.

Punjab Office of the Ombudsman Act (X of 1997)‑‑‑

‑‑‑‑S.9(2)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Civil service ‑‑‑Promotion‑‑‑Jurisdiction of Ombudsman‑‑‑Civil servant and co‑civil servant had rival claims of promotion‑‑‑Ombudsman, on the application of co‑civil servant, called report in respect of his claim and in the, said report claim of co‑civil servant was denied‑‑‑Ombudsman in his order, directed Authority to consider claim of co‑civil servant with regard to his promotion in the light of the relevant rules‑‑‑Validity‑‑‑Under provisions of S.9(2) of Punjab Office of the Ombudsman Act, 1997, jurisdiction of Ombudsman to entertain for investigation any complaint by or on behalf of a public servant in respect of any personal grievance relating to his service being barred, order of Ombudsman, even if it was only in the nature of recommendation, was illegal.

Ijaz Anwar for Petitioner.

Muhammad Amin Lone, Asstt. A.‑G., Punjab for Respondent No. 1.

N.A. Butt for Respondent No.2.

Date of hearing: 12th April, 1999.

2002 P L C (C.S.) 789

[Lahore High Court]

Before Muhammad Nawaz Abbasi, J

ABDUL HAMEED

versus

THE PUNJAB PROVINCIAL COOPERATIVE BANK LIMITED

Writ Petition No. 2181 of 1999, heard on 31st December, 2001.

Federal Bank for Cooperatives and Regulation of Cooperative Banking Ordinance (XL of 1976)‑‑‑

‑‑‑‑S.42(4)‑‑‑Punjab Provincial Cooperative Bank Limited (Staff) Service Rules, 1963, R.3‑‑‑Punjab Provincial, Cooperative Bank Limited (Staff) Service Rules, 1986, Preamble‑‑‑Constitution of Pakistan (1973), Art.199‑‑­ Constitutional petition‑‑‑Seniority of Bank employees‑‑‑Petitioner was employee of the Bank and disputed the seniority list‑‑‑Dispute was not considered either by the Registrar of Cooperative Societies or by the Secretary in the light of the Punjab Provincial Cooperative Bank Limited Staff Service Rules, 1963‑‑ Petitioner was discharging his functions regularly as Manager on promulgation of establishment discharging his Federal Bank for Cooperatives and Regulation of Cooperative Banking Ordinance, 1976, and therefore, a dispute relating to his seniority was essentially required to be determined under the existing rules namely Punjab Provincial Cooperative Bank Ltd (Staff Service Rules, 1986 in the cadre of Manager but he was placed as Sub‑Accountant in the provisional seniority list published in the year 1981‑‑‑Registrar arid the Secretary, Cooperative Societies while disposing of his representation treated the matter as past and closed transaction with observation that the petitioner having failed to challenge the, seniority list dated 21‑11‑1996, by way of appeal could not retrace his steps for the purpose of seniority to the ‑period prior to the promulgation of Federal Bank for Cooperatives and Regulation of Cooperative Banking Ordinance, 1976‑‑‑Validity‑‑‑Dispute relating to the seniority of the petitioner was required to be dealt with under the subsequent Rules published in the year 1986, but neither the Registrar nor the Secretary had considered the case of the petitioner under the Rules‑‑‑Claim of the petitioner to determine his seniority as Manager from his date of appointment as Manager, on regular basis in the years 1976, was not' considered either in the light of the previous rules or existing rules and in consequence thereof the right of promotion of the petitioner was prejudiced, order passed by the Registrar; Cooperative Societies and Secretary, Cooperative Societies were without lawfull authority and the same were set aside‑‑‑Case was remanded to the Authorities for decision afresh‑‑‑Constitutional petition was allowed in circumstances.

Raja Abdul Ghafoor for Petitioner.

Asif Azeem Khan for Respondent.

Date of hearing. 31st December, 2001.

2002 P L C (C.S.) 816

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD AMIN MUGHAL

Versus

SECRETARY LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT/CHAIRMAN PUNJAB LOCAL GOVERNMENT BOARD, GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE and 4 others

Writ Petition No. 20756 of 2001, decided on 31st January, 2002.

Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)‑‑‑---

‑‑‑‑Ss. 2(c)(d), 4, 5 & 10‑‑‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Arts.199 & 212‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Suspension order‑‑‑Validity‑‑‑Provision of S.10 of Punjab Removal from Service (Special Powers) Ordinance, 2000 which was applicable to the case provided that appeal could be preferred to Punjab Service Tribunal under Punjab Service Dibunal Act, 1974‑‑‑Petitioner, in circumstances, could not challenge order of his suspension in Constitutional petition in view of bar under Art.212 of Constitution of Pakistan (1973) ­Suspenstion order or holding of inquiry against civil servant being step towards passing of final order, Constitutional petition was not maintainable against ‑inch interim order‑‑ ‑Petitioner, if found guilty of charge and some action was taken against him, he would have remedy to file appeal before the Service Tribunal‑‑‑High Court, in its Constitutional jurisdiction could not interfere in interim orders and Constitutional petition against suspension order which was an interim order was not maintainable.

2001 PLC (C.S.) 623: 2001 PLC (C. S.) 1015; 2000 PLC (C.S.) 533; 1998 SCMR 2240; 1998 SCMR 999; PLD 1970 SC 1; Abdul Bari's case PLD 1981 Kar.290; Muhammad Mahmood Ali's case 1984 CLC 142 and Nazir Ahmad Sheikh's case 1998 PLC (C.S.) 607 ref.

Muhammad Asdullah for Petitioner.

Muhammad Shan Gul for A.‑G.

2002 P L C (C.S.) 836

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

GHULAM NABI

Versus

CHAIRMAN, LAHORE DEVELOPMENT AUTHORITY, LDA PLAZA, LAHORE and 3 others

Writ Petition No.23354 of 1999, decided on 21st November, 2001

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Civil Service‑‑‑Promotion‑‑‑Dispute was with regard to the promotion according to the seniority list‑‑‑Reason given by the Authorities was that some other employees had been promoted earlier during the pendency of the representation made by the petitioner‑‑­Validity‑‑‑Authorities were bound to consider the case of the petitioner for promotion to the next post as in the seniority list the petitioner was at serial No.1 but he had not been considered on lame excuse‑‑‑Petitioner had not been treated by the Authorities in accordance with law and had been deprived of his due promotion by keeping the representation pending and by not giving him the seniority which had been due to him for a period not less than ten years‑‑‑High Court observed that Authorities were treating their employees in such manner in order to satisfy their ego and the employees were being deprived of their rights by keeping the matter pending for such a long period‑‑‑High Court directed the Authorities to re‑consider the case of promotion of the petitioner and finalize the same within specified time‑‑­Constitutional petition was allowed accordingly.

Farooq Zaman Qureshi And Ch. Muhammad Ijaz Jamal for Petitioner.

Mian Muzaffar Hussain for Legal Advisor for Respondents.

Date of hearing: 12th November, 2001

2002 P L C (C.S.) 873

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

MUHAMMAD ASHRAF

versus

GOVERNMENT OF PUNJAB through Secretary Finance Department and 2 others

Writ Petition No.475 of 2002, decided on 6th February, 2002.

Constitution of Pakistan (1973)‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑Civil service‑‑‑Advance increments, claim for‑‑‑Petitioner who was graduate, passed LL.B. examination during course of his service and applied for grant of two advance increments on account of additional qualifications of LL.B Degree in light of instructions contained in Finance Department Circulars NO.FD(PRC)I‑1‑87‑VII, dated 27‑7‑1987 and NO.F/(PRC)1‑1/89, dated 11‑8‑1991‑‑‑Application of petitioner was rejected by the Authority on the ground that‑ advance increments could only be granted if the employee had improved his qualifications in the field in which he was working‑‑‑Authority had contended that LL.B was a professional degree and petitioner who was serving as Stenographer, had not improved his qualification in his field‑‑­Instructions contained in Finance Department Circular had clearly shown that advance increments were to be granted to those employees who had improved their qualifications and nowhere it ,was mentioned that grant of advance increments would be given to, those employees who improved their qualifications in their field‑‑‑Other employees who on passing LL '.B Degree during service having been granted two advance increments, petitioner could not be given discriminatory treatment‑‑‑Matter of grant of advance increments being amenable to Constitutional jurisdiction of High Court it could interfere if advance increments were not being given by public functionaries‑‑‑High Court set aside order of Authority, accepting application of petitioner and directing the authorities to grant petitioners two advance increments from the month he passed LL.B examination.

Market Committee, Multan through Administrator and another v. Muhammad Sabir 1995 SCMR 305 and 1985 SCMR 1753 ref.

Syed M. Kaleem Ahmad Khurshid for Petitioner. Shan Gul for A.‑G. Punjab.

2002 P L C (C.S.) 886

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

SIDDIQUE & SONS ENGINEERING WORKSHOP

versus

DIRECTOR, PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION and others

Writ Petition No.3052 of 2001/BWP, decided on 21st June, 2001.

Provincial Employees Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑Ss. 20 & 57(6)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Social Security contribution‑‑‑Liability to, pay‑‑­Grievance of petitioner was that Social Security Contribution was not leviable on his workshop because Commissioner, Social Security on petitioner's complaint had earlier opined that petitioner's workshop was exempt from payment of Social Security Contribution‑‑‑Petitioner had alleged that despite decision of Commissioner, Social Security. Institution had issued a show‑cause notice to him for payment of contribution for the period in question‑‑‑Authorities were directed to determine within specified period whether provisions of West Pakistan Employees Social Security Ordinance, 1965 were applicable to workshop of petitioner.

M. Shamsher Iqbal Chughtai for Petitioner.

2002 P L C (C.S.) 926

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

ALLAH BACHAYA

versus

CHIEF ADMINISTRATOR AUQAF, PUNJAB, LAHORE and 2 others

Writ Petition No.2360 of 2000/BWP, heard on 21st May, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Civil Procedure Code (V of 1908), OXXXIX, Rr.l & 2‑‑‑Constitutional petition‑‑‑Civil service‑­Retirement‑‑‑Suit for correction of date of birth‑‑‑Notice to repay amount of salary for the period civil servant had worked after his due retirement‑‑­Petitioner/civil servant who was to retire on attaining age of superannuation, filed suit for correction of his date of birth and obtained restraint order in his favour. from Court and performed, his duties for more than three years and seven months from date of his retirement‑‑‑Suit filed by the petitioner was finally dismissed by the Trial Court and Appellate Court‑‑‑Department on the dismissal of suit issued notice to the petitioner for recovery of amount of pay which he had received in excess after his, retirement period‑‑Validity‑‑­Petitioner despite having reached the age of superannuation remained in service and caused loss to the treasury ‑‑‑Petitioner did not act bona fidely and dragged the Department in litigation and the Department had to incur litigation charges without its fault‑‑‑Petitioner was not entitled for any relief and was liable to refund the salaries received by him for excess period after his retirement‑‑‑Constitutional petition filed by the petitioner after delay of about three years was hit by laches and was also liable to be dismissed .on that ground.

Mehr Khan v. Executive Engineer, Electricity, WAPDA, Mianwali and 3 others 1998 SCMR 613 ref.

Shabbir Ahmad Bhutta for Petitioner.

M. Shamshair Iqbal Chughtai for Respondents.

Date of hearing; 21st May, 2001.

2002 P L C (C.S.) 1024

[Lahore High Court]

Mrs. Fakhar‑un‑Nisa Khokhar, J

Hafiz SABIR ALI

Versus

ADMINISTRATOR, MUNICIPAL CORPORATION, SAHIWAL and 3 others

Writ Petition No.910 of 2000, heard on 25th. September, 2001.

(a) Punjab Leave Rules, 1981‑--

‑‑‑‑R.9‑‑‑Extraordinary leave for two years without pay—Eligibility-‑Civil servant after 27 years of service applied for two years' leave without hay but his application was turned down‑‑‑Extraordinary leave without pay could be granted under R.9 of Punjab Leave Rifles, 1981 on any ground up to a maximum period of five years at a time provided that civil servant had‑been to continuous service for a period of not less than ten years and in case a civil servant had not completed ten years of continuous service, extraordinary leave without pay for a maximum period of two years could be granted at the discretion of head of the office‑‑‑Civil servant who applied for extraordinary leave for two years after twenty‑seven years of service, was eligible to apply for such leave.

(b) Civil Service----------

‑‑‑‑Premature retirement‑‑‑Termination from service‑‑‑Application for pre­mature retirement was sanctioned by head of the office who after taking charge from the civil servant of post relieved him from service and sent his case of premature retirement for approval to the Authority concerned‑‑­Authority without hearing the civil servant, dismissed him from service‑‑­Retired person or a person who had applied for his retirement could not be dismissed from service‑‑‑Authority, in circumstances, had no legal authority to terminate service of civil servant without deciding application of retirement.

Muhammad Khalid Ayyaz for Petitioner.

Ch. Muhammad Rafiq for Respondents.

Date of hearing: 25th September, 2001.

2002 P L C (C.S.) 1047

[Lahore High Court]

Before Muhammad Khalid Alvi, J

FAIZ MUHAMMAD

Versus

SECRETARY TO GOVERNMENT OF PUNJAB, LOCAL GOVERNMENT AND RURAL DEVELOPMENT DEPARTMENT GOVERNMENT OF PUNJAB, LAHORE and 3 others

Writ Petition No. 2353 of 1992, heard on 15th February, 2002.

(a) West Pakistan Municipal Committees Service Rules, 1969‑‑‑--

‑‑‑‑Preamble‑‑‑Punjab Local Councils (Appointment and Conditions of Service) Rules, 1983, Preamble‑‑‑Distinction‑‑‑Former rules relate to the servants of the local council while the latter govern the members of the local council service.

(b) West Pakistan Municipal Committees Service Rules, 1969‑‑‑

‑‑‑‑R. 13‑A‑‑‑West Pakistan Municipal Administration Ordinance (X of 1960), Ss.121 & 124‑‑‑Punjab Local Government Act (XXXIV of 1975), Ss.233 & 235‑‑‑Punjab Local Government Ordinance (VI of 1979), 5.182(2)‑‑‑Notification No.SOV.1‑30/81, dated 25‑7‑1990, issued by Government of Punjab‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Service matter‑‑‑Seniority of employees of municipal committee‑‑‑Appeal under S. 13‑A of the West Pakistan Municipal Committees Service Rules, 1969‑‑‑Maintainability‑‑‑Feeling aggrieved of the promotion of the petitioner, the respondent filed appeal under S. 13‑A of the West Pakistan Municipal Committees Service Rules, 1969‑‑‑Appellate Authority having found the respondent senior to the petitioner cancelled the order of the promotion of the petitioner‑‑‑Contention of the petitioner was that the West Pakistan Municipal Committees Service Rules, 1969, were repealed, hence the order passed by the Appellate Authorities was without lawful authority‑‑‑Validity‑‑‑Rules framed under the West Pakistan Municipal Administration Ordinance, 1960, were still in force and under Notification No. SOV.1‑30/81, dated 25‑7‑1990 the provision of R. 13‑A was introduced in the West Pakistan Municipal Committees Rules, 1969 as such the rule so introduced provided a right of appeal and also a revision, therefore, the appeal of the respondent was competent‑‑‑Petitioner was much junior and in lower pay scale than the respondent, he did not deserve consideration as against the respondent‑‑‑High Court declined to interfere with the order passed by the Appellate Authority‑‑‑Constitutional petition was dismissed in circumstances.

Khalid Nadeem Malik for Petitioner.

Akhtar Masood for Respondent No. 1.

Sardar Altaf Hussain Khan for Respondents Nos.2 and 3.

Mushtaq Ahmad Qamar for Respondent No.4.

Date of hearing: 15th February, 2002.

2002 P L C (C.S.) 1061

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

ASIF AZIZ

Versus

DISTRICT AND SESSIONS JUDGE/CHAIRMAN, DEPARTMENTAL SELECTION COMMITTEE, NAROWAL and 5 others

Writ Petition No. 12044 of 2001, heard on 6th November, 2001.

Civil service‑‑

‑‑‑‑Appointment‑‑‑Malpractice‑‑‑One of the candidates was not selected by Selection Committee as he was caught red‑handed copying answer‑sheet from answer‑sheet of other candidate and was debarred from taking part in examination any more and instead next candidate was appointed on merits‑‑­Conduct of that candidate was sufficient to debar him and discretionary powers could not be exercised in favour of such type of candidate who had tried to deceive Selection Committee during test and was guilty of malpractice‑‑‑Another candidate had alleged that Type Machine supplied to him for typing test was out of order and despite his repeated requests machine was not replaced, whereas selected candidates were supplied good machines‑‑‑Said candidate could not support his allegation by any documentary evidence‑‑‑Appointment of selected candidates had been made by Selection Committee on merits after considering all material facts‑‑­Unsuccessful candidates having failed to point out any illegality in selection by the Selection Committee and having failed to support their allegations, they were rightly debarred from further proceedings and other candidates were rightly selected on merits instead.

Pervaiz Inayat Malik for Petitioner.

Ch. Riyasat Ali for Respondent.

Date of hearing: 6th November, 2001.

2002 P L C (C.S.) 1133

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

PUNJAB AGRICULTURAL DEVELOPMENT AND SUPPLIES CORPORATION through Administrator

versus

MUHAMMAD RAFIQ KHAN and 2 others

Writ Petition No. 10376 of 2001, heard on 31st October, 2001.

Punjab Office of the Ombudsman Act (X of 1997) ‑‑‑

‑‑‑‑S.9(2)‑‑‑Punjab Service Tribunals Act (X of 1974), Ss.2‑A & 4‑‑­Jurisdiction of Ombudsman in service matters‑‑‑Scope‑‑‑Provincial Ombudsman could not interfere in service matters of the employees including the employees of the statutory Corporation‑‑‑Payment of gratuity related to the terms and conditions of the service of employee, interference by the Provincial Ombudsman was without jurisdiction and without lawful authority‑‑‑Employees of a statutory Corporation under S.2‑A in Service Tribunal Act, 1973 could file appeal before the Service Tribunal.

Ikram Ali v. The State PLD 1980 Lah. 597; Nafees Ahmad v. Government of Pakistan 2000 SCMR 186; 1997 SCMR 2000; 2000 SCMR 826 and 2000 SCMR 959 ref.

Mian Hamidullah Khan and Niaz Hussain Mirza for Petitioner.

Ch. Riasat Ali for Respondents.

Date of hearing: 31st October, 2001.

2002 P L C (C.S.) 1146

[Lahore High Court]

Before Jawwad S. Khawaja, J

MAYFAIR SPINNING MILLS LIMITED through Director

versus

PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION through Commissioner and another

Writ Petition No. 13624 of 2001, heard on 7th August, 20011.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Opinion of Government department‑‑­Value‑‑‑Any opinion expressed by a department of the Government, is not binding on a Court of law.

(b) Provincial Employees' Social Security Ordinance (X of 1965)‑‑‑

‑‑‑‑Ss. 23 & 59‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Alternate remedy‑‑‑Failure to the appeal before Social Security Court‑‑‑Petitioners were denied benefit of judgment passed by Supreme Court in earlier litigation wherein the petitioners were not party‑‑‑Authorities extended benefit of judgment of the Supreme Court only to the persons who were party to the earlier petitions‑‑‑Petitioner without approaching the Social Security Court tiled the Constitutional petition‑‑­Validity ‑‑‑High Court directed the petitioners to apply to the authorities for a formal order and might thereafter avail its remedy by way of appeal before the Social Security Court‑‑‑Constitutional petition was not maintainable in circumstances.

Messrs R.C.D. Ball Bearing Limited v. Sindh Employees' Social Security. Institution, Karachi PLD 1991 SC 308 and Shamas Textile Mills Limited and others v. The Province of Punjab and 2 others 1999 SCMR 147 ref.

Shehram Sarwar Chaudhry for Petitioner.

Muhammad Saeed Warraich for Respondents.

Date of hearing: 7th August, 2001.

2002 P L C (C.S.) 1159

[Lahore High Court]

Before Farrukh Lateef, J

SAHIB‑E‑REHMAN

Versus

GOVERNMENT OF PUNJAB

Writ Petition No.800 of 2001, decided on 2nd April, 2002.

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

‑‑‑‑S. 18(1)‑‑‑Punjab‑ Service Tribunals Act (IX of 1974), S.4‑‑‑Pension‑‑­Non‑payment‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Pension case of the civil servant having not been finalized, recourse to Service Tribunal could not be had:

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S. 18(1)‑‑‑Pension‑‑‑Nature‑‑‑Pension is no longer a bounty but a right acquired after putting in satisfactory service for the prescribed minimum period.

(c) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S. 18(1)‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition Pension Non‑payment‑‑‑Writ of Mandamus‑‑‑Scope‑‑‑Grievance of the petitioner was that despite his retirement from service, the authorities had not paid him his pension‑‑‑Contention of the authorities was that as case of embezzlement against the petitioner was under inquiry, the pension had not been finalized‑‑‑Validity‑‑‑Statutory function/duty of the authorities was to pass an appropriate order on the pension case of the petitioner in accordance .with law and it was the right of petitioner to have the matter decided in accordance with law‑‑‑Statutory right of the petitioner could be enforced by means of writ of Mandamus‑‑‑Authorities could not be allowed to keep the pension case pending for indefinite period on the pretext that inquiry against the petitioner had not been finalized‑‑‑High Court directed the Authorities to ensure that pension case of the petitioner should be finalized within a period of three months‑‑‑Petition was allowed accordingly.

Syed Aqa Asaf Jaffery for Petitioner.

Muhammad Sarwar Bhatti, Asstt. A. G., Punjab for Respondent.

Date of hearing: 14th March, 2002.

2002 P L C (C.S.) 1161

[Lahore High Court]

Before Muhammad Nawaz Abbasi, J

ASJAD MAHMOOD

Versus

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

Writ Petition No. 3560 of 2001, heard on 1st January, 2002.

‑‑‑‑S. 10‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Transfer and posting of civil servant‑‑‑Matter relating to terms and conditions of service‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Member of Civil Service of Pakistan can be posted and transferred anywhere throughout Pakistan as provided under S.10 of the Civil Servants Act, 1973 read with rules on the subject‑‑‑Civil servant being aggrieved of his transfer or posting can invoke the jurisdiction of Service Tribunal under S.4 of the Civil Servants Act, 1973 within the meaning of Art.212 of the Constitution.

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

‑‑‑‑S. 10‑‑‑Civil Servants (Confirmation) Rules, 1993, Rr.2(b) & 6‑‑­Transfer and posting of civil servant‑‑‑Retaining of lien by civil servant‑‑­Scope‑‑‑Civil servant is supposed to serve anywhere inside or outside Pakistan under the provisions of S. f0 of the Civil Servant Act, 1973, unless he is appointed for a particular area/region‑‑‑If a civil servant is required to serve in a post outside his post and cadre, the terms and conditions of his service cannot be less favour-able to which, he has been entitled in his post‑‑­Civil servant is provided protection under S.10 of the Civil Servant Act, 1973, in respect of his terms and conditions of service unless he is out of his cadre or post either on deputation or on transfer‑‑‑If civil servant is transferred from one post to another post within the department or on deputation to another department, he is on temporary transfer and cannot claim any right to serve either at a particular place or against a particular post‑‑‑Provision of SAO of Civil Servants Act, 1973, is not only confined to the extent of temporary transfer of a civil servant from one post to another post or one cadre to another cadre but it also embodies the concept of permanent transfer from one post or cadre to another post or cadre and one group to another group in the Civil Service of Pakistan, subject to certain conditions‑‑‑Civil servant on such transfer retains lien on his previous post for some time.

(c) Service Tribunals Act (LXXI of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Civil Service Act (LXX of 1973), Chap. II [Ss.3 to 22]‑‑­Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑­Controversy was whether the civil servant was a member of Office Management Group or he was permanent member of Income Tax Group‑‑­Jurisdiction of High Court‑‑‑Contention of the authorities was that as the controversy related to terms and conditions of service, therefore, High Court could not entertain the petition under Art.199 of the Constitution‑‑­Validity‑‑‑Controversy did not relate to terms and conditions of service of civil Servant as envisaged under Chap. 2‑of the Civil Servants Act, 1973, therefore, remedy of appeal under S.4 of the Service Tribunals Act, 1973 before the Service Tribunal would not be available to the civil servant and consequently the bar of jurisdiction under Art. 212 of the Constitution would not restrain the High Court from exercising jurisdiction under Art. 199 of the Constitution in the matter‑‑‑Such dispute would neither fall within the ambit of Chap. 2 of Civil Servants Act, 1973, nor appeal under S. 4 of the Service Tribunals Act, 1973, was provided in such matter, as the present case would not fall within the category of those cases, which related to the terms and conditions of the service of civil servant to be adjudicated exclusively by the Service Tribunal established under the Service Tribunals Act, 1973 and consequently, High Court could competently exercise the power of judicial review available to it under Art. 199 of the Constitution to undo the injustice being done to a civil servant‑‑‑Constitutional petition was maintainable in circumstances.

Asadullah Rashid v. Haji Muhammad Muneer and others (1998 SCMR 21295; Messers Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another (PLC 2001 Karachi (C.S.) 907) and Dr. Nighat Bilal v. Secretary, Ministry of Health and others ICA No.79 of 1997 ref.

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

‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Controversy was whether the civil servant was a member of Office Management Group or he Was permanent member of Income Tax Group‑‑‑Assuming of jurisdiction wrongly by Service Tribunal‑‑‑Contention of the authorities was that the Service Tribunal had entertained appeal of 'some other civil servants in a similar matter hence the jurisdiction of High Court under Art. 199 of the Constitution was barred in the present case‑‑­Validity‑‑‑Where Service Tribunal had no jurisdiction over the matter­entertaining of appeal in such matter would neither take away the jurisdiction of High Court nor would create a right of appeal in favour of a civil servant under S.4 of the Service Tribunals Act, 1973‑‑‑Disposal of appeal by Service Tribunal on merits, would not effect the jurisdiction of High Court‑‑‑Petition was thus maintainable.

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

‑‑‑‑S. 10‑‑‑Civil Servants (Confirmation) Rules, ,1993, Rr.2(b) & 6‑‑­Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Transfer and posting of civil servant from one department to other department‑‑­Repatriation of the civil servant to the previous department on the allegation of irregularities‑‑‑Retaining of lien by civil servant‑‑‑Civil servant after appointment was posted and confirmed in Office Management Group later on the civil servant was transferred to Income Tax Department vide notification issued by Establishment Division‑‑‑Due to certain departmental inquiry, the Central Board of Revenue desired repatriation of the civil servant to the Office Management Group and Notification in that respect was issued by Establishment Division‑‑‑Validity‑‑‑Civil servant with the understanding of ultimate induction in Income Tax Group, through the process of selection for transfer of his service to the said group on regular basis, had a legitimate expectancy of induction and. therefore, notwithstanding the formal order of his repatriation to Office Management Group, the civil servant would be deemed to have severed his connection with Office Management Group and was permanent member of Income Tax Group after lapse of period of five years‑‑‑Although appeal against order passed by a departmental authority in relation to the terms and conditions of service would lie under S.4 of the Service Tribunals Act. 1973, yet under SA(b) of the Service Tribunals Act, 1973, the review or appeal was specifically debarred in a case, which related to the question of determination of fitness or otherwise of a person to hold a particular post of grade and thus, the matter would not fall within the jurisdiction of the Service Tribunal‑‑‑Competent Authority in the present case after having assented to transfer and induction of the civil servant in Income Tax Department through the process of selection by a committee would not be in a position to retrace its steps and undo the act of induction of the civil servant in Income Tax Group‑‑‑Civil servant was a member of civil service of Pakistan and was qualified to be inducted in any group subject to the rules of allocation, therefore, there would be no bar for the Government in case of necessity to transfer the service of a person from one group to another group‑‑‑Where the service of the civil servant was transferred under the necessity, on the fulfillment of requisite conditions, the civil servant would be deemed to be member of Income Tax Group without any formal order to be passed by the competent Authority‑‑‑Civil servant for all intents and purpose was a permanent member of Income Tax Group and could not be repatriated to the Office Management Group‑‑‑Notification of repatriation of the civil servant issued by the Establishment Division was illegal and of no consequence‑‑‑Constitutional petition was allowed in circumstances.

Dr. M. Aslam Khaki and Mir Ahmad Ali for Appellant.

Nasir Saeed Shaikh and Qazi Ahmad Naeem Qureshi for Respondents.

Date of hearing: 1st January, 2002.

2002 P L C (C. S.) 1199

[Lahore High Court]

Before Saved Zahid Hussain, J

WATER AND POWER DEVELOPMENT AUTHORITY through Chairman, W APDA House Lahore and another

Versus

MEMBER NATIONAL INDUSTRIAL RELATIONS COMMISSION, LAHORE and another

Writ Petition No.21104 of 1996, heard on 25th February, 2002.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 15, 22‑A(8)(g) & 25‑K‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Petition before National Industrial Relation's Commission‑‑‑Competency‑‑‑Employee of Water And Power Development Authority serving as Line Superintendent, was removed from service as he was convicted and sentenced by Summary Military Court‑‑‑Employee filed petition before National Industrial Relations Commission under Ss.15, 22‑A(8)(g) & 25‑K, Industrial Relations Ordinance, 1969 against his removal from service alleging that he had been victimized on account of his trade union activities‑‑‑National Industrial Relations Commission accepted petition and set aside the order passed against employee‑‑‑Validity‑‑‑Employee serving in Water And Power Development Authority being a civil servant, his petition before National Industrial Relations Commission did not lie in view of Art. 212 of Constitution of Pakistan (1973)‑‑‑Objection with regard to jurisdiction was raised before National Industrial Relations Commission, but it was not adverted to by the Commission and through a brief and non­-speaking order petition was accepted‑‑‑Assumption of, jurisdiction by National Industrial Relations Commission in the matter was unwarranted by law‑‑‑Order passed by National Industrial Relations Commission being without lawful authority, was not sustainable‑‑‑High Court declared the order as without lawful authority and of no legal effect.

WAPDA and another v. Muhammad Arshad Qureshi. 1986 SCMR 18: Water And Powers Development Authority v. Agha Nazim Ali 1988 SCMR 574; WAPDA v. Muhammad Zubair and others NLR 1996 Labour 89; Waseem Ahmed Khan v. WAPDA and 3 others 1997 SCMR 2000: Zahir Ullah and 13 others v. Chairman WAPDA, Lore and others 2000 SCMR 826 and Malik Mumtaz Ahmed and others v. Federal Service, Tribunal and others 2000 SCMR 832 ref.

S. M. Masood for Petitioners

Nemo for Respondents

Date of hearing: 25th February, 2002.

2002 P L C (C.S.) 1211

[Lahore High Court]

Before Amir Alam Khan and Muhammad Sair Ali, JJ

MUHAMMAD IQBAL

Versus

COMMISSIONER OF THE PUNJAB EMPLOYEES SOCIAL SECURITY

INSTITUTION, LAHORE and 6 others

Infra‑Court Appeal No. 207 of 1992 in Writ Petition No. 1909 of 1991, decided on 20th December, 2001.

Punjab Employees Social Security Institution (Service) Regulations, 1973 ‑‑‑

‑‑‑‑Reglns. 5 & 8‑‑‑Punjab Employees Social Security Institution (Administration and other Service Matters) (Powers of the Commissioner and other Officers) Regulations, 1973, Regln.3‑‑‑Accelerated promotion‑‑­Reversion‑‑‑Part of civil servant/appellant who was serving as Administrative Officer in BPS‑16, was upgraded from BPS‑16 to 17 and his pay scale was also revised‑‑‑Civil servant, in view of his excellent performance, was granted additional honoraria and his post was also re-designated as Deputy Director (Administration)‑‑‑Commissioner, Social Security Institution thereafter rescinded office order by which the accelerated promotion was granted to the civil servant and he was reverted to his original post in BPS‑16 on ground that said accelerated promotion was allowed to the civil servant through a void and unlawful order without recommendations of the Selection Board‑‑‑Validity‑‑‑Accelerated or out of turn promotion though was also a promotion, but to earn the same adherence to standard criteria and rules could not be dispensed with‑‑‑To rise above the equally qualified colleagues, would not entail raising above the applicable rules‑‑‑Requirements of Regln.5 of Punjab Employees Social Security Institution (Service) Regulations, 1973 providing for the procedure of appointment through promotion in the present case had not been complied with‑‑‑Non‑observance of said Regulation would lead to illegality of a nature which could be termed as a "fraud" on statute or rules‑‑‑Since the order of civil servant's accelerated promotion was against the law, the civil servant could not avail of the benefit of deemed confirmation of service after expiry of two years' probation period.

Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farrukh PLD 1969 SC 407; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and two others PLD 1991 SC 973; Raja Muhammad Nawaz v. Government of the Punjab 1981 SCMR 523; Ghulam Hussain v. Province of Punjab 1989 PLC (C.S.) 487; Bahadur Shah, Divisional Engineer Development‑11, 1TR Islamabad and others v. Pakistan through Secretary, Ministry of Communication and others 1988 SCMR 1769; Government of Punjab v. Raja Muhammad Iqbal 1993 SCMR 1814; Punjab Employees' Social Security Institution, Lahore and others v. Manzoor Hussain Khan and others 1992 SCMR 441; Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another PLD 1974 SC 291 and Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 ref.

Muhammad Iqbal Khichi for Appellant. Sh. Ziaullah for Respondent.

Date of hearing: 26th September, 2001.

2002 P L C (C. S.) 1224

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

JAVED UL HASSAN NAQVI

Versus

FAZAL HAQUE RANJHA and 3 others

Writ Petition No.18051 of 2001, decided on 5th. October, 2001.

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

‑‑‑‑R. 4‑‑‑West Pakistan Land Revenue Act (XVII of 1967), Ss.82‑B & 114‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑­Maintainability‑‑‑Dismissal from service and imposition of penalty‑‑­Detension for non‑payment of amount of penalty‑‑‑Remedy against‑‑­Petitioner/civil servant whose services were terminated and was imposed penalty, was arrested and confined to lockup in connection with the recovery of amount of penalty‑‑‑Petitioner had challenged action of Authority in Constitutional petition before High Court‑‑‑Validity‑‑‑Petitioner had alternative remedy before the Revenue Officer under S.82‑B, West Pakistan Land Revenue Act, 1967 but he failed to avail the same proper remedy under law being available, to the petitioner, Constitutional petition/habeas corpus petition tiled by civil servant was not maintainable‑‑‑When the final warrant of arrest had been issued to the petitioner. under provisions of West Pakistan Land Revenue Act, 1967, High Court under its Constitutional jurisdiction had no power to go beyond that to find out whether the warrant of arrest was issued after fulfilling the legal requirements under the said Act by issuing a notice or not as the same required inquiry‑‑‑When the warrant of arrest was issued in accordance with provisions of Land Revenue Act, 1967 even in violation of the manner prescribed there under, same could riot be declared illegal through collateral proceedings‑‑‑Action would be in accordance with law unless and until was set aside by any competent Court/forum‑‑‑Constitutional petition/ habeas corpus petition would not be maintainable in circumstances‑‑­Petitioner having been detained under relevant provisions of law, Constitutional/habeas corpus petition filed by him against his detention was not maintainable.

Imdad Hussain's case PLD 1974 Kar. 485; Ghulam Muhammad's case PLD 1975 Kar. 118; Bari Ahmad's case 1994 CLC 273; Ijaz Hussain's case 1994 CLC 275; Noor Hussain's case 1983 PCr.LJ 442; Arshad Hussain's case NLR 1982 Crl. 422; Nisar Ahmad's case PLD 1997 SC 852; Sabir Shah's case PLD 1994 SC 738; Javaid Iqbal's case 1987 PCr.LJ 681; Sayed Hassan Mahmud's case PLD 1980 Kar. 37; 1972 SCMR 398 and PLD 1958 Pesh.38 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Bona fides of petition had to be carefully examined so that no one be permitted to abuse the process of law.

Muhammad Yasin Bhatti for Petitioner.

2002 P L C (C.S.) 1237

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

Mirza INAYAT BEG

Versus

THE WAPDA through Chairman and 3 others

Writ Petition No. 11470 of 2001, decided on 8th October, 2001.

Civil Servants Act (LXXI of 1973)‑‑‑

‑‑‑‑S. 9‑‑‑Service Tribunals Acct (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Contitutional petition‑‑‑Maintainability‑‑­Demotion and recovery of amount received during promotion‑‑­Petitioner/civil servant had challenged orders of his demotion from Grade‑17 to Grade‑16 and recovery of amount received in excess by him during period of his promotion‑‑‑ Matter of demotion of the petitioner which related to the terms and conditions of service, could not be entertained in Constitutional petition when appeal under S.4 of Service Tribunals Act, 1973 could be filed‑‑‑Constitutional petition to that extent being not maintainable, was dismissed‑‑‑Matter with regard to paying back the amount received in excess by the petitioner during his promotion, did not relate to the terms and conditions of service and the appeal could not be filed before Service Tribunal‑‑‑High Court thus could entertain Constitutional petition and decide the same‑‑‑Authorities, in circumstances, could not recover the amount paid to the petitioner in Grade‑17 when he served to Department in that grade and the amount was paid to the petitioner as his salary for the post for which he had served.

Muhammad Hashim v. Government of Punjab and three others 1999 PLC (C.S.) 1340; Syed Afzal Muhammad Farooq v. Secretary, Establishment Division and 2 others 1998 PLC (C.S.) 1175; Mumtaz Ali Mangi v. National Bank of Pakistan and others 1995 PLC (C.S.) 119; Controlling Authority, N.W.F.P., Board of Technical Education, Peshawar and another v. Abdul Salam Secretary, N.W.F.P. PLD 1993 SC 200 and Engineering‑in‑Chief Branch v. Jalal‑ud‑Din PLD 1992 SC 207 ref.

M. A. Khadim for Petitioner.

Malik Abdul Hameed Nasir far Respondents.

Date of Hearing: 26th September, 2001.

2002 P L C (C.S.) 1256

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

Dr. MUHAMMAD AMJAD AMEEN and 2 others

MINISTRY OF HEALTH, GOVERNMENT OF THE PUNJAB through Secretary Health and 6 others

Writ Petition No. 18173 of 2003, heard on 31st October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition ‑‑‑Principles of waiver and estoppel‑‑­Applicability‑‑‑Civil service‑‑‑Appointment‑‑‑Petitioners who were initially appointed as Senior Registrars were subsequently promoted as Assistant Professors on regular basis‑‑‑Three posts of Associate Professors having fallen vacant the Authority issued public notice for initial appointment for the said posts‑‑‑Petitioners who had also applied for appointments had filed Constitutional petition wherein they had challenged the issuance of public notice and claimed their promotion‑‑‑Validity‑‑‑Petitioners who in obedience of advertisement had submitted their applications, their Constitutional petition was liable to be dismissed on principles of waiver and estoppel and also on principles of approbate and reprobate‑‑­Constitutional jurisdiction was equitable jurisdiction which could not be exercised in favour of a person who had come to Court with gross negligence.

Water and Power Development Authority v. Irtiqa Rasool Hashmi and another 1987 SCMR 359; Al‑Jehad Trust v. Federation of Pakistan PLD 1996 SC 324; Sarwar Ali Khan's case 1994 PLC (C.S. 411'; Muhammad Ahsan‑ul‑Haq v. Secretary to Government of Pakistan, Ministry of Interior Islamabad and Il others 1997 PLC.(C.S.) 127; Government of N.W.‑F.P and others v. Buner Khan and others 1985 SCMR 1158; Hameed Akhtar Niazi v. Government of Pakistan through Secretary Establishment Division, Islamabad and 14 others 2000 PLC (C.S.) 600; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Province of the Punjab through Secretary Health Department v. Dr. S. Muhammad Zafar Bukhari, PLD 1997 SC 351; Haji Muhammad v. Federation of Pakistan and others 2000 SCMR 1555; Messrs Pakistan State Oil Company Limited v. Wafaqi Mohtasib (Ombudsman) and another 2001 PLC (C.S.) 907; Muhammad Ashraf Chaudhry v. Chairman Central Board of Revenue and another 2001 PLC (C.S.) 781; S. Baqar Zaheer Rizvi v. Secretary Housing and Works Division, and 3 others 2000 PLC (C.S.) 1151); Dr. Ahmad Salman Waris Assistant Professor Services Hospital, Lahore v. Dr. Naeem Akhtar and 5 others PLD 1997 SC 382; Dr. Amanul Haq v. Government of Punjab 2000 PLC (C.S.) 123; Government of Punjab v. Dr. Amanul Haq 2000 PSC 599; Tahir L2tif Sheikh v. Federation of Pakistan and another 2000 PLC (C.S.) 582; Muhammad Raziq v. Secretary Establishment Division 2000 PLC (C.S.) 994; Dr. Shaheen Afzal v. Member (Adorn) Capital Development Authority Islamabad and'19 others (2000 PLC (C.S.) 633; Ghulam Rasool's case PLD 1971 SC 376; Abdul Sattar Yousuf's case 1984 CLC 194; Suleman's case 1970 SCMR 574; Begum Zainab Tiwana's case PLD 1967 Lah. 977; Riasat Ali Azad's case PLD 1968 Lah. 561; Malik Muhammad Din's case PLD 1968 Lah. 544 and Mohsin Khan's case 1969 SCMR 306 ref.

Javaid Shaukat Malik and Hafiz Tariq Nasim for Petitioner.

Maqbool Elahi Malik, Advocate‑General alongwith Ch. Mushtaq Ahmad Khan and Tallat Farooq Sheikh for Respondents.

2002PLC(C.S.) 1318

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

ZAFAR IQBAL

versus

PUNJAB LOCAL GOVERNMENT BOARD through

Chairman/Secretary, Local Government and Development Department, Lahore

Writ Petition No. 17755 of 2001, decided on 11th October

(a) Civil Servants (LXXI of 1973)‑‑‑

‑‑‑‑S.9‑‑‑Promotion‑‑‑Not a vested right of civil servant‑‑‑Promotion is not a vested right but the right to be considered for promotion where a person is eligible for promotion, is a vested right.

Muttaqi Hussain case PLD 1978 Kar. 703 ref.

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

‑‑‑‑S.9‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Promotion‑‑­Constitutional jurisdiction of High Court‑‑‑Bar contained in Art.212 of the Constitution‑‑‑ Applicability‑‑‑Case of civil servant was, deferred by Selection Board qua his promotion from BS‑17 to 18 in violation of service rules‑‑‑Bar of Art.212 of the Constitution was not attracted in such case.

Dr. Muhammad Rati‑ud‑Din Qureshi's case 1989 PLC (C.S.) 785 ref.

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

‑‑‑‑S.9‑‑‑Service Tribunals Act (LXX of 1973), SA(1)(b)‑‑‑Punjab Local Council Service (Appointment and Conditions of Service) Rules, 1983, R.3, Sched. III‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Determination of fitness of employee for promotion‑‑‑Civil servant secured diploma in civil engineering from Government Poly Technique Institute and was appointed in BS‑17‑‑­Authorities deferred matter of his promotion from BS‑17 to 18 on the ground that reference had been made to Pakistan Engineering Council for getting opinion regarding qualification of the civil servant whether the same was equivalent with degree of Engineering from recognized university‑‑‑Appeal before Service Tribunal was dismissed‑‑‑Contention of the civil servant was that act of the Authorities was based on discrimination and the same was without lawful authority‑‑‑Validity‑‑‑Departmental Authorities were to determine the fitness of candidate for promotion but the determination had to be in accordance with law and not in violation of law and rules‑‑‑Where the action of the Authorities was not in accordance with the rule of the Department, High Court had ample jurisdiction to give direction to the public functionaries to act in accordance with law‑‑‑Case of the employee was one of misreading of service rules of the respondent by the Authorities thus the order of the Authorities was set aside‑‑‑High Court directed the Authorities to consider the case of the civil servant for promotion without referring the same to the Pakistan Engineering Council‑‑‑Constitutional petition was allowed accordingly.

Muhammad Munir Javed v. The Secretary Local Government Rural Department Writ Petition No. 1688 of 1982 and Fida Hussain's case 1996 PLC (C.S.) 44 ref.

H.M. Rizvi's case PLD 1981 SC 612 fol.

Muhammad Asadullah Siddiqui for Petitioner.

Qazi Mohy‑ud‑Din for Respondent.

Date of hearing: 11th October, 2001.

2002 P L C (C.S.) 1329

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

ISLAM‑UD‑DIN GHORI

versus

WATERAND SENITATION AGENCY (WASA)

through Managing Director and 2 others

Writ Petition No. 12514 of 1994, decided on 11th October, 2001.

Civil service----

‑‑‑‑ Seniority list, petitioner being employee of Water and Sanitation Agency even after the issuance of the final seniority list in the year, 1989 did not agitate against the list and accepted the same wherein he was placed junior to the respondents‑‑‑Such list was assailed by the petitioner in the year, 1994 before High Court in exercise of its Constitutional jurisdiction‑‑‑Validity‑‑‑Where the petitioner had remained sleeping for about 5 years after issuance of seniority list in the year, 1989, he had lost all of his rights after lapse of so many years‑‑‑High Court declined to interfere in the list‑‑‑Constitutional petition was dismissed in circumstances.

Syed Zafar Ali Shah for Petitioner.

Mahboob Ahmad for WASA

2002 P L C (C.S.) 1337

[Lahore High Court]

Before Ijaz Ahmad Chaudlrry, J

STATE BANK OF PAKISTAN, RETIRED EMPLOYEES

WELFARE ASSOCIATION (REGD.) through Secretary‑General

versus

THE STATE BANK OF PAKISTAN through Governor/

Manager State Bank of Pakistan Lahore and another

Writ Petitions Nos.15124, 15025 and 15026 of 2001, decided on 14th September, 2001.

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

‑‑‑‑S.2‑A‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Ex‑employees of statutory corporation‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Ex-­employees of State Bank of Pakistan invoked jurisdiction of High Court under Art. 199 of the Constitution for enforcement of terms and conditions of service‑‑‑Validity‑‑‑State Bank of Pakistan was statutory corporation and by virtue of amendment brought in the Statute in the form of S.2‑A in the Service Tribunal Act, 1973, such employees had been included in the definition of civil servants‑‑‑Employees of State Bank of Pakistan being amenable to the jurisdiction of Federal Service Tribunal, the bar contained in Art.212 of the Constitution was applicable in the matters relating to the terms and conditions of civil servant‑‑‑High Court thus could not interfere.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts,199 & 212‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­When matter relates to terms and conditions of service Constitutional petition is not maintainable.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.199 & 212‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑­Constitutional petition‑‑Maintainability‑‑‑Association of ex‑employees of State Bank of Pakistan assailed new pension scheme introduced by the Bank‑‑‑Validity‑‑‑Where a relief could not be claimed by the individual, same could not be claimed by the Association for the benefit of the individuals to whom the jurisdiction of High Court was barred under Art. 212 of the Constitution‑‑‑Constitutional petition was not maintainable in circumstances.

I.A. Shirwani v. Government of Pakistan 1991 SCMR 1041 ref.

Waqar Azeem for Petitioner.

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

2002 P L C (C.S.) 1354

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

ZULIFIQAR ALI and 3 others

versus

MINISTRY OF REVENUE GOVERNMENT OF PUNJAB

LAHORE through Secretary, Revenue, Punjab Lahore and 3 others

Writ Petition No. 15276 and 15275 of 1994, heard on 25th October, 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.4, 25, 27 & 199‑‑‑Constitutional petition‑‑‑Appointment‑‑‑Approval of Minister‑‑‑ Requirement‑‑‑Propriety‑‑‑Petitioner was appointed as Patwari in pursuance of advertisement issued in the press‑‑‑After following the formalities by the competent Authority, the appointment orders of the petitioner had been acted upon as he had joined his respective Halqa‑‑­Subsequent to joining his duties, the authorities directed the petitioner to surrender his appointment letter as the appointment was made without approval of the Minister concerned‑‑‑Validity‑‑‑Issuance of the order, prima facie, was without lawful authority and without jurisdiction as if the competent Authority had some intention to remove the petitioners from service, he had to follow the law and rules prescribed relating to the terms and conditions of a servant and could not direct the subordinates to surrender his appointment letter issued to him‑‑‑Petitioner in the present case, was not being treated in accordance with law and the action of the Authorities through the letter was violation of Arts. 4, 25 & 27 of the Constitution‑‑­ Appointing authority of Patwari was the Assistant Commissioner and no other authority could issue any direction to the appointing authority to get approval from him before making of any appointments‑‑‑High Court deprecated the tendency of Ministers to interfere in each and every matter and to grab the powers of other officials in order to make the appointments of their own workers and of their patty men‑‑‑Minister could not issue directions for appointment of Government servants‑‑‑Even otherwise the directions for surrender of the appointment letter were not in accordance with the rules laid down by the Provincial Government hence issuance of such letter on the direction by the competent Authority was illegal and unlawful and was set aside.

1993 SCMR 1287 and 1995 SCMR 999 fol.

Jawaid Shaukat Malik for Petitioners.

Muhammad Jehangir Wahla, A.A.‑G. for Respondents.

Date of hearing: 25th October, 2001.

2002 P L C (C.S.) 1431

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

Mst. TAHIRA YOUSAF

versus

DIRECTOR GENERAL AUDIT (SAP) PUNJAB, LAHORE and 2 others

Constitutional Petition No.5846 of 2002, decided on 9th April, 2002

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

----S. 4‑‑‑Constitutfon of Pakistan (1973), Arts.199 & 212‑‑‑Constitutional petition‑‑‑Termination of service‑‑‑Petitioner appointed as Drawing Mistress remained serving for about four years, but on audit objection whereby untrained teachers who were retained in service beyond three years without training in specified period were liable to be terminated from service, services of petitioner were terminated as she was untrained Drawing Mistress‑‑‑Validity‑‑‑Petitioner, who was aggrieved by order passed by District Education Officer who was Competent Authority in the case, had remedy by filing an appeal/representation before higher forum and then could approach the Service Tribunal under S.4 of Punjab Service Tribunals Act, 1974‑‑‑Constitutional petition by petitioner was not maintainable due to bar contained under Art.212 of Constitution of Pakistan (1973).

PLD 1983 Lah. 246; 1996 SCMR 1185: 2001 PLC (C.S.) 1037 and Zahid Akhtar's case PLD 1995 SC 530 ref.

Pervaiz Inayat Malik for Petitioner.

Date of hearing: 9th April, 2002.

2002 P L C (C.S.) 1441

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

SHAZIA MUSHTAQ

Versus

GOVERNMENT OF PUNJAB through Secretary, Education, Lahore and 2 others

Writ Petition No. 14249 of 1993, decided on 10th September, 2001.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑‑‑Constitutional petition ‑‑‑Termination of service ‑‑‑Remedy‑‑‑Remedy against order of termination of service passed by Authority was available to the civil servant by way of tiling representation and then appeal before Service Tribunal‑‑­High Court had no jurisdiction in the matter which related to the terms and conditions of service of civil servant.

Shaista Qaisar for Petitioner.

2002 P L C (C.S.) 1451

[Lahore High Court]

Before Ghulam Mahmood Qureshi, J

Syed YOUSAF ALI SHAH and another

Versus

ADMINISTRATOR MUNICIPAL CORPORATION, BAHAWALPUR and another

Writ Petitions Nos.5439 and 5299 of 1999/BWP, heard on 13th April, 2001.

Punjab Local Council and Municipal Committee Servants Retirement Rules, 1966‑‑

‑‑‑‑R. 4(1)‑‑‑Constitution of Pakistan (1973), Art.199 ‑‑‑ Constitutional petition‑‑‑Compulsory retirement‑‑‑Civil servants were compulsorily retired from service under RA(1) of the Punjab Local Council and Municipal Committee Servants Retirement Rules, 1966 after they had put in more than 25 years of service qualifying for pension‑‑ ‑Said order was passed in violation of rule of natural justice as no opportunity of hearing was granted to the civil servants and no show‑cause notice was issued to them‑‑­Constitutional petition filed against order was objected to on the ground that remedy of departmental appeal had not been availed by the civil servants and that factual controversy could not be resolved in Constitutional petition‑‑­Validity‑‑‑Only those orders which were passed strictly in accordance with taw and rules and had attained finality, could not be interfered with in Constitutional petition, but orders which were passed to utter disregard to the law and without providing opportunity of hearing to the petitioners, would be liable to be corrected under Constitutional jurisdiction‑‑‑Order of retirement passed in violation of rule of natural justice, was set aside by High Court with direction that petitioners civil servants would continue in service till they attained the age of suppernnuation or retired in accordance with law.

Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others 1995 SCMR 1593; PLD 1987 SC 304; Government of the Punjab through Collector Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others 2001 SCMR 209; Nagina Silk Mills Ltd. v I.T.O. and another PLD 1963 SC 322; Premier Cloth Mills v. Sales Tax Officer 1972 SCMR 257 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 ref.

Ch. Parmoon Bashir and Raja M. Sohail Iftikhar for Petitioner (in both Petitions).

Muhammad Ozair Chughtai for Respondent (in both Petitions).

Date of hearing: 13th April, 2001.

2002 PLC (C.S) 1464

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, J

Malik FAIZ MUHAMMAD

Versus

DISTRICT NAZIM and another

Constitutional Petition No. 19151 of 2001, decided on 23rd October, 2001.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑District Government Rules of Business, 2001‑‑‑Constitution of Pakistan (1973), Arts.199 & 212‑‑‑Constitutional petition‑‑‑Transfer of civil servant by District Nazim‑‑‑Contention was that such transfer could be ordered only by the District Co‑Ordination Officer and not by the District Nazim‑‑‑Validity‑‑‑Petitioners were civil servants, who had challenged their transfer through Constitutional petition‑‑‑Order without jurisdiction, coram non judice and with mala fide intention could only be challenged before Punjab Service Tribunal and High Court had no jurisdiction to entertain such‑like petitions due to bar contained in Art. 212 of Constitution‑‑­Constitutional petition was dismissed.

2001 PLC (C. S.) 1084 and Zahid Akhtar's case PLD 1995 SC 530 ref.

Malik Noor Muhammad Awan for Appellant.

2002 P L C (C.S.) 1476

[Lahore Nigh Court]

Before Muhammad Sair Ali, J

NOOR MUHAMMAD

Versus

SECRETARY TO THE GOVERNMENT OF THE PUNJAB

LOCAL GOVERNMENT & RURAL DEVELOPMENT DEPARTMENT

PUNJAB SECRETARIAT, LAHORE and 5 others

Constitutional Petition No. 1795 of 1994, heard on 10th October, 2001.

(a) Punjab Local Government Ordinance (VI of 1979)‑‑‑

‑‑‑‑Ss.167 & 46‑‑‑Each and every order passed by Government administratively or otherwise cannot be given the status of a Rule or that of an amendment in the Rules‑‑‑Framing and proclamation of Rules and amendment therein by Government entails a process, which are not the requisites of administrative orders passed by a Secretary. of Government‑‑­Rules framed are imperatively required to be published in Gazette through a Notification‑‑‑Treating every order of Government as a Rule would not only amount to mockery of law, but would also deprive law and Rules framed thereunder the basic jurisprudential characteristic of certainty, consistency, clarity and continuity‑‑‑Construing orders of Government functionaries as Rules or amendment therein would amount to give them a licence to create anarchy and chaos in the society.

(b) Rules‑‑‑

‑‑‑‑Rules making powers‑‑‑Amendment in Rules‑‑‑Framing and Proclamation of Rules‑‑‑Process and Procedure‑‑‑Administrative order ‑‑‑Status‑‑Publication in Gazette a necessary conditions.

(c) Jurisdiction--------

‑‑‑‑Consent or participation of party cannot confer legal status and jurisdiction in a person, who has not been so appointed, nominated or conferred jurisdiction by law and Rules.

(d) Punjab Local Councils Servants (Efficiency and Discipline) Rules, 1981‑---

‑‑‑‑Rr.17 & 22(3)‑‑‑Punjab Local Government Ordinance (VI of 1979), Ss.46 & 167‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑‑Compulsory retirement from service‑‑‑Petitioner's appeal against such penalty tiled before Director was transferred by Government to Deputy Commissioner, who dismissed the same‑‑‑Revision petition filed before Secretary was held to be incompetent‑‑‑Contention was that order passed by Deputy Commissioner was without jurisdiction as he was neither appellate authority nor could he be nominated so under the Rules‑‑‑Validity‑‑‑Under R.17 of the Punjab Local Councils Servants (Efficiency and Disciplines} rules, 1981, Appellate Authority was Director and not Deputy Commissioner‑‑‑Government had no authority, under the Ordinance and Rules to transfer appeal to any other forum/officer/authority‑‑‑Orders of Government transferring petitioner's appeal to Deputy Commissioner neither could be interpreted to, give Deputy Commissioner the legal status of an Appellate Court 'nor did enjoy the status of a Rule introducing .amendment iii existing Rules regarding. nomination of an appellate authority different from the one specified in R.17 of the Rules‑‑‑Petitioner's participation in appeal proceedings before Deputy Commissioner could not validate the basic invalidity of absence of authority‑‑‑Impugned act of transferring appeal by Government to Deputy Commissioner and decision of appeal by Deputy Commissioner was without jurisdiction‑‑‑Constitutional petition was accepted and petitioner's appeal would be deemed to be pending before Competent Authority as specified in the Rules, who would decide it within specified time after giving him due opportunity of hearing.

Islam Din and 7 others' v. Nasir‑ud‑Din 1995 SCMR 906 ref.

Syed Zafar Ali for Petitioner.

Muhammad Akbar Tarar for Respondents Nos. 1 and 2.

Ch. Ali Muhammad for Respondents Nos 3 to 6.

Date of hearing: 10th October, 2001.

2002 P L C (C.S.) 1488

[Lahore High Court]

Before Shaikh Abdur Razzaq, J

SOHAIL AHMAD

Versus

CONSERVATOR, FOREST DEPARTMENT PUNJAB and 2 others

Frit Petition No.4691 of 2000/BWP, heard on 24th April, 2001.

Government Servants, (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 6 & 7‑‑‑Constitution of Pakistan (1973) Art.199‑‑‑Constitutional petition‑‑‑Inquiry proceedings‑‑‑Enquiry Officer sent charge‑sheet to the civil servant through another civil servant who reported that civil servant had refused to receive the same‑‑‑Enquiry Officer after the report, had made no effort to serve the charge‑sheet on civil servant through registered post or through proclamation‑‑‑Effect‑‑‑Enquiry proceedings conducted by the Enquiry Officer could not be considered to. be valid proceedings‑‑‑Enquiry report was. set aside with direction to serve the charge‑sheet upon the civil servant in accordance with law and then to proceed further in the matter.

Mumtaz Hussain Bazmi for Appellant.

M. A. Farazi and Rasheed Ali Akhtar, D.F.O. for Respondents.

Date of hearing: 24th April, 2001.

2002 P L C (C.S.) 1502

[Lahore High Court]

Before Ghulam Mahmood Qureshi, J

Malik MUREED HUSSAIN

Versus

THE ADMINISTRATOR, MUNICIPAL CORPORATION, BAHAWALPUR and another

Constitutional Petition No.5005/BWP of 1999, heard on 13th April, 2001.

Civil service‑--

‑‑‑‑ Promotion‑‑‑Entitlement On to pay scale of higher post‑‑‑Civil servant serving as Traffic Inspector in BPS‑9 was promoted as Land Officer in BPS‑11, but despite the said promotion he was paid salary in BPS‑9‑‑­ Civil servant made representation for payment of higher scale, but Authority paid no heed to his request‑‑‑Effect‑‑‑Civil servant who was not ineligible or deficient in qualification, was entitled to higher pay scale‑‑‑Authority was directed to decide representation filed by civil servant expeditiously strictly in accordance with law‑‑‑Constitution of Pakistan (1973), Art. 199.

Imdad All Khan v. Pakistan and another PLD 1986 SC 349 ref.

Ch. Parmoon Bashir for Petitioner.

Muhammad Ozair Chughtai for Respondents.

Date of hearing: 14th April, 2001.

2002 P L C (C.S.) 1521

[Lahore High Court]

Before Amir Alam Khan, J

SULTAN AZAM

Versus

GOVERNMENT OF THE PUNJAB and others

Writ Petition No. 18726 of 1997, heard on 10th December, 2001.

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

‑‑‑‑Rr. 5, 6 & 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Constitutional petition‑‑‑Inquiry proceedings‑‑‑Charge‑sheet‑‑‑Challenge to‑‑‑Petitioner was entrusted an enquiry against an employee‑‑‑Petitioner conducted enquiry and submitted report to the concerned Authority‑‑‑Competent Authority instead of passing any appropriate order in regard to said inquiry, proceeded to issue charge‑sheet to the petitioner whereby he was called upon to explain his conduct as to enquiry against employee‑‑‑Petitioner had challenged charge ­sheet against him by a Constitutional petition‑‑‑Validity‑‑Petitioner had seen charge for misconducting enquiry, firstly by not consulting and collecting any record or ,relevant evidence having bearing on the case, secondly that petitioner had admitted before an Officer that enquiry report was not drafted by ,the petitioner‑‑‑Two charges levelled against petitioner were pertinently directed against lass conduct as Enquiry Officer, which could at the most, entail an order for de novo enquiry or report submitted in that regard could be set aside by authorised officer, but it was nowhere provided under law to issue petitioner a charge‑sheet in that regard since he had acted as a Judicial Officer and had conducted inquiry as such‑‑‑Charge‑sheet issued to petitioner was declared by High Court to be without lawful authority and of no legal effect.

(b) Civil service‑‑‑

‑‑‑ Appointment/promotion‑‑‑Every eligible person has a 'right to be considered for appointment/promotion.

Javaid Shoukat Malik for Petitioner.

Muhammad Mazhar Sher Awan, A.A.‑G: with Shahid Abbas. Directorate of Special Education, Punjab Lahore for Petitioner.

Date of hearing: 10th December, 2001.

2002 P L C (C.S.) 1532

[Lahore High Court]

Before Shaikh Abdur Razzaq, J

SAFDAR HUSSAN and another

Versus

CONSERVATIVE FOREST and another

Writ Petition No.2105 of 1999/BWP, decided on 3rd May, 2001.

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 4, 6 & 7‑‑‑Constitution of Pakistan (1973), Art.199‑‑‑Contitutional petition‑‑‑Imposition of penalty‑‑‑Enquiry proceedings‑‑‑Civil servants were charge‑sheeted for causing loss to the Department and in enquiry proceedings were found responsible for the loss‑‑‑Departmental appeal filed by the civil servants having been dismissed, they filed Constitutional petition‑‑­Validity‑‑‑Procedure adopted by the Enquiry Officer as well as the Appellate Authority was in conformity with procedure laid down in Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑Appraisal of evidence could not be undertaken while invoking Constitutional jurisdiction of the High Court‑‑‑Orders challenged in Constitutional petition not suffering from any legal defect, same could not be interfered with by the High Court.

Safdar Hussain Amin Khan Lodhi for Petitioners.

M.A. Farazi for A.A. G.

2002 P L C (C.S.) 1553

[Lahore High Court]

Before Farrukh Lateef, J

Mst. SHAHNAZ IRSHAD

Versus

SECRETARY EDUCATION

Writ Petition No.2035 of 2002, decided on 8th April, 2002.

Constitution of Pakistan (1973)‑‑‑

-----Arts.199 & 212(2)‑‑‑Civil service‑‑Transfer of civil servant Constitutional petition, competency of‑‑‑Petitioner/Civil servant who was Assistant Professor Education had challenged his transfer in Constitutional petition alleging that she had been made a rolling stone by her repeated transfers with mala fide intention‑‑‑Transfer and posting of a civil servant was a matter pertaining to terms and conditions of service and dispute with regard thereto fell within exclusive jurisdiction of Service Tribunal under Cl.(2) of Art.212 of Constitution of Pakistan, 1973‑‑‑Constitutional petition being incompetent, was dismissed, in circumstances.

Muhammad Shams‑ul‑Haq for Petitioner.

200 P L C (C.S.) 1554

[Lahore High Court]

Before Farrukh Lateef, J

MUHAMMAD YAQOOB

Versus

DIVISIONAL FOREST OFFICER and others

Writ Petition No.2351 of 2002, decided on, 1st April, 2002.

Constitution of Pakistan (1973)‑‑‑‑

‑‑‑‑Arts.199 & 212(2)‑‑‑Civil service‑‑‑Transfer of civil servant‑‑‑ Constitutional petition, competency of‑‑‑Petitioner in his Constitutional petition had challenged his transfer from one place of working to another‑‑­ Posting and transfer of a Civil Servant was a matter pertaining to terms and conditions of service and dispute with regard thereto fell within exclusive jurisdiction of Service Tribunal under cl. (2) of Art.212 of Constitution of Pakistan (1973)‑‑‑Constitutional petition, in circumstances was not competent.

Khizer Hayat Khan Punnian for Petitioner.

2002 P L C (C.S.) 1558

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

KHAWAR

Versus

GOVERNMENT OF PUNJAB

Writ Petition No. 10556 of 2001, decided on 13th June, 2001

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Civil service‑‑‑Constitutional petition ‑‑‑Maintainability‑‑­Petitioner a civil servant being aggrieved with his transfer order had already filed Constitutional petition which was pending before High Court, next date of hearing was fixed‑‑‑Petitioner in the present Constitutional petition had challenged notice issued to him by the Authority‑‑‑Constitutional petition was not maintainable against such notice‑‑‑Petitioner was well within his right to file reply of notice by taking all legal and factual objections.

Shaugufta Begum's case PLD 1989 SC 360 ref.

Ijaz Ahmed Awan for Petitioner.

2002 P L C (C.S.) 1571

[Lahore High Court]

Before Muhammad Sayeed Akhtar, J

ZIA GHAFOOR PARACHA

Versus

THE CHAIRMAN BOARD OF INTERMEDIATE AND

SECONDARY EDUCATION, RAWALPINDI and others

Writ Petitions Nos.535, 451 of 1995, 105 of 1996, 1922, 1952, 2484 and Crl. Org. No. 126 of 1999, decided on 10th June, 2002.

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

‑‑‑‑Ss.11, 12(1‑A), 12(8)(iii), (iv), 15(6), 20, 21 & 22‑‑‑Service Regulations of Employees of Board of Intermediate and Secondary Education Rawalpindi, Regln.8‑‑‑Constitution of Pakistan (1973), Art. 199‑‑­Constitutional petition‑‑‑Dismissal from service‑‑‑Petitioner who was dismissed from service, had challenged dismissal order in Constitutional petition contending that Chairman of Board had no authority/jurisdiction to initiate disciplinary proceedings against him as Government as Controlling Authority, could only take said action‑‑‑Contention of petitioner was repelled because provisions of S.12(1‑A) of Punjab Board of Intermediate and Secondary Education Act, 1976 did not reveal that Controlling Authority was sole authority to suspend an employee of Board‑‑‑Controlling Authority could make Regulations concerning efficiency and discipline of officers and other employees of Board‑‑‑Under S.12(8)(iii) ‑ of Punjab Board of Intermediate and Secondary Education, Act, 1976‑‑‑Board empowered under S.20 of Punjab Board of Intermediate and Secondary Education Act, 1976 to frame Regulation subject to approval of Government, framed Regulations, but nothing was on record to show that Government/Controlling Authority had ever accorded its approval to such Regulations‑‑‑Said Regulations, in absence of any approval, were moribund in eye of law and could not empower Chairman of Board to remove employees of Board‑‑‑Petitioner was issued show‑cause notice against charges of misconduct, fraud and forgery by manoeuvring to mark attendance in Attendance Register and showing indiscipline and disobedience to superiors before he was dismissed from service‑‑‑Petitioner was also provided an opportunity of hearing, but he failed to appear and was dismissed from service‑‑‑Other petitioner who remained absent from duty and had shown indiscipline and irresponsible behaviour towards his superiors, was also, provided opportunity of personal hearing‑‑‑Defence of said employee was taken into consideration, but it did not find favour with the Authorities and he was removed from service‑‑­Regulations concerning Efficiency and Discipline of Employees of Board though had not been framed by Government, but mere inaction on part of Government to frame Regulations, coupled with lack of approval by Government to Service Regulations framed by Board under S.20(1)(iii) of Punjab Board of Intermediate and Secondary Education, Act, 1976, could not be taken as a prohibition from taking any disciplinary action against employees‑‑‑In absence of said Regulations, master and servant rule would apply to the case of employees‑‑‑Constitutional petitions filed by employees were not maintainable in circumstances.

1999 SCMR 138; PLD 2001 Lah. 395: PLD 1996 Lah. 672; PLJ 2000 Lah. 1202 2002 SCMR 549; 1993 PLC (C.S.) 1364: 1999 PLC (C.S) 409: Muhammad Anwar Hussain v. Chairman Board of Intermediate and Secondary, Education, Gujranwala and others 2000 PLC (C.S.) 678; The Principal, Cadet College, Kohat and another v. Muhammad Shoaib Qureshi PLD 1984 SC 170 and Karachi Development Authority and another v. Walt Ahmed Khan and others 1991 SCMR 2434 ref.

(b) Interpretation of statutes‑‑‑

‑‑‑‑Legislation‑‑‑Powers intended by Legislature to be a regulatory power, could not be converted by mere inaction to frame bye‑laws into a power of prohibition.

Kohinoor Chemical Co. Ltd. v. Karachi Municipal Corporation PLD 1978 Kar. 872 and M.U.A. Khan v. Rana M. Sultan and another PLD 1974 SC 228 ref.

Amjad Hamid Ghauri and Shahid Mahmood Mughal for Petitioner.

Hafiz S. A. Rehman and Bashir Ahmed Ansari for Respondents.

Syed Sajjad Hussain Shah, A.A.‑G. with Khalid Sidhu, S.O. Litigation) and Mamoon Abbas Khan, Ex‑Chairman BISE. Rawalpindi.

Date of hearing: 24th May, 2002.

2002 P L C (C.S.) 1604

[Lahore High Court]

Before Ch. Ijaz Ahmad, J

MUNIR AHMAD

Versus

SPECIAL SECRETARY SCHOOLS, SCHOOL EDUCATION DEPARTMENT, CIVIL SECRETARIAT, LAHORE and 2 others

Writ Petition No. 800 of 2002, decided on 22nd April, 2002.

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

‑‑‑‑R. 7(7)(a)‑‑‑Constitution of Pakistan (1973), Arts.4, 199 & 212‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Powers of High Court‑‑‑Award of minor punishment of censure‑‑‑De novo inquiry‑‑‑Civil servant who was awarded minor punishment of censure being aggrieved had filed Constitutional petition alleging that Authorities did not pass any order of de novo inquiry of petitioner within prescribed period of 15 days as was envisaged by R.7(7)(a) of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999‑‑‑Constitutional petition was resisted by Authorities contending that Constitutional petition was not maintainable in view of bar contained in Art.212 of Constitution of Pakistan (1973)‑‑‑Contention of Authorities had no force because High Court had ample power to give direction to public functionaries to act in accordance with law as envisaged by Art.4 read with Art.199 of Constitution of Pakistan (1973)‑‑‑Duty and obligation of public functionaries was to redress grievances of citizens, their subordinates without fear, favour and nepotism‑‑‑Authority was directed by the High Court to pass appropriate order strictly in accordance with law after providing hearing to parties.

Aslam Warraich v. Secretary. Planning and Development Division and 2 others 1991 SCMR 2330; Shakeel Ahmed v. Commandant 502 Central Workshop E.M.E. Rawalpindi and another. 1998 SCMR 1970; Zain Yar Khan v. The Chief Engineer WAPDA and others 1998 SCMR 2419; Muhammad Khaliq v. Board of Intermediate and Secondary Education, and others 2000 PLC (C.S.) 1373; H.M. Rizvi's case PLD 1981 SC 612 and M/s Airport Support Service v. The Airport Manager, Karachi and others 1998 SCMR 2268 ref.

Pervaiz Inayat Malik for Petitioner.

Muhammad Hanif Khatana, Addl. A.‑G. for Respondents.

Date of hearing: 22nd April, 2002.

2002 P L C (C.S.) 1609

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

Syed LAEEQ HAIDER ZAIDI

Versus

PUNJAB SMALL INDUSTRIES CORPORATION, Through Director Administration and 2 others

Writ Petitions Nos.9878 and 9880 of 2001, decided on 5th October, 2001.

(a) Civil service‑‑‑--

‑‑‑‑ Government instructions‑‑‑Status‑‑‑Instructions issued by Government Department attain status of law.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353 and Pakistan Burmah Shell Ltd. v. Central Labour Commissioner and 5 others PLD 1982 Kar. 33 ref.

(b) Civil service‑‑‑

‑‑‑‑ Successive move‑over ‑‑‑Non‑payment of difference of pensionary dues‑‑‑Petitioner being employee of Punjab Small Industries Corporation was earlier granted move‑over in Basic Scale 16 and later on he was allowed another move‑over in Basic Scale 17, but before the second move‑over could be granted the petitioner opted for retirement‑‑‑Grievance of the petitioner was that his pay was not fixed according to second move‑over and payment of difference of pensionary dues was not made to him‑‑‑Validity‑‑‑Where the successive move‑over was against the instructions issued by the Government the order passed by the authorities by which successive move‑over was granted to the petitioner, could not be allowed to remain in the field‑‑‑High Court, under its Constitutional jurisdiction directed the authorities that the matter of recovery of amount already paid to the petitioner be decided in the light of judgments passed by Superior Courts.

Nazir Ahmad v. Pakistan and 11 others PLD 1970 SC 453; Messrs Radaka Corporation and others v. Collector of Customs and another 1989 SCMR 353 and Pakistan Burmah Shell Ltd. v. Central Labour Commissioner and 5 others. PLD 1982 Kar. 33 ref.

Saleem Anwar Khan for Petitioner.

Maqbool Chaudhry for Respondents.

2002 P L C (C.S.) 1617

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD SIAF‑UL‑REHMAN

Versus

CHAIRMAN, PCSIR, PRESS CENTRE and 2 others

Constitutional Petition No. 401, heard on 12th October, 2001.

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

‑--‑‑S.4(b)‑‑‑Constitution of Pakistan. (1973) Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Move‑over to next basic pay scale‑‑‑Bar contained in Art.212 of the Constitution‑‑Applicability‑‑‑Petitioner being employee of PCSIR Laboratories was deprived of move‑over in basic pay scale No.20 on the ground that he secured two good and three average reports--Service Tribunal under of the Service Tribunals Act, 1973, declined to entertain the appeal the petitioner for the reason that Tribunal had no jurisdiction to entertain appeal against determination of the case‑‑‑Validity‑‑‑Where the Service Tribunals had jurisdiction to entertain and decide the matter, bar contained under Art.212 of the Constitution was applicable‑‑‑Service Tribunal in the present case refused to decide the matter for want of junk hence High Court could interfere and the bar contained under Art.212 of the Constitution did not attract in such‑ like cases‑‑‑High Court could entertain Constitutional petition of the employees whose cases had been considered by the department and had not been found fit for promotion and the bar under Art.212 of the Constitution did not affect the Constitutional jurisdiction of High Court‑‑‑Petitioner, in the present case, had been deprived of granting move‑over in basic pay scale No.20, High Court directed the authorities to grant the same to the petitioner‑‑‑Petition was allowed in circumstances.

Muhammad Anwar v. The Secretary, Establishment Division Rawalpindi and 2 others PLD 1992 SC 144; Federation of Pakistan v. Muhammad Qaisar Khan 1994 SCMR 544; Waseem Ahmad Khan v. WAPDA and 3 others 1997 SCMR 2000; Zahir Ullah and 13 others v . Chairman, WAPDA Lahore and others 2000 SCMR 826‑and Gulzeb Hussain v. Sui Northern Gas Pipelines Limited and 2 others 2000 SCMR 959 ref.

Syed Zafar Ali Shah for Petitioner.

Kh. Saeed‑ui‑Zafar, Dy. A.‑G. and Mian Tariq Sultan for Respondents.

Dates of hearing: 5th and 12th October, 2001.

2002 P L C (C.S.) 1625

[Lahore High Court]

Before Ijaz Ahmad Chaudhary, J

MUHAMMAD YAQOOB

Versus

THE SECRETARY LOCAL GOVERNMENT and others

Writ Petitions Nos.2753 and 2755 of 1995, heard on 19th October, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Consitutional petition‑‑‑Discretionary relief ‑‑‑Appointment‑‑­ Petitioner being overage was appointed by Chairman Municipal Committee without giving relaxation in the age‑‑‑Chairman of the Committee was removed and all appointments made by him were cancelled‑‑‑Authorities reinstated other appointees except the petitioner‑‑‑Contention of the petitioner was that High Court in exercise of discretionary powers might direct the authorities to reinstate him‑‑‑Validity‑‑‑Where a person who was not qualified to be appointed for the post was appointed, High Court refused to exercise its discretionary power in his favour as he was not qualified and had maneouvred to secure the post in spite of his being overage for more than two years and seven months‑‑‑High Court declined to issue any direction to the authorities for reinstatement of the petitioner‑‑‑Constitutional petition was dismissed in circumstances.

(b) Constitution of Pakistan (1973)—­-

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Discrimination‑‑‑Petitioner alongwith other persons was appointed by Chairman Municipal Committee‑‑­Appointments of all the persons were cancelled after the removal of the Chairman on the ground that the service of the appointees were burden on the Municipal Committee‑‑‑Authorities reinstated all other appointees except the petitioner on the plea that posts against whom the appointments were made, had already been sanctioned in the budget‑‑‑Contention of the petitioner was that he had been discriminated by the authorities ‑‑‑Validity‑‑­Petitioner in the present case had been discriminated and he was entitled to the same treatment which had been given to the other appointees who were appointed alongwith the petitioner on the different posts‑‑‑Where the orders were passed by the authorities without application of mind and without any justification, the same were set aside‑‑‑High Court directed the authorities to reinstate the petitioner immediately.

Muhammad Assadullah Siddiqui for Petitioner.

Muhammad Jahangir Wahla, Asstt. A.‑G. for Respondents

Date of hearing: 19th October, 2001.

2002 P L C (C. S.) 1632

[Lahore High Court]

Before Muhammad Akhtar Shabbir, J

MUHAMMAD AFZAL

Versus

COMMISSIONER OF INCOME TAX/WEALTH TAX BAHAWALPUR ZONE BAHAWALPUR and 2 other

Writ Petition No. 1285 of 2001, decided on 11th May, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional petition‑‑‑Scope‑‑‑Where a party resorts to a statutory remedy against an order then he cannot abandon or bypass it without any reasonable cause and file constitutional petition challenging the same Order.

Commissioner of Income Tax and others v. Hamdard Dawakhana (WAQF) Karachi PLD 1992 SC 847 ref.

(b) Removal from Service (Special Power) Ordinance (XVII of 2001)‑‑‑

‑Ss. 3(1), 4 & 10‑‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑­onstttution of Pakistan (1973), Arts. , 199 & 212‑‑‑Suspension from service‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Order of suspension from service related to terms and conditions of service‑‑‑Federal Service Tribunal tad exclusive jurisdiction in such‑like matters, whereas under Art. 199 of constitutions High Court had no jurisdiction to proceed in such petitions in view of the bar contained in Art. 212 of Constitution.

Province of Punjab and another v. Ch. Muhammad Ashraf and another 2000 PLC (C.S.) 118 ref.

(c) Removal from Service (Special Powers) Ordinance (XVII of 2001)‑‑‑--

‑‑‑‑Ss. 3(1) & 4‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R. 4‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Suspension from service‑‑‑Constitutional petition was dismissed in limine on the ground that order of suspension challenged thereby was passed six months before, which after expiry of such period had ceased to have its legal effect.

Mushtaq Ahmad Qazi and others v. Federation of Pakistan through Secretary, Establishment Division. Islamabad and others 2001 PLC (C.S.) 223 ref

(d) Pleading-----

‑‑‑‑Party cannot argue beyond his pleading.

Jamshed Akhtar Khokhar for Appellant.

2002 P L C (C.S.) 1635

[Lahore High Court]

Before Ijaz Ahmed Chaudhary, J

MUHAMMAD ANWAR RIAZ and others

Versus

STATE BANK OF PAKISTAN and others

Constitutional Petition No.4740 of 1993, decided on 25th September, 2001.

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

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212‑­Constitutional petition‑‑‑Promotion and recruitment against rules‑­Collectively assailing order relating to terms and conditions of service ­Grievance of the civil servants was that they were not promoted for years and instead respondents were directly recruited‑‑‑Such recruitment was assailed before High Court in Constitutional petition‑‑‑Contention of the civil servants was that they had collectively challenged the action of the employee (Bank) the same could not be challenged before Federal Service Tribunal‑‑­Validity‑‑‑Where the matter related to the terms and conditions of service and if appointments were not made in accordance with law and were made in contravention of the Rules being relied upon by the civil servant same could be challenged before the Service Tribunal‑‑‑Ii petition was filed collectively by some of the civil servants the provisions of the Art.212 of the Constitution would not become ineffective‑‑­Since matter related to the terms and conditions of civil servant appeal could be agitated before the same forum due to the insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Amendment in the Service Tribunals Act, 1973, was of retrospective effect‑‑‑High Court declined to interfer with the order Passed by the respondent Bank‑‑‑Petition was dismissed in circumstances.

1997 SCMR 2000; 2000 SCMR 826 and 2000 SCMR 959 ref.

Dr. A. Basit for Petitioner.

Rehan Nawaz for the State Bank.

2002 P L C (C.S.) 92

[Peshawar High Court]

Before Nasirul Mulk and Ijaz-ul-Hassan, JJ

KHURSHID ANWAR, SDO, "E" PESCO/WAPDA, HARIPUR

versus

CHIEF EXECUTIVE, PESHAWAR ELECTRIC SUPPLY COMPANY LIMITED and another

Writ Petitions Nos970, 189 and 190 of 2000, decided on 6th February, 2001.

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

--R. 17(1)(b)---Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, R.5(iv)---Constitution of Pakistan (1973), Arts. 199 & 212---Constitutionalpetition---Maintainability---Issuance of letter for explanation of the employee--­Petitioner in their Constitutional petition had challenged the issuance of letter for explanation issued to them under R.5(iv) of Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978---Validity---WAPDA employees having been declared civil servants, under S.17(1)(b) of Pakistan Water and Power Development Authority Act, 1958 for the purpose of Service Tribunals Act, 1973, High Court had no jurisdiction to entertain Constitutional petitions in terms of Art.212 of Constitution of Pakistan (1973)---Matter of issuance of letter seeking explanation of employees being related to terms and conditions of service of petitioners, exclusion of jurisdiction of High Court was complete irrespective of the ground on which validity, legality or irregularity of action of Authority was challenged.

Saleh Mehmood Awan for Petitioner.

Fazal-e-Gul Khan for Respondents.

Date of hearing: 6th February, 2001.

2002 P L C (C.S.) 144

[Peshawar High Court]

Before Mian Shakirullah Jan and Qazi Ehsanullah Qureshi, JJ

Dr. ASHIQ MUHAMMAD and S others

versus

GOVERNMENT OF N.‑W.F.P. through. Secretary, Health Services, Peshawar and another

Writ Petition No. 1274 of 2000, decided on 18th April, 2001.

Civil service‑‑‑

‑‑‑‑ Contractual service‑‑‑Termination of service unilaterally‑‑‑Petitioners were doctors who were employed on contract basis‑ ‑‑Authorities, without following the procedure prescribed in the contract, terminated their services‑‑‑Validity‑‑‑Contractual service did not confer unbridled arbitrary powers upon the employer .to terminate the service of his employees unilaterally‑‑‑Contractual obligations would not be taken to be only binding upon the employees‑‑‑Both the employer and the employees were equally bound by the terms and conditions of service‑‑‑Terms and conditions of contract services were to be acknowledged by both the parties‑‑‑Action taken by the Authorities was uncalled for, unwarranted and was in violation of the terms and conditions of the agreement‑‑‑Order of termination of the petitioners was set aside by High Court and they were reinstated in service, however, the petitioners were not found entitled to back benefits.

Bell and another v. Lever Brothers Limited and others 1932 AC 161; 1992 SCMR 2135; AIR 1991 SC 537 and 1998 SCMR 1930 ref.

Abdul Latif Afridi for Petitioners.

Tariq Javed, A.A.‑G. for Respondents.

Date of hearing: 18th April, 2001.

2002 P L C (C.S.) 259

[Peshawar High Court]

Before Talam Qayyum Qureshi and Ihsan Ullah Qureshi, JJ

GUL NABI SYED

versus

CHIEF EXECUTIVE, PESHAWAR ELECTRIC SUPPLY COMPANY, WAPDA HOUSE, SHAMI ROAD, PESHAWAR and another

Writ Petition No.780 of 2000, decided on 27th February, 2001.

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

----S.17(1-B)---Constitution of Paksitan (1973), Arts. 199 & 212(3)--Constitutional petition---Employment in Water and Power Development Authority---High Court, jurisdiction of---Scope---Service matters regarding employees of the Authority cannot be adjudicated by High Court in exercise of jurisdiction under Art. 199 of the Constitution due to bar contained in Art. 212(3) of tire Constitution.

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

----Ss. 17(1-B) & 20---Constitution of Pakistan (1973), Arts. 199 & 212--­Constitutional petition---Terms and conditions of service---Delegation of powers to act as "Competent Authority" to initiate disciplinary proceedings against employee of the Authority---Validity---High Court while exercising Constitutional jurisdiction refused to adjudicate the matter as determination of the question would fall under the domain and adjudication of Service Tribunal on account of bar contained in Art. 212(3) of the Constitution--­Constitutional petition was dismissed, in circumstances.

I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 rel.

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

----Ss.17(1-B) & 20---Service Tribunals Act (LXX of 1973, S.2-A-­Constitution of Pakistan (1973), Arts. 199 & 212--Constitutional petition--­Issuance of show-cause notice to the employee---Assailing of such notice. in Constitutional petition---Maintainability of the petition---Petitioner was employee of Water and Power Development Authority and on the charge of misappropriation of store material, show-cause notice was issued to him--­Contention of the petition was that he was employee of the Authority whereas the notice was issued by Officials of Peshawar Electric Supply Corporation, which Mms not the Competent Authority to issue the notice--­Validity---Petitioner was in service of Pakistan and remedy provided under Service Tribunals Act, 1973 was available to him by deeming him to be civil servant---With insertion of S.2-A in Service Tribunals Act, 1973; the petitioner was not required to wait for the final order and could approach the Tribunal against the letter of explanation and show-­cause notice---Constitutional petition was not maintainable in circumstances.

WAPDA and another v. Muhammad Arshad Qureshi 1986 SCMR 18 and I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 ref.

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

----Ss. 2-A & 4---Appeal prior to final order---Validity---With the insertion of S.2-A in Service Tribunals Act, 1973, civil servant is not required to wait for final order and can approach the Tribunal against letter of explanation and show-cause notice.

Qazi Muhammad Jamil for Appellant.

Said Rehman Khan for Respondent.

Date of hearing: 9th February, 2001.

2002 P L C (C.S.) 389

[Peshawar High Court]

Before Nasirul Mulk and Ijaz-ul-Hassan, JJ

MUHAMMAD. KHALIQ and 6 others

versus

COMMISSIONER, HAZARA DIVISION, ABBOTTABAD and 5 others

Writ Petition No. 324 of 1999, decided on 6th June, 2001.

North-West Frontier Province Service Tribunals Act (I of 1974)---

----S. 4---Constitution of Pakistan (1973), Art: 199---Constitutional petition---Stoppage of payment of pension---Petitioners earlier were declared unfit for public service by a Medical Board and as a result of Board's decision they were sent on pension---Subsequently after more than one year, Authority got the petitioners medically examined by, another Board which declared the petitioners fit for service---In the light of the opinion of the other Board, not only criminal cases were registered against the petitioners but payment of pension was also stopped---Authority being not a Departmental Authority as envisaged in Expln. to S.4 of North-West Frontier Province Service Tribunals Act, 1974, Service Tribunal had no jurisdiction to hear the appeal against the order passed by the Authority and Authority also had no right to pass an order regarding stoppage of pension of the petitioners---Action of Authority being in violation of law-could not be allowed to remain intact---High Court in exercise of its Constitutional jurisdiction declared the impugned order without any lawful authority.

Muhammad Aslam Khan for Petitioners.

Muhammad Ayub Khan, Dy. A.-G. for Respondents.

Date of hearing: 6th June, 2001.

2002 P L C (C.S.) 419

[Peshawar High Court]

Before Abdur Rauf Khan Lughmani and Qazi Ehsanullah Qureshi, JJ

FAROOQ AZAM KHAN, EX‑DIRECTOR‑GENERAL, PESHAWAR DEVELOPMENT AUTHORITY, PESHAWAR

versus

N.‑W. F. P. PROVINCE through Chief Secretary, N.‑W.F.P. Government, Peshawar and 3 others

Writ Petition No. 1310 of 1998, decided on 26th June, 2001.

Civil service‑‑‑

‑‑‑Misconduct‑‑‑Dismissal from service‑‑‑Reinstatement‑‑‑Civil servant dismissed from service after charge‑sheeting and holding inquiry against him on charge that he being Director‑General Development Authority concerned ordered to release the enhanced amount of compensation to the landowners whose land was acquired‑‑‑Civil servant was dismissed straightaway without giving him second show‑cause notice, supplying him copy of inquiry report and without affording him chance of hearing‑‑‑Civil servant ordered release of the payment of the enhanced compensation to the landowners complying the decision of the High Court in that respect during period when no stay order against such payment by any Court including Supreme Court was in field and period to file appeal before Supreme Court had also expired‑‑‑Civil servant having obeyed the orders of the High Court, his act would not come within the purview of misconduct‑‑‑Civil servant had honoured the orders of the High Court and if there were any, specific directions by the Head Office with regard to withholding of the disputed payment, that had no legal sanctity and said directions or orders were not to be taken as legal orders after the judgments and orders of the High Court to release the payment‑‑‑Drastic action of imposing major penalty of dismissal from service of the civil servant was declared illegal, unwarranted and based on mala fides‑‑‑Order of dismissal from service passed against the civil servant was set aside with direction to reinstate him in his own pay scale with all back benefits including pay, allowances and seniority.

Jehanzeb Rahim, Bar‑at‑Law for Petitioner.

Imtiaz Ali, Addl. A.‑G. for Respondents.

Date of hearing: 26th June, 2001.

2002 P L C (C.S.) 427

[Peshawar High Court]

Before Abdur Rauf Khan Ludhmani and Ejaz Afzal Khan, JJ

DANIEL MURAD

versus

PROVINCE OF N.‑W.F.P. through Chief Secretary, Civil Secretariat, Peshawar and 2 others

Writ Petitions Nos.986 of 1995 and 974 of 1996, decided on 2nd November 2001.

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts.199, 8(3)(b), 25(2)(3) & 212‑‑‑Constitutional petition‑‑‑Equality before law‑‑‑Civil service ‑‑‑Up gradation‑‑‑Entitlement‑‑‑Civil servants working as Accountant and Clerk in the Court of Special Judge Anticorruption had claimed a grade at par with that of their counterparts working in the, establishment of the District and Sessions Judges and other Civil Courts whose posts had been re‑designated and upgraded, vide notification, but benefit of said notification had not been extended to the civil servants despite they were holding the same posts and performing similar functions‑‑‑Validity‑‑‑Court of Special Judge Anti‑Corruption, was of equal status to the Court of District and Sessions Judge by virtue of S.3(1) of Pakistan Criminal Law Amendment Act, 1958‑‑‑No difference existed between the duties, functions and responsibilities of the civil servants and those of their counter‑parts working in the Courts of District and Sessions Judges and other Civil Courts‑‑‑Equal treatment of unequal is as condemnable as unequal treatment of equals‑‑‑If one set of Accountants and Clerks of Court had been grouped together for granting of a higher grade and another set of Accountants and Clerks had been left out notwithstanding the fact that they performed 'the same and similar duties, it could not be said that said classification was based on intelligible differentia‑‑‑Principle of equality before law as envisaged by Arts. 8(3)(b) & 25(2)(3) of Connotation of Pakistan had guaranteed equal treatment amongst equals and persons and things similarly situated and circumstanced Case of the civil servants, by no means, being different and distinguishable from that of their counterparts in terms of duties, the denial of similar grade to the civil servants could not be held to have been based on intelligible differentia ‑‑‑Civil servants were entitled to grade as was allowed to the Accountants and Clerks serving in the Courts of District and Sessions Judges and other Civil Courts‑‑‑Contention that question of up gradation of post being a question of terms and conditions of service was amenable to Service Tribunal and not a fit subject for adjudication of the High Court in exercise of its Constitutional jurisdiction, was repelled because change of grade to higher pay scale amounted to promotion and it was not amenable to the jurisdiction of the Service Tribunal.

Government of the Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375; Abdul Matin Khan and 2 others v. N.‑W.F.P. through Chief Secretary and 2 others PLD 1993 SC 187 and Government of the Punjab v. Muhammad Awais Shahid 1991 SCMR 696 ref.

Shahzada Shahpur Jan for Petitioner.

Tariq Javaid, A.A.‑G. for Respondents

Date of hearing: 13th June, 2001.

2002 P L C (C.S.) 661

[Peshawar High Court]

Before Khalida Rachid and Talaat Qayum Qureshi, JJ

Miss NOUREEN KHAWAJA

Versus.

P.I.A.C. and others

Writ Petition No. 1049 of 2001, decided on 30th August, 2001.

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

‑‑‑‑S.2‑A‑‑‑Service under Corporation‑‑‑Employment on contract or work­charge basis‑‑‑Employees of Pakistan International Airlines Corporation‑‑­Provisions of S.2‑A of the Service Tribunals Act, 1973‑‑‑Applicability‑‑‑By virtue of S.2‑A of the Service Tribunals Act, 1973, all employees of the Corporation have been declared to be civil servants ‑‑‑Provision of S.2‑A of the Act does not require that a person should be a regular employee of the Corporation‑‑‑Every person performing the functions of Corporation is deemed to be a "civil servant"‑‑--Definition of civil servant given in the Civil Servants Act, 1973, is riot attracted in circumstances.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Appeal before Service Tribunal ‑‑‑Maintainability‑‑­Comments filed in the High Court whether final order‑‑‑Word 'final', has been omitted by the amendment but with omission of the word the facts on the surface do not change, as passing of the order whether original or appellate is still a sine qua non for filing appeal in the Service Tribunal‑‑­Comments filed by the Authorities in High Court can be treated as an order‑‑‑Appeal before Service Tribunal on the basis of such comments is maintainable in circumstances.

Dr. Sabir Zameer Siddiqui v. Mian Abdul Malik and 4 others PLD 1991 SC 226 fol.

(c) Service Tribunal Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A & 4‑‑‑Constitution of Pakistan. (1973), Arts.199 & 212‑‑­Constitutional petition‑‑‑Maintainability‑‑‑Contract employee in Pakistan International Airlines Corporation‑‑‑Petitioner was employed on contract in the Corporation an daily wages‑‑‑Grievance of the petitioner was that she had been working in the Corporation since May, 1994 and she had neither been regularized in the service nor her post was upgraded‑‑‑Validity‑‑‑Petitioner was a civil servant for the purpose of Service Tribunals Act, 1973, and as her grievance pertained to the terms and conditions of service, she could resort to the Service Tribunal only for redressal thereof‑‑‑Constitutional petition was dismissed in circumstances.

Qazi Muhammad Anwar for Petitioner.

Hidayatullah Khan for Respondent.

Date of hearing: 4th duly, 2001.

2002 P L C (C.S.) 675

[Peshawar High Court]

Before: Nasirul Mulk and Khalida Rachid, JJ

WILAYAT ALI

versus

CHIEF SECRETARY TO GOVERNMENT OF N‑W.F.P., PESHAWAR and 3 others

Writ Petition No.862 with Civil Miscellaneous Application No.974 of 2001, decided on 12th July, 2001.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Transfer and posting of civil servant‑‑‑Jurisdiction of High Court‑‑‑Scope‑‑‑Matters of transfer and posting of a civil servant are relatable to the terms and conditions of service‑‑‑Such matters fall within the exclusive jurisdiction of Service Tribunal which is Competent Authority to consider the same if issued without lawful authority and is coram non judice‑‑‑Constitutional jurisdiction of High Court is ousted by virtue of Art.212 of the Constitution notwithstanding the fact that the transfer order is based on mala fides. coram non judice or issued without lawful authority.

Islamic Rep of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100; Mst. Shagufta Yunas v. Director of Education 1992 PLC (C.S.) 906; Dr. Alif Arif v. Secretary, Health, Government of Punjab and another PLD 1993 Lah. 286; Syed Afzal Ahmad Haidri v. Secretary, Defence Production Division, Ministry of Defence, Rawalpindi and 3 others 1991 SCMR 477; Miss Rukhsana Ijaz v. Secretary Education, Punjab and others 1997 SCMR 167; Rafique Ahmad Chaudhry v. Ahmad Nawaz Malik and others 1997 SCMR 170; Rashid Ahmad v. Mst. Jiwan and 5 others 1997 SCMR 171 and Syed Mazhar Hussain Bukhari v. Secretary, Government of Pubjab, Local Government and Rural Development Department, Lahore and others 1998 SCMR 1948 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199 & 212‑‑‑Constitutional petition‑‑‑Civil service‑‑‑Transfer and posting of civil servant‑‑‑Grievance of the civil servant was that he had been transferred twice in three months‑‑‑Validity‑‑‑Transfer order and posting orders were relatable to terms and conditions of service and could be challenged before Service Tribunal‑‑‑High Court took note of the fact that counsel being fully aware of the view of Supreme Court regarding service matters, still kept overburdening the High Court with such frivolous petitions against all professional norms‑‑‑Petition was dismissed in limine.

Muhammad Nasir Mahfuz for Petitioner.

2002 P L C (C. S.) 1155

[Peshawar High Court]

Before Talaat Qayum Qureshi, and Ijaz‑ul‑Hassan Khan, JJ

MUHAMMAD RAFIQ, SUPTD/ADMIN OFFICER, N.W.F.P. PUBLIC

SERVICE COMMISSION; PESHAWAR

Versus

CHAIRMAN, N.W.F.P. PUBLIC SERVICE COMMISSION, PESHAWAR and another

Writ Petition No. 1242 of 2000, decided on 18th June, 2002

(a) Civil Service‑--

‑‑‑‑Withdrawal of resignation‑‑‑Re‑instatement of Civil servant‑‑‑Resignation voluntarily tendered by Civil Servant serving as Superintendent Public Service Commission, was accepted‑‑‑Civil servant subsequently decided to withdraw his resignation and approached Authority concerned in that respect, but could not succeed‑‑‑Civil Servant approached Services Review Board by filing revision petition which petition was disposed of by the Board with observation that review petition filed by Civil Servant did not fall within purview of recommendatory powers of Board‑‑‑Service Review Board, however, remarked that Provincial Government could consider case of Civil Servant for his reinstatement without any compulsive recommendation from Board‑‑‑Chief Minister ordered reinstatement of Civil Servant, but Chairman Public Service Commission in absence of approval of Governor, was hesitant to implement orders of Chief Minister and allow Civil servant to resume duties‑‑‑Chief Minister, under provisions of North‑West Frontier Province Public Service Commission Officers and Servants (Terms and Conditions of Service) Regulation, 1985 was not competent to pass order regarding reinstatement of civil servant as such authority vested in Governor‑‑‑Chairman Public Service Commission, in circumstances had valid reasons to refuse to take back civil servant in service when no mala fides was spelt out from his action.

Ishfaq Hussain Rana v. Government of Punjab 1993 SCMR 1326 and Dr. Qaimuddin v. Government of N.W.F.P. and 3 others 1995 SCMR 876 ref.

(b) Constitution of Pakistan (1973)‑‑‑

Art. 199‑‑‑Civil Service‑‑‑Delay in tiling Constitutional petition‑‑­Discretionary relief, grant of‑‑‑‑Resignation voluntarily tendered by petitioner/Civil Servant was accepted and Civil Servant subsequently decided to withdraw resignation, but did not succeed‑‑‑Petitioner after acceptance of his resignation slept over his right for a sufficient long period‑‑‑Delay in tiling Constitutional petition which remained unexplained was not without effect on grant of discretionary relief to petitioner under Art.199 of Constitution of Pakistan, 1973 and in such like cases Court would be reluctant to grim discretionary relief.

Kamal Hussain v. M. Sirajul Islam PLD 1969 SC 42 ref.

Qazi Atiq‑ur‑Rehman for Petitioner.

Miss Musarrat Hilali, Addl. A.‑G. for Respondents.

Date of hearing: 7th June. 2002.

2002 P L C (C.S.) 1538

[Peshawar High Court]

Before Talaat Qayum Qureshi and Ijaz‑ul‑Hassan Khan, JJ

Syed MUHAMMAD AMIN and another

Versus

FEDERAL PUBLIC SERVICE COMMISSION, through Chairman and 2 others

Writ Petition No.363 and Civil Miscellaneous No.515 of 2002; decided on 4th June 2002.

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Where High Court itself was repository of appellate, revisional or referable powers conferred by a statute, then Constitutional petition would not be maintainable.

Khalid Mehmood v. Collector of Customs. Customs House Lahore 1999 SCMR 1881 fol.

(b) Federal Public Service Commission Ordinance (XLV of 1977)—­

‑‑‑‑Ss. 7(3) [as added by Federal Public Service Commission (Amendment) Ordinance (XVI of 2001)]‑‑‑Federal Public Service Commission Rules for Competitive Examination, 2001, R. 4(1)‑‑‑Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Examination for posts advertised on 24­9‑2001‑‑‑Commission rejected candidature of petitioners due to their being over‑aged‑‑‑Contention of petitioners was that they had a vested right to avail next chance of appearing in the examination as per Rules of 2000, of which they had been deprived by Rules of 2001‑‑‑Validity‑‑‑Commission was competent to alter the recruitment policy before finalization of appointments‑‑‑No candidate had vested right to be governed by any particular set of rules‑‑‑Where rules were altered/changed, the latter rules would supersede the former‑‑‑Maximum age limit prescribed in advertisement dated 24‑9‑2001 was 28 years‑‑‑Federal Public Service Commission Rules for Competitive Examination, 2001 were made effective on 8‑10‑2001, and according to rule 4(1) thereof, maximum age limit for a candidate was 28 years‑‑‑Candidature of petitioners had rightly been rejected‑‑‑Petitioners had failed to avail alternate remedies available to them under S. 7(3) of Federal Public Service Commission Ordinance, 1977, whereby High Court had become the repository of appellate jurisdiction‑‑‑High Court dismissed the Constitutional petition in limine.

C.P.S.L.A 3792 of 2001 and Miss Muneeza Zafar v. Federal Public Service Commission and another C.P.S.L.A No.940‑K of 2001 ref.

C.P. No.D‑1207 of 2001 and Khalid Mehmood v. Collector of Customs, Customs House Lahore 1999 SCMR 1881 fol.

(c) Vested right--

‑‑‑‑Vested rights originate from contracts, statutes and by operation of law.

C. P. No. D‑1207 of 2001. fol.

Ijaz Anwar for Petitioners.

Hamid Farooq Durrani, Dy. A.‑G. for Respondents.

Date of hearing: 4th June, 2002.

2002 P L C (C.S.) 678

[Quetta High Court]

Before Amanullah Khan, Chairman, Muhammad Akbar Awan and Mrs. Syeda Thira Safdar, Members

WAHID‑UR‑REHMAN

Versus

SENIOR SUPERINTENDENT OF POLICE, QUETTA and 2 others

Second Appeal No. 35 of 1998, decided on 30th November, 2000.

Balochistan Civil Servants (Efficiency and Discipline) Rules, 1983‑‑‑

‑‑‑‑Rr. 3, 4 & 6‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑­Dismissal from service‑‑‑Criminal case of Harabah and corruption was registered against the civil servant alongwith others and pending said criminal proceedings, Authority initiated action against him and after conducting inquiry dismissed him from service‑‑‑Inquiry was held in accordance with law add the civil servant was provided opportunity of hearing and to cross‑examine the witnesses produced against him‑‑‑Civil servant could not prove that the Inquiry Officer was partial or that he was not provided opportunity of hearing‑‑‑Contention of civil servant that no final decision having been taken by the Criminal Court against him in the case pending against him, imposition of major penalty on basis of pendency of case against him was harsh and liable to be set aside was repelled as no such provision existed in law and authority was not bound to suspend inquiry and other departmental proceedings against the accused civil servant till decision of criminal case against him‑‑‑Judicial proceedings and Departmental proceedings were distinct from each other‑‑‑Even if the civil servant was acquitted of the charge against him giving him benefit of doubt, but due to such acquittal the Authority was not bound to reverse its decision and action could be taken against him departmentally in addition to judicial proceedings and no bar existed on simultaneous proceedings‑‑‑Civil servant having failed to point out and establish any legal or factual defect in conducting of inquiry and awarding of punishment to him, orders passed against him could not be interfered with in appeal.

1989 SCMR 333 ref.

Tahir Iqbal Khatak, A.‑G. for Appellant.

Date of hearing: 7th September, 2000.

2002 P L C (C.S.) 1228

[Quetta]

Before Amanullah Khan, Chairman, Muhammad Akbar Awan

and Syeda Tahira Safdar, Members

GHULAM RASOOL and others

Versus

GOVERNMENT OF BALOCNISTAN through Chief Secretary and others

Second Appeal No. 18 and 19 of 1991, decided on 14th September, 2000.

(a) Pakistan Tehsildari and Naib‑Tehsildari Rules, 1962‑‑‑

‑‑‑‑Rr. 8, 9 & 10‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑­--Seniority‑‑‑Determination of ‑‑‑Appeal‑‑‑Maintainability‑‑‑Appellants/Civil servants who were selected for appointment in 1972 as Tehsildars were under training and their services were dispensed with during their training by orders of Board of Revenue after about one year of their appointment‑­-Appellants were re‑instated in service after about five years of their termination‑‑‑Appellants claimed their seniority from date of their initial recruitment in 1972 contending that they were appointed as direct Tehsildars and time during which they remained out of service due to termination of their service till their re‑instatement should be counted in their service‑­ Order of reinstatement had stated that the appellants were not entitled to any damages, compensation or arrears of emoluments or other benefits for the period they remained out of service‑‑‑Appellants had accepted such order of reinstatement as a whole and had not challenged any portion of the same‑­Nothing was on record that said intervening period was ever treated as period included in their service‑‑‑Even otherwise term "selected for appointment" used in R.8, Pakistan Tehsildari and Naib‑Tehsildari Rules 1962 and term "members of the service" used in Rr.9 & 10 of said Rule; were used in different senses‑‑‑" Selection" could not amount to appointment‑‑‑Appellants were only candidates and not members of service and their services as‑ Tehsildars would be considered and calculated from the date when they assumed the charge after regularization of their service and their seniority would be counter from that date and not from date of their initial recruitment ‑‑‑ Seniority of the civil servants had rightly been fixed from date of regularization of their services and not from date of their initial recruitment a claimed by them.

(b) Civil Servants‑‑---

-----‘Selection’ does not mean ‘appointment’.

Mir Aurangzaib for Petitioners.

Ali Akbar in person.

2002 P L C (C.S.) 372

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman, Mrs. Sydeda Tahir Safdar and Ghulam Rasool Hasani, Members

AHSAN HIDAYAT, ACTING EXECUTIVE ENGINEER, IRRIGATION DIVISION, PISHIN

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Services & General Administration Department, Civil Secretariat, Quetta and 2 others

Second Appeals Nos. 76 of 1997, 1 and 12 of 1998, decided on 28th June, 2001.

Pakistan Engineering Council Act (V of 1976)‑‑‑

‑‑‑‑Ss. 2(j)(k); 3 & 8‑‑‑Balochistan Irrigation and Power Department Engineers (Civil, Electrical and Mechanical Grade‑16 and above) Service Rules, 1981, Appendix, Items Nos.3 & 4‑‑‑Balochistan Public Health Engineering Department (Civil, Electrical and Mechanical B-I6 and Above) Service Rules, 1989, Appendix, Items Nos,3 & 4‑‑‑Promotion‑‑‑Civil servants who joined as Assistant Engineers .(B-I7) after completion of five years' service had claimed to have become eligible for promotion to the post of Executive Engineers (B-I8)‑‑‑As per appendices attached to Service Rules, 1981 and 1989, Diploma Holders Sub‑‑Divisional Officers were not eligible for the post of Executive, Engineers (B-I8), but after amendment made in the, said Rules, quota of promotion of said post was revised‑‑‑Civil servants had challenged the amendment alleging that same had adversely affected terms and conditions of their service and also was contrary to provisions of Pakistan Engineering Council Act, 1976-‑‑Government had exclusive powers and authority to amend any law or rule and could change its policy, but not in contravention of any law‑‑‑Government concerned could only decide whether a particular academic qualification of a civil servant/employee was sufficient for promotion to a higher grade‑‑‑No legal bar was there on the Government in that respect unless and until said vested power was used and exercised in unjust and illegal manner and the civil servants had failed to establish any of such infirmity‑‑‑Functions of Pakistan Engineering Council were to regulate the persons qualified to practise as professional engineers and consulting engineers and not related to those who were employed in the Government or Semi‑Government organisations‑‑­Pakistan Engineering Council was fully competent and had full authority to take legal action against the concerned person or Authority if there was any violation of the rule/law that professional engineering work was assigned to any one who was not legally registered with the Council‑‑‑Civil servants had failed to prove that impugned amendment was in conflict with provisions of Pakistan Engineering Council Act, 1976 or that it was in conflict with any other provisions of law, rules or policy‑‑‑No further legal or factual defect had been shown to be present in the amendment‑‑‑Civil servants having completely failed to establish their case, appeals filed by them were dismissed.

Mir Aurengzeb, Advocate.

Ashraf Khan Tanoli, A.‑G. Kamran Murtaza, Advocate.

Qahir Shah, Advocate. Malik Manzoor Ahmad, Advocate.

Date of hearing: 24th May, 2001.

2002 P L C (C.S.) 386

[Baloshistan Service Tribunal]

Before Justice Aman-ul-Allah Khan, Chairman, Mrs. Syeda Tahira Safdar and Ghulam Rasool Hasni, Members

Mir ABDUL RAZZAQ JAMALDINI

versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and 2 others

Second Appeal No. 73 of 1998, decided on 21st December, 2000.

Balochistan Service Tribunals Act (V of 1974)---

----Ss. 3(2) & 4(b)(i)---Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, R.7---Promotion to a higher grade or post--­Appellate jurisdiction of Service Tribunal---Appellant/civil servant, who was promoted in B-19, made representation for promotion to B-20 three times, but Provincial Selection Board rejected his case on ground of unsatisfactory service record which amounted to adverse remarks and thus his junior was promoted by superseding him---Civil servant filed appeal before Service Tribunal against his supersession---Validity---Matter of promotion of a civil servant to a higher post did not fall within jurisdiction of Service Tribunal--­Even otherwise the promotion to a higher grade or post was not a vested right of a civil servant as it was not included in matters relating to the terms and conditions of service---Posts in B-19 and above were selection posts which no officer could claim as of right---Formation of Provincial Selection Board which had dealt with case of the civil servant for promotion, had not been challenged to be illegal and the department had acted upon the recommendations of the Board---In the absence of any mala fides on the part of the Board and Departmental Authority, civil servant had rightly been superseded---Matter not falling within the jurisdiction of Service Tribunal, appeal filed by the civil servant was dismissed for want of jurisdiction.

S.A.M. Qadri for Appellant.

Advocate-General for Respondents.

Date of hearing: 7th December, 2001.

2002 P L C (C.S.) 430

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman, Ghulam Rasool Hasni and Syeda Tahira Safdar, Members

Dr. ZAHOOR UL HAQ and 5 others

versus

CHIEF SECRETARY, GOVERNMENT OF BALOCHISTAN and another, Service Appeals Nos.6, 8, 10, 11, 12, 13 and 16 of 2000, decided‑on 23rd November, 2000

Balochistan Civil Servants (Efficiency and Discipline) Rules, 1992‑‑‑

‑‑‑‑R.4‑‑‑Compulsory retirement‑‑‑Dismissal from service‑‑‑Allegation against the civil servants was that they were assigned the job to carry out a huge project, but due to their mismanagement, the project suffered a lot and huge amounts were misappropriated, resulting in heavy loss to the Government Exchequer‑‑‑Civil servants were alleged to have committed acts of gross negligence, corruption and had embezzled huge funds of the Government‑‑‑Penalty of compulsory retirement and dismissal from service were awarded to the civil servants after charge‑sheeting them and holding inquiry against them-‑‑Civil servants were given full opportunity to place their defence and even before the Tribunal the civil servants could not give satisfactory reply regarding the failure of project assigned to them for which all of them were personally and collectively responsible‑‑­Civil servants had challenged penalties simply arguing on technical grounds raising technical objections, but nothing could be brought on record to challenge allegations of embezzlement; misappropriation of amounts and mismanagement levelled against them‑‑‑Objection not raised before Authorised Officer nor in the representation to Government could not be agitated before the Tribunal‑‑‑Charge‑sheets served upon the civil servants had clearly specified the charges against them and the Enquiry Officer had taken pains while describing the role of each and every civil servant, details and the duties of each one, of them and also the manner in which they failed to carry out their duties‑‑‑Enquiry was conducted by an officer who was senior in rank to the civil servants and was also initiated after receiving the Special Audit Report which was carried out at the site--‑­Enquiry was competently conducted and Enquiry Officer had given complete details of the Project, amounts embezzled and had also fixed the liabilities of all the civil servants‑‑‑Penalties, in circumstances, were rightly imposed on the civil servants‑‑‑Case of the civil servants was considered tit to be referred to the Provincial Accountability Bureau.

K. N. Kohli for Appellant.

M. Aslam Chishti for Respondent.

M. Ashraf Khan Tanoli, A.‑G.

Date of hearing: 23rd. November, 2000.

2002 P L C (C.S.) 611

[Balochistan Service Tribunal]

Before Justice Amanullah Khan, Chairman Ghulam Rasool Hasani and Syeda Tahira Safdar, Members

NASEEBULLAH KHAN

versus

GOVERNMENT OF BALOCHISTAN through Secretary, Industries Department, Civil Secretariat, Quetta and 2 others

Second Appeal No.38 of 2000, decided on 20th September, 2001.

Civil service‑‑‑

‑‑‑‑Removal from service‑‑‑Reinstatement‑‑‑Initial appointment of civil servant was on ad hoc basis which was extended from time to time‑‑‑Special Committee having not regularized services of the civil servant, his service were terminated, but Chief Minister reinstated him in service with no financial benefit and civil servant on basis of forged document managed to draw huge amount as his salary for the period he remained out of service‑‑­Civil servant, who was found guilty, was again dismissed from service, but was reinstated again in service at the instance of the Minister‑‑‑Subsequently, the Authorities in view of decision of the High Court given in suo motu Constitutional petition, took the matter of reinstatement of the civil servant and removed him from service‑‑‑Repayment .of amount by civil servant wrongfully drawn by him would not make him entitled to remain in service‑‑‑Reinstatement of civil servant in service was rightly held to be unlawful and his removal from service did not suffer from any illegality in circumstances.

M. Aslam Chishti for Appellant.

Ashraf Abbas for the State.

Date of hearing, l7th May, 2001.

2002 P L C (C.S.) 630

[Balochistan Service Tribunal]

Before Amanullah Khan, Chairman, Ghulam Rasool Hasani and Mrs. Syeda Tahira Safdar, Members

MUHAMMAD SALEEM‑UL‑HAQ and others

versus

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

S.As. Nos.37 and 42 of 1998, decided on 28th June, 2001.

Civil service‑‑‑

‑‑‑‑Pro forma promotion‑‑‑Entitlement to higher pay and seniority‑‑‑Civil servant who initially joined service as Senior English Teacher was finally promoted as Divisional Director of Education in B‑19 on acting charge basis‑‑‑Said post having been upgraded to B‑20 civil servant submitted representation for grant of pro forma promotion and also to pay him for higher post in B‑20 for the period during which he held charge of that post but Authority did not decide case of the civil servant‑‑‑Matter of seniority of the civil servant was also not decided by the Authority for a long time‑‑­Other civil servants who were junior to the civil servant were given pro forma promotion on basis of revised criteria with retrospective effect with all back benefits, but Authority despite accepting claim of the civil servant in principle regarding pro forma promotion on basis of his seniority, did not decide his case within prescribed time‑‑‑Effect‑‑‑Appeal of the civil servant pertaining to fixing of his seniority and awarding him pro forma promotion was accepted‑‑‑Civil servant who held post of higher grade in B‑20 with higher responsibilities, was very much entitled to the maximum pay of said higher grade‑‑‑Authorities concerned were directed to do the needful.

Islamic Republic of Pakistan v. Qazi Abdul Karim 1978 SCMR 289 ref.

Appellant in person. A.‑G. for Respondent

Date of hearing: 14th June, 2001.

2002 P L C (C. S.) 638

[Balochistan Service Tribunal]

Before Amanullah Khan Chairman, Ghudam Rasool Hasani and Mrs. Syeda Tahira Safdar, Members, SOHAIL AHMAD SHEIKH

versus.

SECRETARY, HOME AND TRIBAL AFFAIRS, GOVERNMENT OF BALOCHISTAN, QUETTA and 5 others

S.A. No. 17 of 1998, decided on 9th August, 2001.

Balochistan Civil Servants Act (IX of 1974)‑‑‑

‑‑‑‑Ss. 2(a) & 8‑‑‑Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979, Rr. 10, 18' & 19‑‑‑Balochistan Public Service Commission (Functions) Rules, 1987, R.5‑‑‑Seniority‑‑‑Civil servant was appointed on regular basis as D.S.P. on recommendation of Public Service Commission while the opposing civil servants were appointed on ad hoc basis‑‑‑Opposing civil servants for regularization of their ad hoc appointments appeared before Public Service Commission on direction of Authority and participated in written test, but failed and Commission suggested to withdraw appointment orders of the opposing civil servants, but Authority regularized their service with retrospective effect despite the fact that said civil servants neither had filed any appeal nor representation in that respect‑‑‑In earlier seniority list name of civil servant was above the names of the opposing civil servants, which list had attained finality, but in subsequent seniority list which was issued after regularization of ad hoc appointment of opposing civil servants, name of the civil servant was placed below the names of opposing civil servants showing them senior to civil servant‑‑‑Opposing civil servants despite their failure in the written test were appointed and their services were regularized retrospectively‑‑‑Such conduct of Authorities was highly objectionable and was worst type of favouritism‑‑­Authority, though had power to relax, any rule or change its policy in any case or could regularize the ad hoc appointment with retrospective effect, but such exercise of power must not be in conflict with any .rule or law and also not at the cost of rights of any other person‑‑‑Ad hoc appointment would not confer any right of seniority from the date of appointment nor the ad hoc appointment could become regular merely due to lapse of time ‑‑‑Person appointed on regular basis was to be senior to one appointed on ad hoc basis even on a substantive post‑‑‑Ad hoc appointee could continue in service till it was regularized but his appointment would 'not confer any right on him in respect of seniority from the date of his ad hoc appointment‑‑‑Notification whereby opposing civil servants were shown senior to the civil servant, was set aside declaring civil servant senior to opposing civil servants.

1996 SCMR 1349 ref.

Syed Ayyaz Zahoor for Petitioner.

Mujeeb Hashmi for Respondent.

Ashraf Abbas for the State.

Date of hearing: 17th May, 2001.

JUDGMENT

MRS. SYEDA TAHIR.A SAFDAR (MEMBER‑II).‑‑‑It is case of the appellant that on recommendation of Public Service Commission, he was appointed as D.S.P., through Notification dated 21‑3‑1990, while respondent Nos:4 to 6 (Babar Gul, Muhammad Aslam Bhotani and Suleman Ali Haideri) were appointed as D.S.P. on ad hoc basis. For regularization of services they, (respondents Nos.4 to 6) were directed to appear before Public Service Commission. Wheruepon respondents Nos.4, 5 and 6 appeared before the Commission and participated in written test but failed. Whereby the Commission, through letters dated 10‑12‑1988, 27‑12‑1988 and 27‑12‑1988. I suggested that the appointment orders of said respondents be withdrawn. Thereafter the three vacancies for die post of D.S.P. were withdrawn from the purview of the Commission. Afterwards the services of respondents Nos.4 to 6 were regularized through Notification dated 21‑8‑1990, 25‑11‑1990 and 6‑1‑1991 with immediate effect.

1. It is further case of the appellant that seniority list was issued on 1‑8‑1992, wherein his (the appellant's) name was at S.No.48, while names of respondents Nos.4 to 6 were at S.Nos.51, 60 and 61. None of the parties raised objection whereby the seniority list attained finality. But, through Notification dated 19‑10‑1993 respondent No. 1 regularized the services of respondents Nos.4 to 6 from the date of their ad hoc appointment. While another seniority list was issued, wherein the name of him (the appellant) was at S. No.50, while names of respondents Nos. 4 to 6 were at S.Nos.28, 29 and 34. Feeling aggrieved of the same, he preferred representation which remained pending. Meanwhile another seniority list was issued on 3‑1‑1995, wherein previous position was repeated, whereupon he fled representation which remained pending. Whereafter, he filed service appeal before the Tribunal. The case was remanded to the Department through order made on 25‑7‑1997 with direction for completion of formalities and issuance of final seniority list as no final seniority list has been issued and matter cannot be decided at the stage of provisional seniority list. In compliance of the same final seniority list was issued on 1‑8‑1997, wherein his (the appellant's) name was chown at S.No.49, while the names of respondent Nos.4 to 6 were at S.Nos.23, 24 and 26. Feeling aggrieved of the same he filed representation and challenged the final seniority list but to no avail.

2. The appellant leas preferred present appeal on ground that as his objections were not considered by the Authorities before finalization of seniority list, therefore, he was condemned unheard. Further, he was shown senior in seniority list dated 1‑8‑1992, which was neither challenged nor disputed by anyone thus attained finality, the change afterwards is illegal and in violation of Rules. The appellant has prayed for declaration to the extent that he is senior to respondents Nos.4 to 6, impugned seniority list be corrected and set aside the impugned notification being illegal and in violation of Rules.

3. Respondent No.1 in reply has raised contention that as the services of private respondents were regularized from the date of their initial ad hoc appointment by Appointing Authority, due to the same change was made in seniority list, while their names were placed in appropriate place.

4. In reply respondent No.2 admitted issuance of seniority lists including the issuance of impugned seniority list. According to him the seniority of appellant as well as of private respondents was fixed as per directives of respondent No. 1.

5. While respondent No.3 in reply has given no comments on merits rather only stated that application of the appellant was forwarded to I.‑G. Police.

6. In their joint reply respondents Nos.4. 5 and 6 have raised objection that the present appeal is hit by principle of res judicata. Further no appeal lies against provisional seniority list, therefore, present appeal is incompetent. On merits it is their contention that on advertisement of Public Service Commission, they applied for the posts, they (respondents Nos.4 and 5) failed to clear the test while respondent No.6 cleared the written test. But before finalization of the matter, the Government withdrew these three posts from purview of the Commission, whereupon they were appointed as D. S. P. on ad hoc basis against clear vacancies, while afterwards their services were regularised after due consideration. Afterwards their case was again taken up for reconsideration, whereby their services were regularised from the date of their original induction in the service. Due to the same the seniority position is changed. Moreover, the appellant has failed to file the appeal within time, thus present appeal is time‑barred and not maintainable. Further, the notification about regularization of their (respondents Nos.4 to 6) services has attained finality, thus the same cannot be reopened. They have prayed for dismissal of appeal.

7. The appellant being aggrieved with his seniority position as assigned to him in seniority list issued on 12‑8‑1997. Wherein the name of the appellant is at S.No.49, while names of respondents Nos.4, 5 and 6 are at S.Nos.23, 24 and 26. The appellant claimed himself to be the senior to that of respondents Nos.4, 5 and 6 on basis that he has been appointed on regular basis on recommendation of Public Service Commission on 21‑3‑1990; while the said respondents were appointed on ad hoc basis on 23‑11‑1988, 1‑12‑1988 and 19‑2‑1988, while their services were firstly regularized from 21‑8‑1990, 25‑11‑1990 and 6‑1‑1991, but afterwards through notification dated 19‑10‑1993 their services were regualrized since dates of their initial ad hoc appointments. Official respondents Nos. 1, 2 and 3 in reply only raised contention that seniority positions of the parties were fixed as per order of regularization of services since the date of initial ad hoc appointment, due to the same change was made in seniority list and name of respondents Nos.4, 5 and 6 were placed in appropriate place. While on the other hand respondents Nos.4, 5 and 6 in their joint reply though admitted their initial appointment on ad hoc basis, which was regularized afterwards but thereafter their cases were again considered and their services were regularized from the date of their initial appointment, Further no final seniority list has been issued, therefore, no appeal lies against provisional seniority list. Present appeal being time‑barred thus is liable to be dismissed.

8. The perusal of record reveals that the present appeal has been filed by the appellant feeling aggrieved of the seniority position assigned to him in seniority lis issued on 12‑8‑1997. It is to be noted that previously too the appellant fled an appeal feeling aggrieved of his seniority position, and prayed for correction of the same. The said appeal was disposed of by this Tribunal through order made on 25‑7‑1997. Whereby the case was remanded to the Authorities/Department with direction for completion of formalities and issuance of final seniority list by disposing of objections of the appellants and others at its provisional stage. Thereafter a seniority list of DSPs, PDSPs, Inspectors and Prosecuting Inspectors of Police Department as stood‑ on 1‑8‑1997, was issued on 12‑8‑1997. This list is presently impugned before the Tribunal. According to appellant, the said list is final seniority list while according to respondents Nos.4, 5 and 6 the impugned list is provisional, therefore, present appeal or basis of the same does not lie; as such not maintainable. The perusal of impugned seniority list reveals that nowhere words "provisional" or "final" have been used therein. But the official respondents in their reply while admitting the relevant paragraph of the appeal has asserted that seniority list has been issued. Though the reply is evasive but there is admission of the official respondents, therefore, in view of the same the impugned seniority list shall be presumed to 6e foal seniority list. Furthermore, it' is highly objectionable that despite clear orders of this Tribunal the Authorities/Department have failed to finalize the matter after removing the objections. Thus in view of their own admission the impugned seniority list is deemed to be the final seniority list, therefore, the present appeal is very much maintainable. Tine objections raiser': by respondents Nos.4, 5 anal 6 arc rejected being baseless. .

9. The other objection raised on maintainability of the appeal is that as the imp'igned. notification whereby their (respondents Nos.4 to 6) services were regularized was issued on 19‑10‑1993, whereby the appellant filed time barred, representation, thereafter approached the Tribunal beyond period of limitation. To this effect the finding was given in the judgment of previous appeal. Therefore, presently the impugned notification cannot be challenged being hit by principle, (it res judicata, further; the appeal is also filed beyond period of limitation. The persual of the record reveals that alongwith memo. of appeal the appellant has filed an application for condonation of delay wherein it is his contention that he had filed present appeal on 13‑2‑1998, which is barred by only three days, as he has filed Departmental appeal on 11‑10-1997, which remained pending before the Authorities arid never disposed of.

10. As per relevant law the provided time for filing of appeal against any final order is within 30 days of the communication of such order to they person aggrieved of the same. Farther, in case appeal, review or representation has beets filed to the Departmental Authority then the appellant has to wait for a period of 90 days from the dote of filing of such appeal, review or representation, thereafter within a period of 30 days, limitation period of the appeal before the Service Tribunal. In present case the appellant has filed appeal before Departmental Authority on 11‑10‑1997, while present appeal has been filed on 13‑2‑1998, i.e. after lapse of 122 days, though in application for con donation of delay the reasons given by the appellant are not impressive, but in interest of justice it seems better to condone the delay of only two days, as the matter is quite old and valuable rights of the parties are involved. Further the appellant is fighting for his rights for quite a long time.

11. As far as objection in respect of appeal being hit by principle of res judicata is concerned though some remarks are given to the extent of merits of the previous appeal in judgment made r‑hereon, but as the appeal was not rejected being time‑barred, rather the same was remanded to the Authorities for finalization of seniority list after removing of objections raised by the appellant and others. Furthermore, in first round of litigation the Departmental Authority has not rejected the appeals/representations of the appellant on basis of limitation rather kept them pending. Thereafter the appellant approached this Tribunal whereby matter was remanded to the Departmental Authorities. Thus in view of the same the present appeal is not hit by limitation, as no final order has been passed by the Authorities, even after issuance of last seniority list, impugned before us. Therefore, in view of the same the present appeal is not hit by principle of res judicata nor barred by limitation, rather it is very much maintainable.

12. Now coming to merits of the case, the appellant is feeling aggrieved of his seniority position as assigned to him in final seniority list, presently impugned before the Tribunal. The perusal of the record reveals that the appellant was appointed on regular basis as D.S.P. on 21‑3‑1990 on g recommendation of Balochistan Public Service Commission. While on the other, hand respondent No.4 (Babar Gul) was appointed as D.S.P. do ad hoc basis on 23‑11‑1998, respondent No.5 (Muhammad Aslam) was appointed as D.S.P. on ad hoc basis on 1‑12‑1988, and respondent No.6 (Suleman Ali), was appointed as D.S.P. on ad hoc oasis on 19‑12‑1988. The appointment order of all the three reveals that they were appointed by relaxing the recruitment policy pertaining to zonal allocation, further the posts on which they (respondents Nos.4 to 6) were appointed, were also withdrawn from the purview of Balochistan Public Service Commission. Thereafter their services were regularized with immediate effect through Notifications dated 21‑8‑1990 in case of respondent No.4 (Babar Gul), dated 6‑1‑1991 in case of respondent No.5 (Muhammad Aslam) and dated 25‑11‑1990 in case of respondent No.6 (Suleman Ali) uptil said stage there was no objection from any side. But thereafter another notification was issued on 19‑10‑1998, whereby the services of respondents Nos.4 to 6 were regularized from the dates of their initial ad hoc: appointment. This notification is point in dispute between the parties.

13. It must be noted here that initially the posts, including the posts on which the respondents (Babar Gul, Muhammad Aslam and Sulman Ali) were appointed word advertised by Balochistan Public Service Commission, while written tests were held, wherein the said respondents 'also appeared but remained unsuccessful. Despite the same they were appointed on ad hoc basis, while zonal quota was also relaxed in their favour. Thereafter, their services were regularized with retrospective effect without any appeal or representation from said respondents. It is worst example of undue favour. The relaxation in the zonal quota was made arbitrarily. Despite their failure in passing the test respondents No.4 to 6 were appointed on ad hoc basis. This conduct of Authorities is highly objectionable.

14. Though the Government has the power to relax any Rule or change its policy in any case or can regularize the ad hoc appointment from retrospective effect, but this exercise of power must be not in conflict with any Rule or law and also not at the cost of right of any other person.

15. It is further to be noted that as per section 2(a) of Balochistan Civil Servants Act, 1974 terra ad hoc appointment is defined as:

(a) "Ad hoc appointment" means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method. "

It is further provided in Rules 18 and 19 of Balochistan Civil Servants (Appointment, Promotion and Transfer) Rules, 1979 that:

Rule 18. "When under Balochistan Public Commission (Function) Rules, 1975 a post is required to be filled through the Commission the appointing authority shall forward a requisition in the prescribed form to the Commission immediately, it is decided to fill the post of if that 'is not practicable and the post is filled on ad hoc basis as provided in Rule 19 within two months of filling of the posts."

Rule 19. "When the Appointing Authority considers it to be in the public interest to filling a post falling within the purview of the Commission urgently it may, pending nomination of a candidate by the Commission proceed to fill such post on ad hoc basis for a period not exceeding six months by advertising the same in with the procedure laid down for initial appointment in Part III."

The relevant Rule of Part III of the Rules of 1979 is Rule 10(a) which speakes as under:--

(a) falls within the purview of the Commission, on the basis of examination or test to be conducted by the Commission. "

Further as per Rule 5 of Balochistan Public Service Commission (Functions) Rules, 1982:‑‑

"5. Notwithstanding anything contained in Rule 3 Government may in the public interest, specify post which may be filled without reference to the Commission, by persons possessing such qualifications and experience in such manner as it may determine."

1. In view of abovementioned Law and Rules the Government has the authority for making appointments on "ad hoc basis", which has been done in present case, but one thing is to be noted that in the circumstances, as mentioned above, the Government has exercised its power unjustly. As per Rule 19 no advertisement was made for filling of the post rather after making appointment the Government takes shelter of Rule 5 of Rules of 1982 which is not proper. In present case as the appellant has not challenged the initial appointment order of the mentioned respondents rather appellant's grievance is to the extent of his seniority position. Despite the fact that there are clear defects in initial appointment of respondents Nos.4 to 6 which required to be set aside, but as considerable long period has been passed and valuable rights have been accrued in favour of the said respondents, therefore, in interest of justice no such order is made at this stage. Rather it will be better to decide only the issue of seniority between the parties on merits.

2. It is an admitted position that the appellant Appointed on regular basis on recommendation of the Commission. On the other hand respondents Nos.4 to 6 were appointed on ad hoc basis, while firstly their services were regularized w.e.f. 21‑8‑1990, 25‑11‑1990 and 6‑1‑1991, thereafter regularized with retrospective effect from date of their initial appointment w.e.f 23‑11‑1988, 1‑12‑1988 and 19‑12‑1988. Before issuance of impugned Notification dated 19‑10‑1993, a seniority list was issued wherein the appellant stands senior to respondents Nos.4 to 6. This seniority list was not challenged by any of the respondents: This fact has not come on record that any of the respondent filed any sort of representation or departmental appeal in respect of said seniority list or even in respect of orders whereby their services were regularized‑ with immediate effect. But the position changed after issuance of impugned notification, which made the appellant junior to respondents Nos.4 to 6. Both the appellant and respondents NosA to 6 were initially appointed at the post of D.S.P. but the only difference between their appointments is that the appellant was appointed on regular basis, while respondents Nos.4 to 6 were appointed on ad hoc basis. It is air established principle of law that ad hoc appointment does not confer any right of seniority from the date of appointment. Nor the ad hoc appointment can become regular only due to lapse of time. It is also an C established principle that the person appointed on regular basis. is to be senior to one appointed on ad hoc basis, even on a substantive post. Further an ad hoc appointee may continue with his services till regularization of his services in accordance with law but his appointment does not confer any right on him in respect of seniority from the date of his ad hoc appointment.

3. In present case though the Authority has regularized the services of respondents Nos.4 to 6 from the date of their initial ad hoc appointment but it is clearly held by honourbale Supreme Court of Pakistan in judgment reported in 1996 SCMR page 1349 that:‑‑

‑‑‑‑ Arts. 184 & 18‑‑‑Hurpan Rights case‑‑‑Irregular appointments‑‑­Supreme Court while inquiring into various complaints of violation of Fundamental Human Rights, found that Federal Government, Provincial Government, Statutory Bodies and Public Authorities had been making initial recruitments, both ad hoc and regular, to posts and offices without publicly and properly advertising vacancies and at times by converting ad hoc appointments into regular appointments‑‑‑Such practice was prima facie violative of Fundamental Rights (Art. 18) guaranteeing to every citizen freedom of profession‑‑‑Supreme Court, after notice to all concerned and after full hearing in the matter ordered that violation of such Fundamental/Human Right should be discontinued forthwith‑‑­Authorities were directed to take immediate steps to rectify so as to bring such practice in accord with the Constitutional requirement."

1. Keeping in view the same; despite all the relevant provisions of law and authority of the Government, the impugned notification is made in violation of fundamental right of the appellant or of any other member of the service, accrued to them due to their regular appointment.

2. In view of above discussion it is now an established position that the appellant being a regular appointee stands senior to respondents Nos.4 to 6 being ad hoc appointees. The Authorities have acted unjustly and undue favour is made in cases of respondents Nos.4 to 6, which is highly objectionable. Due to this conduct of the Authorities the persons really deserve suffered a lot, which is quite unfortunate. Though the Government has the authority to relax the prescribed Rules and Policy, but only in accordance with law where public interest is involved. But there is nothing as such in present case, only, in order to accommodate some persons all the Rules are kept aside. This sort of practice must be avoided by the Authorities. As the initial order is made in violation of law thus void and of no legal effect, therefore, no limitation runs in the case.

3. In view of above discussion the appeal is liable to be accepted. Therefore, appeal is accepted. The appellant Sohail Ahmed Sheikh is declared senior to respondents Nos. 4 to 6 Babar Gul, Muhammad Aslant and Suleman Ali Haidri. The impugned Notification dated 19‑10‑1993 is hereby set aside being illegal and void. The Department/Authorities are directed to correct the impugned seniority list dated 1‑8‑1997 and place the name of the appellant at correct position, and also place the names of respondents Nos.4, 5 and 6 at correct position in said list.

4. No order as to costs. File after completion be consigned to record.

H.B.T./11‑Q(Sr. Trio.) Appeal accepted

2002 P L C (C.S.) 651

[Balochistan Service Tribunal]

Before Amanullah Khan, Chairman, Muhammad Akbar Awan and Syeda Tahira Safdar, Members

HAIDER ALI

versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Services & GAD, Quetta

S.A. No.74 of 1997, decided on 14th September, 2000.

Civil service‑‑-

‑‑‑‑Dismissal from service‑‑‑During course of audit, excess payment and embezzlement of Government funds having been discovered, civil servant who was working as Cashiers and doctors and other responsible persons were charge‑sheeted and enquiries against all of them were held twice and in both the enquiries the civil servant and all others were found guilty of offence of embezzlement‑‑‑All others were either exonerated or given warnings, but the civil servant was not only dismissed from service, but embezzled amount was also ordered to be recovered from him as arrears of land revenue‑‑­Validity‑‑‑In two enquiries apart from the civil servant as Cashier all doctors and others were found negligent in performing their duties and they were equally liable for the same‑‑‑Imposing penalty upon the civil servant alone on same set of evidence, was not only discriminatory, but was illegal and unjust‑‑‑Order was set aside as a whole and case was remanded to the concerned Authorities with direction to hold fresh inquiry against all other persons including the civil servant, strictly in accordance with law within the specified period.

Mirza Ehsa-ul-Haq for Appellant.

Ashraf Khan Taoli, A.G. for Respondent.

Date of hearing: 17th August, 2000.

JUDGMENT

MRS. SYEDA TAHIRA SAFDAR (MEMBER‑II).‑‑‑The appellant being aggrieved of order made on 2‑8‑1997, whereby he has been dismissed from service and recovery bf Rs.4,69,894.50 has been ordered from him as arrears of lad revenue, has preferred this appeal with prayer of setting aside of impugned order.

1. The brief facts of the case are that in May/June, 1991, while he was working as Cashier in Fatimah Jinnah General ad Chest Hospital, Quetta, during course of audit it was pointed that‑excess payment ad embezzlement of Government funds to the extent of Rs.17,15,000 had taken place as per audit the same was happened due to lack of finacial, administrative ad internal control in the Department. It was also suggested that after inquiry liability be fixed and recovery be made. Whereupon the Department held inquiry and held responsible Dr. Abdul Rehman, Ex‑Medical Superintendent, Dr. Roohullah Qazi, Ex‑Assistant Medical Superintendent, Dr. Rehmatullah Ex‑R.M.O., Dr. Muhammad Ali Sillachi Ex‑R.M.O., Zahur‑ul‑Haq Diet Incharge and the appellat (Haider Ali) Cashier for the said alleged embezzlement. In consequence of the same charge‑sheets were issued to all the above persons including him (the appellant). He denied the allegations/charges. This inquiry was conducted by one Muhammad Younas Madokhel, Chairman, Chief Minister's Inspection Team, who submitted his report, wherein several penalties were suggested to be imposed on them. Thus in view of the same the competent authority imposed penalty upon all the mentioned persons through order, dated ~27‑3‑1995. Feeling aggrieved of the same all the said persons filed review petition, whereupon the Authorities while accepting the same, set aside the findings and fresh show‑cause notices were issued. After completion of inquiry impugned order was passed, 8 whereby he (the appellant) was dismissed from services while recovery of pecuniary loss amounting to Rs.4,69,894.50 was also ordered as arrears of land revenue. As the impugned order was passed by the Chief Minister, therefore he preferred review petition, but no reply has been given. The appellant has prayed for setting aside of impugned order on grounds that the same is contrary to law and fact, no overt act has been attributed to him nor proved against him. Further in view of admission of said Diet Incharge. Zahoorul Haq the liability fell on him (Zahoorul Haq) and dietary contractors, who later on deliberately tried to implicate him (the appellant) in the matters, without any corroboration of evidence. Furthermore, he has been charged with only negligence, not with embezzlement of money, as such charge was required to be amended. He (the appellant) was also not given opportunity to cross‑examine said Zahoorul Haq. Moreover major penalty was imposed upon him without notice and impugned order is also discriminatory. He has prayed for setting aside of impugned order.

2. The respondent in reply strongly contested the contention raise by the appellant. According to him the inquiry was conducted as per Rules, while penalty was also imposed per Rules. Further no discrimination has been made. The respondent has prayed for dismissal of the appeal, being without merits.

3. The perusal of the record reveals that in respect of alleged embezzlement of Government money initially inquiry was conducted against Dr. Abdur Rehma, Ex‑Medical Superintendent, Dr. Roohullah Muhammad Qazi, Ex‑Assistant Medical Superintendent, Dr. Rehmatullah Achkazai, Ex­R.M.O., Dr. Muhammad Ali Silachi Ex‑R.M.O., Haji Makhamuddin/M. Rarique contractor, Nazar Muhammad Contractor, Zahoor‑ul‑Haq, Ex‑Diet, Incharge of Kitchen, Ghulam Haider/Haider Ali ex‑Cashier (the appellant). C As per findings of Inquiry Committee said Zahoorul Haq Ex‑Diet Incharge of Kitchen was declared to be the main accused for embezzelemnt of amount of Rs.17,34,000, while the mentioned contractors are his accomplices. While on the other had Medical Superintendent, Assistant Medical Superintendent, R.M.Os. and Cashier were held negligent in performace of their duties, thus due to the same said embezzlement was committed as such they were also declared equally responsible for the embezzlement, It was suggested that action may be taken against all of them.

4. Thereafter through order, dated 23‑12‑1993 Muhammad Younas Khan Madokhel, Chairma, Chief Minister's Inspection Team, Quetta was appointed as Enquiry Officer. He conducted the inquiry against Dr. Abdur Rehma, Dr. Roohullah Qazi, Dr. Rehmatullah, Dr. Muhammad Ali Sillachi, Ghulam Haider. On completion of the same, report was submitted, wherein it was again suggested that action under E&D Rules be taken against all the said officials. Thereafter through order dated 14‑3‑1995 the Competent Authority imposed the penalties, whereby recovery of pecuniary loss was ordered to be recovered from Dr. Abdur Rehman, Zahoorul Haq, and Ghulam Haider (the appellant) while their further promotions were also withheld. While Dr. Roohullah Muhammad Qazi and Dr. Rehmatullah were warned to be careful in future and Dr. Muhammad Ali was exonerated. Feeling aggrieved of the same the appellant and other officials moved petitions for review. Whereby the said notification was set aside. Fresh show‑cause notices were served upon said officials. After completion of formalities inquiry was again conducted, while the Inquiry Officer Muhammad Irfan Kazi submitted his report on 9‑9‑1996, Wherein he recommended that warning be issued to Dr. Abdur Rehman. While Haider Ali (the appellant) and Zahoorul Haq being guilty be compulsarily retired and recovery of alleged loss be made as arrears of land revenue from them. In view of the same, order dated 2‑8‑1997 was issued. Whereby Dr. Abdur Rehman, Dr. Roohullah Qazi and Dr. Rehmatullah were exonerated and warned to be careful in future. While Zahoorul flaq and Ghulam Haider (the appellant) are dismissed from service while recovery of loss is ordered to be made as arrears of land revenue. Dr. Muhammad Ali has been exonerated. The appellant being aggrieved of the same preferred review petition. No decision of the same is placed on record.

5. As per appellant he has been implicated in the commission of the offence only on solitary statement of said Zahoor‑ul‑Haq, the said confessional statement has not been corroborated by any other evidence, further he (the appellant) was not allowed to cross‑examine him (Zahoorul Haq). It is apparent from record that in present case inquiry has been conducted twice, as mentioned above, while in both of them envolvement of the appellant was recorded, while punishment was awarded to him. On petitions for review in respect of the first inquiry report alongwith punishment recorded on basis of the same was set aside. Whereafter second inquiry was carried out. The first review petition filed by the appellant is present on record as Annexure F. The perusal of the same reveals that no such ground has been taken by the appellant that he has not been provided any opportunity to cross‑examine the witnesses or co‑accused Zahoor‑ul‑Haq or any other person. It is also apparent from record that no fresh evidence has been recorded iii second round of inquiry, rather monthly second enquiry based on evidence collected‑4n first round. Thus in view of the same this plea is now not available to the appellant nor he can take advantage of the same at this stage.

6. The appellant further raised contention that the impugned order is discriminatory against him as other officer charged with arid found guilty of gross negligence have been exonerated, while he (the appellant) alone has been awarded penalty on similar charge and evidence. From perusal of the record it is apparent that the allegation levelled against the appellant being Cashier and doctors namely Abdur Rehman, Roohullah Muhammad Qazi, Rehmatullah and Muhammad Ali are of gross negligence and loose administrative control due to which said embezzlement become possible and there being carried out. In both rounds of inquiry the Inquiry Officers held all the said four doctors alongwith Cashier (the appellant) responsible for the alleged embezzlment and suggested action to be taken against all of them. Despite the same the mentioned doctors‑were exonerated, only warnings are given to them, they are set free of the charges while only the Cashier (the appellant) was punished on same charge, keeping in view the same evidence. It is absolutely discrimination. The order on the face of it is discriminatory. The perusal of the record further reveals that apart from confessional statement of said Zahoor‑ul‑Haq, there is clear circumstantial evidence against the appellant and outer charged persons, which shows that all the said doctors including the appellant were negligent on their part in performance of their duties. Thus they were equally liable for the same. As such only imposing penalty over one of then i.e. the appellant, on same set of evidence is absolutely illegal and unjust. The impugned order is discriminatory against, the appellant thus also against the norms of justice

7. Though no further legal or factual defect has been pointed out by the appellant nor established by him, except the impugned order is discriminatory which is not good in the eye of law acid justice. Keeping in view it is just and proper to allow the appeal, which is hereby accepted. The impugned order made on VF‑1997 is hereby set aside as a whole. The case is remanded to the concerned departmental authorities with direction to hold fresh inquiry against all the 'mentioned persons including the appellant, strictly in accordance with law, within a period of four months with intimation to this Tribunal.

8. No orders as to costs. File after completion be consigned to record.

H.B.T.110‑Q (Sr. Trib.). Appeal accepted/Order accordingly

2002 P L C (C.S.) 1149

[Balochistan Service Tribunal]

Before Amanullah Khan, Chairman and Members

MOHAMMAD BAKHSH and others

versus

GOVERNMENT OF BALOCHISTAN and others

S. As. Nos.77, 132 to 136, 139 to 148, 15.1 to 163, 165 to 167, 169, 170 and 172 of 2000, decided on 2nd May, 2002.

Balochistan Civil Servants Act (IX of 1974)‑‑‑

‑‑‑‑S.11(2)‑‑‑Constitution of Pakistan (1973), Arts.25 & 27‑‑‑General Clauses Act (X of 1897), S.21‑‑‑Termination of services of civil servants appointed on temporary basis‑‑‑Discriminatory treatment‑‑‑Civil servants along-with 427 Civil Servants were appointed purely on temporary basis and they served for a period of more than ten years in Department in various projects, but their services were terminated whereas other Civil Servants were accommodated by placing their services in surplus pool‑‑‑Whenever Government had to take decision regarding retrenchment of employees, then policy of 'last in first out' was to be adopted, but that policy had been kept aside in case of civil servants as abruptly termination orders were passed against civil servants without considering mandate of S. 11(2) of Balochistan Civil Servants Act, 1974‑‑‑Civil servants otherwise had also been discriminated as other Civil Servants who were appointed along with Civil Servants on the same terms and conditions had been retained whereas civil servants had been terminated‑‑‑Case of civil servants could not be treated differently from others as all were circumstanced in similar situation‑‑­Differentiation so made was not logical and was in violation of Art.25 of Constitution of Pakistan, 1973 and was irrational and unreasonable‑‑‑Civil servants having served for such a long time to the entire satisfaction of their superiors, in view of principle of "locus poenitentiae" and Doctrine of Reasonable Expectations, a vested right had also been created in their favour‑‑‑Orders terminating services of civil servants were set aside and they were ordered to be renstated in service with immediate effect with back benefits.

I. A. Sherwani v. Government of Pakistan 1991 SCMR 1041 and 2000 PLC (C. S.) 467 ref.

Tahir Iqbal Khatak, Ayaz Sawati, Syed Saleem Akhtar, Abdul Rahim Mengal and Mansoor Ahmad for Appellants.

Ashraf Khan Tanoli, A.‑G. for Respondents.

Date of hearing: 11th April, 2002.

2002 P L C (C.S.) 1240

[Balochistan Service Tribunal]

Before Amanullah Khan Chairman, Muhammad 1drees Baloch and Syeda Tahira Safdar, Members

TARIQ MAHMOOD, ACTING SUB­ DIVISIONAL; OFFICER and others

Versus

THE GOVERNMENT OF BALOCHISTAN Through The Secretary Education Department and others

S. As. Nos. 44 and 41 of 1998. decided on 4th October, 2001.

Civil Service---

‑‑‑‑Promotion‑‑‑Civil servants who were disploma holders were appointed as Sub‑Engineers‑‑‑According to Rules adopted by the Authority recruitment was to be made 70% by initial recruitment, 10% by promotion from degree holder and 20% by promotion from diploma‑holders‑‑‑Only one diploma holder Sub‑Engineer was promoted to the rank of Assistant Engineer against three posts reserved for diploma‑holders while against one post of Graduate Sub‑Engineer, three Graduate Sub‑Engineers were promoted‑‑‑Subsequently through amendment in Service Rules quota of diploma‑holders was reduced by 17% from 20% while remaining 3% was reserved for Sub‑Engineers having degree of B‑Techn.(Hons.)‑‑‑In said amendment it was not specified from which date same would come into force‑‑‑Civil servants had challenged the amendment alleging that same had affected the service rights of diploma holders and was contrary to law and facts‑‑‑Authority pleaded that four posts were required to be filled and out of the same three fell to the quota for degree‑holders Sub‑Engineers, while one post fell to the quota of diploma­ holder Sub‑Engineer‑‑‑Nothing had come on recorded that except those degree‑holder Sub‑Engineers promoted through impugned notification another diploma‑holder had been promoted‑‑‑Civil servant neither could establish alleged violation of respective quota nor violation of Rules‑‑‑Appeal filed by the civil servant without first exhausting Departmental remedy available to them, was not maintainable‑‑‑Appeal otherwise being without merits, was dismissed.

S.A.M. Quadri for Appellant.

Ghulam Mustafa Mengal, A.A. G. for Respondents Nos. 1 and 2.

Raja M. Afsar for Respondents Nos.3 and 4

Date of hearing: 9th August, 2001.

2002 P L C (C.S.) 1332

[Quetta Service Tribunal]

Before Amanullah Khan, Chairman, Ghulam Rasool Hasani

and Mrs. Syeda Tahira Safdar, Members

GHULAM HAIDER

versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary and another

S.A.No.47 of 1998, decided on 28th June, 2001.

Balochistan Government Servants Benevolent Fund, Part 1 (Disbursement) Rules, 1982‑‑‑

‑‑‑‑R.3‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑‑Grant of maintenance allowance‑‑‑Civil servant who was prematurely retired from service being completely incapacitated physically on medical grounds to discharge his duty on account of his poor eyesight, was granted maintenance allowance for ten years‑‑‑After expiry of said period of ten years allowance of the civil servant was stopped for about eight years, but same was restored through notification ‑‑‑Thereafter, another notification was issued whereby gases were covered of those civil servant whose allowance was discontinued like civil servants on completion of ten years‑‑‑Said notification was made applicable with immediate effect whereby no dues would be given for intervening period‑‑‑Civil servant, in circumstances, was deprived of maintenance allowance for intervening period‑‑‑Civil servant being an old and an invalid person his case deserved sympathetic consideration‑‑‑Last notification though had prospective effect, but was issued with delay and said delay occurred due to the process withheld by the Authorities, civil servant thus could not be deprived of his right accrued to him through said notification‑‑‑Orders whereby representation and departmental appeal of the civil servant for grant of maintenance allowance was denied, were set aside with direction to the Authorities to pay dues to the civil servant for intervening period.

Malik Sher Muhammad for Appellant.

Mrs. Ashraf Abbas for the State.

Date of hearing: 17th May, 2001.

2002 P L C (C.S.) 155

[Punjab Service Tribunal]

Before Muhammad Afzal Member‑III

KHALID SIDDIQUE

versus

SECRETARY, EXCISE AND TAXATION, PUNJAB, LAHORE

Appeal No. 1922'of 2000, decided on 19th June, 2001.

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

‑‑‑‑R. 4(1)(b)(i)‑‑‑Major penalty‑‑‑Major penalty of reduction in time scale was awarded to the civil Servant serving as Section Officer on charge of misconduct after holding inquiry against him‑‑‑Number of inconsistencies and contradictions existed between the findings of Enquiry Officer, recommendations of the Authorised Officer and final orders of the Authority‑‑‑Civil servant had been condemned for negligence of duties which according to the Manual of Secretariat Instructions, could be attributed to the Section Staff and not particularly to the Section Officer‑‑‑Procedure adopted for disciplinary action against the civil servant, though did not suffer from any legal deficiency, but charges against him which pertained to misconduct mostly were not proved as a result of enquiry‑‑‑Major penalty of reduction in time scale awarded to the civil servant being extreme arid contrary to the norms, was reduced to the minor penalty of censure, in circumstances.

Appellant in person.

Shakeel Ahmad, Inspector, E&T as Departmental Representative for Respondent.

Date of hearing: 24th May, 2001.

2002 P L C (C.S.) 244

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

MUHAMMAD SHAFIQUE KHAN

versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, IRRIGATION AND POWER DEPARTMENT, LAHORE

Appeal No. 1560 of 1994, decided on 24th November, 2000.

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

‑‑‑‑R.13(iii)‑‑‑Promotion on officiating basis‑‑‑Civil servant serving as Sub-­Engineer in B.S. 16 was promoted to the rank of Assistant Engineer in B.S. 17 on officiating basis‑‑‑Civil servant who was far junior to hiss colleagues who had not been promoted to B.S.17, was reverted to his substantive rank of Sub‑Engineer in B.S. 16‑‑‑Civil servant had claimed that he, despite being junior having been promoted on officiating basis had a right to be promoted on regular basis‑‑‑Claim of civil servant was denied because the promotion on officiating basis would not confer any right of promotion on regular basis, but would be liable to be terminated as soon as a suitable person would become available for promotion on regular basis.

Shamshir Iqbal Chughtai for Appellant.

Muhammad Ashiq Bhatti, District Attorney for Respondent.

Date of hearing: 23rd November, 2000.

2002 P L C (C.S.) 289

[Punjab Service Tribunal, Lahore]

Before Muhammad Latif Qureshi, Member‑III

ZULFIQAR AHMAD

versus

SUPERINTENDENT OF POLICE, SARGODHA and 2 others

Appeal No. 1293 of 1999, decided on 22nd July, 2000.

(a) Civil service‑‑‑

‑‑‑‑ Compulsory retirement‑‑‑Penalty of compulsory retirement from service was awarded to civil servant on allegation that some under‑trial prisoners, who were being taken in bus after Court proceedings under control of civil servant, escaped due to his negligence‑‑‑Allegation levelled against civil servant required a thorough probe, but only fact‑finding enquiry was conducted to which civil servant was not joined and Authority passed its finding ex parte on surmises and conjectures‑‑‑Civil servant was not even provided with copy of fact‑finding enquiry report alongwith show‑cause notice moreover a regular inquiry was required before imposing major penalty ‑‑‑Co‑civil servants similarly placed had been reinstated in service, but civil servant, who had 16 years' unblemished service record to his credit studded with several commendation certificates of his superiors, was treated discriminately and was not reinstated‑‑‑Validity‑‑‑Civil servant deserved same treatment and no discrimination was called for‑‑‑‑Penalty awarded to civil servant was not commensurate with negligence ascribed to him and he did not deserve the penalty imposed keeping in view his past service record of 16 years‑‑‑Penalty in shape of compulsory retirement was converted into stoppage of increments for two years‑‑‑Civil servant was ordered to be reinstated in service from date of his compulsory retirement.

1980 SCMR 850; PLD 1989 SC 335; 1990 SCMR 1358; 1993 SCMR 603; 1985 SCMR 1062; 1991 SCMR 209; 1988 SCMR 691 and 2000 SCMR 669 ref.

(b) Civil service‑‑

‑‑‑‑Inquiry‑‑‑For resolving controversial questions of facts where evidence had to be recorded and opportunity of cross‑examination was to be given, proper course would be to hold full‑fledged enquiry, findings recorded otherwise would be based more on conjectures than on evidence available on record:

Asif Nazir Awan for Appellant.

District Attorney Iftikhar Ahmad, Inspector Legal/DR for Respondents.

Date of hearing: 29th June, 2000.

2002 P L C (C.S.) 342

[Punjab Service Tribunal, Lahore]

Before Abdul Hafeez Cheema, Chairman

JAVED BASHIR SULEHRIA, SUB‑DIVISIONAL OFFICER, 5TH PROVINCIAL BUILDINGS SUB‑DIVISION, CHILDREN HOSPITAL, LAHORE

versus

SECRETARY, GOVERNMENT OF THE PUNJAB, COMMUNICATIONS AND WORKS DEPARTMENT, LAHORE and another

Appeal No. 596 of 2000, decided on 15th February, 2001.

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

‑‑‑‑8. 4(1)(a)‑‑‑Stoppage of one annual increment‑‑‑Civil servant was charge­sheeted and penalty of stoppage of one annual increment without future effect was imposed on him‑‑‑Civil servant who was posted as Sub‑Divisional Officer, Buildings in a hospital was alleged to have been responsible for poor `state of maintenance in the hospital‑‑‑Defects pointed out in the charge‑sheet related to defects in construction and had nothing to do with the maintenance‑‑‑Enquiry Officer in his report had clearly reported that civil servant was not responsible for the defects, but Authorised Officer did not agree with the views of Enquiry ,Officer and without any valid grounds, imposed penalty on civil servant‑‑‑Evidence on record had proved that defects pointed out by the Higher Authorities were that of construction and did not relate to repair/maintenance‑‑‑Civil servant was though not found responsible for the defects, but he could not be totally exonerated from his responsibility to maintain water supply in the Emergency Department when serious patients were admitted on emergent basis and where water was one of the essential items‑‑‑Civil servant having failed to maintain the same, penalty of stoppage of one annual increment was set aside and was substituted with penalty of censure for his negligent attitude.

Muhammad Ajaib Malik for Appellant.

D.A. for Respondent.

Date of hearing: 18th January, 2001.

2002 P L C (C. S.) 352

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

GHULAM RASOOL

versus

SENIOR SUPERINTENDENT OF POLICE; SHEIKHUPURA and another

Appeal No. 2400 of 2000, decided on 29th January, 2001

Police Rules; 1934‑‑‑

‑‑‑‑8. 13. 1‑‑‑Departmental examination‑‑‑Civil servant who was a Police Constable, after passing initial examination for selection grade in terms of 8.13.1 of Police Rules, 1934, was placed in Promotion List A‑‑‑Civil servant appeared in examination for entry in List B-I, but was shown to have failed‑‑‑Civil servant had alleged that in fact he had passed in the examination, but some interested persons had misplaced the record/result sheet relating to one of the papers and the marks obtained in said paper were excluded and he had been shown to have failed in the Departmental Examination‑‑‑Authority could not produce record relating to the said paper‑‑‑Authority was bound to have properly secured the record particularly when the civil servant had disputed the non‑inclusion of his name in‑the list of successful candidates‑‑‑Authority having failed to produce relevant record, adverse presumption could legitimately be drawn against it and in favour of the civil servant‑‑‑Civil servant was declared entitled to entry in List B-I.

2000 TD (Service) 356; PLD 1964 SC 302; PLD 1987 SC 387 and University of the Punjab v.. Dr. Muhammad Aamar Ijaz 1999 SCMR 49 ref.

Ch. Muhammad Rafique for Appellant.

Khadim Hussain Sandhu, D.A. with Muhammad Nawaz Tauri Inspector (Legal), Sheikhupura for Respondents.

Dates of hearing: 4th and 29th January, 2001

2002 P L C (C.S.) 358

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

Dr. MAZHAR‑UD‑DIN, MEDICAL SUPERINTENDENT, SERVICE HOSPITAL, LAHORE

versus

CHAIRMAN, GOVERNOR'S INSPECTION TEAM, BANK ROAD, LAHORE and another

Appeal No. 3647 of 2000, decided on 26th February, 2001.

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

‑‑‑‑Rr. 4(1)(a) & 5(2)‑‑‑Withholding of promotion‑‑‑Civil servant, who was Additional Medical Superintendent in a hospital, was imposed penalty of withholding his promotion for one year on allegations that hospital premises were found dirty and unclean and in some of the wards medical and pep­medical staff was found absent on the date when Chief Minister visited the hospital premises‑‑‑Civil servant had claimed that he was not on duty at the relevant time and that in an earlier regular inquiry held by duly appointed Inquiry Officer, he had been exonerated of the charge‑‑‑Civil servant had alleged that in second inquiry, which otherwise was totally uncalled for and unwarranted, he was not associated with proceedings and that despite repeated requests, second Authorised Officer did not furnish him with copy of the inquiry report which had caused a serious prejudice to his defence‑‑‑Authorities failed to controvert allegations of civil servant and admitted position of' civil servant as "correct "‑‑‑Charge of misconduct or inefficiency against civil servant having not been proved, orders imposing penalty on civil servant, were set aside by Service Tribunal.

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

‑‑‑‑Rr. 2‑A, 5 & 8‑‑‑Inquiry proceedings‑‑‑Authority having already appointed Authorised Officer, appointment of any other officer as‑' the Authorised Officer, without having regard to the eventualities as mentioned in R.2‑A of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, was not covered by any rule‑‑‑Contention that it was the prerogative of the Chief Minister to appoint another Authorised Officer, while disagreeing with the findings of the Enquiry Officer, was repelled, because another person could be appointed as the Authorised Officer only if the original Authorised Officer was personally interested in the result of the proceedings and had reported the matter to the Authority for authorising another officer of the corresponding rank or status to act as the Authorised Officer under R.2‑A(i)(ii) of the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑Under proviso to R.8 of the said Rules if Authority was satisfied that inquiry proceedings had not been conducted in accordance with said Rules and/or facts and merits of the case had been ignored, it could order initiation of de novo inquiry‑‑‑Even in case of ordering de novo inquiry, the Authorised Officer could not be changed particularly when the Authorised Officer stood designated by Rules.

Masud Ahmad Riaz for Appellant.

Ch. Khadim Hussain Sandhu, D.A. for Respondents.

Date of hearing: 26th February, 2001.

2002 P L C (C.S.) 391

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

MUHAMMAD SALIM

versus

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

Appeal No. 1195 of 2000, decided on 20th July, 2001.

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

‑‑‑‑8 4(a)‑‑‑Dismissal from service‑‑‑Civil servant who remained absent for 21 days, was dismissed from service after issuing show‑cause notice, but without holding any inquiry against him‑‑‑Charge against civil servant was that he applied for leave, but could not get the same sanctioned‑‑‑Plea of civil servant that he remained absent because his brother‑in‑law was, seriously injured in an accident and despite his efforts he died, was not considered by the Authority‑‑‑Major penalty of dismissal from service was awarded to the civil servant on the ground of his previous record which had shown that during his service in the past he was granted punishment for irregularities‑‑­Validity ‑‑‑Previous omissions ‑‑ould not be made the justification for subsequent penalties particularly when omission had been adjudicated upon administratively‑‑‑Major punishment of dismissal from service was converted into minor punishment of censure‑‑‑Civil servant was reinstated in service with back benefits.

PLD 1993 SC 1393 and 1998 PLC (C.S.) 648 ref.

Muhammad Rafique Warraich for Appellant.

District Attorney for Respondent.

Date of hearing: 13th July, 2001.

2002 P L C (C. S.) 439

[Punjab Service Tribunal]

Before Sardar Alam Khan, Member‑II

KAUSAR LATIF

versus

DEPUTY DISTRICT EDUCATION OFFICER (M‑EE), LAHORE CITY and 2 others

Appeal No.3427 of 2000, decided on 28th June, 2001.

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

‑‑‑‑S.4‑‑‑Removal from service‑-‑Failure to conduct departmental inquiry‑‑­Charge against the civil servant, a, P.T.C. Teacher, was that the result card of P.T.C. produced by civil servant was bogus‑‑‑Result card was though verified by the Authorities, but she was removed from service on the charge of producing bogus result card‑‑-Charge‑sheet was issued to the civil servant but no inquiry was conducted which fact was admitted by the departmental representative‑‑‑Judicial inquiry had nowhere mentioned that the result card was bogus‑‑‑Only a generalized observation was made by the Inquiry Officer that the Gazette of the Department was doubtful‑‑‑Validity‑‑‑Civil servant had also qualified C.T. Examination which was a higher qualification than that of P.T.C. and had the requisite academic as well as professional qualification for working as P.T.C. Teacher‑‑‑Order of removal from service passed by the Authorities was set aside and the civil servant was reinstated in service with all back benefits in circumstances.

Rizwana Anjum Mufti for Appellant.

Ch. Manzoor Hussain, D.A. and Sh. Iftikhar Hussain, A.E.O. (D.R.) for Respondents.

Date of hearing: 28th June, 2001.

JUDGMENT

This appeal has been filed against an order, dated 24‑2‑2000 whereby District Education Officer (M‑EE), Lahore City respondent No.2 removed the appellant from service.

1. The relevant facts of the case are that on 11‑2‑1997 Deputy District Education Officer, Lahore respondent No. 1 appointed the appellant as PTC Teacher on the recommendations of Departmental Selection Committee. The appellant continued serving the department. However, on 21‑8‑1998 she was served with a charge‑sheet on the allegation that she had produced a bogus PTC Result Card at the time of her appointment. The appellant in his reply denied the charge. On the basis of an enquiry report, which the respondents have not been able to produce before me, and about which departmental representative has conceded that it was not available in the record, the District Education Officer (M‑EE), Lahore City as Authority in case of the appellant has passed the impugned order. The appellant filed a departmental appeal before Director Education, Lahore Division, Lahore which he has rejected. It has led the appellant to approach the Punjab Service Tribunal through the present service appeal.

2. In support of appeal, the counsel contends that the appellant possessed a result card of PTC which [gad been duly verified by the Assistant Director (Examination), Directorate of Education, Gujranwala Division and as such it could not be termed as bogus; that during her service, the appellant had also qualified CT Course in the year 1999 which is higher qualification than PTC; that the appellant had denied the allegation, and therefore, to resolve this controversy of facts a regular enquiry was necessary which was not conducted by the department; that the departmental authority had no evidence whatsoever to conclude that the PTC Certificate duly verified by Assistant Director Examination was not genuine.

3. District Education Officer, Lahore has filed written‑objections. The case of the Department is that the appellant had produced a result card which was declared bogus by the Enquiry. Officer as well as by Judicial Enquiry Officer and the appellant was, therefore, rightly penalized.

4. Arguments were heard and record perused. The appellant possessed a result card duly verified by Assistant Director (Exam.) of the Directorate of Education‑Gujranwala which was the examining body of PTC Courses. There is apparently no reason to disbelieve the genuineness of this result card unless the Assistant Director (Exam.) aforesaid had disowned his verification which has not happened. As to the production of result certificate the appellant has contended that the record of the Directorate of Education regarding examination of PTC had been burnt and an F.I.R., in this respect was duly lodged with the Local Police Station. Departmental Authorities have not denied this fact. Magistrate who conducted the judicial enquiry has also confirmed it.

5. It is significant that the charge‑sheet was issued to the appellant but no enquiry worth the name seems to have been conducted because no such enquiry report was available. Departmental Representative has categorically conceded that no such enquiry was held. The judicial enquiry has nowhere mentioned that the result card ‑of the appellant was bogus. It has made a generalized observation that the Gazette of the Department was doubtful.

6. The appellant has also qualified C.T. Examination which is a higher qualification than that of PTC. Viewed in this context the appellant can be safely considered to have the requisite academic as well as professional qualification for working as PTC Teacher. I, therefore, hold that the impugned order cannot be sustained.

7. For the above reasons the appeal is allowed. The impugned order is set aside and the appellant is reinstated in service with all back benefits: There shall be no order as to the cost. Announced.

Q.M.H./M.A.K./58/P.(S.Trib) Appeal allowed,

2002 P L C (S.C.) 503

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

MUHAMMAD SHARIF MEWATI, EX‑JUNIOR CLERK, DEPUTY COMMISSIONER'S OFFICE, LAHORE

versus

DEPUTY COMMISSIONER, LAHORE and another

Appeal No. 334 of 2000, decided on 30th November, 2000.

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

‑‑‑‑Rr. 4 & 5‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service on charge of making bogus document in record by removing original document‑‑‑Civil servant was exonerated in the first enquiry as charges against him were not proved, but in de novo inquiry held by complainant himself, civil servant was found guilty of the charges‑‑‑De riovo inquiry was held against the civil servant ex parte without recording any evidence and civil servant was not heard in person‑‑‑Validity‑‑‑Duty of Inquiry Officer, in case of ex parte proceedings,' was to record the statements of witnesses and. place the documentary evidence on record and to base his findings on such oral or documentary evidence which he .failed to do‑‑‑Facts had to be proved and not presumed particularly for awarding major penalty of dismissal from service‑‑‑Case against civil servant being of no evidence, he could not be dismissed from service on finding of Inquiry Officer who was interested and prejudiced being himself a complainant.

1992 PLC (C.S.) 341 ref.

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

‑‑‑‑Rr. 5 & 7‑‑‑Departmental proceedings‑‑‑Police investigation and proceedings under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975 were quite different and had no bearing on each other.

Ch. Imtiaz Mahmood for Appellant.

Muhammad Ashiq Bhatti, District Attorney for Respondents

Date of hearing: 1st November, 2000

JUDGMENT

Appeal under section 4 of Punjab Service Tribunals Act, 1974 against order dated 10‑7‑1998 vide which the appellant was awarded the major penalty of dismissal from service.

Briefly stated the facts leading to the appeal are that on 29‑8‑1996, Maj. Azmat Gulraiz son of Mirza Mahboob Alain resident of 33‑Defence Lahore Cantt. presented certified copy of sale‑deed No. 11513 dated 16‑9‑1990, before Mr. Tariq Mahmood, Sub Registrar, Lahore for verification as to, its correctness or otherwise. The said copy was issued by Muhammad Sharif Mewati, I.C. on 22‑8‑1996, who was working as record keeper in the Registration Branch, Lahore Cantt. During the course of comparison with the record, it transpired that the said document was not only under valued but signatures of Muhammad Khalid Zauq then Sub‑Registrar dated 16‑9‑1990 were also forged, Proceedings under Punjab Civil Servants (E&D) Rules 1975 were taken and the appellant was charge sheeted as under:‑‑

"that while he was posted as Record-keeper in Registration Branch, Cantt, he made a bogus document No.11513, Vol No.3539 dated 16‑9‑1990 in the record by removing original document."

The Inquiry Officer in his findings dated 22‑4‑1998 held that the charge was proved. On the recommendations of the Authorised Officer, Deputy Commissioner/Authority vide impugned order dated 10‑7‑1998 awarded the major penalty of dismissal from service. His departmental appeal/representation was rejected on 22‑9‑1999. Hence this appeal.

I have heard the learned Counsel for the appellant, Departmental Representative and District Attorney and have perused the record and written objections submitted by the respondents.

Learned counsel for the appellant argued that in the first inquiry conducted by Muhammad Rustom Bhatti, Magistrate First Class Lahore, charges against the appellant were not proved. The Authorised Officer in his first recommendations dated 12‑4‑1997 recommended for the exoneration of the appellant. The case F.I.R. No.443 of 1996 under sections 420, 468, 471, 409, P.P.C. and section 82 of Registration Act was got registered at Police Station Lahore Cantt. against the appellant but during investigation the appellant was found innocent and the Police recommended for the discharge to the appellant. De novo inquiry was ordered and Muhammad Khalid Zauq who was complainant in this case was appointed Inquiry Officer. Muhammad Khalid Zauq proceeded ex parte and without recording any evidence gave his findings that the charge' was proved. The appellant was not heard in person by the Authorized Officer/Authority and 2nd show‑cause notice alongwith findings of the inquiry was not served upon the appellant.

The perusal of the impugned order dated 10‑7‑1998 and objections to the‑ Memorandum of Appeal submitted by the respondents reveals that the appellant was given 44 opportunities including written notice for participating in tire de novo inquiry. He was also summoned for personal hearing by the Authority but he did not turn up.

Reasonable opportunity was afforded to the appellant to participate in the de novo inquiry, but he failed to participate for the reasons best known to him. He should thus; condemn himself for not participating in the proceedings.

As for as the de novo inquiry is concerned the findings dated 22‑4‑1998 of Muhammad Khalid Zauq, Inquiry Officer reveals that neither any witness was examined nor any document was placed on record before giving the findings. The appellant was held guilty of forging the document No. 11513 Volume No.3539 dated 16‑9‑1990 and placing in the record by removing original documents. There was no evidence that the document was forged by the appellant. The handwriting of the appellant and the forged document was not got verified from any expert to prove that the forged document was written by the appellant.

The perusal of findings of the first inquiry conducted by Muhammad Rustam Bhatti, Magistrate First Class, Lahore reveals that the material witnesses formally Talib Hussain, Stamp Vendor and Haji Akbar Ali, Tanvir Ahmad Waseqa Navees deposed nothing against the appellant. According to the affidavit of Major Azmat Gulraiz husband of Mst. Zohora Gulzar (Vendee) Major Azmat Gulraiz handed over all the documents and cost of stamp paper to Mr. Zahur Ahmad, Advocate who arranged for the preparation of sale‑‑deed and its registration. In 1996 he visited the office of Patwari Halqa for the Mutation on the basis of sale‑deed. Patwari halqa told him that the document was suspicious and it could not be accepted for mutation. Later on he got a fresh sale‑deed registered and the mutation was sanctioned on the basis of second sale‑deed.

The witnesses, thus deposed nothing against the appellant and Muhammad Rustam Bhatti in his inquiry findings dated 28‑3‑1997 remarked that the forged document was prepared in 1990 when the official was not posted in D.C. Office Lahore where the forgery occurred. The charge was not proved according to his findings. The de novo inquiry was ordered and Mr. Muhammad Khalid Zauq who registered the alleged forged deed was appointed as Inquiry Officer. He was complainant in this case and was thus interested person.

The appellate authority in the order dated 20‑9‑1999 has observed that the contention of the appellant that he had been found innocent by the Police case F.I.R. No.443 of 1996, under sections 420/468/678/409, P.P.C. and section 82 of Registration Act which was registered against the appellant on similar allegation is not tenable because Police investigation and proceedings under Punjab Civil Servants (E&D) Rules, 1975 are quite different and have no bearing on each other. De novo inquiry was conducted by Mr. Khalid Zauq who registered the alleged forged documents. He proceeded ex parte but did not record the statement of any witness nor placed on record any documents. His findings are not based on any evidence. Being interested and prejudice as complaint, he hold the appellant guilty of the charge. The Authorised Officer made the following endorsement:‑‑

"Agree with the findings of Enquiry Officer. The accused official has been declared guilty. May impose major penalty. "

He thus failed to apply his independent mind. Neither the authority nor the appellate authority realized that it is a case of no evidence and the Inquiry Officer has not based his finding on any oral or written evidence. Facts are to be proved and not presumed particularly for awarding the major penalty. Zahoor Ahmad, Advocate expired before the inquiry proceedings. The complainant Major Azmat Gulraiz deposed nothing against the appellant. Talib Hussain, Stamp Vendor, Haji Akbar Ali, Tanvir Ahmad, Waseeqa Navees resiled from their evidence and deposed nothing against the appellant in the first inquiry conducted by Muhammad Rustam Bhatti. According to the report of Investigating Officer there was no proof against the appellant because the witnesses Ch. Talib Hussain, Stamp Vendor and Haji Akbar Ali did not depose against the appellant before the Police. No witnesses were examined during the de novo inquiry conducted by Mr. Khalid Zauq on the grounds that the appellant failed to attend the proceedings. Even in case of ex parte proceeding it was the duty of the Inquiry Officer to record the statement of the witnesses and place the documentary evidence on record and bases his findings on such oral or documentary evidence. Reliance is placed at 1992 PLC (C.S.) 341.

In the light of above discussion, Inquiry Officer has absolutely no basis for the findings recorded by him in his report dated 22‑4‑1998. I, therefore, accept the appeal, set aside the impugned orders dated 10‑7‑1998 and 22‑9‑1919. The appellant is reinstated in service. The intervening period shall be treated as the leave of the kind due to the appellant. There will be no order as to the costs.

H.B.T./35/P.S.T.?????????

Appeal accepted.

2002 P L C (C.S.) 514

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman, Syed Aal-i-Ahmed, Member-I and Muhammad Lateef Qureshi, Member-II

AZHAR ABBAS, SUB-ENGINEER (CIVIL)

versus

THE CHIEF ENGINEER, IRRIGATION, LAHORE and another

Appeal No.937 of 1996 and 129 other Appeals, decided on 30th November, 2000.

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

----S.2(1)(a)---Ad hoc appointment---Ad hoc appointment was subject to the incident of "pending recruitment in accordance with such method" as provided in S.2(1)(a) of Punjab Civil Servants Act, 1974---Ad hoc appointee had to go one day or the other, but on the arrival of a regular selectee---One could not assume that an ad hoc tenure could be limited to any period, a year or so, or to the condition of putting an end to it without notice at the sweet­-will of the employer.

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

----S.5---Initial appointment---Nature of--Initial appointment and ad hoc appointment---Distinction---Initial appointment was quite distinct from ad hoc appointment---Ad hoc appointment had been excluded from the purview of the incidence of probation---Provision relating to termination of a regular recruited employee during the probation period, initial or extended would have no application to the termination' of an ad hoc appointee---If both were placed at par, the exclusionary clause. in S.5 of Punjab Civil Servants Act, 1974 would become redundant and redundancy could not be imputed to the Legislature.

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

----S. 10(3)--Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.22---Termination of ad hoc appointment---Liability to termination of an ad hoc appointment on the arrival of a regular selectee, had a typical conception---Section 10(3) of Punjab Civil Servants Act, 1974 was a machinery provision and enabled the employer to send an ad hoc appointee home- either with one month's notice or with one month's pay which was only a beneficiary arrangement for the employee, but would not take away the incident of arrival of a regular selectee ---Said liability was not required to be mentioned in the appointment letter, because the definition of the expression "ad hoc appointment°' by itself had explained the same---Terms of ad hoc appointment could not be terminated until the arrival of regular incumbent---Contention that an. ad hoc tenure could not go beyond e year as per R.22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 would not be helpful because it travelled beyond the definition of the term and also the constituents of S.10 of Punjab Civil Servants Act, 1974---If ad hoc: appointment was terminated without notice or on the lapse of a year without having a regular selectee at hand, the post would have to be kept either vacant to the detriment of public interest or it would have to be re-filled again by ad hoc arrangement---Post got vacated from an ad hoc appointee should be filled in once for all by receiving a regular selectee ---Ad hoc appointment could not be assimilated with an appointment on probation and services of an ad hoc employee could not be terminated without valid justification if the post continued.

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

----Rr. 4 & 5---Termination of service---Punjab Civil Servants (Efficiency acid Discipline) Rules, 1975 or of 1999, did not speak of punishment by termination---Termination could be for some reason, but would carry no stigma or invocation of disciplinary rules---In case of stigmatized ouster even contractees would be entitled to a show-cause notice and a proper inquiry.

(e) Administration of justice---

---- Judicial and executive power is a trust and was not absolute in any person/Authority, howhighsoever, it may be--Such power was always guided by the principles of good conscience, fairplay and justice.

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

----Ss. 2(1)(a) & 10(3)---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.22---Termination of ad hoc appointment---Civil servants who` were appointed on ad hoc basis served for a considerable period (in some cases for more than five years)---Services of said civil servants were terminated on ground that under R.22 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 ad hoc appointment was only for one year arid could not be extended without relaxation of Rules and that said appointment could not confer any rights on civil servants to continue indefinitely---Validity---Ad hoc appointment could not be terminated without valid justification if the post continues and could not be terminated until the arrival of a regular incumbent to till ad hoc post---Civil servants were entitled to hold and continue their positions as they were holding at the time of passing the termination order till such time the regular selectees were made available through prescribed method and in accordance with law---Order terminating services of civil servants, were set aside being without lawful authority.

Syed Aal-i-Ahmed (Member-I), Contra.--

Masood Ahmed Riaz for Appellants.

Khadirn Hussain Sindhu, District Attorney for Respondents.

Dates of hearing: 15th and 30th November, 2000.

JUDGMENT

ABDUL HAFEEZ CHEEMA (CHAIRMAN). ---This order rill dispose of all the 130 appeals mentioned in Annexure-A which raise identical questions of law and of fact.

1. The facts which led the appellants to invoke the jurisdiction of this Tribunal briefly are that they were appointed as civil servants in different Departments of the Government of the Punjab on ad hoc basis for a given period. After the expiry of initial periods, mostly six months, the ad hoc appointments continued to be extended from time to time and were ultimately terminated by various orders of different Departments. In some cases, he appellants were relieved of their duties. After exhausting departmental remedies, the appellants tiled service appeals before this Tribunal and obtained stay orders.

2. The case of the appellants is that they have served their Departments, for a considerable period (in some cases for more than five years); that their appointments were made in public interest and that in law their services could have been terminated only if regularly selected incumbents were made available in the prescribed manner. A reference has been made to section 2(1)(a), section 5(1) and section 10(1)(ii) of the Punjab Civil Servants Act, 1974. Reliance was placed on a number of reported and unreported judgments including 1995 PLC (CS) 765, 1995 PLC (CS) 611, 1995 PLC (C.S.) 433, 1995 PLC (C.S.) 377 and 1981 SCMR 469.

3. On the other hand, the respondents in their comments relying upon rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, have taken up the stance that ad hoc appointment is only for one year and could not be extended without relaxation of Rules; that such an appointment could not confer any right on the employee to continue indefinitely and that the same could be terminated at any time on thirty days notice or pay in lieu thereof in terms of section 10(3) of the Punjab Civil Servants Act, 1974. Reference was made to the judgment rendered in Appeal No.615 of 1990 (reported, as PLJ 1998 Tr.C. (Service) 77)) and it was urged that this Full Bench judgment would take precedence over the earlier judgments delivered either by a Single Bench or a Division Bench on the question under consideration. The learned D.A. supported the view point canvassed by the respondents in their comments.

4. The question falling for consideration in these appeals before us is: Whether in the given circumstances, the respondents were justified in terminating the services of the appellants until a regular appointment is made through duly constituted Commission/Board/Committee as envisaged under the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974?

5. Arguments have been heard and record has also been examined.

6. What is ad hoc appointment is defined in section 2(1)(a) of the Punjab Civil Servants Act, 1974 as under:--

"ad hoc appointment means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method."

It is to be appreciated that an ad hoc appointment is undeniably subject to the incident of "pending recruitment in accordance with such method". An ad hoc appointee has to .go one day or the other but on the arrival of a regular selectee. One could not, therefore, assume that an ad hoc tenure can be limited to any period, say a year or so, or to the condition of putting an and to it without notice at the sweet-will of the employer. In any such events, the phrase "pending recruitment in accordance with such method would become totally irrelevant and indeed : redundant. Any such interpretation would obviously be useless.

1. Initial appointment is visualized to be quite distinct from ad hoc 'appointment as per section 5 of the Punjab Civil Servants Act, 1974 inasmuch as the latter has been excluded from the purview of the incidence: of probation. The clause relating to termination of a regularly recruited employee during the probation period, initial, or extended, would have no application to the termination of an ad hoc appointee. If both are placed at par, the exclusionary clause in section 5 of the Act' (ibid) will become redundant and redundancy, they say, cannot be imputed to the legislature.

2. The liability to termination of an ad hoc appointment on the arrival of a regular selectee has a typical concept. Section 10(3) of the Punjab Civil Servants Act, 1974, is a machinery provision and enables the employer to send an ad hoc appointee home either with one month's notice or with one month's pay. It is only a beneficial arrangement for the employee but does not take away the incidence of arrival of a regular selectee. The said liability is not required to be mentioned in the appointment letter. This is so because the definition of the, expression "ad hoc appointment" by itself explains it. The. corollary, therefore, would be that such tenure could not be terminated until the, arrival of a -regular incumbent.

3. The argument that an ad hoc tenure could not go beyond a year as per rule 22 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, seems to be unhelpful because it travels beyond the definition of the term and also the constituents of section 10 of the Act (ibid). Secondly, if such appointment is terminated without notice or on the lapse of a year without having a regular selectee at hand, the post will have to be kept either vacant to the detriment of public interest, or it will have to be re-filled perhaps again by ad hoc arrangement and if such ad hoc appointment is again terminated without the arrival of a regular selectee at one's sweet-will and is to be filled again in the same circuitous manner, it will prostitute the whole system involving mal-administration and what not Successive terminations and then refilling the vacancies again and again on ad hoc basis would not be something enviable. The post got vacated from an ad hoc appointee should be filled in once for all by receiving a regular selectee. Anywise, ad hoc appointment could not be assimilated with an appointment on probation. To put them at par would be perversity of section 5 of the Act and also the definition as reproduced in para. 7 above.

4. It must be kept in mind that the Punjab Civil Servants (E&D) Rules, 1975 or of 1999, do not speak of punishment by termination. It seems that termination may be for some reasons but would carry no stigma or invocation of disciplinary rules. It may be noted that in the other three Provinces, Ad hoc Civil Servants (Regularization of Services) Acts were passed keeping in view the fact that ban was imposed by the Government for a considerable long time and that, therefore, locus standi to the ad hoc appointees or even the contractees on the question of age-limit etc., ought to be restored. It was ruled in 1998 PSC 337 that in case of stigmatized ouster, even contractees would be entitled to a show-cause notice and a "proper inquiry".

5. I am conscious that the judgment in PLJ 1998 Tr.C. (Services) 77)) was rendered by a Full Bench on 8-11-1997. However, it would appear from a survey of the case-law on the point that the law has further developed and now the services of even an ad hoc employee cannot be terminated without valid justification if the post continues. The Honourable Supreme Court of Pakistan while disposing of Civil Petition for Leave to Appeal No.768-L of 1997 filed against the judgment, dated 26-11-1996 in Service Appeal No. 597 of 1994 delivered by the Punjab Service Tribunal, had observed as under:--

"Be that as it may, learned counsel for the petitioners frankly conceded that the regular posts of subject-Specialist against which the present respondents are working since 1987, are yet to be filled in by the Punjab Public Service Commission. If that is so, the Tribunal was right, in allowing them to continue in public interest so that the work of the Government may not suffer inasmuch as they had admittedly been working as such for the last seven years without any complaint. The result is that the respondents shall continue in their present posts till the induction of regular appointees and the petitioners shall be .at liberty to pass appropriate orders in accordance with law as soon as the regular incumbents are appointed pursuant to the recommendations of the Punjab Public Service Commission."

In Bashir Ahmed's case reported as 1985 SCMR 990, where the learned Senior Civil Judge, Gujranwala, had appointed a Naib-Nazir by way of promotion without consulting in any manner the Departmental Promotion Committee, it was ruled that absence of Departmental Promotion Committee would not affect the power of the appointing authority creating voidness in the appointment made but it would only affect the nature of the appointment made. It was held that the said appointment could be regarded as ad hoc and that the same would continue till a regular appointment is made. The judgment of the Honourable Supreme Court in C.P.S.L.A. No.768-L of 1997 is dated 19-I1-1998 and being later and direct on the point under consideration before us, would clinch the issue on all fours. A direct verdict having, come from the Honourable Supreme Court, as aforementioned, the Full Bench judgment of this Tribunal dated 8-11-1997 (PLJ 1998 Tr.C (Service) 77)) will go in eclipse.

1. Judicial and executive power is a trust. It is not absolute in any person/authority, howhighsoever, he/it may be. Such power is always guided by the principles of good consicence fairplay and justice. In IV: 58 of the Holy Qur'an. Allah commands us to return the trusts (positions) to those whom they are due. The verse may be reproduced as under:-

(Allah doth command you to render back your trust to whom they are due; and when ye judge between man and man, that ye judge with justice; Verily how excellent is the teaching which. He giveth you!)" IV: 58

1. In the light of above discussions and observations the appellants are held entitled to hold and continue their positions as they were holding at the time of passing the impugned orders till such time the regular selectees are made available through prescribed method and in accordance with law by the respective Departments. The impugned orders are declared to have been passed without lawful authority and the same are set aside as such. All the appeals as enumerated in annexure-A stand accepted in the above terms leaving the parties to bear their own costs.

(Sd.)

Justice (Retd.) Abdul Hafeez Cheema, Chairman

MUHAMMAD LATIF QURESHI (MEMBER-II).--I. agree.

(Sd).

Muhammad Lateef Qureshi, Member II

SYED AAL-I-AHMAD (MEMBER-I).---For the following reasons, I respectfully differ with the findings expressed in the judgment:--

(i) It was vehemently argued by the District Attorney that in all the appeals, the procedure laid down for the appointment on ad hoc basis was not followed. Rule 22 of the Punjab Civil Services (Appointment and Conditions of Service) Rules, 1974, specifically laid down the procedure. Subsection (2) of the said rule is reproduced below for facility of reference:--

"22(2). After forwarding a requisition to the Selection Authority, the appointing authority may, if it considers necessary in the public interest, fill the post, on ad hoc basis for a period not exceeding (one .year) pending nomination of a candidate by the selection Authority.

(1) The vacancy is advertised properly in the newspapers;

(2) the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post;

(3) the selection is made on the basis of merit determined by objective criteria;

(4) the appointment order certifies that a requisition has been sent to the Selection Authority:

Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade."

It was argued that these appointments were procured be exorting political influence through the Chief Minister, Ministers, MNAs and MPAs etc. such appointments have been depricated by the Hon'ble Supreme Court in the famous Human Rights' case reported in 1996 SCMR 1349. It was also pointed out that the latest judgment in line was delivered by the Full Bench of the Tribunal in Appeal No. 615 of 1994, wherein it was held that the ad hoc appointments are liable to termination on 30 days' notice or pay in lieu thereof as provided under section 10(iii) of the Punjab Civil Servants Act, 1974. This judgment still holds the field.

Even otherwise, the ad hoc appointments by its very nature are temporary and restricted to a specified period of time. In the impugned cases, the appointments were allowed to continue for an indefinite period, which infringes and violates the spirit of Rule 22(2) of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974.

I very much appreciate the Qur'anic Injunctions referred to in para. 13 of the judgment. To my mind public service is a trust and the public functionaries are under obligation to discharge their duties in the most efficient, transparent and diligent manners as laid down in the Human Rights' case judgment referred to above. The vacancies should be published m the locality, applications should be invited from the eligible candidates and a merit list prepared and the post offered to the most eligible candidates. This would actually fulfil the Injunctions of the Qur'an rather than -persons who got appointment without any merit and on other considerations.

H.B.T./40/P(Sr. Trib.)

Appeal accepted.

2002 P L C (C.S.) 522

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

Sardar MUHAMMAD YOUNUS KHAN

versus

SENIOR MEMBER (REVENUE)/SECRETARY TO GOVERNMENT OF THE PUNJAB, REVENUE DEPARTMENT, LAHORE and another

Appeal No.437 of 2000, decided on 23rd November, 2000

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

‑‑‑‑Rr. 4 & 5‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Dismissal from service‑‑‑Civil servant was dismissed from service on charge that he sanctioned mutation of bogus allotment‑‑‑Civil servant was neither proved to have received illegal gratification nor was shown as party to the fraud in respect of mutation of bogus allotment‑‑‑Civil servant sanctioned mutation entered on the basis of attested copies of order of Competent Authority and according to finding of the Enquiry Officer alleged forgery was committed by lower staff, but no action was taken against the said staff ‑‑‑Order dismissing civil servant from service, was set aside and he was ordered to be re‑instated in service with back benefits.

(b) West Pakistan Land Revenue Act (XVII of 1967)‑‑

‑‑‑‑Ss.42, 161 &, 163‑‑‑Land Record Manual, para. 4.7‑‑‑Mutation proceedings‑‑‑Mutation proceedings were summary in nature and purpose of mutation was to complete the Revenue Record for the collection of Government dues, but the same was not a title deed‑‑‑Mutation was not a title deed‑‑Order of mutation was not a final order, but appeal against order of mutation lay to A.C./Collector under S.161, West Pakistan Land Revenue Act, 1967 and was also open to review under 5.163 of said Act‑‑‑Mutation once entered, was to be decided by Revenue Officer‑‑‑Rejection of the mutation on the basis that the order on which it was entered was old, was not valid‑‑‑Revenue Staff was bound to enter and sanction the mutation on the basis of order passed by the, Civil Courts/Revenue Courts/Officers.

1972 SCMR 322; 1985 CLC 89; 1988 SCMR 691 and 2000 PLC (C.S.) 1053 ref.

Maftooh‑ur‑Rahim for Appellant.

Muhammad Ashiq Bhatti, District Attorney for Respondents.

Date of hearing: 15th October, 2000.

JUDGMENT

Appeal under section 4 of Punjab Service Tribunals Act, 1974 against order dated 26‑8‑1989 vide which the appellant was dismissed from service.

1, Briefly stated the facts leading to the appear are that on the receipt of complaint of Muhammad Qasim and others that 400 Kanals of State land falling in Chak No.51/DB, Tehsil Yazman District, Bahawalpur was fraudulently transferred vide Mutation Nos.7, 8, 9 and 10. in favour of JiIal Din, Muhammad Siddique, Barket Ali and Nawab, it came to light that the attested copies of the order of Deputy Commissioner/District Collector Bahawalpur dated 17‑1‑1985 were received by Khushi Muhammad Patwari for entering the following exchange mutations:‑‑

(1) From Chak No.98 /DNB to Chak No.51 /DB Yazman for 100 Kanals in favour of Jilal Din son of Meeran Bakhsh Caste Jat.

(2) From Chak No.98/DNB to Chak No.51/DB for 100 Kan in favour of Muhammad Siddique son of Sardar Khan Caste Jat.

(3) From Cahk No, 190/Murad to Chak No.51/DB for 100 Kanals in favour of Barkat Ali son of Muhammad Caste Arain.

(4) From Chak No. 98/DNB to Chak No. 51/DB for 99 Kanals, 2 Marlas in favour of Nawab son of Karam Dad Caste Jat.

1. In fact no order was passed by the Deputy Commissioner on 17‑1‑1985, all the 4 orders of Deputy Commissioner were forged in the Colony Branch of D.C. Office Bahawalpur. However, the attested copies were received by Khushi Muhammad Patwari, who entered Mutation Nos.7, 8, 9 and 10 on 28‑3‑1992. The said Mutations were attested by the Halqa Girdawar and were sanctioned by the appellant on 2‑4‑1992. The Mutations were reviewed by the orders of District Collector and were cancelled. The appellant was proceeded against under Punjab Civil Servants (Efficiency and Discipline) Rules, because he sanctioned the said Mutations.

2. Assistant Commissioner Yazman, the Inquiry Officer in his proceedings dated 9‑6‑1999 came to the conclusion that orders of the Deputy Commissioner were forged in the Colony Branch of D.C. Office, Bahawalpur. There was no file of allotment/exchange in the D.C. Office. Muhammad Qasim complainant deposed before the Inquiry Officer that fraud and forgery was made by Colony Staff and Revenue Field Staff. Sardar Muhammad Younas Khan appellant neither received any illegal gratification nor was party to the fraud. The Inquiry Officer, however, found him guilty of sanctioning the Mutations of bogus allotment.

3. The appellant was awarded the major penalty of dismissal from service vide order, dated 26‑8‑1999 of Senior Member/Member (Revenue) BOR/Secretary to Government of the Punjab, Revenue Department being authority because the appellant was promoted and working as Tehsildar. The review petition was dismissed on 13‑1‑2000. Hence this appeal.

4. I have heard the learned counsel for the appellant, Departmental Representative and District Attorney and have perused the record and written objections submitted by the respondents.

5. Learned counsel for the appellant argued that perusal of the inquiry findings reveals that the appellant neither received illegal gratification and nor was party to the fraud. He sanctioned the mutations entered on the basis of the attested copies of the order, dated 17‑1‑1985 of Deputy Commissioner, Bahawalpur. He further argued that neither the Authorised Officer before giving his recommendations nor authority has considered the findings of the Inquiry Officer.

6. The respondents in the impugned order and written objections have stressed the point that attested copies of the alleged order of Deputy Commissioner dated 17‑1‑1985 were received in year 1985 but the mutations were sanctioned in 1992 i.e. with the delay of 7 years and the appellant failed to deduct the fraud and attested the mutations on the basis of the bogus documents without any care and caution and was negligent and thus, committed misconduct.

7. According to section 42 of Land Revenue Act, 1967 and para.4.7 Land Record Manual, the Mutation is entered by the Patwari, attested by the Kanungo and sanctioned by the Revenue Officer. The Mutation once entered is to be decided by the Revenue Officer. Rejection of the Mutations on the basis that the order on which the Mutation is entered is old, is no valid ground. The Revenue Staff is bound to enter and sanction the Mutations on the basis of the orders passed by the Civil Courts/Revenue Courts/Officers. It was held in 1972 SCMR 322 that Revenue Authorities are under obligation to sanction mutation on the basis of decree passed by Civil Court cannot refuse mutation on the ground that decree had not beers put into execution within prescribed period of limitation and, therefore, had become ineffective.

8. The mutations proceedings are summary in nature. The purpose of mutation is to complete the Revenue Record for the collection of Government dues. It is not a titled deed (1985 CLC 89).

9. The alleged forgery according to the findings of the Inquiry Officer was committed by the officials of Colony Branch of D.C. Office. Mutation Nos.7, 8, 9 and 10 Chak No.51/DB were entered by Khushi Muhammad Patwari Halqa, Kango verified by mutations and the appellant sanctioned the mutations. No action was taken against the Staff of Colony Branch who forged the order, dated 15‑1‑1985 of Deputy Commissioner/District Collector, the Copying Clerk who issued attested copies, Khushi Muhammad Patwari who entered the mutations and Gardawar who attested the mutation. The appellant was singled out and was made the scape, goat.

10. The order of mutation is not a final order. The appeal against the order lies to the AC/Collector under section 161 of Land Revenue Act, 1967. The order of sanctioning the mutations is open to review under section 163 Land Revenue Act, 1967. The Mutations Nos.7, 8, 9 and 10 Chak No.51/DB were reviewed and set aside. Thus, no damage was caused to the Government. The appropriate remedy against‑the order of sanctioning the mutation is appeal/review.

11. The Inquiry Officer further came to the conclusion that the appellant received no illegal gratification and was not party to the fraud. It was held in 1988, SCMR 691 that a single slip or lapse, if any, on the part of a Government servant with a consistently good record would not invariably justify inference of his being inefficient. It was held in 2000 PLC (C.S.) 1053 that single instance of any incorrect behaviour of individuals in any discipline whatsoever could hardly furnish a ground for holding those civil servants guilty of extreme incompetency‑‑Civil servant was Patwari and Mutation of State land was entered by him in favour of private person on the basis of transfer order i6sued by the Deputy Settlement Commissioner‑‑?Department proceedings were initiated against the civil servant for making that entry and he was dismissed from service‑‑Entry of the disputed mutation having been made by the civil servant in performance of his duties in terms of mandate contained in section 42 of the West Pakistan Land Revenue Act, 1967 could not but .be held to have been made by the civil servant in the performance of his official duties bona fide‑‑Dismissal order of civil servant and judgment of Service Tribunal were set aside. Civil Servant was reinstated in service with back benefits.

12. In the light of above discussion, I accept the appeal, set aside the impugned orders dated 26‑8‑1999 and 13‑1‑2000. The appellant is re‑instated in the service with back benefits. The intervening period shall be treated as leave of the kind due to the appellant.

14 There will be no order as to the costs.

H.B.T./36/P.S?

Appeal accepted.

2002 P L C (C. S.) 738

[Punjab Service Tribunal]

Ch. Muhammad Sarwar, Member‑I

SAFDAR ALI

versus

THE DEPUTY INSPECTOR‑GENERAL OF POLICE and 2 others

Appeal No. 2181 of 2001, decided on 22nd January, 2002.

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

‑‑‑‑Rr. 3 to 6‑‑‑Dismissal from service‑‑‑Civil servant who was Inspector in the Police Department, was dismissed from service after issuing, him show­cause notice on allegations that he was incompetent, dishonest and corrupt and was living beyond his source of income and that he was an average officer and most of his A.C.Rs. were of Category 'B'‑‑‑Validity‑‑‑Major punishment was awarded to civil servant without conducting regular inquiry which was a must before awarding such punishment‑‑‑Order awarding major punishment of dismissal from service was set aside and civil servant was re­instated in service ordering de novo proceedings and conducting regular inquiry against him.

1993 SCMR 603 ref.

Masud Ahmad Riaz for Appellant.

D.R. for Respondent.

Date of hearing: 22nd January, 2002.

JUDGMENT

Briefly stated the facts leading to the appeal are that the appellant w&; Inspector in the Police Department. Proceedings under Punjab Civil Servants (E&D) Rules, 1975 were initiated against the appellant and he was issued show‑cause notice on 6‑6‑2001 on the following grounds:‑‑

"It has been reported by the Superintendent of Police, Sialkot that repeated complaints of corruption were received against him verbally that he is a very corrupt police officer. It has also been reported that he is "living beyond means/capacity. Moreover, he has 6 bad entries in the service record. Thus he is unfit to be retained in the Police Department.

1. In reply to the show‑cause notice dated 8‑6‑2001, the appellant denied the allegations and raised the plea that action has been initiated against him due to personal disliking of Superintendent of Police, Sialkot. His plea was not considered satisfactory and he was awarded major punishment of dismissal from service vide impugned order, dated 12‑6‑2001. The appellant preferred departmental appeal on 10‑7‑2001. It was not decided. Hence this appeal.

2. I have heard the learned counsel for the appellant, Departmental Representative and have perused the record and objections to the memorandum of appeal submitted by the respondents.

3. Learned counsel for the appellant argued that the appellant joined service as Foot Constable. He was promoted to the rank of Inspector on 6‑10‑2000. No major punishment was awarded to him and thee is no adverse remark in his ACR Dossier. No corruption/embezzlement case or inquiry is pending against him.

4. The respondents in their objections to the memorandum of appeal have stated that the appellant was awarded following punishment during his service:‑‑

(i) Censured in 1996.

(ii) Forfeiture of one year's service in 1987.

(iii) Censured in 1993.

(iv) Censured in 1995.

(v) Stoppage of annual increment of one year in 1998.

(vi) Forfeiture of one year service in 2001.

(vii) Censured in 2001.

(viii) Forfeiture of one year's service in 2001.

(ix) Forfeiture of one year approved service.

(x) Censured.

Respondent further stated that according to the report of two independent I agencies, the appellant is incompetent, dishonest and corrupt and is living beyond his means. The appellant was average officer and most of his ACRs are of category 'B'.

1. Learned counsel for the appellant replied that the appellant was awarded minor punishments against specific allegations and the chapter was closed. The appellant cannot be punished twice for the same allegations.

2. The appellant denied the allegations in reply to the show‑cause; notice. He was awarded major punishment without conducting regular inquiry.

3. It was held in 1993 SCMR 603 that for resolving controversial questions of fact, proper course would be to hold inquiry where the evidence have to be recorded and opportunity of cross‑examination has to be provided. Otherwise findings recorded would be based more on conjectures than on evidence. It was held in 1997 SCMR 871 that removal or dismissal from service of civil servant on the basis of summary inquiry is not sustainable in law. Inspector‑General of Police, vide Letter No. 2856‑2898/P‑I, dated 2‑10‑1996 directed all the Deputy Inspectors‑General of Police, Punjab and all Superintendents of Police, Punjab that regular inquiry must be conducted before awarding major punishment. The appellant was awarded major punishment without conducting regular inquiry. The appeal is, therefore, accepted. Impugned order, dated 12‑6‑2001 conveyed to the appellant on 26‑6‑2001 is set aside. Appellant is re‑instated in service. De novo proceedings are ordered. Regular inquiry should be conducted against the appellant. He should be afforded reasonable opportunity to cross‑examine the inquiry witnesses and to produce his defence. The pay of the intervening period shall be decided by the Authority alongwith departmental proceedings. There will be no order as to the costs.

H.B.T./72/PST Appeal accepted.

2002 P L C (C.S.) 780

[Punjab Service Tribunal]

Before Justice Karamat Nazir Bhandari, Chairman and Justice Syed Jamshed Ali, Member

SHAFIQ AHMED and others

versus

REGISTRAR, LAHORE HIGH COURT and others

Service Appeal No.5 of 1993, decided on 5th October, 2000.

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

‑‑‑‑8. 8‑‑‑Punjab Public Service Commission Regulations, 1987, Regln.2(c)‑‑‑Punjab P.C.S. (Judicial Branch) Service Rules, 1962, R.9‑‑­Seniority, determination of‑‑‑On the requisition of the Government for recruitment to 29 posts of Civil Judges, Punjab Public Service Commission, invited applications for said posts and as a result of the process of selection it declared 39 candidates as successful including civil servants and out of 39 successful candidates the required 29 seats were filled‑‑‑Meanwhile Government sent another requisition to the Commission for recruitment to 50. posts of Civil Judges‑‑‑Civil servants who on earlier occasion were successful candidates but had not been absorbed' approached Government for being considered for appointment against said 50 posts‑‑‑Representation and Constitutional petition filed by them were dismissed, but in Intra‑Court Appeal they succeeded and they were appointed as Civil Judges‑‑‑Additional 50 vacancies were filled in second and third batches and in the seniority list civil servants were placed below the civil servants appointed in said two batches‑‑-Civil servants according to judgment passed in Intra‑Court Appeal were adjusted against additional vacancies for which requisition was earlier sent for appointment of 29 Civil Judges in which the civil servants despite being successful were not considered for appointment‑‑‑Civil servants who were selected with the officers of the first batch, were entitled to claim seniority alongwith said batch and were entitled to be placed above the officers of the second and third batches and not below them‑‑‑If the civil servants despite having been declared successful earlier by the Commission, were not appointed at relevant time they could not be made to suffer‑‑­Appointment and seniority were entirely two different things and delayed appointment of the civil servants could not affect their right to seniority in accordance with the rules‑‑‑Appeal of civil servants was allowed with the direction to correct their seniority by placing them immediately below the officers of the first batch and above the officers of second and third batch.

Pilla Sitaram Patrudu and others v. . Union of India and others 1997 PSC 887 ref.

(b) Civil servant‑‑-

‑‑‑Seniority‑‑‑Appointment and seniority are two different things and delayed appointment of the Civil Servants cannot therefore affect appeal their right to seniority in accordance with Rules.

Sh. Zia Ullah for Appellants.

Malik Azam Rasool and Muhammad Amin Lone, A.‑G., Punjab.

Ahsan Bhoon, Kaleem Khurshid, Muzammil Akhtar Shabbir vice Kh. Saeed‑uz‑Zafar, Hashim Sabir Raja, Sabir Hussain Shah and Farooq Amjad Mir for Respondents.

Dates of hearing: 6th July, and 5th October, 2000.

2002 P L C (C.S.) 914

[Punjab Service Tribunal]

Before Sardar Alam Khan, Member‑II

MUHAMMAD AZAM

Versus

SENIOR SUPERINTENDENT OF POLICE, GUJRAT and 2 others

Appeal No. 301 of 2000, decided on 19th June, 2001.

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

‑‑‑‑Rr. 3 (b) & 4(1)(a)(iii)(b)(i)‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑Reversion to substantive rank‑‑‑Professional misconduct‑‑‑Failure to, follow legal procedure‑‑‑Civil servant being a police official had registered F.I.R. in non‑cognizable case instead of lodging a complaint in the Court‑‑­Civil servant though was guilty of misconduct for having deviated from the procedure yet the show‑cause notice did not mention any corrupt motive on the part of the civil servant‑‑‑Omission on the part of the civil servant was rectified on the same day and he had conceded his mistake voluntarily‑‑­Service Tribunal converted the penalty from the reversion to the substantive rank to withholding of promotion for one year and re‑instated the civil servant to his rank.

Mrs. Rizwana Anjum Mufti for Appellant.

Irshad Ahmed, Legal Inspector and District Attorney for Respondents.

Date of hearing: 19th June, 2001.

2002 P L C (C.S.) 1007

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member‑I.

ZUBAIDA BIBI

Versus

MEDICAL SUPERINTENDENT, DISTRICT HEADQUARTERS

HOSPITAL, GUJRANWALA and 2 others

Appeal No. 1204 of 2000, decided on 19th March, 2002.

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

‑‑‑‑Rr. 4(1)(a)(i)(b)(iv), 16 & 18‑‑‑Dismissal from service ‑‑‑Reinstatement‑‑­Review‑civil servant serving as sweepress was dismissed from service by proceeding ex parte on allegation that she retrained absent for 9 days and she was directed to vacate residential quarter provided to her‑‑‑On Departmental appeal, Authorities converted major penalty of dismissal from service into minor penalty of censure‑‑‑When civil servant on demand failed to vacate residential quarter. Authorities reviewed their previous order and again awarded major penalty of dismissal from service‑‑‑Validity‑‑‑Once the Authorities had decided the case they had no power to review the same‑‑­Only the Government had power of review under R.18 of Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑‑Order whereby previous order was reviewed by the Appellate Authority being nullity in eyes of law, was set aside in circumstances.

Ch. Javed Iqbal for Appellant.

Departmental Representative for Respondents.

Date of hearing: 19th February, 2002.

2002 P L C (C.S.) 1013

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member‑I

BADSHAH KHAN

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, INDUSTRIES

AND MINERAL DEVELOPMENT DEPARTMENT, LAHORE and another

Appeal No. 61 of 2001, decided on 15th March, 2002.

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

‑‑‑‑S. 10‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, Rr. 4 & 5‑‑‑Termination of service‑‑‑Civil servant appointed on the recommendations of Punjab Public Service Commission, made representation to the Director of the Department that he be transferred anywhere else in Punjab because attitude of his seniors including Deputy Director was very harsh towards him, but his representation was rejected with warning to avoid such uncalled for representations in future‑‑‑Subsequently on complaint of Deputy Director of the Department, services of civil servant were terminated under S.10 of Punjab Civil Servants Act, 1974 without conducting regular inquiry against him and without affording him opportunity to produce his defence‑‑‑Civil servant who was in BS‑16 was appointed by Secretary and Competent Authority to decide whether proceedings under rules were to be initiated against civil servant, was Secretary, but show‑cause notice was issued to civil servant by Deputy Director without direction of Competent Authority which had proved that Deputy Director had exceeded his powers‑‑­Order terminating services of civil servant which otherwise was mala fide, passed without conducting regular inquiry and without affording civil servant opportunity to produce his defence, was set aside and civil servant was re­instated in service.

PLD 1974 SC 393 and PLD 1997 SC 1552 ref.

Ch. Manzoor Ahmad for Appellant.

Date of hearing: 15th March, 2002.

2002 P L C (C.S.) 1033

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

LIAQAT ALI JAFFERY

Versus

DIRECTOR FOOD, PUNJAB, LAHORE and 5 others

Appeal No. 1217 of 1994, decided on 16th May, 2001.

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

‑‑‑‑R. 22‑‑‑Ad hoc appointment‑‑‑Status‑‑‑Ad hoc appointment would not confer any right on the persons so appointed as conferred on regular appointment to the same post nor would count towards the seniority in the grade.

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.7‑‑‑Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, Rr.8 & 22‑‑‑Regularization of ad hoc appointment‑‑‑Seniority, determination of‑‑‑Period of service of civil servant who was appointed on ad hoc basis, was extended from time to time and after more than one year from his appointment his services were regularized ‑‑‑Co‑civil servants who were also appointed on ad hoc basis though prior to the civil servant but their services were regularized after about six months from regularization of civil servant and civil servant was shown junior to co‑civil servants ‑‑‑Validity‑‑­Seniority of civil servants would be determined with reference to the dates of their continuous appointment (regularization in the grade)‑‑‑Where the date of continuous appointment (regularization) in case of two or more civil servants, was the same, the older would rank senior to the younger‑‑‑As the civil servant was confirmed prior to the co‑civil servant, his name was wrongly mentioned as junior to the co‑civil servants‑‑‑Civil servant was declared senior to co‑civil servants and inter se seniority of co‑civil servants was to be determined by treating the older senior to the yonger‑‑ Seniority list was directed to be corrected accordingly.

M.Y Bhatti for Appellant.

District Attorney for Respondent.

Date of hearing: 16th May, 2001.

2002 P L C (C.S.) 1065

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Mst. ANEES AZIZ

Versus

DIRECTOR OF ELEMENTARY EDUCATION, RAHAWALPUR DIVISION, BAHAWALPUR and 2 others

Appeal No.2133 of 2000, decided on 20th August, 2001.

Punjab Service Tribunals Act (IX of 1974)‑‑

‑‑‑‑S.4‑‑Termination of service‑‑‑Principle of audi alteram partem Violation of‑‑‑Appointment of untrained teachers‑‑‑Termination by omnibus order‑‑‑Appointment was made by way of general policy and the civil servant had qualified for the regular post by improving her qualification subsequently which was regularized‑‑‑Order of termination was recalled earlier by the same authority but subsequently by omnibus order the same authority directed termination of all such teachers who were appointed through fake certificates or by relaxation of rules and services of civil servant were also terminated‑‑‑No opportunity was provided to the civil servant to prove that her appointment in the first instance was made in pursuance of the general policy and secondly by dint of her hard work she had qualified to be regularized in her post‑‑‑Civil servant had been condemned unheard and principle of equity as enshrined in the maxim audi alteram partem was violated‑‑‑Where appointment was made by the Authority otherwise competent to do so, the fault lay with the department and the civil servant could not be blamed for the same‑‑‑When decisive steps were taken they could not be retraced‑‑‑Order passed by the Authorities was set aside and the civil servant was reinstated with back benefits in circumstances.

Rizwana Anjum Mufti for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Date of hearing: 16th August, 2001.

2002 P L C (C.S.) 1071

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Dr. MUHAMMAD YOUSAF, ASSOCIATE PROFESSOR OPERATIVE DENTISTRY, DE MONTMORENCY, COLLEGE OF DENTISTRY, LAHORE

Versus

GOVERNMENT OF PUNJAB through Chief Secretary, Civil Secretariat, Lahore and another

Appeal No.772 of 2001, decided on 26th July, 2001.

Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Promotion‑‑‑Entitlement‑‑‑Right of Government servant to claim for a post which was firstly vacant; secondly Government servant was eligible for the same in all respects and thirdly according to list of seniority he was entitled to that post‑‑‑Post was required to be filled as soon as possible so that chance of future promotion of the civil servant instead of being married by a late promotion, should be in line for promotion to next higher post‑‑‑No civil servant had vested right of promotion, but where rules, regulations and policy had been framed for regulating appointment and promotion any breach and deviation from such rules either due to any mala fide reasons or due to arbitrary act of Competent Authority, would entitle the aggrieved person to challenge the same.

Walayat Ali Mir v. Pakistan International Airlines Corporation 1995 SCMR 650 ref.

Mahmood Ahmad Qazi for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondent.

Date of hearing: 21st July, 2001.

2002 P L C (C.S.) 1078

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

MANZOOR AHMAD

Versus

SENIOR SUPERINTENDENT OF POLICE and 2 others

Appeal No. 1030 of 2001, decided on 21st February, 2002.

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

‑‑‑‑Rr. 6 & 7‑‑‑Reduction in rank‑‑‑Major punishment of reduction in rank from Assistant Sub‑Inspector of Police to Head Constable was awarded to civil servant after issuing him show‑cause notice, but without conducting regular inquiry against him and without affording him opportunity to cross-­examine inquiry witnesses and to produce his defence‑ ‑Authority acted as complainant, prosecution and Judge all in one‑‑‑Punishment awarded to civil servant, in circumstances, was void‑‑‑Order awarding punishment was set aside with direction to reinstate civil servant as Assistant Sub‑Inspector.

1989 SCMR 551 ref.

Mahmood Ahmed Qazi for Appellant.

Dates of hearing: 13th December, 2001 and 21st February, 2002.

2002 P L C (C.S.) 1080

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

AMNA REHMAN and others

Versus

DEPUTY DISTRICT EDUCATION OFFICER (W) ELEMENTARY and others

Appeals Nos. 1698, 1699 and 2061 of 2000, decided on 16th May, 2001.

Punjab Civil Servants (Efficiency and Discipline) Rules, 1974‑‑‑

‑‑‑‑R.6(3)‑‑‑Constitution of Pakistan (1973), Art.27‑‑‑Recruitment Rules (notified vide S.O.R.III‑1‑13/85, dated 27‑7‑1991)‑‑‑Removal from service‑‑‑Civil servants duly appointed by the Competent Authority, were removed from service on the ground that they being residents and domiciled in one Tehsil could not be appointed in another Tehsil according to Recruitment Rules dated 27‑7‑1991‑‑‑Said Rules were notified subsequent to recruitment of the civil servants and were not applicable with retrospective effect‑‑‑Said rules in circumstances, were not applicable in case of the civil .servants‑‑‑Even otherwise according to Art. 27 of Constitution of Pakistan, (1973), no citizen otherwise qualified for appointment in the service, would be discriminated against on the ground of residence or place of birth‑‑‑Orders of removal were set aside and civil servants were re‑instated in service with all back benefits.

1996 SCMR 1350 ref.

Khadim Hussain Khokhar for Appellant.

District Attorney for Respondents.

2002 P L C (C.S.) 1105

[Punjab Service Tribunal]

Before Ch. Akhter Hussain, Member‑III

AKHTAR ALI

Versus

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

Appeal No. 69 of 1995, decided on 28th April, 2000, Civil service‑‑‑

‑‑‑ Imposition of penalty of reduction to an initial stage of the time scale‑‑­Civil servant was removed from service on the. charges of, wilful absence from duty, negligence in the discharge of duties and undesirable and irresponsible behaviour‑‑‑Departmental Appellate Authority set aside order of removal from service holding that said order was defective to the extent that the prescribed procedure was not adopted by the Authority‑‑‑Appellate Authority, despite setting aside order holding same to be defective, imposed penalty on the civil servant of reduction to an initial stage of the time scale‑‑­Validity‑‑‑Order imposing punishment of removal from service once having been set aside holding it defective, another penalty could not be imposed under the same order without following the prescribed procedure‑‑‑Order of Appellate Authority imposing penalty of reduction to an initial stage of the time scale on civil servant, was set aside is circumstances.

Dr. Ehsan‑ul‑Haque Khan for Appellant.

Haider Ali Khawaja, District Attorney for Respondents.

Date of hearing: 28th April, 2000.

2002 P L C (C.S.) 1106

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

AURANGZEB

Versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and others

Appeal No. 3532 of 1997, decided on 28th September, 2000.

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

‑‑‑‑Rr. 6 & 7‑‑‑Dismissal. from service‑‑‑Civil servant who proceeded on three days casual leave, did not return for duty for about five months and sent applications for leave on medical grounds supported by medical certificates‑‑‑Civil servant was dismissed from service after giving him show­-cause notice, but without holding inquiry against him‑‑‑Major penalty of dismissal from service could not be awarded without conducting regular inquiry‑‑‑Punishment awarded to the civil servant being harsh, was set aside and he was reinstated in service.

1997 PLC (C.S.) 817 ref.

Shamshir Iqbal Chughtai for Appellant.

Muhammad Ashiq Bhatti, District Attorney for Respondent.

Date of hearing: 28th September, 2000.

2002 P L C (C.S.) 1118

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

Mst. KALSOOM MAQBOOL

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, EDUCATION DEPARTMENT, LAHORE and 8 others‑‑‑Respondents

Appeal No. 2406 of 2001, decided on 9th February, 2002

(a) Civil service‑‑‑

‑‑‑‑ Transfer of lady teacher‑‑‑Criteria‑‑‑Factors to be determined fox transfer of a lady teacher to a nearer place are place of her residence from institution in which she taught; service rendered in far flug area; wedlock status and seniority and academic results.

(b) Punjab Local Government Ordinance (XIII of 2001)‑‑‑

‑‑‑‑S. 18(1)(o)‑‑‑Punjab District Government Rules of Business, 2001, R.16‑‑Pronition, posting and transfer‑‑‑Power of Zila Nazim‑‑‑Scope‑‑­Provisions of S.18(1)(o) of Punjab Local Government Ordinance, 2001, no doubt had empowered Zila Nazim to issue. orders to District Coordination Officer and Executive ‑‑‑Zila Nazim would act as a Supervisor and to monitor work so that functions were correctly performed by employees and one Authority did hot interfere in work of another Authority, but by no stretch of imagination it would mean that Zila Nazim had been given powers to sweap on functions and working of different Departments with which he otherwise, had no nexus or' expertise ‑‑‑Zila Nazim, in exercise of his supervisory powers had just to ensure himself that every thing was going right, but he could not correct a wrong by his .interference, specially in, matters of promotion, posting and transfer of civil servants.

Pervaiz Inayat Malik for Appellant.

Khadim Hussain Sindhu, District Attorney and Ch. Nusrat Javed Bajwa for Respondent No.9.

Date of hearing: 6th February; 2002.

2002 P L C (C.S.) 1550

[Punjab Service Tribunal]

Before Justice (Retd.) Abdul Hafeez Cheema, Chairman

Hafiz MUHAMMAD ALAM

Versus

DISTRICT EDUCATION OFFICER (M) ELEMENTARY, BAHAWALNAGAR and 2 others

Appeal No.459 of 1998, decided on 27th January, 1999.

Civil Service-----

‑‑‑‑Appointment‑‑‑Cancellation of‑‑‑Civil servant in response to an advertisement applied for the post and appeared before Recruitment Committee‑‑‑Civil servant was declared successful, had joined duty and had worked for quite some time‑‑‑Civil servant was subsequently restrained verbally to perform his duties without any cogent reason and his appointment was cancelled without any written order‑‑‑Civil servant had not procured the appointment by means of fraud and had not relied upon bogus/forged documents‑‑‑Civil servant who possessed valid appointment order, had joined assignment and had worked on his post for many days and orders of appointment had been acted upon, department had no authority to cancel the order of , appointment without giving cogent reasons in writing‑‑‑Verbal order of cancellation of. application was no order in the eye of law.

PLD 1979 Lah. 699 and PLD 1998 Kar. 180 ref.

Mrs. Rizwana Anjum Mufti for Appellant, Ch. Manzoor Hussain, D.A. for the State.

Date of hearing: 27th January, 1999.

2002 P L C (C.S.) 1182

[Punjab Service Tribunal, Lahore]

Before Jawad Ahmed Mufti, Member‑II

Syed SIBTE HUSSAIN

Versus

DEPUTY COMMANDANT PUNJAB CONSTABULARY FAROOQABAD and 2 others

Appeal No. 3302 of 1999, heard on 9th February, 2000.

Civil Service Rules (Punjab) Vol. I, Part I---

‑‑‑R. 7.3‑‑Civil service‑‑‑Dismissal from service‑‑‑Reinstatement‑‑‑Back benefits Entitlement Civil servant was dismissed from service on allegations of charge of tampering with his date of birth and production of false certificate at the time of his retirement‑‑‑Civil servant was acquitted of the charges against him and Service Tribunal ordered re‑instatement‑‑­Authority though re‑instated civil servant in compliance with order of Service Tribunal, but denied the back benefits‑‑‑Civil servant having been acquitted of the charges on basis of which he was dismissed from service, he was entitled to back benefits and arrears of pay and also seniority from the date of his dismissal from service.

PLJ 1997 Tr. C. Service 605; 1997 SCMR 1981 and 1995 PLC (C. S.) 405 ref.

Mrs. Rizwana Anjum Mufti for Appellant.

Date of hearing: 9th February, 2000.

JUDGMENT

This order will dispose of Appeal No.3302 of 1999 filed by Syed Sibte Hussain son of Sher Ali Shah, Constable No.8717/11207, Police Constabulary, Farooqabad, resident of Kalianwala, Police Station Ali Pur Chatha, Tehsil Wazirabad, District Guiranwala against his dismissal on the charge of tampering with his date of birth and production of fake certificate at the time of recruitment as Constable in the Punjab Constabulary. As such after issuing a show‑cause notice, Battalian Commander, Farooqabad dismissed him from service on the above said charges. He filed an appeal before the Commandant, Punjab Constabulary which was also dismissed. The appellant filed an appeal before the Punjab Service Tribunal which was accepted by the learned Member‑I and in view of the judicial proceedings by lithe Sessions Judge in this case whereby no case of tampering was proved against the appellant and Court gave directions to this effect, that it should be decided afresh after holding a proper inquiry against him but nothing was said about the back/consequential benefits of the service to the appellant.

1. The background of this appeal is that the appellant was appointed and posted at Farooqabad when abruptly allegation of fake Middle School Certificate and tampering with the date of birth were levelled against him and cases were registered against the appellant under sections 420, 468 and 471, P. P. C. later aforesaid criminal case was tried by Sessions Judge, Sheikhupura and the judgment was announced whereby appellant was acquitted of the charges.

2. Instead of complying with the judgment of Tribunal in Appeal No.41 of 1995, the competent Authority continued the dismissal of the appellant. It is known fact that the Government Departments, do not have appropriate judicial know‑how and if a decision is taken at the level of the Sessions Judge and Service Tribunal I wonder why the order of the Service Tribunal was not implemented and why the dismissal order of the appellant was issued by the Department. Later, the order of the Tribunal was, however implemented but while re‑instating the appellant, orders regarding back benefits of pay were not mentioned. It is established principle of law and under C.S.R. Punjab Rule 7.3 Part‑I (Vol‑I). (sic) In another letter it has been provided that after Hon'able acquittal of the Civil Servant is entitled P every pay and allowances, which he would otherwise receive as if he was not dismissed/terminated from service.

Reliance is also placed on the following judgments:‑‑

(i) PLJ 1997 (Tr. C. Service) 605.

(ii) 1997 SCMR 1981.

(iii) 1995 PLC (C.S.) 405.

In view of the above, it is ordered that the appellant is entitled to be paid all back benefits and arrears of pay and he should be given his seniority from the date of dismissal. There will be no order as to costs.

H.B.T.I28/P (Sr. Trib.) Appeal accepted.

2002 P L C (C.S.) 1190

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑II

KHALID SIDDIQUE

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, EXCISE AND TAXATION DEPARTMENT, TRANSPORT HOUSE, EGERTON ROAD, 2ND FLOOR, LAHORE and another

Appeal No. 174 of 2002, decided on 28th May, 2002.

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

‑‑‑‑Rr. 3, 4, 6 & 7‑‑‑Misconduct‑‑‑Minor punishment of stoppage of two annual increments‑‑‑Allegation against civil servant on basis of which punishment of stoppage of two increments was imposed on him was that he had written two letters to Director containing objectionable material and that civil servant in those letters had used objectionable language which had reflected insubordination on the part of civil servant‑‑­Disputed letters were addressed by civil servant to Director who was officer a one step senior in rank to the civil servant‑‑‑Letters contained a reference to some taxation and also some proposals for elimination of corruption in registration on forged documents‑‑‑Nothing unethical or objectionable was found in those letters‑‑‑Remarks given in letters with religious tinge, could be considered a little bold and blunt, but not unethical or objectionable from any angle or on any moral principle‑‑‑Order imposing penalty on civil servant was set aside in circumstance.

Appellant in person.

Syed Jafar Raza, Legal Inspector/D. R. Muhammad Aslam Awais, District Attorney for Respondents.

Date of hearing: 22nd May. 2002.

JUDGMENT

The appellant while posted as Excise and Taxation Officer, Motor Branch, Lahore was proceeded against under Punjab Civil Servants E&D Rules, 1999 on grounds of misconduct etc. in May 2000.. Enquiry was conducted and the Enquiry Officer came to the conclusion that one allegation out of three, was proved against him and. therefore, minor punishment of stoppage of two annual increments was imposed on the appellant on 21‑‑1‑2001. The appellant preferred departmental appeal which was rejected on 20‑12‑2001 hence the present appeal.

1. The appellant is present in person and has argued his own case pointing out that he has been victimized mainly because of his uncompromising attitude on elimination of corruption. He has further maintained that only allegation proved against the appellant was that he had used objectionable and unethical language in the official letter/correspondence. The appellant further states, that he requested the Enquiry Officer to highlight portions of the letters containing objectionable language but Enquiry Officer instead of specifying the portion insisted on the allegation and later imposed on him the punishment of stoppage of two increments out of mala vide. It is further maintained that the allegation was totally baseless and that the letter addressed by the appellant contained nothing unethical or objectionable. The appellant has also drawn attention to the enclosures with his appeal which were considered to contain unethical and objectionable language but actually normal language was used in those letters.

2. The learned District Attorney arguing on behalf of the respondents has opposed the appeal pointing out that order has been passed by the Enquiry Officer in accordance with the law. It is further maintained that the letter dated 22‑4‑2000 written by the appellant to the Director E&T Lahore contained objectionable contents. Similarly letter dated 4‑5‑2000 written by the appellant also contained objectionable language which reflected insubordination on the part of the appellant and, therefore, the appellant was subjected to the penalty on ground of violation of the service discipline which, was fully justified in law.

3. I have considered the contentions of the parties and also perused contents of the disputed letters dated 22‑4‑2000 and 4‑5‑2000. These letters are addressed to the Director E&T, Lahore who is an officer one step senior in rank to the appellant. Letters contain a reference to some taxation and also some proposals for elimination of corruption in registration on forged documents. I do not find anything unethical or objectionable in these letters. In the letter dated 4‑5‑2000 the appellant was constrained to write the following remarks:

"It is evident that such type of slanderous allegations which were levelled just to compel the undersigned to join hands with my colleagues in promotion of corruption, do not commensurate with the job requirements entrusted to you. It is hope that in future you will to afraid of the Almighty God while sitting in the office chair as we are living in this world for a short while and we are answerable regarding our so­ called noble acts."

Perhaps it was these remarks with religious tings which outrage the senior departmental officers resulting in the imposition of penalty on the appellant. One can consider the remarks a little bold and blunt but no unethical or objectionable from any angle or any sense of any moral principles. Therefore, considering the acts of the case, the appeal is accepted and the impugned orders are set aside.

H.B.T./83/PST. Appeal accepted.

2002 P L C (C.S.) 1279

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman

REHMAT ALI

versus

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 6 others

Appeal No. 1148 of 1998, decided on 4th September, 2001.

Civil service‑‑‑

‑‑‑‑ Police service‑‑‑Admission in List ' F' and promotion‑‑‑Civil servant initially joined service as Probationer A.S.‑I., and was promoted as Sub‑Inspector of Police in 1980‑‑‑Co‑civil servants who were juniors to the civil servant were admitted to List ' F' and were promoted as Inspectors, but the civil servant was left out on ground that he was censured twice in 1980 and was also burdened with two years forfeiture of approved service in 1983‑­Validity‑‑‑All the three punishments were of the nature of minor penalties and such minor penalties could not stand in the way of civil servant to seek promotion at the time when his batch mates were promoted‑‑‑Apart from that during pendency of appeal, the civil servant was brought on list ' F' in 1986 and was also promoted on officiating basis as Inspector in that year and later on was confirmed in 1988 despite said punishments‑‑‑Civil servant, who was included in List ' F' and was promoted later on despite the‑ punishments, could be granted the relief at the time when his juniors were so promoted‑‑­Civil servant, in circumstances, was entitled to be brought on List ' F' and to be promoted as Inspector from the dates his juniors were so promoted‑‑­Authority was directed to consider the case of the civil servant for further promotion.

M.R. Khalid v. Government of the Punjab 1991 PLC (C.S 138 1984 SCMR 286 and 1996 SCMR 1185 ref.

Masud Ahmad Riaz for Appellant.

Khadim Hussain Sindhu District Attorney, for Respondents

Date of hearing: 3rd September 2001

JUDGMENT

Rehmat Ali, Inspector, has filed the instant appeal whereby he has laid challenge to the order dated 19‑6‑1998 passed by respondent No. l turning down representation of the appellant to be considered as confirmed Inspector w.e.f. 27‑6‑1983.

1. Learned counsel contended that the appellant joined service as probationer A.S.‑I. oft 6‑3‑1969. On dissolution of One Unit, he was repatriated to the Province of Punjab in 1970 and after some litigation with the department who were reluctant to accept his status, he finally succeeded to be promoted as Sub‑Inspector with confirmed status w.e.f. 27‑2‑1980. His junior colleagues that arrayed as respondents 2 to 7 were confirmed as Sub‑Inspectors on 1‑7‑1980 i.e. five months after the confirmation of the appellant to the said post. However, respondents Nos.2 to 5 were promoted as officiating Inspectors from 27‑6‑1983 and the appellant was left out from this list of promotion as well as his fixation in list 'F' compelling him to tile a writ petition in the Lahore High Court, Lahore, and as a result of direction issued by the Court, appellant was promoted to list 'F' w.e.f. 3‑I1‑1986 vide order dated 20‑2‑1990 and subsequently vide order dated 20‑11‑1996, he was promoted as confirmed Inspector w.e.f 21‑10‑1988. However, his prayer to be brought on list ' F' w.e.f. 8‑2‑1983 and his promotion as confirmed Inspector from 3‑11‑1986 failed to cut any ice with respondent No. 1. as such he was constrained to bring the present appeal.

2. Learned counsel contended that respondents Nos.2 to 7 who were inducted in service, five months after the appellant were appointed as officiating Sub‑Inspectors were admitted to list ' F' on 8‑2‑1983 and were promoted as Inspector w.e.f. 27‑6‑1983 and he was left out from the race because respondent No. l considered his chequered service record as a hindrance to be admitted to list ' F' alongwith his colleagues as well .as his promotion to the post of Inspector w.e.f: 27‑6‑1983.

3. Learned counsel has drawn the attention of the Tribunal to the' comments tiled by respondent No. l as well Deputy Inspector‑General of Police, Lahore Range, Lahore, in which it has been stated that appellant was censured twice in the year 1980 and was also burdened with two years forfeiture of approved service in 1983 as a result of which promotion now sought was denied to him.

4. Learned counsel in the first instance vehemently contended that denying him promotion as a result of two censures in the year 1980 and forfeiture of two years approved service in the year 1983 cannot stand in his way as all the three punishments are of the nature of minor penalties and it is a well‑established law that minor penalty cannot stand in the way of the incumbent to seek promotion. He relied upon a number of rulings of the apex Court as well as Federal Service Tribunal as also of this Tribunal precedent case of M.R. Khalid v. Government of the Punjab 1991 PLC (C.S.) 138 was relied to state that after filing of the appeal, appellant was admitted to ' F' list on 21‑10‑1986 and was promoted as Inspector on 21‑10‑1988, therefore, the three punishments by way of minor penalty cannot stand in his way for seeking pro forma promotion w.e.f. 27‑6‑1983, the date when his batch­mates were promoted. Reliance was also placed on an unreported judgment of this Tribunal in Service Appeal No. 150 of 1992 titled Muhammad Fazil, Sub‑Inspector No.R‑195 v. Deputy Inspector‑General of Police, Rawalpindi Range, Rawalpindi etc. Conversely, learned District Attorney of factual plinth does not seriously contest the submission made by the counsel for the appellant, however, supports the order of respondent.

5. I have considered the arguments in real earnest and have also perused the record. It is true that minor punishment cannot stand in the way of incumbent to seek promotion. Apart from this during the pendency of the appeal, appellant was brought on list 'F' on 2‑1‑10‑1986 and in the first instance was promoted on officiating basis as Inspector w.e.f. 31‑11‑1986 and later on was confirmed in the same post on 21‑10‑1988. Where did the, three punishments, two of censures awarded in 1980 and one of forfeiture of two years approved service go; evaporate in thin air or were they in existence? The answer is in the affirmative that these punishments were very much on the board. If the appellant could be brought on list ' F' on 21‑10‑1986 and be confirmed as Inspector on 24‑10‑1988, then why the promotion and bringing his name on list ' F' be not relegated to back date i.e. 8‑2‑1983 and 27‑6‑1983 respectively as claimed by him on the basis of seniority awarded to his batchmates arrayed as respondents Nos.2 to 7. To the contrary in the order dated 5th May, 2001, bearing No.SE‑1/1900/E‑V, captioned as "Revised Promotion/ Confirmation in the rank of Inspector" ruling of the Hon'ble Supreme Court in 1984 SCMR 286 and 1996 SCMR 1185 have been quoted stating that equal treatment to all other officers who had not come up before the Tribunal seeking the same relief and that benefit of such determination cannot be denied to a civil servant on the ground that he was not party to litigation before Tribunal.

6. The upshot of the decision, therefore, is that the appellant has succeeded in convincing the Tribunal that he is entitled to be brought on list ' F' w.e.f. 8‑2‑1983 and to be promoted as officiating Inspector w.e.f. 27‑6‑1983. Appeal is accepted with the aforesaid observations and with a further direction to the respondents to consider the case of the appellant for further promotion as D.S.P. earlier within a period of six months commencing from today.

H.B.T./62/PST Appeal accepted.

2002 P L C (C.S.) 1290

[Punjab Service Tribunal]

Before Syed Aal‑e‑Ahmad, Member‑I

AMJAD ALI

versus

THE SUPERINTENDENT OF‑ POLICE, DISTRICT VEHARI and others

Appeal No.744 of 1995, decided on 24th April, 2001.

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

‑‑‑‑Rr.4, 5 & 6‑‑‑Dismissal from service‑‑‑Civil servant being a constable proceeded for evidence in the Court, but did not report back for duty and remained absent unauthorised for more than five months ‑‑‑Show‑cause notice was issued to the civil servant and he was asked to appear before the authority, but despite notice he failed to appear before the Authority ‑‑‑ Civil servant having voluntarily absented himself from his duty for a period over live months, no justification was available for allowing such an irresponsible official to continue in the Police Department‑‑‑Punishment of dismissal from service, being rather harsh, in. view of nature of misconduct, was converted into compulsory retirement.

N. A. Butt for Appellant.

Ali Afzal, IL/DR and District Attorney for Respondents.

Date of hearing: 24th April, 2001.

JUDGMENT

The brief facts of the case are that the appellant while serving as Constable proceeded for evidence in .the Court on 13‑8‑1992 (in Vehari District), but did not report back for duty. He was accordingly proceeded against under Police E&D Rules, by way of a show‑cause notice and was ultimately dismissed from service with effect from 13‑6‑1993, vide orders dated 5‑6‑1993 passed by the S.P. Vehari. His Departmental appeal and the Revision Petition both were also rejected by the D.I.‑G. and the Inspector‑ I General of Police respectively.

1. It is contended by the counsel of the appellant that major penalty was imposed upon him without holding any regular enquiry. The respondent-­Department on the other hand stated that the‑appellant remained absent for 5 months and 15 days and that he was dealt with under the Punjab Police (E&D) Rules. He was issued a show‑cause notice for unauthorised absence and was required to appear before the Authority .(Superintendent of Police) for personal hearing. He did not care to appear before the S.P./Authority for personal hearing in spite of notice served on him. He was, therefore, rightly punished.

2. I have heard the District Attorney and the Inspector Legal and gone through the record.

3. The learned counsel for the appellant contented that the appellant was condemned unheard and that the impugned penalty is too harsh keeping in view the misconduct which only relates to absence which was on medical grounds.

4. I have considered the arguments advanced by the learned counsel and find that the appellant voluntarily absented from his duties for a period of over 5 months. There appears to be no justification for allowing such an irresponsible official, to continue in the Department. However, the punishment of dismissal from service is rather harsh, keeping in view the nature of misconduct.

5. In view of the circumstances explained above, the punishment of dismissal from service is hereby converted into compulsory retirement.

H.B.T./70/P Order accordingly.

2002 P L C (C.S.) 1309

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member‑I

Haji TAHIR IQBAL

versus

DEPUTY DIRECTOR FOOD and another

Appeal No. 1027 of 1.999, decided on 18th April, 2002.

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

‑‑‑‑S.12‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, R.6‑‑‑ Retirement from service‑‑‑Issuance of show‑cause notice‑‑‑Order of retirement would not be passed in respect of any civil servant unless competent Authority had informed the civil servant in writing of the grounds on which it was proposed to make order of retirement and had given him opportunity of showing cause against him‑‑‑Purpose of issuing show‑cause notice was to provide opportunity to civil servant to explain his position.

1991 PLC (C.S.) 33 ref.

(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑

‑‑‑‑S.12‑‑‑Punjah Civil Servants (Efficiency and Discipline) Rules 1975, Rr.5, 6 & 7‑‑‑Retiremem from service‑‑‑Civil servant was retired from service after issuing him show‑cause notice in public interest under S.12 of Punjab Civil Servants Act, 1974 on basis of certain allegations against him without holding any enquiry‑‑‑Allegations given in show‑cause notice were vague, ambiguous and general in nature‑‑‑Adverse remarks if any must have been mentioned in show‑cause‑notice‑‑‑Retirement under S.12 of Punjab Civil Servants Act, 1974, was in fact compulsory retirement and being a stigma on civil servant, regular inquiry must be conducted before passing such order affording civil servant opportunity to cross‑examine inquiry witnesses and to produce his defence‑‑‑For resolving controversial questions of fact, proper course would be to hold a full‑fleged inquiry where evidence was to be recorded and opportunity of cross‑examination was to be given, otherwise findings recorded would be based more on conjectures than on evidence‑‑‑Civil servant was condemned without conveying him specific grounds under which proposed action was to be taken against him and he was deprived of opprtunity of explaining charges which were ambiguous and vague‑‑‑Provisions of S.12 of Punjab Civil Servants Act, 1974 did not intend to deprive civil servants from opportunity of defending himself from authoritarian and unjustified orders of Authority‑‑‑Order retiring civil servant was set aside and he was ordered to be reinstated in service.

1993 SCMR 603 ref.

Muhammad Yasin Bhatti for the Appellant

Muhammad Aslam Awais, District Attorney for Respondents

Date of hearing: 17th April, 2002.

2002 P L C (C.S.) 1375

[Punjab Service Tribunal]

Before Riaz Kayani, Chairman

MUHAMMAD AKRAM

versus

THE INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHROE and 12 others

Appeal No.55 of 1998, decided on 30th October, 2001.

Civil Service‑‑‑

---Police Service‑‑‑Admission to List 'F' and pro forma promotion‑‑‑Civil servant was refused admission to List 'F' with effect from 1‑I‑1981 and pro forma promotion as oft3ciating Inspector of Police with effect from 9‑4‑1981 on ground that he had earned two minor penalties‑‑‑Alleged two minor penalties or adverse entries were earned by civil servant in 1991 and 1992‑‑‑Validity‑‑‑Police circular letter, dated 7‑11‑1984, provided that while considering a civil servant for pro forma promotion assessment of his fitness for such promotion should be determined on the basis of his A.C.Rs. upto the date from which pro forma promotion was proposed to be allowed or total record upto the date of consideration of his case, should be examined‑‑­Only such record should be considered as would be available upto the date of pro forma promotion and subsequent record should not prejudice said assessment‑‑‑Two minor penalties having been earned by the civil servant subsequently, the civil servant was entitled to be considered for admission to List 'F' and for pro forma promotion and said two subsequent adverse entries in A.C.R. of the civil servant would not be a hurdle in his way to secure his promotion.

Ch. Yar Muhammad Durraiana v. Government of the Punjab and another 1992 PLC (C.S.) 95 and Captain Sarfaraz Ahmed Mufti v. Government of Punjab and others 1991 SCMR 1637 ref. Masud Ahmad Riaz for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondents.

Date of hearing: 17th October, 2001.

2002 P L C (C.S.) 1388

[Punjab Service Tribunal]

Justice (Retd.) Riaz Kayani, Chairman

MUHAMMAD HASNAIN SHAH

versus

INSPECTOR‑GENERAL OF POLICE, MULTAN RANGE, MULTAN and 27 others

Appeal No.3706 of 2000, decided on 4th December, 2001

(a) Civil Service----

‑‑‑‑Promotion, confirmation and seniority‑‑‑Civil servant was promoted to the rank of Officiating Sub‑Inspector of Police, but was not confirmed on that post and was also placed below the co‑civil servants in seniority list despite they were juniors to him ‑‑‑Co‑civil servants were confirmed and placed above civil servant in seniority list on ground that they had undergone upper class course earlier to the civil servant‑‑‑Validity‑‑‑Civil servant was punished for no fault of his own for not being nominated for upper class course alongwith co‑civil servants‑‑‑Civil servant had no adverse entry to his A.C.R. standing against him at relevant time‑‑‑Representation and appeal filed by the civil servant against his grievance though were late, but in matters of promotion, pay and other emoluments, limitation would not foreclose his right accrued to him‑‑‑Orders passed against the civil servant were set aside with direction to the Authority to confirm civil servant from the date when his juniors were so confirmed ‑ and to grant ante‑dated promotion to him.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Preamble‑‑‑Limitation‑‑‑Limitation Act, 1908 undoubtedly was penal in nature and rights accrued could not be taken away unless sufficient cause was shown‑‑‑Technicalities of law, however, should not stand in the way of a person who had been singled out rather prosecuted without knowing as to crime or sin, he had committed.

Masud Ahmad Riaz for Appellant.

Khadim Hussain Sindhu, District Attorney for Respondents.

Date of hearing: 27th November, 2001.

2002 P L C (C.S.) 1395

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑III

GHULAM RASOOL SHOUQ, EX‑HEAD MASTER

versus

GOVERNMENT OF THE PUNJAB through Chief Secretary Lahore and 4 others

Appeal No. 329 of 2001, decided on 23rd April, 2002.

Civil Services---

‑‑‑‑Advance increments‑‑‑Entitlement‑‑‑Civil servant joined service as S.S.T. on basis of prescribed qualification B.A./B.Ed. and was promoted to the post of Headmaster in BS‑17‑‑‑Civil servant who subsequently acquired higher qualifications of M.A. and M.Ed., claimed six advance increments in terms of Finance Department's Circular Letter dated 25‑8‑1983 on basis of such extra qualifications acquired during service‑‑‑Authority showed its inability to allow advance increments in the light of Finance Department's clarification letter dated 21‑5‑1998‑‑‑Validity‑‑‑Finance Department's clarification dated 21‑5‑1998 being not applicable with retrospective effect, civil servant could not be denied what had become his right earlier in years 1989 and 1991 when he acquired higher qualification‑‑‑Civil servant was entitled to receive advance increments as claimed by him in years 1989 and 1991 when he acquired higher qualification strictly in accordance with earlier circular letter dated 25‑8‑1'983‑‑‑.Legality of clarification letter dated 21‑5‑1998 was questionable because condition contained in that letter was not imposed in original circular letter dated 25‑8‑1983‑‑‑Department was at fault to the effect that desp4e his persistent representations civil servant was not allowed increments till he retired‑‑‑Civil servant, in circumstances, was entitled to six advance increments as prayed for.

Shahzad Raza for Appellant.

Muhammad Ramzan, Director EAD/DR and Rana Safdar Ali Asif, District Attorney for Respondents.

Date of hearing: 23rd April, 2002.

2002 P L C (C.S.) 1403

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman

MEHR MUHAMMAD NASIR

versus

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

Appeal No. 1968 of 2000, decided on 19th February, 2001.

(a) Punjab Civil Servants Act (VIII of 19.74)‑‑‑

‑‑‑‑S. 2(1)(f)‑‑‑"Permanent post", meaning of‑‑‑Expression "permanent post" would mean "a post sanctioned without limit of time".

(b) Police Rules, 1934‑‑‑

‑‑‑‑Rr. 12.2 & 12.8‑‑‑Regularization of seniority and probation period and confirmation of service‑‑‑Inspectors/Sergeants, Sub‑Inspectors and Assistant Sub‑Inspectors who were directly appointed, were to be confirmed from the date of their appointment if probation period of three years was completed successfully‑‑‑Civil servant who was recruited as direct Inspector, his seniority and the probationary period of three years were to be regularized from the date of his appointment according to law irrespective of the fact whether any of his juniors had been or had not been confirmed from a particular date‑‑‑Order confirming service of civil servant after about three years from the date of his appointment, was set aside holding him entitled to be confirmed as Inspector/Sergeant from date of his appointment.

1971 PLC (C.S.) 47; 1999 SCMR 1594 and 1998 SCMR 215 ref.

Ayub Hassan for Appellant.

Khadim Hussain Sindhu, D.A. for Respondent.

Date of hearing: 19th January, 2001.

2002 P L C (C.S.) 1418

[Punjab Service Tribunal]

Before Abdul Hafeez Cheema, Chairman, MUHAMMAD AFZAL BAJWA

versus

DIRECTOR GENERAL EXCISE AND TAXATION, PUNJAB, LAHORE and 2 others

Appeal No. 1257 of 1999, decided on 18th December, 2000.

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

‑‑‑‑R. 4 (a)(iii), (b)(ii)‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑­Compulsory retirement from service‑‑‑Civil servant who was Inspector in Excise and Taxation Department was accused of poor tax recovery and initially penalty of stoppage of one increment, was imposed but after one and a half months penalty of compulsory retirement was imposed on him‑‑­Authority could not give satisfactory/plausible explanations as to why after imposition of minor penalty, case of civil servant was re‑opened after one and a half months despite neither Authorised Officer had recommended for imposition of major penalty nor any show‑cause notice was issued to the civil servant and he was also not provided opportunity of hearing‑‑­Figures/recoveries made by civil servant had shown that he did not lag behind his colleagues in recovering the arrears and the current taxes‑‑­Authority had not claimed that civil servant misstated regarding said recoveries and the case of the civil servant was on better and stronger footing than cases of co‑civil servants who were also proceeded on same allegation, but their appeals were accepted,‑‑Civil servant during his thirty six years of service had never been communicated any adverse remarks‑‑‑In absence of any valid ground for imposition of any penalty upon civil servant, penalty imposed on him was set aside.

1988 S C M R 691 ref.

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

‑‑‑‑R. 4‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Compulsory retirement from service‑‑‑Appeal, competency of‑‑‑Authority had contended that civil servant, who had already drawn the amount of gratuity and other pensionary benefits having himself undertaken not to file appeal in case he was paid his pensionary benefits was estopped from agitating the matter in the Court‑‑‑Validity‑‑‑Civil servant could not be debarred from seeking legal remedy because there was no estoppel against law‑‑‑Penalties imposed upon the civil servant being themselves without justification, receipt of pensionary and other benefits would not stand in the way of his regaining his rightful position.

M. Mansoor Humayun for Appellant.

District Attorney for Respondents.

Date of hearing: 18th December, 2000.

2002 P L C (C.S.) 1433

[Punjab Service Tribunal]

Before Justice (Retd.) Riaz Kayani, Chairman and Ch. Muhammad Sarwar, Member‑I

MUHAMMAD AKRAM, PTC TEACHER and 380 others

versus

DISTRICT EDUCATION OFFICER (MALE) DISTRICT SIALKOT and 7 others

Appeals.Nos.2556 and 380 of 2000, decided on 31st October, 2001.

Civil service‑‑‑

‑‑‑‑ Termination of service‑‑‑Civil servants in response to advertisement applied for appointment as P.T.C.. Teachers‑‑‑Appellants were interviewed by District Recruitment Committee and were appointed by Competent Authority consequent upon recommendations of the Committee‑‑‑Civil servants served for four years and were paid their salaries during that period‑‑‑Services of the civil servants were terminated without conducting regular inquiry on the ground that they were appointed beyond the quota and that they did not fulfil the merit criteria‑-‑Merit list was prepared by Competent Authority and no objection with regard to any irregularity in appointment of civil servants was ever raised during four years' service of the civil servants‑‑‑Authorities, in circumstances, were estopped from raising said plea at such late stage‑‑‑Orders of termination of services of the civil servants otherwise having been passed by incompetent Authority, were set aside and civil servants were ordered to be reinstated in service.

1996 SCMR 413 and 1993 SCMR 603 ref.

M.A. Riaz, Nazir Ahmad Qureshi, Ch. Muhammad Afzal Wahla, Tariq Mahmood Mughal, Muhammad Iqbal Mohal, Tajammal Hussain, Muhammad Saeed, Muhammad Sharif Chaudhry, Ch. Imtiaz Ahmad, Syed Abbas Raza, Muhammad Aslam Rajput, Muhammad Sharif Warsi; Muhammad Yasin Bhatti, Jaffar H.. Jafri, Ch. Riaz Ahmad, Mian Muhammad Hanif, S.M. Ramzan, S. Aftab Sherazi, Rao Jabbar Khan, Pervaiz Inayat Malik, Malik Abdul Wahid, Asif Nazir Awan, Taki Ahmad Khan, Ch. Nazir Muhammad, Muhammad Sohail Bhatti, Mrs. Rashid Batool, Ch. Imtiaz Kamboh, Sardar A. Majeed, Ch. Muhammad Arshad, Sh. Afzaal Qureshi, Muhammad Riaz Tahir, Rana Muhammad Latif and Tariq Manzoor Chaudhry for Appellants.

Khadim Hussain Sindhu, District Attorney for Respondent.

Date of hearing: 31st October, 2001. .

2002 P L C (C.S.) 1444

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member‑I and Sardar Alam Khan, Member‑II

MUHAMMAD SAND BUTT

versus

DEPUTY INSPECTOR‑GENERAL OF POLICE

TRAFFIC, PUNJAB, LAHORE and another

Appeal No.3237 of 1999, decided on 5th September, 2001.

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

‑‑‑‑R. 2(iii)‑‑‑Dismissal from service‑‑‑Civil servant who was posted as Inspector Traffic Staff and was absent from duty on false plea of his illness, was found present in hotel with a lady in objectionable condition‑‑‑Civil servant though was acquitted by the Court in criminal case registered against him but it was established that he was found with a lady in a hotel on relevant date and the lady was not related to him‑‑‑Immoral act of the civil servant to be present with a woman who was not related to him, in a room of the hotel, was prejudicial to good order of discipline of the police force, unbecoming of a police officer and a gentleman which amounted to misconduct under R. 2(iii) of Punjab Police (Efficiency and Discipline) Rules, 1975‑‑‑Civil servant was dismissed from service after issuing him show‑cause notice and holding inquiry against him in which he participated cross‑examined the witnesses and produced his defence‑ ‑‑Allegation of misconduct having been proved against the civil servant, he was rightly dismissed from service on that ground.

M.A. Riaz for Appellant.

District Attorney for Respondents.

Date of hearing: 1st August, 2001.

2002 P L C (C.S.) 1504

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑III

MUHAMMAD NAEEM

Versus

DIRECTOR PUBLIC INSTRUCTIONS (S.E.) PUNJAB, LAHORE and 3 others

Appeal No.305 of 2001, decided on 9th April, 2002.

Civil service‑--

‑‑‑‑ Promotion ‑‑‑Civil servant was S.S.T. with additional qualification of M.A. and was fit for promotion as Subject Specialist in his turn‑‑‑Turn of civil servant for promotion was matured alongwith his juniors, but he was ignored on sole ground that he was appointed as S.S.T. in one District, but having stood transferred to other District at his own request, had lost his basic seniority as S.S.T. on basis of which he could have been promoted as Subject Specialist‑‑‑Validity‑‑‑Posts of Subject Specialist were to be filled by promotion on Provincial basis and seniority of S.S.T. was also to be determined at Provincial level and not at District or Divisional level because Appointing Authority in the case of Subject Specialist was not a District or Divisional Authority‑‑‑Civil servant could not have been deprived of his chance of promotion in turn in accordance with his date of appointment as S.S.T. because irrespective of his temporary transfer from one District to another at his own request or otherwise, his seniority had to be taken and considered for promotion at Provincial level‑‑‑Civil servant could not be denied his right of being considered for promotion as Subject Specialist alongwith his juniors in circumstances.

Dost Muhammad Kahut for Appellant.

Muhammad Ramzan, EAD/DR for Respondent No. 1

Syed Mazhar Hussain Head Clerk/DR for DEO/R.No.2 Rana Safdar Ali Asif, District Attorney for Respondents.

Date of hearing: 9th April, 2002.

2002 P L C (C.S.) 1455

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member

MUZAMMAL HUSSAIN

Versus

THE DEPUTY INSPECTOR‑GENERAL OF POLICE, GUJRANWALA and another

Appeal No. 1067 of 2001, decided on 6th September, 2001.

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

‑‑‑‑Rr.2(iii) & 4(a)(ii)‑‑‑Compulsory retirement‑‑‑Conversion of compulsory retirement into minor punishment of forfeiture of two, years approved service‑‑‑Civil servant serving as Sub‑Inspector Police S.H.O. was proceeded against on the allegation that he arrested an innocent person who was name sake of a real proclaimed offender‑‑‑Major penalty of compulsory retirement was imposed upon the civil servant after issuing show‑cause notice and holding inquiry against him‑‑‑Civil servant arrested innocent person as proclaimed offender because of the name and parentage of the real accused being the same‑‑‑Civil servant had acted in good faith and got the innocent person discharged when civil servant came to know that arrested person was not the real culprit‑‑‑Civil servant after arresting the innocent person brought him before Illaqa Magistrate where said person was at liberty to prove his innocence before the Magistrate and Magistrate was to make verification before remanding the arrested person to judicial custody‑‑‑Nothing was on record to show that the civil servant had tortured the arrested person or demanded/recovered any money from him‑‑‑Civil servant in circumstances was not dishonest and said negligent act was done by him in good faith‑‑­Major penalty of compulsory retirement was converted into minor punishment of forfeiture of 2 years' approved service‑‑‑Civil servant was re­instated in service.

1993 PLC (C.S.) 1443 and I988 SCMR 691 ref.

Masud Ahmad Riaz for Appellant

Mian Munir Ahmad, District Attorney for Respondent

Date of hearing: 4th September, 2001

2002 P L C (C.S.) 1461

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member‑I

ZAFAR IQBAL

Versus

DEPUTY DISTRICT EDUCATION OFFICER (M), MANDI BAHAUDDIN and 3 others

Appeal No.2553 of 2000, decided on 5th October, 2001.

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

‑‑‑‑Rr.4 & 5‑‑‑Removal from service‑‑‑Civil servant was appointed as P.T.C. Teacher by Competent Authority on recommendation of District Recruitment/Selection Committee but he was proceeded against for having been appointed without approval of Departmental Recruitment Committee and after issuing him show‑cause notice was removed from service after three years' satisfactory service without conducting regular inquiry against him‑‑‑Authority in passing order of removal of service of the civil servant having failed to apply independent mind, order of removal passed against the civil servant, was set aside and he was re‑instated in service.

1993 SCMR 603 and 1996 SCMR 413 ref.

Khadim Hussain Khokhar for Appellant.

District Attorney for Respondents.

Date of hearing: 14th September, 2001.

2002 P L C (C.S.) 1487

[Punjab Service Tribunal]

Before Muhammad Afzal, Member‑III

MUHAMMAD YAR BHATTI

Versus

GOVERNMENT OF THE PUNJAB through Secretary of

Education, Lahore and another

Appeal No. 1889 of 1996, decided on 9th April, 2002.

Civil service‑‑‑

‑‑‑‑ Higher grade‑‑‑Claim for‑‑‑Civil servant who was appointed as untrained English Teacher in 1954 had subsequently got B.Ed. degree in 1971‑‑‑Civil servant had claimed that in accordance with policy of Government he should have been allowed B.Ed. grade scale 14 immediately when he qualified B.Ed., but scale (S.S.T. Grade) was allowed to him on 3‑2‑1982 and subsequent S.S.T. Selection Grade on 1‑9‑1989‑‑‑Civil servant at no stage in his service career was relegated to an inferior position from his seniority or was superseded on grounds of any adverse service record‑‑‑Authority did not oppose appeal of civil servant on merits, but had emphasised point of limitation‑‑‑Technicalities including limitation, even if established, could not override equity and justice‑‑‑‑No rule existed that right should not be allowed to a civil servant if he agitated the matter repeatedly‑‑‑Civil servant who had served Department for 37 years and Authority having never questioned his service record should have been allowed S.S.T. Grade in accordance with policy in force at relevant time on basis of his B.Ed./S.S.T. qualification immediately after he had acquired that qualification in 1971‑‑‑Civil servant was entitled to benefit claimed by him in circumstances.

Allah Bakhsh Gondal for Appellant.

Rana Safdar Ali Asif, District Attorney for Respondents.

Date of hearing: 9th April, 2002.

2002 P L C (C.S.) 1449

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member‑1

Mrs. FEROZA KHANUM

Versus

DIRECTOR PUBLIC INSTRUCTION (SE), PUNJAB, LAHORE and 3 others

Appeal No.3300 of 1999, decided on 16th January, 2002, Civil Service‑‑‑

‑‑‑‑ Adverse remarks‑‑‑Civil servant who was serving as Headmistress of school, was communicated adverse remarks contained in her A.C.R. for the relevant year‑‑‑Adverse remarks were given in the A.C.R. on the ground that result of Matric for relevant year remained below the Board level and that civil servant being Headmistress of school was responsible for that‑‑‑Civil servant had contended that main reason for the poor result of Matric for the relevant year. was the fact that post of S.S.T. Teacher remained vacant due to maternity leave of the concerned teacher‑‑‑Maternity leave of concerned teacher was for three months only and Matric examination was held after two years ‑ teaching‑‑‑Civil servant had never requested to writing to the higher Authority for providing school mistress in absence of concerned teacher which was duty of the civil servant‑‑‑Civil servant had failed to realize her responsibility and consequently the majority of the students failed and one year of the students was wasted due to the negligence of the civil servant‑‑‑Appeal filed by the civil servant against adverse remarks was dismissed.

Malik Yousaf Farooq for Appellant.

D. R. for Respondents.

Date of hearing: 9th January, 2002.

2002 P L C (C.S.) 1524

[Punjab Service Tribunal]

Before Ch. Muhammad Sarwar, Member‑I

and Sardar Alam Khan, Member‑II

FAISAL TAHSEEN, MEMBER, PUNJAB PUBLIC SERVICE COMMISSION

Versus

GOVERNMENT OF THE PUNJAB, through Chief, Secretary Civil Secretariat, Lahore

Appeal No.2316 of 1998, decided on 10th April, 2002. .

Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Civil servant was recommended for promotion by Provincial Selection Board in its meeting, but Competent Authority approved promotion after one month of recommendation of Selection Board and intimation of promotion was received in Service and General Administration Department after more than four months from the approval by Competent Authority‑‑­Services and General Administration Department issued Notification of promotion with delay of about six months and no justification had been given for the said delay‑‑‑Period of seven days being sufficient for issuance of Notification Authority was directed to issue Notification for promotion of civil servant with effect from date when intimation was received in the Services and General Administration Department so as to save the Civil servant from financial loss in pensionary benefits.

1985 SCMR 1158 ref.

S. Muhammad Anis Sadiq for Appellant.

District Attorney for Respondent.

Date of hearing: 10th April, 2002.

2002 P L C (C.S.) 1602

[Punjab Service Tribunal]

Before Sardar Alam Khan, Member, II

ANWAR‑UD‑DIN.

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education (EE), Civil Secretariat, Lahore and 6 others

Appeal No. 1700 of 2001, heard on 30th January, 2002.

Civil service--------

‑‑‑‑Termination of service and imposition of penalty‑‑‑Applications for posts of P.T.C. Teachers were duly invited‑‑‑Applicants, including civil servant, were interviewed and were selected on merits‑‑‑Civil servant alongwith others was recruited on merits, but after more than six years from his appointment, he was not only terminated from service, but also was directed to deposit huge amount received by him as salaries etc., within period of his employment on ground that he secured appointment during ban on recruitment‑‑‑Validity‑‑‑Civil servant had been penalized for no fault on his part as it was duty of Appointing Authority to examine if any ban existed at the time of issuing. appointment letter to civil servant‑‑‑Civil servant could not be condemned for any irregularity committed by the Authority concerned‑‑‑Appointing Authority committing an irregularity, could not be allowed to turn around and take benefit of its irregularity by penalizing civil servant‑‑‑Orders passed against civil servant were set aside and he was. ordered to be reinstated with back benefits.

Pervaiz Inayat Malik for Appellant.

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

Date of hearing: 30th January, 2002.

2002 P L C (C.S.) 77

[Sindh Service Tribunal]

Before Abdul Ghani,Chairman, Bahauddin Sirhindi, Member‑I and Abdul Rasheed Memon, Member‑II

ASHIQUE HUSSAIN YOUSIFANI

versus

THE SECRETARY TO GOVERNMENT OF SINDH, PUBLIC HEALTH ENGINEERING DEPARTMENT, KARACHI and another

Appeal No.237 of 1999, decided on 12th April, 2001.

Sindh Civil Servants (Promotion, Confirmation and Seniority) Rules, 1975‑‑‑

‑‑‑‑R. 13‑‑‑Seniority‑‑‑Determination and eligibility of‑‑‑Civil servants appointed on regular basis in B.S. 17, was promoted to B.S.18 on regular basis‑‑‑Departmental .Authority while promoting the civil servant to B.S. 18 had deferred the promotion of other civil servants because at relevant time departmental enquiries were pending against them and they were awarded minor penalties at that time‑‑‑Opposing civil servants were neither exonerated from the charges against them nor penalties awarded to them were taken back, but despite that the Authority not only promoted them holding them eligible for said promotion but also placed them senior to the civil servant while they were junior to him‑‑‑Opposing civil servants were given benefit of R.13 of Sindh Civil Servants (Promotion, Confirmation and Seniority) Rules. 1975‑‑‑Validity‑‑‑Benefit of R.13 could be extended to those civil servants who were exonerated from the charges against them‑‑­Opposing civil servants who were not exonerated from the charges on basis of which they were deferred at the relevant time, were not eligible for promotion and they being junior to civil servant, could not be awarded seniority superseding the civil servant‑‑Notification whereby opposing civil servants were promoted and were awarded seniority over the civil servant, was declared to be invalid and without lawful authority.

Zahid Arif v. Government of N.‑W.F.P. 1998 SCMR 633; Abdul Khaliq v. National Tariff Commission 1999 PLC (C.S.) 837; Khalid Latif Chaudhry's, case 1999 PLC (C.S.) 510; Muhammad Naqi Khan's case 1985 SCMR 2099; Ibrar Hussain's case 1984 SCMR 379; Iqbal Ahmed v. .Province of Sindh 1996 PLC (C.S.) 995; Aftab Hussain Shah v. Federation of Pakistan PLJ 1997 Tribunal Cases (Service) 264; Government of N.‑W.F.P. v. Bune Khan 1985 SCMR 1158; 1995 SCMR 16; 1984 PLC (C.S.) 287: Amanullah Khan's case 1986 PLC (C.S.) 968 and 1985 SCMR 1394 ref.

M.M. Aqil Awan for Appellant.

Muhammad Qasim Mirjat, A.A.‑G. for the Official Respondents.

Ansari Abdul Lateef for Respondents Nos.3 and 4.

Date of hearing: 21st February, 2001.

2002 P L C (C.S.) 156

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and Bahauddin Sirhindi, Member

NISAR AHMAD

versus

INSPECTOR‑GENERAL OF POLICE, SINDH

Appeal No.80 of 1995, decided on 2nd December, 1997.

Civil service‑

‑‑‑‑ Reversion‑‑‑Change of cadre‑‑‑Civil servant working in Grade‑5 as Junior Clerk was appointed as Assistant Sub‑Inspector of Police in Grade‑9 only on his simple application, which had shown a great favour to him by the Authority without assigning any good reason‑‑‑Appointment of civil servant in Grade‑9 was not a fresh appointment as formalities of fresh appointment, like advertisement of post in question, constitution of Selection Committee, had not been observed‑‑‑Appointment of civil servant in Grade‑9 was a change of cadre‑‑‑In absence of any provision of change of cadre in Police Rules, civil servant was rightly reverted to his original rank of Junior Clerk in Grade‑5.

1992 PLC (C.S.) 43; 1994 PLC (C.S.) 449; 1985 PLC (C.S.) 133; 1996 SCMR 1350; 1981 9CMR 523; 1990 SCMR 1414; 1991 PLC (C.S.) 973; NLR 1990 SC 92; NLR 1987 SC 70; 1992 PLC 1010 and 1987 PLC (C.S.) 668 ref.

M.M. Aqil Awan for Appellant.

Syed Muhammad Sayedain Zaidi for Respondent.

Date of hearing: 19th November, 1997.

2002 P L C (C.S.) 171

[Karachi Service Tribunal]

Before Bahauddin Sirhindi (Member‑1) and Abdul Rasheed Memon, (Member‑II)

MUHAMMAD ALI MANGI

versus

SINDH AGRICULTURAL SUPPLIES ORGANIZATION through Chairman and 2 others

Appeal No. 135 of 1997, decided on 26th May, 2000.

Civil service‑

‑‑‑‑ Dismissal from service‑‑‑Civil servant who was, serving as District Agricultural Supply Officer and was incharge of Bulk Depots, was dismissed from service after issuing him show‑cause notice, charge‑sheet and holding enquiry against him on allegations of defalcation in depot in his charge‑‑­Alleged defalcation had stood proved against civil servant ‑‑‑Full‑fledged enquiry was conducted against civil servant and he was afforded opportunity to prove his innocence, but he failed to do so‑‑‑Civil servant was heard in person and there was no question of any violation of procedure under which civil servant was proceeded‑‑‑Penalty of dismissal from service and recovery of pecuniary losses from civil servant was imposed with approval of Competent Authority‑‑‑Acquittal of civil servant by Trial Court under S.249‑A, Cr.P.C. would have no bearing on the matter under‑consideration as, same related to Departmental proceedings and Department was not debarred from conducting the proceedings‑‑‑In absence of any violation of rules in conducting enquiry against civil servant, order dismissing him from service alongwith recovery of pecuniary losses passed by Competent Authority, could not be interfered with.

PLD 1983 Pesh. 140; 1987 PLC (C.S.) 522; 1993 SCMR 1440; 1997 SCMR 1543; 1999 PLC (C.S.) 423; 1998 SCMR 137; 1998 SCMR 167; PLD 1.969 SC 407; 1997 SCMR 15; 1996 SCMR 856; 1999 SCMR 2883; 1999 SCMR 2888; PLC 1992 (C.S.) 207 and 1989 PLC (C.S.) 622 ref.

Shabbir Ahmed Awan for Appellant.

Muhammad Moosa Laghari for Respondents Nos. l to 3.

Date of hearing: 23rd February, 2000.

2002 P L C (C.S.) 190

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and Abdul Rasheed Memon (Member‑II)

BADRUDDIN

versus

SENIOR SUPERINTENDENT OF POLICE, SUKKUR and 2 others

Appeal No.236 of 1998, decided on 26th January, 2000.

Police Rules, 1934‑‑‑

‑‑‑‑Rr. 12.2 & 12.5‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑­Termination of service‑‑‑Civil servant was appointed as Assistant Sub­-Inspector of Police, but his services were terminated after issuing him show­-cause notice on ground that his appointment was made in complete violation, of method of appointment prescribed by Civil Servants Act, 1973 and Rules made thereunder and without observing the formalities‑‑-Advertisement for post of Assistant Sub‑Inspector of police showed that minimum qualification was Intermediate 'C' Grade whereas civil servant was in 'D' Grade and age required under Rules for said post was 18 to 28 years on the date of advertisement, but age of civil servant at that time was 30 years, 5 months and 7 days‑‑‑Appointment of civil servant which was to be made on recommendation of Selection Board was made on political basis on recommendation of Minister despite civil servant had failed in written test and viva voce test held by Selection Board, constituted under Police Rules 1934, R. 12.5‑‑‑Civil servant who otherwise was not qualified to be appointed to the post having been appointed on political influence in violation and in complete disregard of Police Rules and without observing formalities as laid dawn by Supreme Court in its judgment reported in 1993 SCMR 1287, his services were rightly terminated.

Yousaf Ali v. Government of Punjab and others 1996 PLC (C S.) 801; Director Social Welfare, N.‑W.F.P., Peshawar v. Sadullah Khan 1996 SCMR 1352; Syed Afzal Hussain Naqvi v. The Government of Punjab through Director, Manpower and Training, Punjab and others 198.1 PLC (C.S.) 136; I.‑G. Police v. Mushtaq Ahmad Warraich PLD 1985 SC 159; Chairman, Minimum Wages Board, Peshawar v. Fayyaz Khan Khattak 1999 PLC (C.S.) 1160; 1993 SCMR 1287; Jameel Ahmad v. Deputy Commissioner, Bahawalpur and 2 others 1998 PLC (C.S.) 450; Daraus Pestonji v. Nam Sindh and 2 others 1998 CLC 921; Ehsan Ullah v. The Zila Council, Gujranwala through Administrative/Deputy Commissioner, Gujranwla and others 1999 PLC (C.S.) 190; Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Messrs M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan through Secretary Finance; Islamabad and others 1998 SCMR 1404; Syed Nazim Ali v. Syed Mustafe Ali and another 1981 SCMR 231; The Secretary, East Pakistan Industrial Development Corporation, Dacca v. MD. Serajul Haque 1970 SCMR 398,:nd 1982 SCMR 770 ref. .

M.M. Aqil Awan for Appellant.

Asstt. A.‑G. for Respondents.

Date of hearing: 21st December, 1999.

JUDGMENT

ABDUL RASHEED MEMON (MEMBER‑II).‑‑‑The appellant has in this appeal agitated action of Government by removing him from service from the post of Assistant Sub‑Inspector of Police.

The appellant has stated that in pursuance to advertisement in newspapers dated 1‑10‑1994 he being qualified and eligible for the said post applied through application dated 10‑10‑1994. Written test was held in which the appellant participated and was declared successful. Subsequently viva was held on 10‑10‑1995 and the Selection Committee consisting of the Deputy Inspector‑General of Police Sukkur Division, S.S.P. Naushahro Feroze and S. S. P. Nawabshah interviewed him.

The appellant was selected by the Departmental Selection Committee and in pursuance of such selection he was issued offer letter, dated 19‑12‑1995 which was followed by the appointment letter, dated 9‑1‑1996.

The appellant after appointment as Assistant Sub‑Inspector of Police was sent on training to Shahdadpur Training School, and successfully completed the training course of one year and was issued such certificate. Thereafter, appellant was required to undergo Courses 'A', 'B' and 'C' which he also completed successfully and was called upon to undergo practical training as 'D' course. While he was still undergoing practical training in 'D' Course he was issued show‑cause notice dated 28‑3‑1998 by the respondent No.1 calling upon the appellant to show‑cause as to why his services should not be terminated as his appointment was made in complete violation of method of appointment prescribed by the Civil Servants Act, 1973 and Rules made thereunder' and without observing the formalities as laid down by the Supreme Court of Pakistan in Human Rights Case No. 104 of 1992. Appellant submitted a reply to the show‑cause notice, but without looking into it and exercising judicious mind as a departmental authority the services of the appellant were terminated vide order, dated 15‑6‑1998. The appellant filed departmental appeal before the respondent No.2 but the respondent No.2 has dismissed the departmental appeal arbitrarily and capriciously vide order, dated 12‑8‑1998.

The appellant has thus preferred the present appeal under section 4 before this Tribunal. The appellant has prayed as under:‑‑

(i) To set aside and quash both the orders dated 15‑6‑1998 and 12‑8‑1998 and to reinstate in service;

(ii) Any other relief be granted as may be deemed fit and proper in the circumstances of the case.

(iii) Cost of the appeal.

Appellant has stated that both impugned orders, dated 15‑6‑1998 and 12‑8‑1998 passed by the respondents Nos. 1 and 2 are against the facts, law, equity, evidence and justice.

The appellant has been victimized on account of policy made by the Federal Government to remove the employees from service, who were appointed by the regime of Pakistan Peoples Party.

The respondents by way of issuance of show‑cause notice constructing superstructure thereon in the shape of impugned orders has carried out formality as an eye wash and has not applied their judicial mind over the facts of the case.

That based on the ground that appointment was in violation of the provisions of Sindh and Civil Servants Act and the Rules made thereunder and in violation of the Hon'ble Supreme Court judgment, however, police force is a special discipline force and their appointment and termination will be governed by the provisions of Police Act and Rules framed thereunder.

Since very show‑cause notice has no legal foundation therefore, the super-structure constructed thereon in the shape of termination order falls to the grounds.

The Human Rights case mentioned in the show‑cause notice makes it compulsory to adopt the prescribed procedure before making the appointment. Vacancies should be advertised and appointments should be made in accordance with prescribed procedure through the Departmental Selection Committees on regular basis.

The termination from service of the appellant was net in consonance with the allegations in the show‑cause notice.

The respondents cannot cancel the order of appointment in this manner as the same is not covered by the Police Act and Rules framed thereunder.

Under the principle of locus poenitenciae the appointment made in favour of the appellant in the year 1995 cannot be taken back or withdrawn in the year 1998 when the same had been acted upon and had conferred vested and legal rights in favour of the appellant.

That the services of the appellant cannot be terminated in any manner except by resorting to the Sindh Police (Efficiency and Discipline) Rules, 1988. The allegations against the appellant for which he has not been given any opportunity of personal hearing and that there was no misconduct on his part.

The advocate of the appellant while arguing his case relied upon the following rulings of various Courts.

(1) 1996 PLC (C.S.) 801 Yousaf Ali v. Government of Punjab and others.

Constitution of Pakistan, 1973.

Art.199‑‑‑Service matter‑‑‑Petitioned appointed as PTC teacher against existing vacancy, later on order of appointment cancelled by authority as not covered by merit policy laid down by Government ­challenged to‑‑Held: It is not the case of the respondent that the appointment was secured by playing some fraud upon Selection Committee‑‑‑The Recruitment Committee while making selection was obliged to keep in view the selection criteria and if it failed to do so and issued appointment order in pursuance of which petitioner had joined duty was performing same without any misconduct on his part, he could not be removed from service except in accordance with Efficiency and Discipline Rules, 1975‑‑‑Held: Impugned order was not sustainable in law without lawful authority and jurisdiction which is rescinded as such.

(2) 1996 SCMR (1352) para.6. Director Social Welfare N.‑W.F.P. Peshawar v. Sadullah Khan

It is disturbing to note that in this case petitioner No.2 had himself been guilty of making irregular appointment on what has been described "purely temporary basis". The petitioners have now turned around anus terminated his services due to irregularity and violation of rule 10(2) (ibid). The premise, to say the least, is utterly untenable. The case of the petitioners was not that the respondent lacked requisite qualification. The petitioners themselves appointed him on temporary basis in violation of the rules for reasons best known to them, Now they cannot be allowed to take benefit of their lapses in order to terminate the service of the respondent merely because they have themselves committed irregularity in violating the procedure governing the appointment. In the peculiar circumstances of the case, the learned Tribunal is not shown to have committed any illegality or irregularity in re‑instating the respondent.

(3)1985 PLC (C.S.) 136 para.7. Syed Afzal Hussain Naqvi v. The Government of Punjab through Director Manpower and Training Punjab and others ..

............... Now the only question which requires consideration is whether the right which had accrued to the appellant by virtue of the selection and the appointment in the year 1979, can be taken back in the year, 1982. Now it is almost settled if an appointment has been made and it remained operative, then the rights which accrued to a particular Civil Servant cannot be taken back from him merely because the Departmental Authorities concerned had omitted to perform their duties which were cast upon them under the particular rules. Therefore, the appointment which has been made by the competent authority cannot be allowed to vitiate due to omission on the part of the Departmental Authorities concerned. Obviously, the appellant was not at fault in this matter as he made a clean breast to declare his correct qualification at the time of his selection.

(4) PLD 1985 Supreme Court 159 L‑G. Police Ps. v. Mushtaq Ahmad Warrich.

The Civil Servants Act is an Act of general application and as earlier said it has no Constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the Rules framed thereunder are such as would be applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose."

"In this view of the matter, the principle laid down in these treatises as to the application of the special law is in no doubt, that is, as all of them are unanimous to state that there is no implied repeat of the earlier Special Act by the later general Act without particular intention of implied repeal merely by the use of general words. As held earlier there is not an express repeal of the Police Act and the Rules by the Provincial Assembly while enacting Civil Servants Act, 1974 nor there is any Constitutional exclusion of the Police Act and the Rules from their application to the officers of the subordinate ranks of the Police force. The substance of the provisions of the Civil Servants Act which are of general application also do not give any indication to the contrary by the force of the general words used."

"From the above discussion it is clear that the Special law will prevail over the later law of general application. Therefore, rule. 12:2 of the Punjab Police Rules, 1934, will provide the criterion for determining the seniority of the subordinate ranks of the Police force as from the dates of their confirmation and not from the dates of continuous appointment in the grade as laid down in rule 8(1)(b) of the Punjab Civil Servant (Appointment and Conditions of Service), Rules, 1974 read with section 7(2) of the Punjab Civil Servants Act, 1974. As the date of confirmation of respondents Mushtaq Ahmad Warraich and Arshad Hussain as Inspectors was earlier to the dates of the continuous appointment of respondents, Iqbal Akbar, Muhammad Tahir Ali in the grade of Inspectors, they were, accordingly senior to them and could not be overlooked for promotion merely because of their 'low' placement in the seniority according to the wrong principle applied in determining it. I further hold that the Rules deemed to be the Rules under section 23(2) or the Punjab Civil Servants Act, 1974, do not include the police rules framed under sections and 46(2) of the Police Act, 1861. In this view of the matter, the Departmental Promotion Committee constituted under the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, was not competent to determine the seniority of the Police officers of the subordinate ranks muchless to hold that they were not entitled for promotion as they were placed 'low' in the seniority list. The reason being that these rules would not be applicable to the Police force and as such their cases could not be competently referred for determining their eligibility for promotion to the rank of Deputy Superintendent of Police. In this connection I may point out that the Punjab Service Tribunal was correct in holding that the advice first given by the Law Department to the Government of the Punjab was correct, that is, that the special law continued to govern the Police force and that it was not repealed by the Punjab Civil Servants Act, 1974, by implication."

1999 PLC (C.S.) 1160 Chairman, Minimum Wages Board, Peshawar v. Fayyaz Khan Khattak.

"The learned Judges have also rightly observed that the petitioners could not approbate and reprobate in the same breath about the same matter and that having already and clearly taken up the plea that the respondent's services stood regularized, they could not put forward before the learned Division Bench the plea that he was ad hoc temporary employee whose services could be terminated with a stroke of pen. The same contention has been reiterated before us but we fully agree with the views of the High Court and both the Courts. "

In nutshell the plea was that an appointment having been trade under the rules and following formalities laid down by the rules the same could not be treated to have been made in violation of laws, by use of political pressure or without completion of formalities as laid down by the Hon'ble Supreme Court in the Human Rights' case. It was also pleaded that the appointment was made under the Punjab Police Act and the Rules made thereunder and that subsequent action was initiated under the Sindh Civil Servants Act and not under Police Force (E&D) Rules; as there was no charge against the appellant. Admittedly the plea was that the show‑cause notice was not properly worded and that it differs in contents with the termination order in material facts. Thus, officers who had made the selection were also guilty of misconduct by not acting according to law and the order of termination was an afterthought and not commensurate with the allegations given in the show‑cause notice.

It was also alleged that the termination order was passed during probation and without resorting the Sindh Police Rules. As such the action was mala fide and without any lawful basis.

The respondents in their written statement have stated that the appellant was not qualified and was overage as stated in the termination order and that normally he would not have been selected in the force but it was due to political pressure that these things had to be ignored due to political pressure. It has been stated that as per advertisement for the post of A.S.‑I. of Police minimum qualification was intermediate 'C' Grade whereas the appellant was in 'D' Grade. The age required under the Rules for the post of A.S.‑I. was 18 to 28 on the date of advertisement; but the appellant did not fulfil the above mandatory condition also as his date of birth being 16‑4‑1964 and on the date of advertisement his age was 30 years, 5 months and 7 days. Hence he was overage and not entitled for the post of A.S.‑I. Being recommendee of the then Prime Minister of Pakistan as well as of MNA and Federal Minister Syed Khursheed Ahmed Shah, as is evident at Anmexure 'A', he got himself appointed as A.S.‑I. without passing the examination and declaration of the result. As per sub‑rule (2) of Police: Rule 12‑ all direct appointments to NGO ranks were made on the; consideration of the recommendations of a Selection Board to be constituted in accordance with the orders of the Inspector‑General of Police Sindh. In the case of the appellant it is alleged that the appellant failed in written test as well as in viva voce tests held by the Selection Board constituted as per Police Rules 12.5. Due to the Political pressure at the highest level, the: appellant was ordered to be, appointed as A.S.‑I. Police without announcement of the final result of the test. Appellant was contacted after about ten months of the date of advertisement which was fixed as 23‑10‑1994 i.e. on 27‑8‑1995. They have as such taken the position that the appointment of the appellant as A.S.‑I. of Police was on political influence, in violation of Sindh Civil Servants Act, 1973 and the Rules framed thereunder and also in complete disregard of Police Act, Rules and without observing formalities as laid down by the Supreme Court in its judgment of Full Bench in Civil Appeal No. 228 of 1989 reported in 1993 SCMR 1287 and in judgment of Human Rights Case No. 104 of 1992 dated 6‑3‑1993.

While contesting the allegations of the appellant that his termination was mala fide or influenced it has been alleged that services of the appellant were rightly terminated as he failed to fulfil the basic requirements under rules i.e. he was under qualified and overage. In support this contention A.A.‑G. for official respondents has relied on the following citation:‑‑

(i) 1998 PLC (C.S.) page 1JO‑452 Jameel Ahmad v. Deputy Commissioner Bahawalpur and 2 others in Writ Petition No. 1044‑S of 1997.

(ii) 1998 CLC Lahore p. 921 Darayus Pestonji v. Nam Singh and 2 others in Writ Petition No. 4320 of 1997 decided on 15‑1‑1998.

(iii) 1999 PLC (C.S.) 190. Ehsan Ullah v. The Zila Council, Gujranwala through Administrative/Deputy Commissioner, Gujranwala and others in Writ Petition No. 935 of 1998 decided on 18‑9‑1998.

(iv) PLD 1997 Supreme Court p. 351. Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari, in Civil Appeal No. 1331 of 1995, decided on 27th January, 1997.

(v) 1998 SCMR 1404. M/s. M.Y. Electronics Industries (Pvt.) Ltd. v. Government of Pakistan through Secretary. Finance Islamabad and others in Civil Appeals Nos. 595, 601 to 604, 606 to 608, 610, 612 to 614, 619, 621 to 623, 625 to 632, 666, 667, 739 of 1994, 740 of 1995 and Civil Petition No. 413 of 1995, decided on 11‑5‑1998.

(vi). 1981 SCMR 231. Syed Nazim Ali v. Syed Mustafe Ali and Syed Mustafa Ali v. Syed Nazim Ali in C.P.&L.A. No, 417 and 1080 of 195 decided on 9‑12‑1980.

(vii) 1970 SCMR 398. The Secretary, East Pakistan Industrial Development Corporation, Dacca v. MD. Serajul Haque in Civil Appeals Nos. 80‑D of 1968 an 89‑D of 1968. MD. Sekandar Mia.

(viii) S.A. No. 91/91 dated 8‑7‑1991 by Punjab Subordinate Judicial Tribunal, Lahore.

(ix) Vol. II The Police Rules, 1934.

(x) 1982 SCMR p. 770.

(xi) Articles 18 and 25 of Constitution of Islamic Republic of Pakistan, 1973.

(xii) Section 20 of General Clauses Act.

(xiii) Rule 12(8), Police Rules, 1934.

(xiv) Rule 11 of Sindh Civil Servants (Appointment, Promotion. And Transfer) Rules, 1974.

(xv) Rule 2(4) misconduct of Sindh Civil Servants (E&D) Rules, 1973.

After hearing of the arguments of the Advocate for the appellant as well as A.A.‑G. the following facts have been established beyond any shadow of doubt: that the appellant at the time of advertisement did not have the required qualifications of the post of' A.S.‑I. as he was intermediate in 'D' Grade and was overage by more than two years. Thus, even if the pleadings of political influence or otherwise are kept aside; the fact that he was under qualified and average have not been contested by the appellant. Therefore, he becomes ineligible for the post of A.S.‑I. This position has also not been controverted by the Advocate for the appellant. But fully explained by the A.A.‑G. by citing the rulings of the higher Courts.

Thus, in view of the facts as brought on the record of this Tribunal, we have come to the conclusion that the action of the termination of the services on 15‑6‑198 passed against the appellant was a valid and speaking order and was validly made under the relevant rules.

Accordingly we are constrained to dismiss this appeal with no order as to costs.

H.B.T./50/K (Sr. Trib).

Appeal dismissed.

2002 P L C (C.S.) 205

[Sindh Service Tribunal]

Before Bahauddin Sirhindi, Member

HABIB‑UR‑REHMAN

versus

CHIEF SECRETARY, GOVERNMENT OF SINDH, NEW SINDH SECRETARIAT, KARACHI and 3 others.

Appeal No. 169 of 1997, decided on 4th November, 1999.

Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑R. 8‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Conviction and acquittal in criminal case‑‑‑Treating suspension period as leave due‑‑‑Civil servant who was convicted and sentenced in criminal case by Trial Court was acquitted of charge by the Appellate Court‑‑‑Civil servant during his trial of criminal case was very much in service and performed his duties, regularly up to the date of conviction by Trial Court‑‑‑Conviction of civil servant was however suspended in appeal, and he was released on bail‑‑‑Civil servant was not allowed to join service on having been released on bail and was dismissed from service on account of his conviction‑‑‑Civil servant, after the acquittal, was reinstated in service‑‑‑Civil servant who joined the duty claimed the pay and arrears of intervening period in which he remained suspended pending criminal appeal, but Authority decided suspension period as leave due to civil servant and remaining period was treated as extraordinary leave without pay‑‑‑Authority having not issued any specific dismissal order against civil servant and intervening period having been treated as a period under which civil servant remained under suspension, civil servant was entitled to full salary for whole intervening period treating same as a period spent on duty‑‑‑Appellant who did not actually perform duty in the field, however, was not found entitled to allowances which are given to civil servant for performance of actual duty in the field.

1994 PLC (C.S.) 693; 1991 SCMR 209; 1985 SCMR 1062; 1997 SCMR 19 and PLD 1985 SC 134 ref.

Abdul Sattar Mughal for Appellant.

S.M. Sayedain Zaidi, A.A. ‑G for the Official Respondents.

Muhammad Qasim Mirjat, A.A.G. also for the Official Respondents.

Date of hearing : 28th October, 1999.

JUDGMENT

This is an appeal filed under section 4 of the Sindh Service Tribunals Act 1973 praying therein for setting aside the impugned appellate final order bearing No.SO(PHE) 2(13)/89, dated 23rd October, 1997 of the respondent No.1 as alleged therein and endorsed to appellant by the respondents Nos.3 and 2, whereby the departmental appeal filed by the appellant on 24th December, 1994 made against the original impugned orders bearing No.SO(PHE)2(13)/89 dated 1st November, 1994, was rejected and the suspension period of the appellant w.e.f. 24th September, 1988 to 22nd November, 1993 was treated as leave due and the remaining period was treated as extraordinary leave without pay. He has further prayed that aforesaid intervening period be treated as spent on duty with back benefits and the respondents be directed to pay all the arrears of the said period to the appellant. The case of the appellant can be briefly summarised as follows:‑‑

The appellant initially joined Public Health Engineering Department as an Overseer on 12th September, 1966. The designation was later changed in 1997 to 'Sub‑Engineer', starting with Grade 9, he made his way up to BPS‑16, w.e.f., 22nd January, 1986. In the year 1987 a case was registered against him under section 161, P.P.C. to be read with section 5(2) of the Anti‑Corruption Act, by the Anti‑Corruption Establishment Sukkar and he was subsequently convicted by the Anti‑Corruption Court for one year sentence R.I. and fine of Rs.1,000, in default of which to undergo for further R.I. for 3 months vide judgment of the Criminal Court dated 24th September, 1988 whereby the appellant was re‑arrested and sent to Jail. It is pertinent to mention here that the appellant during the trial of the said criminal case was very much in Government service and had performed his duties regularly up to the day of conviction by the Trial Court. Thereafter the appellant preferred Criminal Appeal bearing No.87 of 1988 before the Hon. High Court of Sindh Bench at Sukkur wherein his conviction was suspended and he was released on bail vide Sindh High Court's order, dated 2‑10‑1988. As such the appellant remained in judicial custody w.e.f. 24th September, 1988 to 2nd October, 1988. On release, he reported for duty on 5‑10‑1988. but his joining report was not accepted by the X.E.N. as informed by him to the appellant and on further pressing by the appellant on 23‑10‑1988, he was again informed by the XEN PHED‑1 Sukkur on 27‑JO‑1988 that he stood dismissed from his service in the light of Rule 8 Clause (a) of Sindh Civil Servants (E&D) Rules, 1973 amended by the ‑Notification No.SOIX?Reg(S&GAD)2/13/1‑73‑(Pt‑1) dated 14‑10‑1978 on account of conviction by the Court of Special Judge Anti‑Corruption Sukkur. The appellant challenged this letter before the XEN on the point that no specific order was issued by the competent authority. According to him he agitated the matter, without any action on the part of the department and finally filed a Service Appeal bearing No.57 of 1989 for reinstatement before Sindh Service Tribunal. As the service appeal of the appellant was preferred against dismissal on account of conviction by the Anti‑corruption Court and not on account of the departmental proceedings, as such the Sindh Service Tribunal at the very out set observed on 30‑10‑1989 that the appellant should wait for the final decision of the High Court in his criminal appeal. The appeal was withdrawn accordingly, on the same date.

The appellant's criminal case was decided by the Sindh High Court on 23‑9‑1993 whereby the appellant was acquitted from the charge of corruption after setting aside his conviction awarded by the learned Lower Court. He therefore, made departmental representation for his reinstatement in service w.e.f., the date of his unlawful dismissal and had also prayed for all consequential benefits of intervening period, treating the same as spent on duty. The appellant was reinstated in service vide order, dated 22nd November, 1993. He reported on duty on the same date and made efforts for payment of all pay and arrears of the intervening period i.e. 24‑9‑1988 to 22‑11‑1993, the period in which he remained suspended pending criminal appeal. However, the respondent No.2 in his final order, dated 1st November, 1994 decided the suspension period from 20‑9‑1988 to 22‑11‑1993 as leave due to him and the remaining period was treated as extraordinary leave without pay. The appellant kept on agitating against these orders and filed an appeal with Respondent No. l but there were no further orders on his representations.

The appellant subsequently filed a Constitutional Petition No.G‑722 of 1996 whereby he sought direction to the competent authority for decisions in regard to his. departmental appeal. The Hon. High Court after hearing the parties dismissed the appeal in limine. However, Sindh High Court directed the respondent No .l to dispose of the petitioner's departmental appeal within two months, due to which the respondent No. l finally decided on 23rd October, 1997 whereby the departmental appeal was considered and rejected without mentioning any reasons. The appellant having received this final appellate order on 5‑11‑1997 filed his appeal before Service Tribunal on 24th November, 1997.

The counsel for the appellant has relied on the following judgments:‑‑

(1) 1994 PLC (C. S.) page‑693 which explains the terms 'Honourable acquittal' and 'benefit of doubt'. According to it, all acquittals are honourable, even if it is a result of benefit of doubt, which only suggests the fact that the prosecution had failed to exonerate itself of the duty of proving itself beyond all reasonable doubt. Employ having been acquitted of the charge of misconduct, his consequential reinstatement in service, would entitle him to full pay and remuneration of entire period of his suspension and subsequent dismissal. In the said judgment reference has been made to fundamental Rule 54 of Federal Civil Service Rules Manual which by implication means Rule No. 152 of the Sindh Civil Service Rules, Manual, according to which the revising or appellate authority may grant a Government servant, who has been dismissed, removed, or suspended and is reinstated, or whose suspension has been held injustifiable or not wholly justifiable, for the period of his absence from duty ‑‑

(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded any allowance of which he was in receipt prior to his dismissal, removal or suspension; or

(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.

In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs.

(2) 1991 SCMR pages‑209 whereby the appellant was dismissed on the basis of conviction awarded against' him, which was subsequently set aside and his appeal was accepted and it was directed that the appellant be re‑instated in service with back benefits.

According to the counsel for the appellant he was not only acquitted honourably but during all this period, he was not dismissed but was only under suspension and thus entitled to all back benefits. He further relied on 1985 SCMR page‑1062 and 1997 SCMR page‑19 and PLD 1985 (SC) page‑134. All of these judgments deal with the cases where the employees have been reinstated after setting aside of the impugned order.

Assistant Advocate‑General in his arguments pleaded that the appellant has not mentioned in the appeal as to how many days he remained in jail. He was of course relieved on bail vide Sindh High Court on 2nd October, 1988 and he reported for duty on 5th October, 1988 but the joining report was not entertained by the concerned XEN. The appellant again made a request on 23rd October, 1988. He was informed by the XEN on 27th October, 1988 that he stood dismissed from service in the light of Rule 8 Clause (a) of Sindh Civil Servants (Efficiency and Disciplinary) Rules, 1973 and as amended in 1978. However, no formal dismissal order by the competent authority was issued. Accordingly the appellant challenged the competence of such letter but he did not file any departmental appeal with' a competent authority while continuing his correspondence with the department at XEN and SE's level till the judgment by Hon. Sindh High Court whereby his conviction was set aside on 23rd September, 1993 and when on 4th October, 1993 he made a representation to the Administrative Secretary who called for comments from the Chief Engineer PHED, who in his reply forwarded a copy of the judgment alongwith the application of Mr. Habibur Rehman, Sub‑ 'Engineer, requesting for allowing him to join duty with retrospective effect and restoring all benefits. The Chief Engineer PHED, thus sought the instructions of the Administrative Secretary. On 22nd November, 1993 an order was issued by the Chief Engineer PHED allowing the appellant to join his duty. In the said order the appellant was shown as 'Suspended'. A.A.G. insisted that this was done inadvertently. According to him, the appellant was convicted by the lower Court, and during this period he did not perform duties, and thus was not entitled to any remuneration as he did not work in that particular period. He was out of the job, not due to any act on the part of the department, but due to the conviction by the Lower Court and that he has been given benefit of doubt by the Hon. Sindh High Court. According to him it was only on .8th January, 1994 that he requested for the first time for the arrears of pay. His request was turned down on 1st November, 1994. He made a representation to the Chief Secretary, Government of Sindh on 24th December, 1994 which was time‑barred. He also filed a Constitutional Petition No‑722 of 1995 which was dismissed in limine on 8th April, 1997, however, with the direction to the Administrative Secretary to dispose of the petitioner's representation, if any allegedly pending before him, within a period of two months. On 23rd October, 1997 the Chief Engineer PHED was informed that the representation by the appellant had been considered and rejected by the Appellate Authority.

Mr. Abdul Sattar Mughal advocate for the appellant in his counter arguments further pleaded that the plea of limitation of time was based on surmises, conjecture and not on criteria of limitation. According to him there is no order of dismissal. On the contrary the letter of the XEN dated 27th October, 1988 merely mentions his dismissal. According to him the Competent Authority should have passed a specific dismissal order. This was not done. The letter, dated 22nd November, 1993 by Chief Engineer PHED, clearly treats the intervening period as a period of "suspension" and the letter dated 1st November, 1994 by the Administrative Department also treats the intervening period as a period of suspension. Regarding the point of 'limitation he further submitted that the departmental appeal before the Chief Secretary may have been time‑barred by 24 days but since the appellate authority did not consider/reject his representation on the point of limitation, the question of limitation does not arise. Meanwhile a Constitutional Petition No.722 of 1995 was before the Sindh High Court which was decided on 8th April, 1997 and on 23rd October, 1997 and in pursuance of its directions the appellate authority i.e. Chief Secretary decided the matter and his order was conveyed by the Administrative Department Chief Engineer PHED which was finally transmitted to the Chief Engineer PHED Circle Mirpurkhas, who in his turn forwarded it to the appellant on 5th November, 1997 and was received by him on the same‑ date. The appeal was filed before the Tribunal on 24th November, 1997 and was thus in time. Hence the question of limitation does not arise as the same point was not raised by the Appellate Authority. This being a valid argument is accepted.

Regarding the intervening period, since the administrative department, itself has not issued any specific dismissal order, hence it is treated as a period under which the appellant remained under suspension. In the light of aforesaid judgments, and acquittal, he is therefore, entitled to full salary for the whole intervening period, treating it as a period spent on duty. However since he did not actually perform the duty in the field, such allowances as are given to a Government servant for performance of actual duty in the field like conveyance allowance etc., will not be admissible to him. Appeal is allowed with no orders as to cost.

Given under may hand and the seal of this Tribunal this 4th day of November, 1999 at Karachi.

H.B.T./52/K‑(Sr.Trib.)

Appeal allowed.

2000 P L C (C.S.) 222

[Sindh Service Tribunal]

Before Buhauddin Sirhindi (Member) and Abdur Rasheed Memon (Member‑‑II)

MUHAMMAD UMER

versus

DIRECTOR OF PRIMARY EDUCATION, HYDERABAD REGION, HYDERABAD and 2 others

Appeal No.73 of 1999, decided on 16th March, 2000.

Sindh Civil Servants (Appointment, Promotion and Transfer) Riles, 1974‑‑‑

‑‑‑‑‑. 11(3)‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑­Appointment, cancellation of‑‑‑Appointment of civil servant as Primary School Teacher, was cancelled by Competent Authority on directions of Government on ground that it was made in violation of Government order and without adopting procedure of recruitment‑‑‑Validity‑‑‑Appointment of civil servant was not only made in violation of Government instructions, but was made during the period when ban was imposed on appointments‑­Appointment of civil servant was ab initio void and of no legal consequence‑‑‑Appointment of civil servant, which was not made in a legal, appropriate and transparent manner, was rightly cancelled.

1998 SCMR 1404; 1998 CLC 921; 1998 PLC (C.S.) 448; PLD 1990 SC 504 and 1999 PLC (C.S.) 190 ref.

Ghulam Abbas Soomro for Appellant. Muhammad Qasim Mirjat, A.A.G. for the Official Respondents.

Date of hearing: 22nd February, 2000.

JUDGMENT

ABDUL RASHEED MEMON (MEMBER‑II).‑‑‑The appellant being aggrieved and dissatisfied by order, dated 2‑12‑1998 passed by Respondent No.3 on the instructions of respondent No.2 whereby Appointment Order No.16 dated 24‑9‑1998 of the appellant had been cancelled came before this Tribunal. Appellant's departmental appeal filed before Respondent No. l was also rejected on 11‑2‑1999.

The facts of the case are that appellant applied for appointment as Primary Teacher to Respondent No.2; was called for interview and after being qualified; was appointed as Primary School Teacher vide order, dated 23‑9‑1998. He was medically examined and found fit, thereafter his posting order was issued by the Respondent No.3 on the usual terms and conditions vide order, dated 24‑9‑1998. The appellant served at Dongro Primary School Qasimabad, Hyderabad and was serving at the same school when received an order, dated 2‑12‑1998 from the Respondent No.3 whereby he was informed that on receipt of instructions from higher‑ups his appointment had been cancelled forthwith. He filed an appeal with Respondent No. l on 9‑12‑1998, but was informed on 11‑2‑1999 that his appeal had been filed and no other order was passed. He has further challenged the wires of the cancellation of his appointment and rejection of his appeal as illegal, void, in excess of their jurisdiction and mala fide and liable to be set aside. He has prayed that the. Tribunal may declare that order, dated 2‑12‑1998 of Respondent No.3 and order, dated 11‑2‑1999 passed by Respondent No. I be declared as illegal, ex parte, based on mala fide and void and therefore, may be declared of no legal consequences and thus be may be allowed to continue against the appointment made vide order, dated 24‑9‑1998.

The appeal was admitted and respondents were ordered to file their written statements. Respondent No.3 has filed written statement on his own behalf as well as on behalf of Respondents Nos. l and 2 wherein he has narrated the facts that the Government had relaxed ban on fresh appointment in BS‑1 to 15 in Education Department as a special case vide order, dated 7‑9‑1998. However, the posts of Primary School Teachers which were already advertised in the month of June, 1997, the eligible candidates were advised through electronic media as well as print media to appear for the interview before the Selection Committee headed by the District Education Office; (Male) Primary, Hydeabad. Interviews were conducted from 30‑7‑1997 to 2‑8‑1997 by Late M. Rasheed, District Primary Education Officer, Hyderabad but as the relaxation had been allowed later on, hence no appointments were made before the date. However Mr. Wazir Ahired Jafri, District Education Officer issued appointment letter to 399 Primary School Teachers without adopting the procedure of recruitment. This irregularity came to the notice of the Government, which directed that all appointments made in violation of the prescribed procedure be cancelled forthwith, vide order, dated 28‑11‑1998. Thus in pursuance of the above Government directives the appointments made for District Hyderabad during the incumbency of Mr. Wazir Ahmed Jafri were cancelled by the S.D.E.O. being competent authority. The D.E.O. at that time has given in writing that he made appointments in violation of Government orders, as such appellant has no case. His appeal was not maintainable as he was offered the post of Primary School Teacher illegally by Respondent No.3, without adopting procedure as laid down by the Government. Hence he was informed accordingly. It has also been stated that Respondent No.2 not being the Appointing Authority in respect of Primary School Teachers had issued the orders illegally, as the appointing authority of PSTs was S.D.E.O. of the area as per Sindh Civil Servants Appointment Rules 1974. The authority which issued the orders inherits the right to cancel it as per provisions existing in the General Clauses Act. As the appellant's services were not recognized as such his very appointment was withdrawn and cancelled, being mala fide, he cannot claim termination of his services. It has also been contested that the orders dated 2‑12‑1998 and 12‑2‑1999 are legal, valid, appropriate and imperative in the matter. As such, they have prayed that based on the above facts, wherein an illegal attempt had been done away with may be allowed to be maintained, otherwise it would have a bad precedent in the Department. Hence they have claimed that the appellant who is not a bona fide employee of the Education Department nor his services are recognized, and all his papers with regard to as induction to the post of Primary School Teacher have been cancelled, therefore, his appeal merits no consideration and consequently may be rejected.

While arguing the case the Advocate of the appellant stated that the orders of appointment of the appellant, were issued by the competent authority under rule 11(3) of Sindh Civil Servants (Appointment Promotion and Transfer) Rules hence these are valid and were issued after fulfilment of the requirement of advertisement, interview, therefore, they cannot be cancelled without giving an opportunity to the appellant of hearing in person, or issuing him a show‑cause notice, so as to prove the mala fide of the appointment. On the other hand, the A.A.G. while contesting the case stated that the appointments having been made in violation of Government instructions and during the period when there was ban on appointments were ab initio void and of no legal consequence, hence they were rightly, cancelled. He has cited the following judgments of the Superior Court in his support of the arguments:

1998 SCMR 1404;

1998 CLC 921;

1998 PLC (C.S.) 448;

PLD 1990 SC 504 and

1999 PLC (C.S.) 190.

From the foregoing arguments, averments and the facts brought on the record of this Tribunal we are of the opinion that as the appointments were not made in a legal, appropriate and transparent manner and such fact has been admitted by the officer issuing such void orders, hence they cannot be sustained in the eyes of the law.

We, therefore, are left with no alternative but to dismiss this appeal with no order as to costs.

Given under our hands and Seal of the Tribunal this 6th day of March, 2000 at Karachi.

H.B.T/57/K

Appeal dismissed.

2002 P L C (C.S.) 295

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and Abdul Rasheed Memon, Member‑II

Dr. VAID PARKASH HOTWANI

versus

SECRETARY, LABOUR DEPARTMENT, TUGHLAQ HOUSE, KARACHI and 2 others

Service Appeal No. 174 of 1997, decided on 11th January, 2000.

Sindh Service Tribunals Act (XV of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Appeal‑‑‑Maintainability‑‑‑Appeal was not maintainable for reasons that appellant was not an aggrieved person as no final order had been passed against him; that proper parties had not been joined and that no proper departmental appeal was filed by appellant under relevant laws‑‑­Petition ‑ addressed to collective authorities could not be treated as an appeal.

PLD 1981 SC 612; 1982 PLC (C.S.) 122; 1987 SCMR 156; 1992 PLC (C.S.) 711; 1992 PLC (C.S.) 219; 1994 PLC (C.S.) 289 and 1996 SCMR 818 ref.

Syed Nasir Hussain Jafri for Appellant.

Khalid Habibullah for Respondents Nos.2 and 3.

Date of hearing: 21st December, 1999.

JUDGMENT

ABDUL RASHEED MEMON (MEMBER‑II).‑‑‑In brief the facts of the case as presented by the appellant are that in pursuance of an advertisement for the post of Medical Officers by SESSI he appeared and was selected for appointment as Resident Medical Officer in Sindh Employees Social Security Institution, Government of Sindh wherein he joined duty on 24‑10‑1993. However, despite completion, of required formalities and reporting for duty, no posting order was issued. However, two doctors namely Dr. Faiz Muhammad Surhio and Dr. Raunaq Hussain Shah Rizvi were posted in the month of ‑May, 1994 as Resident Medical Officers, Landhi Hospital, Karachi, while the appellant alongwith 31 doctors were given posting orders in the month of September, 1994, wherein appellant was posted as Resident Medical Officer at Valika Hospital, SITE, Karachi with effect from 12‑9‑1994. After one month of his posting, he ,was transferred and posted as Resident Medical Officer at Dhabeji Medical Centre, District Thatta on 11‑10‑1994, where he joined his new assignment on 16‑10‑1994. Dr. Abdullah Memon (respondent No.3) was Senior Medical Officer and the Incharge of the appellant at Bhabeji Medical Centre.

Appellant has further stated that while appellant was posted there, he was made to work for 18 hours a day from 2‑00 p.m. to 8‑00 a.m. of the next morning and he was made to remain present inside the Medical Centre even when he was supposed to be off the duty. No holiday or any casual leave was permitted to the appellant under the orders of the Senior Medical Officer Dr. Abdullah Memon. After his posting at Dhabeji Medical Centre, the appellant observed that the respondent No.3, Dr. Abdullah. Memon, extended his unlawful demands from the appellant in the shape of gifts.

Initially, the appellant, under compelling circumstances, had to provide certain things, more particularly foodstuff, but when such demand continued and the demand was multiplied by some other item, which was beyond the reach of the appellant, which resulted in unfair attitude of the Senior Medical Officer towards the appellant. At one stage the respondent No.3 extended direct and open threats to the appellant. The said SMO had indicated that whatever benefits were to be received by him through the employs and others, the same were to be shared by him with Medical Adviser at the Head Office. This threat turned true.

That on 5‑4‑1995 at about 12‑30 a.m. while the appellant was off the duty, one Senior Medical Officer Dr. Zaheer from Head Office and Mr. Anis Zubair, Director Finance, made a surprise visit at Medical Dispensary and a false report of pilferage, misuse of medicines and ignoring the patients etc. was made. Thereafter the Senior Medical Officer Abdullah Memon, who sits at Landhi Circle, visited the Medical Dispensary Dhabeji on 2,2‑6‑1995 in the absence of the appellant at about 2‑00 p.m. On that day the appellant was sick on leave. This Dr. Abdullah Memon got the lock of the personal cupboard of the appellant broken through his Chowkidar Shahid Hussain and prepared a false case against the appellant. Appellant had repeatedly reported against this Chowkidar for his misbehaviour and misconduct but the Senior Medical Officer having special connection with him had taken no action. On coming to know about this conduct of the Senior Medical Officer, the appellant made a written complaint to the Head Office on 3‑5‑1995 but with no result. However, the appellant was suspended on 7‑5‑1995 without providing charge‑sheet‑‑‑On 30th May, 1995 the appellant was serve, with a show‑cause notice which was replied on 11‑6‑1995.

(Appellant was also refused his monthly salary for the month of may and June, 1995 which was released to him after he filed a petition before the District & Sessions Judge, Thatta. Senior Medical Officer, Dr. Abdullah Memon continued to harass the appellant in collusion with certain other officers at the Head Office and he was again deprived of the benefits of his salary for the months of September, 1995 to April, 1996.

That on 6‑12‑1995 respondent No.2 called the appellant and asked him to give in writing his grievance for holding an enquiry into the charges. The appellant submitted the reply but with no result. Accordingly, the appellant made another application on 19‑12‑1995 whereupon he was reinstated in service with, effect from 24‑12‑1995 and on the same day the appellant was also served with a letter of enquiry to be conducted by one authorized Officer Dr. Shahida Muzaffar but no enquiry was conducted. In February, '1996 the appellant was served with a charge‑sheet by Dr. Shahida Muzaffar showing herself to be an Enquiry Officer. According to this charge‑sheet, Dr. Irfan Ansari and Mr. Sarwar Ali Khan, Director (Admn), were nominated as Enquiry Officer. Till November, 1996 no enquiry was conducted. On. 20‑11‑1996, the appellant was called and certain questions were asked from him and was asked to wait for further intimation from the Enquiry Officer of the Administration. Since that date there is no further action in the matter. The salary from September, 1995 to April, 1996 was not paid, The salary for the months from May, 1996 was deposited in the appellant's bank account in February, 1997. Further salary from July, 1997 till date was again withheld without any reason, or intimation.

Appellant has further stated that he was selected on regular basis, and all doctors who were selected alongwith the appellant .have been regularized but the appellant was not regularized till to date.

The appellant has been transferred to Valika Hospital SITE, Karachi, in the month of September, 1997. However, the appellant was not paid monthly salary which has been delivered to the appellant by the respondent No.3 on 20‑11‑‑1997. This also confirms the malicious attitude of the respondent No.3 to deprive him of his dues. The undisputed fact that he was continuously denied his right to have the monthly salary and was deprived of his right of his regularization. The appellant sent a representation on 2nd August, 1997 for redressal of his grievance which has not been replied by Government. The appellant has prayed as under:

(a) to regularise the appellant like all other doctors appointed with or after his appointment and regulate his seniority with others.

(b) to grant yearly increments and all the fringe benefits permissible by rules to the appellant from the very beginning.

(c) to pay all withheld salary of the appellant under proper intimation in writing and ensure regular payment of salary to him.

(d) to permit the appellant to avail leaves and holidays as per rules.

(e) to stop discriminatory treatment with the appellant.

(f) that duty hours for the appellant be same as that of all others and as per law.

The advocate for the appellant has also stated that in order to deprive the appellant of justice the proceedings against him are not being finalized but were delayed so that he does not get benefit at any other forum, therefore, the proceedings have remained incomplete for so long. He requested that this point may also be kept in view while deciding this appeal.

On the other side the respondents Nos.2 and 3 in their written statement have stated that:

(a) The above appeal is not maintainable in law as no final order has been passed by the Departmental Authority.

(b) The appellant is not an aggrieved person and as such this Hon'ble Tribunal has no jurisdiction to proceed with the above matter.

(c) The other doctors against whom the appellant has grievance of regularization or seniority are the necessary parties and in their absence the appeal is no: competent in law.

However, they have also narrated the same facts as the appellant accepting that his averments against the respondent No.3 i.e. Abdullah Memon are incorrect, baseless and mala fide hence denied. Thus keeping in view the fact that no final action has materialized against the appellant hence the respondents have prayed that .no relief was‑available to the appellant, as disciplinary action on account of misconduct is pending and regularization is dependent upon satisfactory performance. His performance being unsatisfactory no such recommendations for regularization have been made. The appellant can get salary and even the same has been paid for the period claimed in the appeal.. In the end they have stated that there is no discriminatory treatment with the appellant. There is no dispute. There is no ill‑motive to victimize the appellant. The prayer is unwarranted by law and is misconceived.

The A.A.‑G. has also stated that the appeal was not maintainable under section 4 of the Sindh Service Tribunal Act', 1973. No final order has been passed against the appellant. Thus he is not an aggrieved person and hence not entitled to any relief. All the, dues on account of salary etc. have been paid and no amount was outstanding. He placed on record the brief facts about enquiries conducted against the appellant from which it was evident that three enquiries remained inconclusive and in the fourth enquiry it was suggested that the enquiry may be dropped and the fifth was under process. Advocate for respondents has relied his arguments on the following decisions of the Superior Courts and Tribunals.

(1) PLD 1981 Supreme Court (612‑613).

S.22‑‑‑Representation‑‑‑Delay in disposal‑‑‑Departmental authorities proscrastinating or contumaciously refusing to pass final order, remedy for aggrieved civil servant; to represent to next higher authority and after waiting for a reasonable time to seek Constitutional remedy for direction to departmental authority to perform duty enjoined upon it by law‑‑Service Tribunal being a statutory forum with restricted jurisdiction, held, cannot in absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants‑‑‑Constitution of Pakistan (1973), Art. 199. (Civil Services).

(2)1982 PLC (C.S.) 122 (Service Tribunal Punjab).

R.13‑‑‑Appeal‑‑‑Letter collectively as pressed to various superior and higher authorities including appellate authority with endorsement to authority imposing penalty‑‑‑Superior authority advising that such letter being not in accordance with rules could not be treated as an appeal‑‑‑No proper appeal filed even thereafter‑‑Such letter in circumstances, rightly not treated as appeal and as such appeal before Tribunal not maintainable for not having filed proper departmental appeal‑‑‑Punjab Service Tribunal Act (IX of 1974), S.4.

(3) 1987 SCMR (156‑157).

(b) Civil Servants Act (LXII of 1973).

Ss.7(5), 11(3) and 25(2)‑‑‑Temporary Employment Rules, 1965, R.2(2), (3)‑‑‑Expressions "temporary employment" and "temporary employee"‑‑‑Definition‑‑‑No rule or term and condition of appointment cited for claiming that continuation for eight years or more in service ipso facto converted temporary appointment into permanent appointment‑‑Post against which, appointment was made being itself temporary, employee, held, could not be made permanent nor could his posting on a permanent post make his appointment permanent‑‑No concept of automatic confirmation exists and same is discretion of employer exercisable on availability of permanent post and after completion of probationary period‑‑­Power of employing person and terminating their employment given in public interest, held, had to be exercised in public interest, without arbitrariness or malice‑‑‑Appointment of employee being expressed to be temporary, he could not become a permanent employee notwithstanding completion of probationary period‑­Termination of his service being in accordance with conditions of his employment, not violative of S.1‑1(3), Civil Servants Act, 1973 or Temporary Employment Rules, 1965, employee, held, could not seek redress against same.

(4)1992 PLC (C.S.) 711 (Federal Service Tribunal).

S.4(l)‑‑‑Appeal‑‑‑Competency‑‑‑Aggrieved Civil Servant could prefer appeal to Service Tribunal only against a final order, original or appellate, made by departmental authority in respect of terms and conditions of his service‑‑‑There being no original or appellate order which could be appealed ' against, appeal was not maintainable.

(5)1992 PLC (C.S.) 219 (Federal Service. Tribunal).

S.4‑‑‑Appeal before Service Tribunal suffering from incompetence and was barred by time‑‑‑Civil servant's departmental appeal addressed to Establishment Secretary, was by no means sufficient to fulfil jurisdictional requirements, for competent Authority for such purpose was Prime Minister and not Establishment Secretary‑‑‑Departmental appeal was thus incompetent‑‑‑Civil servant having been informed of the acceptance of his resignation through Notification dated 20‑8‑1989, his departmental appeal filed on 20‑11‑1990, was time‑barred‑‑‑Civil servant's appeal was dismissed as incompetent, time‑barred and without any merit.

(6)1994 PLC (C.S.) 24 (Federal Service Tribunal).

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

S.16‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Terms and conditions of service‑~‑Connotation‑‑‑Disciplinary proceedings initiated against any civil servant, unless and until, taken to logical end or culminate into imposition of penalty, could not be brought under the definition of "terms and conditions" of a civil servant, under S.16, Civil Servants Act and as such could not be brought for redress of the grievance before the Service Tribunal‑‑‑Civil servants who were aggrieved by any final order, whether original or appellate, made by a Departmental Authority in respect of any of the terms and conditions of their ser‑ice could only file appeal before the Service Tribunal‑‑‑No departmental proceedings having yet been finalised against civil servant; no adverse order having been passed against him; no terms and conditions of service having been violated and there being no final order, appeal before Service Tribunal was not competent.

(7)1996 SCMR (818‑819)

(c) Civil Servants (Confirmation) Rules, 1973‑‑

R. 6‑‑‑Constitution of Pakistan (1973). Art. 212‑‑‑Non‑impleading of necessary parties in appeal before Service Tribunal against whom civil 'servant had claimed relief and Service Tribunal had directed that civil servant be placed above those unimpleaded parties‑‑­Validity‑‑‑Judgment of Service Tribunal was absolutely unwarranted by law and also violative of the principles of natural justice‑‑‑Civil servant's appeal before Service Tribunal was, thus, incompetent. (Natural justice, principles of).

Besides this also quotations from various other authorities under which petitions addressed to collective authorities cannot be treated as an appeal were also placed on record. Thus the appeal of the appellant does not lie at this stage for the following grounds:

(i) There is no final order.

(ii) Proper parties have not been joined.

(iii) No proper departmental appeal was filed under the service laws.

Accordingly the appeal was dismissed under a short order on 21‑12‑1999 with no order as to costs and these are the reasons for the same:

Given under our hands and Seal of this Tribunal on this 11th day of January, 2000 at Karachi.

H.B.T.51/K(Sr. Trib)

Appeal dismissed.

2002PLC(C.S.)313

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, Bahauddin Slrhindi, Member‑I and Abdul Rasheed Memon, (Member‑II)

HAYAT KAMAL

versus

KARACHI DEVELOPMENT AUTHORITY through Director General, Gulshan‑e‑Iqbal, Karachi and 10 others

Appeal No. 144 of 1998, decided on 21st April, 2000.

Civil service‑‑‑

‑‑-Seniority‑‑‑Determination‑‑‑Civil servant who, initially was appointed as Assistant Executive Engineer in B.S.17. and was promoted as Executive Engineer, had claimed seniority over co‑civil servants who were initially appointed as Assistant Engineers and subsequently were upgraded and re­-designated as Assistant Executive Engineers‑‑‑Qualifications required for post of Assistant Executive Engineer and Assistant Engineer were the same‑‑­Civil servant was recruited as Assistant Executive Engineer in B.S.17 in the year 1976 whereas prior to his induction, co‑civil servants were working in B. S. 17 through under different designations‑‑‑Appointment order would entail all consequences including seniority‑‑‑Regular appointment was determining factor for seniority in a post, service or cadre to which a civil servant was promoted and would take effect from date of regular appointment‑‑‑Civil servant who was regularly appointed as Executive Engineer three to four years later than co‑civil servants, could not be declared senior to co‑civil servants without getting his promotion antedated‑‑‑Promotion of co‑civil servants in B.S.18 being earlier, same would debar civil servant from claiming any seniority over them especially ‑when seniority lists prepared long ago had attained finality and same were not challenged by civil servant before any Competent .Authority within period prescribed by law in that respect‑‑‑Ignorance of law could be no excuse before any competent forum or Court of law and pursuing matter before incompetent Court would also not create any vested right to claim relaxation of limitation‑‑‑Seniority lists which were not challenged earlier by civil servant were based on principle of regular appointment to the cadre and were based on judgments of superior Courts as well as Government decisions whereby all Graduate Engineers were to be treated equally in respect of their status, emoluments, seniority and any other available benefits‑‑‑Co‑civil servants having rightly been given seniority, appeal filed by civil servant, against said orders otherwise being barred by time, was dismissed on merits as well as on ground of limitation.

1989 SCMR 1879; 1986 SMCR 1; 1995 SCMR 1505; 1997 SCMR 197; 1999 PLC 1243; 1998 SCMR 2296; PLD 1999 SC 990; 2000 SCMR 104; 1997 PLC (C.S.) 351; PLD 1973 Lah. 332: 1985 SCMR 950; 1986 SCMR 1; 1989 SCMR 1879; 1995 SCMR 1859; 1985 PLC (C.S.) 163; 1983 CLC 731; PLD 1976 SC 195; PLJ 199(1 SC 383; 1995 SCMR 1506; PLD 1997 SC 397 and 1989 SCMR 1879 ref.

Khalid Javed Khan and Sabir Hussain Kazilbash for Appellant.

Ansari Abdul Lateef for Respondent No. 1. M.M.

Aquil Awan for Respondents Nos. 2 to 6 and 8.

Date of hearing: 21st March, 2000.

2002 P L C (C.S.) 330

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman and Abdul Rasheed Memon (Member‑II)

MUHAMMAD SALEEM

Versus

INSPECTOR‑GENERAL OF POLICE and another

Appeal No. 61 of 1999, decided on 30th May, 2000, (a) Civil service‑‑‑

‑‑‑‑Dismissal from service‑‑‑Re‑instatement‑‑‑Discrimination‑‑‑Improvement of seniority treating the period of broken service as spent on duty‑‑Civil servant alongwith co‑civil servant was dismissed from service on account of involvement in criminal case‑‑‑Both civil servant and co‑civil servant were acquitted of the charge against them by competent Court and they were re­instated in service‑‑‑Representation of co‑civil servant for improvement of seniority treating his period of broken service as spent on duty was accepted by Competent Authority and his entitlement to get all service/monetary benefits for period of broken service were restored but representation of civil servant for said relief was rejected by Authority without recording any reason for the rejection and review petition filed by him was also rejected‑‑­Validity‑‑‑Both officers were dismissed from service on one and same charge, faced criminal proceedings in one and same case and both were acquitted and were reinstated in service on one and the same consideration, but despite that civil servant was treated differently than co‑civil servant in grant of consequential benefits in pursuance of his re‑instatement without any reason for the discrimination‑‑‑No adverse record, penalty or any adverse order was passed by Departmental Authority against civil servant and even if any adverse remarks were on record against civil servant but not communicated to him the same were of no avail and merited to be ignored for the purpose of promotion and premature retirement‑‑‑In absence of any adverse remarks against civil servant, treating civil servant differently from the co‑civil servant would amount to discrimination which was expressly prohibited by the provisions of Constitution of Pakistan (1973) and which said practice was highly deplorable‑‑‑Constitution of Pakistan (1973), Art. 25.

Muhammad Farooq v. Province of Punjab PLD 1987 SC 233 ref.

(b) Civil service‑‑‑

‑‑‑‑ Duty of Departmental and Appellate Authorities‑‑‑Departmental Authority as well as Appellate Authority was hound to record reasons for exercising the jurisdiction vested in them while dealing with cases of civil servants regarding their terms and conditions of service.

Muhammad Farooq v. Province of Punjab PLD 1987 SC 271 ref.

M.M. Aqil Awan for Appellant.

Muhammad Kassim Mirjat, Asstt. A.‑G. for Respondent

Date of hearing: 10th May, 2000.

2002 P L C (C.S.) 334

[Service Tribunal]

Before Abdul Majid Khanzada, Chairman Bashiruddin Sirhindi, Member‑I and Abdul Rasheed Memon, Member‑II

MUHAMMAD YOSUF

versus

MUNICIPAL COMMITTEE, TANDO ALLAHYAR through Chairman and 2 others

Appeal No. 319 of 1998, decided on 4th April, 2000.

Sindh Local Councils Servants (Efficiency and Discipline) Rules, 1974-‑‑

‑‑‑‑Rs. 5, 6, 8 & 10‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Dismissal from service‑‑‑Civil servant who was convicted and sentenced in criminal case, was dismissed from service‑‑‑Civil servant had challenged order of his dismissal from service alleging that order of his dismissal was passed by incompetent Authority without issuing him formal show‑cause notice, without holding enquiry against him and without affording .him opportunity of personal hearing‑‑‑Validity‑‑‑Conviction and sentence of civil servant awarded to him by Trial Court was maintained up to the Supreme Court‑‑.‑Civil servant having been convicted and sentenced, it was not necessary to issue him show‑cause notice and to adopt other formalities in his case‑‑‑Appeal filed by civil servant before Service Tribunal, without filing Departmental appeal, was dismissed being incompetent.

Appellant in person.

Syed Fasahat Hussain Rizvi for Respondent No. 1.

Muhammad Qasim Mirjat, A.A.‑G. for Respondents Nos.2 and 3.

Date of hearing: 10th March, 2000.

2002 P L C (C.S.) 726

{Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, Bahauddin Sirhindi and Abdul Rasheed Memon, Members

BASHIR AHMAD KAMBOH

versus

SASO (BOARD) and others

Appeal No. 260 of 1999; decided on, 2nd June, 2000.

Civil service‑--

‑‑‑‑Re‑instatement through illegal order‑‑‑Civil servant was dismissed earlier from service on charge of defalcation which charge was successfully proved against him‑‑‑Proceedings against civil servant were properly conducted and he was rightly dismissed from service‑‑‑Civil servant did not agitate his dismissal before any Competent Authority/forum, but after four years of his dismissal he was re‑instated in service by order of Chairman of the Authority who was also a Minister‑‑-Said re‑instatement was mala fide, incompetent, capricious, perverse having no sanction of law, was in excess of jurisdiction, in derogation of settled rules and principles of law, against public policy and also against interest of public authority and trust‑‑‑Order of re‑instatement of civil servant incompetently passed by Minister, was rightly withdrawn by Authority and penalty of dismissal imposed on civil servant was rightly maintained‑-‑Contention of civil servant that after his re‑instatement a vested right had been created and that subsequent action against him was without legal sanction and not maintainable under principles of locus poenitentiae was repelled because withdrawal of illegal order of Chairman/Minister would not provide .any right to civil servant as the wrong earlier done, had been rectified subsequently by judicious action

PLD 1969 SC 406; 1997 SCMR 15; 1999 PLC (C.S.) 106; 1999 PLC (C.S.) 1160; 2000 PLC (C.S.) 349; 1984 CLC 2782; 1985 PLC (C.S.) 711; 1996 SCMR 856; 1984 PLC (C.S.) 238; 1993 SCMR 1440; 1997 SCMR 1543 and 1996 PLC (C.S.) 868 ref.

Shabbir Ahmed Awan for Appellant.

Muhammad Moosa Leghari for Respondents.

Date of hearing: 5th May, 2000.

2002 P L C (C.S) 978

[Sindh Service Tribunal]

Before Bahauddin Sirhindi, Member‑I and

Abdul Rasheed Memon, Member‑II

NAVEED AKBAR and another

Versus

INSPECTOR‑GENERAL OF POLICE, SINDH and others

Appeals Nos.240 and 360 of 1998, decided on 30th June, 2000.

Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑--

‑‑‑‑Rr.3(b) & 4(i)(b)(iv)‑‑‑Misconduct‑‑‑Termination of service‑‑‑Misconduct means prejudicial conduct and use of political influence for getting appointment and transfer etc., even though the person was not qualified for the post‑‑‑Civil servants who otherwise were not qualified for the posts to which they were appointed, had got their appointment on account of political consideration‑‑‑Appointment of civil servants being ab initio void, illegal and due to political consideration, their services were rightly terminated.

1997 SCMR 1515; 1998 PLC (C.S.) 921; 1999 SCMR 2883; NLR 1999 TD (Service) 55; PLD 1.997 SC 357; 1982 SCMR 770; 1993 SCMR 1287; and NLR 1995 TD (Service) 256 ref.

Muhammad Nawaz Shaikh for Appellants.

Muhammad Kassim Mirjat, A.A.‑G. for the Official Respondents.

Date of hearing: 17th May, 2000.

2002 PLC (C.S.) 1122

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman, Ghulam Sarwar Khero and Muhammad Kazi Members RAHAT HUSSAIN SIDDIQUI

Versus

THE CHAIRMAN, BOARD OF SECONDARY EDUCATION, KARACHI and another.

Appeal No. 196 of 2000, decided on 28th November, 2001.

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

‑‑‑‑S.4‑‑‑Qanun‑e‑Shahadat (10 of 1984), Art. 1 14‑‑‑Civil Procedure Code (V of 1908), O. VII, R.11‑‑‑Civil service‑‑‑Age‑‑‑Correction of date of birth‑‑‑Principle of estoppel ‑‑‑Applicability of‑‑‑Civil servant for correction of his date of birth before approaching Service Tribunal tiled civil suit but after refection of plaint under O. VII, R.11, C.P.C., civil servant had taken up matter upto level of Supreme Court, but without success‑‑‑Civil servant having himself knocked at the door of Civil Court presuming the same to be a Court of ultimate jurisdiction and thus could entertain such suit, but later on approached Service Tribunal with a plea that question relating to correction of date of birth pertained to terms and conditions of service and Service Tribunal had jurisdiction, principle of estoppel was very much attracted to the case in circumstances.

Abdul Haleem v. Secretary Government of Punjab Irrigation and Power Department 2000 SCMR 1110; 1994 PLC (C.S.) 1158; 1999 SCMR 255; PLD 1974 SC 22; PLD 1981 Lah. 433; 1998 SCMR 640; 2001 PLC (C.S.) 85; 1988 SCMR 1458; 1994 SCMR 1633; 1998 SCMR 1494; 1999 CLC 1033: PLD 1999 Quetta 36; 1998 SCMR 801; 1999 SCMR.861; PLD 1981 Lah. 433; 1993 MLD 2158 and Regional Commissioner Income Tax v. Shaft Muhammad Baloch 1997 PLC (C.S.) 1122 ref.

(b) Civil service‑‑‑

----Age‑‑‑Matters with regard to determination of age of civil servant‑‑­Jurisdiction of Service Tribunal‑‑‑Matters with regard to determination of age of civil servant mentioned in his educational certificate and service record would come within purview of terms and conditions of service and jurisdiction would lay with Service. Tribunal‑‑‑Service Tribunal, however, had no jurisdiction to deal with cases for correcting date of birth in educational certificates issued by any school, Board or University etc.‑‑‑Civil servant in the present case wanted correction of date of birth in his Matriculation Certificate which was within jurisdiction of Civil Court which being Court of ultimate jurisdiction could determine such issues of Civil nature.

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

‑‑‑‑S.4‑‑‑Limitation Act (IX of 1908), Ss.5 & 14‑‑‑Appeal‑‑‑Limitation‑‑­Condonation of delay‑‑‑Civil servant filed appeal before exhausting legal remedy of filing departmental appeal before concerned Departmental Appellate Authority which was a condition precedent for invoking jurisdiction of Service Tribunal‑‑‑Appeal, otherwise being barred by time was not maintainable‑‑‑Appellant/civil servant had contended that he having been pursuing his legal remedy before wrong forum in good faith, period spent in pursuing legal remedy before wrong forum was liable to be condoned‑‑‑Contention was repelled because provisions of S.14 of Limitation Act, 1908 could not be invoked for seeking condo-nation of delay in filing appeal‑‑‑Provisions of S.5 of Limitation Act, 1908, however, could be invoked for seeking condo nation of delay if sufficient cause was shown in pursuing the wrong forum‑‑‑Ignorance of law either on part of appellant himself or his counsel, was no ground for condo nation of delay‑‑‑Failure of counsel to take note of law, could be attributed only to lack of due diligence on his part and if appellant had suffered, he could seek remedy against his counsel, but that would not provide a reason for condo nation of delay‑‑‑No application for condo nation of delay having been tiled delay could not be condoned.

1982 SCMR 425: 1991 SCMR 520; 1991 SCMR 1679; PLD 1998 Quetta 88; Mst. Musarrat Ara Khanum v. Umaid Ali and another PLD 1993 Quetta 36; Sheerin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 and Mrs. Ismat Tariq v. Shaiklf Shaukat Ali 1974 SCMR 158 ref.

(d) Civil service‑‑‑

‑‑‑‑Age‑‑‑Correction of date of birth‑‑‑Civil servant, who by an office order was informed that on attaining age of superannuation he would stand retired from service with effect from the specified date, had challenged date of birth entered in his service record alleging that his date of birth was erroneously recorded by Authority in his service record‑‑‑During entire period of service of more than 25 years, civil servant had never agitated or challenged that his actual date of birth was not the one recorded in his service record‑‑‑Civil servant not only had himself mentioned disputed date of birth at time of his employment, but time and again had confirmed the same through his various applications‑‑‑Civil servant, in his application for International Passport had disclosed the same date of birth which‑ was mentioned in his National Identity Card‑‑‑Authority, in circumstances, had rightly retired civil servant on basis of date of birth mentioned in his service record.

M. R. Khalid v. Chief Secretary, Punjab 1994 SCMR 1633: Haq Nawaz Kiani v. The Province of Punjab, 1998 SCMR 801; Pakistan Broadcasting Corporation v. Subedar Major (R.) Abdul Razak 1998 SCMR 602; Syed Iqbal Haider v. Federation of Pakistan, 1998 SCMR 1494 and Government of Punjab Education Department v. Prof. Mrs. Jamila Malik, 1999 SCMR 861 ref.

(e) Sindh Civil Service Rules Manual‑‑‑

‑‑‑‑ Rr. 167 & 171‑‑‑Age‑‑‑Entry of age or date of birth in Service Book‑‑­Alteration‑‑‑ ‑Entry of age or date of birth once made in Service Book, could not be altered under R.171(d) of Sindh Civil Service Rules Manual, Vol. I unless, the entry was trade due to want of care on part of some other person or due to result of clerical error‑‑‑According to R. 171 of Sindh Civil Service Rules Manual the Officers competent to alter date of birth should see that no change in date of birth which would be to the advantage of civil servant was allowed unless application in that behalf was made by civil servant within two years of date in which his service book was opened under 8.167 of Sindh Service Rules Manual.

(f) Sindh Service Tribunals Act (XV of 1973)‑‑‑

‑‑‑S, 4‑‑Limitation Act (IX of 1908). S.14‑‑‑Appeal‑‑‑Condonation of delay‑‑‑Provisions of S.14 of Limitation Act, 1908, cannot be invoked for seeking condo nation of delay to filing the appeal.

(g) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S. 5‑‑‑Condonation of delay‑‑‑Ignorance of law either on the part of a party or his counsel per se is no ground for condo nation of delay‑‑‑Party can seek redress against his counsel for his failure to take note of law.

Abrar Bukhari for Appellant. Masroor Ahmed Alvi for Respondent No. 1. Date of hearing: 28th August, 2001.

2002 P L C (C.S.) 1202

[Sindh Service Tribunal]

Before Ghulam Sarwar Khero, Member‑I

and Muhammad Iqbal Kazi, Member‑II

AZIZULLAH MEMON

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and 2 others

Appeal No. 211 of 1999, decided on 27th February, 2002.

Civil Service: ---

‑‑‑‑Promotion‑‑‑Entitlement‑‑‑Civil servant despite having been regularised in service and being senior in service according to seniority list, was not considered for promotion on account of certain flimsy charges from which subsequently he was exonerated and instead co‑civil servant, who was a deputations and by no means was entitled to promotion, was given promotion‑‑‑Co‑civil servant was promoted subject to condition that his promotion would be without prejudice to seniority of civil servant who was senior to him and that he would be reverted to his original grade if civil servant would be recommended for promotion after cause of his deferment ceased to exist‑‑‑Civil servant just about five days prior to holding of Departmental Promotion Committee meeting was charge‑sheeted on certain routine group& which resulted into his deferment for promotion and co‑civil servant, despite being junior to civil servant was cleared for promotion by Departmental Promotion Committee‑‑‑Civil servant despite having been exonerated from charges against him, was not promoted though competent Authority approved his promotion subject to condition that promotion of ­civil servant would be without prejudice to seniority of civil servant whose promotion had been deferred and that co‑civil servant would be reverted to his original grade if after his exoneration civil servant would be recommended for promotion after cause of his deferment would cease to exist‑‑‑Said conditions did not find any mention in notification whereby co­-civil servant was promoted‑‑‑Authority, in circumstances, has committed wilful misconduct, excessive use of authority with mala fide intention and deliberat dispensation of favouritism in promoting co‑civil servant, who was not fit for promotion on basis of seniority‑cum­-fitness basis‑‑‑Order promoting co‑civil servant was set aside‑‑‑Authority could hold fresh Departmental Promotion Committee meeting wherein seniority position of civil servant could be considered for his promotion.

1991 PLC 39; 1984 PLC (C.S.) 1610; 1984 PLC (C.S.) 287; 1993 SCMR 609 and 1993 PLC (C.S.) 852 ref.

Ansari Abdul Latif for Appellant.

Muhammad Kassim Mirjat, Asstt. A.‑G. for official Respondents.

Abdul Ghafoor Mangi for Private Respondent.

Date of hearing: 15th February, 2002.

2002 P L C (C.S.) 1251

[Sindh Service Tribunal]

Before Justice (Rtd.) Abdul Ghani Shaikh, Chairman, Ghulam Sarwar Khan Member‑I and

Muhammad Iqbal Kazi, Member‑II

Syed ZAHIRUDDIN KAZMI

Versus

SECRETARY EDUCATION, GOVERNMENT OF SINDH and 2 others

Appeal No. 100 of 1998, decided on 5th December, 2001.

Civil service‑‑‑

----Annual confidential report‑‑‑Adverse remarks ‑‑‑Expunction of‑‑‑Adverse remarks in A.C.R. of civil servant for relevant year and previous year were made by same Reporting Officer‑‑‑Adverse remarks made in previous year were expunged by Service Tribunal being in contravention of laid down instructions and also based on mala fides on the part of Reporting Officer‑‑­During entire service of about 27 years civil servant had never earned any adverse remarks except for the relevant one year‑‑‑Reporting prior to relevant years were made by different Reporting Officers‑‑‑All earlier reports had shown Civil. servant to be intelligent, respectable, and having all good qualities of a reasonable officer‑‑‑Present report had shown mala fides of Reporting Officer who made adverse remarks against civil servant for relevant year‑‑‑Civil servant and Reporting Officer being of equal grade, Reporting Officer under law was not competent to initiate A.C.R. of civil servant‑‑‑Both Reporting Officer and Countersigning Officer had violated mandatory rules; instructions and guidelines about Annual Confidential Reports‑‑‑Relationship between civil servant and Reporting Officer was strained and civil servant had time and again submitted applications against Reporting Officer that his rights should be safeguarded so that he might not become victim of personal grudge of Reporting Officer for purpose of A.C.R.‑‑‑Reporting Officer was hostile and harbouring ill-­will against civil servant‑‑‑Adverse remarks against civil servants based on bias of Reporting Officer being unfounded and uncalled for, were expunged.

1988 PLC (C.S.) 96; 1984 PLC (C.S.) 1169; 1991 PLC (C.S.) 551 and Ch. Saeed Ahmed v. Federation of Pakistan 1996 SCMR 256 ref.

Appellant in Person.

Muhammad Qasim Mirjat, Assistant Advocate‑General for Respondent, along-with Ayaz Hussain Superintendent in the office of Education Department.

Date of hearing: 16th November, 2001.

2002 PLC (C.S.) 1263

[Sindh Service Tribunal]

Before Justice (Ltd.) Abdul Ghani Shaikh, Chairman, Muhammad Iqbal Kazi and Ghulam Sarwar Khero, Members

MUHAMMAD UMER QURESHI and 5 others

THE SENIOR MEMBER BOARD OF REVENUE SINDH and 9 others

Appeals Nos.48 to 53.of 1995, decided on 15th February; 2002.

Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975‑‑‑

‑‑‑‑Rr. 9, 10 & 11‑‑‑Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R.5‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Seniority and promotion‑‑‑Determination of‑‑‑Civil 'servants despite having been appointed as Junior Clerks earlier than co‑civil servants, their seniority as senior clerk was determined below to co‑civil servants‑‑­Seniority was determined by Departmental Promotion Committee which was not constituted according to law‑‑‑Neither recruitment rules had been framed for filling up posts nor seniority list of junior clerks was prepared at the time of promotion‑‑‑Undue haste, favouritism and use of excessive authority was manifest from action of Authority concerned‑‑‑Such act of Authority was not only mala fides, but bad in the eyes of law and could not legitimately sustain‑‑‑Policy of promotion made it mandatory on the part of Competent Authority to have prepared seniority list of all civil servants appointed as Junior Clerks on respective dates and such list should have been circulated to all concerned and objections, if any, should have been appropriately addressed‑‑‑Promotions as senior clerks, thereafter, should have been held on basis of seniority‑cum‑fitness principle, but that important codal formalities had not been resorted to by the concerned Authority‑‑‑Order of Authority was set aside and cases were remanded to decide afresh accordingly.

Muhammad Tasnim for Appellants

Muhammad Kassim Mirjat, A.A.G. for Official Respondents, Date of hearing: 10th January, 2002.

2002 P L C (C. S) 1269

[Sindh Service Tribunal]

Before Baha«ddin Sirhindi, Member‑I and

Abdul Rasheed Memon, Member II, SIKANDAR ALI JATOI

Versus

PROVINCE OF SINDH and others

Service Appeal No.230 of 1999, decided on 20th February, 2001

Civil service‑‑‑

‑‑‑‑ Seniority, determination ‑‑‑Determination of seniority of civil servant .would involve number of facts which fall within the domain of the Departmental authority‑‑‑ Department had the right to rectify the mistake committed by it under wrongful political pressure‑‑‑Appeal was dismissed, in circumstances, with the directions that the Department should review the seniority of concerned officers as whole under the relevant rules and the law laid down by superior Courts in this behalf.

Abdul Bari v. Government of Pakistan PLD 1981 Kar. 750 ref.

Naimatullah Qureshi for Appellant.

Ansari Abdul Lateef for Respondent No.4.

Muhammad Qasim Mir Jat, A.A.G. for Respondents Nos. 1, 2 and 3, Date of hearing: 29th November, 2000

2002 P L C (C.S.) 1287

[Sindh Service Tribunal]

Before Justice (R) Abdul Ghani Shaikh, Chairman, Bahauddin Sirhindi, Member‑I

and Abdul Rasheed Memon, Member‑II

DEWAN DAS

versus

DIRECTOR SCHOOL EDUCATION SECONDARY, HYDERABAD

REGION, HYDERABAD and another

Appeal No. 90 of 2000, decided on 8th May, 2001.

Civil service‑‑‑

‑‑‑‑ Basic emoluments‑‑‑Entitlement‑‑‑Request of civil servant for placing him in B.S. 14 was denied by the Authority despite no deficiency was found in his case as far as qualifications required by the notification were concerned‑‑­Claim of the civil servant was valid, legal and within the framework of law and there was no ground to oppose the benefits claimed by him‑‑‑Denial of basic emoluments to a public servant by another public servant would amount to mismanagement, misconduct and even mala fide‑‑‑Documents as required under the relevant notification having been brought on record, civil servant was entitled to the benefits provided in the notification with effect from the date on which he had become eligible and had fulfilled all the conditions as laid down in the notification‑‑‑Civil servant was to be placed in B.S. 14 with all consequential benefits from the said date.

Abdul Lateef Ansari for Appellant.

Muhammad Qasim Mirjat, Asstt. A.‑G for Respondents.

Date of hearing: 3rd May, 2001.

2002 P L C (C.S.) 1291

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman

Bahauddin Sirhindi, Member‑I

and Abdul Rasheed Memon, Member‑II

GHULAM SARWAR SANGI

versus

GOVERNMENT OF SINDH through Secretary, Service and

General Administration Department, Government of

Sindh, Karachi and 12 others

Appeal No. 158 of 1999, decided on 23rd May, 2000.

Sindh Civil Servants Act (XIV of 1973)‑‑‑

‑‑‑‑S. 24‑‑‑Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 9(c)‑‑‑Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975), Rr.10 & 12(b)‑‑‑Seniority‑‑‑Entitlement‑‑‑Civil servant initially was appointed as Police Sub‑Inspector in the Prosecution Branch in. 1976 and then was deputed to Anti‑Corruption Establishment in 1982 and was promoted as Inspector but was repatriated, to parent Department to 1990‑‑‑Civil servant was subsequently permanently placed at the disposal of Anti‑Corruption Establishment and by order of Chief Minister was assigned seniority under R:12(b) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1979 from the date of his initial appointment as Police Sub‑Inspector in the Prosecution Branch in 1976‑‑­Said fact was duly notified by the Chief Secretary vide a notification‑‑‑Order of seniority issued by the Competent Authority, could not be taken away by any subordinate agency especially when there had been no protest from the Department concerned or opposing civil servants against said notification which had attained finality and was not open to attack‑‑‑Contention that notification was issued without notice to the opposing civil servants, was repelled as the Competent Authority was not supposed to consult the officers to be affected by an order‑‑‑Opposing civil servants could have agitated against the said order and challenged the same before the appropriate forum which was not done.

PLD 1969 SC 407; 1997 SCMR 15; PLD 1997 (sic); 1996 SCMR 856: 1995 PLC (C. S.) 803 and 1999 PLC 1160 ref.

Shabbir Ahmad Awan for Appellant.

Muhammad Qasim Mirjat, A.A.‑G. for Respondents Nos.1 to 3

Muhammad Afsar for Respondents Nos.6 and 11.

Hafizur Rehman for Respondent No. 7

Naimatullah Qureshi for Respondents Nos.4, 5, 8 to 10, 12 and 13

Date of hearing:11th April, 2000.

2002 P L C (C. S.) 1342

[Sindh Service Tribunal]

Before Abdul Ghani Shaikh, Chairman, Ghulam Sarwar Kher

and Muhammad Iqbal Kazi, Members

Syed AFTAB HAIDER

versus

GOVERNMENT OF SINDH through Chief Secretary and 16 others

Appeal No.357 of 1998, decided on 28th February, 2002.

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

‑‑‑‑Ss.2(b) & 24‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Sindh Civil Servants (Promotion, Confirmation and Seniority) Rules, 1975, R.12(a)‑‑‑Transfer on deputation‑‑‑Determination of seniority‑‑‑Appeal before Service Tribunal‑‑‑Civil Servant, status of‑‑‑Services of appellant who was serving in Communication and Works Department, were requisitioned by Minister for Education for placing at the disposal of education, Engineering Works, Education Department, and he was transferred and posted at Directorate of Engineering Works, Education Department‑‑‑Appellant opted for his permanent absorption in transferee department and was allowed benefit of R.12(a) of Sindh Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 through a notification‑‑‑Appellant after being relieved from Communication and Works Department, joined Education Department as a "deputationist" and till the time he was absorbed permanently in Education Department (Transferee Department) through notification, he did not enjoy status of a civil servant as he was not cove by definition of "civil servant" as defined in cl,. (b) of S.2 of Sindh Civil Servants Act, 1973, being a deputationist and till then R.12(a) could not have been pressed into service as same referred to a civil servant‑‑‑Notification whereby appellant was appointed by transfer rather absorbed permanently in Directorate of . Engineering Works, Education Department and simultaneously was allowed benefit of R.12(a), was not warranted by law as absorption of appellant in Education Department due to political influence,‑ would be considered as initiated at the request of appellant‑‑‑Notification allowing benefit of R.12(a) to appellant was not legal as appellant at the time of issuance of notification, had not acquired status of "civil servant" being deputationist and ad hoc appointee.

Muhammad Himayatullah v. Government of Pakistan PLD 1969 SC 409 and Ahsanullah A. Memon v. Government of Sindh and 3 others 1993 SCMR 982 ref.

(b) Civil service‑‑‑

‑‑‑‑ Locus poenitentiae, principle of‑‑‑Applicability‑‑‑Civil servant having got himself absorbed in transferee Department, through back door on account of influence of public representatives contrary to rules and regulations, principles of locus poenitentiae was not attracted in his case.

Jalal Din's case PLD 1992 SC 207 ref.

(c) Equity‑‑‑

‑‑‑‑ He who seeks equity must come with clean hands.

Manzoor Ali Khan for Appellant.

Ch. Muhammad Iqbal, Addl. A.G. for Official Respondents.

Naraindas C: Motani, for Respondent Nos.5 to 11, 14 to 17.

Nemo for Remaining Respondents.

Date of hearing: 20th November, 2001.

2002 P L C (C.S.) 1349

[Karachi Service Tribunal]

Before (Recd.) Abdul Ghani Shaikh, Chairman, Ghulam Sarwar Kher and Muhammad Iqbal Kazi, Members

AJMAL TUFAIL

versus

THE GOVERNMENT OF SINDH Through Chief Secretary and another

Appeal No.43 of 2001, decided on 30th January, 2002.

(a) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr. 4(1)(b)(iii), (iv) & 4(2)‑‑‑"Removal from service" and "dismissal from service" ‑‑‑Distinction and effect‑‑‑Civil servant was intimated that he was liable to penalty of removal from service, but in fact was awarded penalty of dismissal from service instead of removal‑‑‑Though "removal from service" and "dismissal from service" were major penalties in view of R.4(2) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, penalty of dismissal from service was much harsher than penalty of removal from service‑‑‑According to R.4(2) of Rules, 1973 removal from service would not, but dismissal from service would disqualify civil servant for future employment‑‑‑Penalty of dismissal from service, in circumstances, was not in accordance with penalty proposed to be inflicted upon civil servant in show‑cause notice as well as in final show‑cause notice.

1996 SCMR 630; NLR 1985 TD 396 and 1996 PLC (C.S.) 868 ref.

(b) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑S.S‑‑Holding inquiry in case of misconduct against civil servant‑‑­Question as to whether a regular enquiry was to be held in a case of misconduct against a civil servant or not, would depend on facts of each case‑‑‑Civil servant in the present case, was charged with a very serious allegations of misconduct which civil servant had vehemently denied in his reply to first show‑cause notice as well as to final show‑cause notice‑‑­Authority, in circumstances, could not have resorted to R.5(3) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 by dispensing with regular enquiry, which course was not warranted by law.

Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1997 PLC (C.S.) 868; Nawab Khan and another v. Government of Pakistan through Secretary, Ministry of Defence, Rawalpindi and others PLD 1994 SC 222; The Deputy Inspector General of Police, Lahore v. Anis‑ur-Rehman Khan PLD 1985 SC 134 and Alamgir v. D.F.C. Multan and others 1993 SCMR 603 ref.

(c) Sindh Civil Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑Rr.4(a), (b) & 5(4)(a), (b)‑‑‑Imposition of minor penalty and major penalty‑‑‑First show‑cause notice as also final show‑cause notice were issued by Authorised Officer who under R.5(4)(a) of Sindh Civil Servants (Efficiency and Discipline) Rules, 1973 was competent to impose minor penalty as mentioned in R.4(a), but was not competent to impose major penalty as described in R.4(b) of the Rules‑‑‑Imposition of major penalty could be ordered by "Competent Authority" alone whereas minor penalty could be imposed by "Authorised Officer" ‑‑‑Authorised Officer who had issued first and final show‑cause notice, was not legally competent to impose major penalty of dismissal from service on civil servant and it was obligatory upon the Authorised Officer to forward, the case to Competent Authority alognwith his recommendations, which exercise was not undertaken‑‑­Effect‑‑‑Order imposing major penalty of dismissal from service upon civil servant passed by Authorised Officer was nullity in eye of law and was liable to be set aside.

Abrar Bokhari for Appellant.

Muhammad Qasim Mirjat, Asstt. A.‑G. for Respondents.

Date of hearing: 6th December, 2001

2002 P L C (C.S.) 1378

[Sindh Service Tribunal]

Before Abdul Majid Khanzada, Chairman, Bahauddin Sirhindi, Member‑I

and Abdul Rasheed Memon, Member‑II

GHULAM SARWAR QURESHI

versus

CHIEF SECRETARY, GOVERNMENT OF SINDH 2 others

Appeal No.249 of 1991, decided on 30th May, 2000.

Civil service‑‑

‑‑‑‑Age‑‑‑Date of birth‑‑Correction of‑‑‑Civil servant who entered into service in the year 1957 was retired in 1999 taking into consideration, his date of birth as recorded in his service book which was 17‑3‑1939‑‑‑Civil servant had challenged his retirement contending that his date of birth was 17‑3‑1943 and not 17‑3‑1939 and claimed that he had filed application in 1959 for correction of his date of birth, but could not prove tiling of such application‑‑‑Civil servant in a suit and by Constitutional petition did not mention the fact of tiling any such application‑‑‑During his whole service at no stage he had made effort for getting his date of birth corrected and only two years before his retirement made application for the correction‑‑‑ Authority had rightly exercised its discretion against the civil servant and refused to entertain his claim at such a belated stage and had placed on record the extract of the service book relating to his date of birth which was signed by civil suregeon and contained thumb‑impression of civil servant thereon which he had never challenged‑‑‑If date of birth as claimed by 'the civil servant was considered correct then at time of joining service his age would be 14 years‑‑‑Claim of civil servant was rightly rejected.

1976 PLC (C.S.) 144; 1980 PLC (C.S.) 90; 1981 PLC (C.S.) 701, 1982 PLC (C.S.) 38.and 1983 PLC (C.S.) 307 ref.

Abdul Lateef Ansari for Appellant.

Muhammad Kassim Mirjat, A.‑A.G. for Official Respondents.

Date of hearing: 11th April, 2000. ,

2002 P L C (C.S.) 1393

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman

and Muhammad Iqbal Kazi, Member II

GHULAM ASGHAR and others

versus

THE INSPECTOR‑GENERAL OF SINDH POLICE

Appeals Nos. 146 and 147 of 2000, heard on 29th June, 2001.

Civil service‑‑‑

‑‑‑‑ Dismissal from service‑‑‑Re‑instatement‑‑‑Civil servants who alongwith others were involved in criminal case, were dismissed from service, but subsequently when criminal proceedings against all of them were quashed they all applied for their re‑instatement‑‑‑All others except the appellants were re‑instated‑‑‑Authority had applied different standards of judgment to two similar and identical nature of cases by allowing reinstatement of one and disallowing the same remedy to other and same treatment was meted out without any application of mind and consideration of merits of the case‑‑‑Relief provided by the Authority to others should have equally been allowed to the civil servants in the interest of equity, fair play and justice.

2002 PLC (CS) 86 ref.

Syed Khalid Shah for Appellants.

Muhammad Qasim Mirjat, A.A.‑G. for Official Respondents.

Date of hearing: 29th June, 2001.

2002 P L C (C.S.) 1446

[Sindh Service Tribunal]

Before Ghulam Sarwar Khero, Member‑I and Muhammad Iqbal Kazi, Member‑II

BASHIR AHMED

versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and 4 others

Appeal No.314 of 1999, decided on 5th October, 2001.

(a) Civil service‑‑‑

‑‑‑‑ Successive move‑overs‑‑‑Civil servant joined service in Grade‑16 which post was upgraded to BS‑17‑‑‑Civil Servant after having reached ceiling of BS‑17 was allowed move‑over to BS‑18‑‑‑Subsequently on recommendation of move‑over Committee, civil servant was allowed move‑over from BS‑18 to BS‑19 and was also allowed difference of pay and was paid salary of BS‑19‑‑‑Authority, thereafter vide its order scored off salary of civil servant in BS‑19 and instead paid him salary in BS‑18 and started deducting amount from salary of civil servant holding two successive move‑overs in BS‑18 and BS‑19 not admissible under the policy‑‑‑Validity‑‑‑Policy circular No.F.D.(S.R.I(27)/83 dated 12‑6‑1986 had provided that successive Move‑overs (without promotion in between) were not admissible‑‑‑Civil servant was not eligible for grant of move‑over to BS‑19 though he reached ceiling of BS‑19 as he was neither promoted in BS‑18 nor was allowed Selection Grade in between those scales‑‑‑Successive move‑overs allowed in the case of civil servant (from BS‑17 to BS‑18 and BS‑19) were not admissible as per policy circular‑‑‑Auditor being custodian of Government exchequer, had rightly scored off salary of civil servant in BS‑19 from pay bill of civil servant and allowed him salary of BS‑18 besides deduction of amount from salary of civil servant being over payment.

Syed Afzal Hussain Naqvi v. Government of Punjab 1985 PLC (C.S.) 133 ref.

(b) Civil service‑‑‑

‑‑‑‑ Move‑over‑‑‑Mov‑over was to be governed by particular sets of condition, the foremost being mandatory provision of promotion or grant of Selection Grade in between the two move‑overs.

Abdul Salam v. State 1969 PCr.LJ 675 ref.

M.M. Aqil Awan for Appellant.

Chaudhary Muhammad Iqbal, A.A.: G. for Respondents.

Date of hearing: 29th August, 2001.

2002 P L C (C.S.) 1458

[Sindh Service Tribunal]

Before Ghulam Sarwar Khero (Member‑I) and

Muhammad Iqbal Kazi, (Member‑II)

BASHIR AHMED SOLANGI

Versus

CHIEF SECRETARY, GOVERNMENT OF SINDH

and 2 others

Appeal No.345 of 1998, decided on 5th October, 2001.

Civil service‑‑­

‑‑‑‑Civil servant‑‑‑Appointment and seniority‑‑‑Civil servant appointed as Research Assistant (Grade‑16) in Potato Project, was posted under Principal Investigator and Horticulturist against a purely temporary post‑‑‑Later on civil servant was selected by Sindh Public Service Commission for post of Assistant Research Officer (Plant Breeding) in Grade‑17 on regular basis‑‑­Civil servant who to all intents and purposes had secured right basically against post of Assistant Research Officer B.S. 17 in Plant Breeding line of Agricultural Research Wing, could not lay his claim on mere experience gained against out of line post i.e. Horticulture side of Agricultural Research Wing and could not claim his seniority in "Horticulture" line of Agriculture Research Wing ‑‑‑Apperance of name of civil servant in three consecutive seniority lists showing him in Horticulture Line had no legal effect.

Ansari Abdul Lateef for Appellant.

Chaudhary Muhammad Iqbal, A.A.‑G. for Respondents, Date of hearing: 29th August, 2001.

2002 P L C (C.S.) 1468

[Sindh Service Tribunal]

Before justice (Retd.) Abdul Ghani Shaikh, Chairman and

Ghulam Sarwar Khero, Member‑I

SHAH MUHAMMAD ABBASI and others

Versus

CHANCELLOR, SHAH ABDUL LATIF UNIVERSITY

KARACHI and others

Appeal Nos. 87, 91 and 92 of 1998, decided on 13th December, 2001.

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

‑‑‑‑S. 4‑‑‑Shah Abdul Latif ‑ University Act (XI of 1986), First Statute, S.6‑‑‑Promotion‑‑‑Appellants/civil servants had challenged promotion of respondents/opposing civil servants on the ground that Selection Board before whom cases of respondents for promotion were placed, was not competent as per S.6 of Shah Abdul Latif University Act, 1986‑‑‑Selection Board in respect of respondent must have consisted of five members according to S.6(3)(b) of Shah Abdul Latif University Act, 1986, but meeting of Selection Board in which case for promotion of respondents, was placed, was attended by only three members‑‑‑Very Selection Board being not competent under law, its recommendations with regard to promotion of respondents, were illegal, and coram non judice‑‑‑Orders of promotion of respondents, were set aside, in circumstances.

(b) Administration of justice‑-

‑‑‑‑ If law had provided that a particular thing was to be done in a particular manner/way, it was to be done in that manner or not at all.

Sajjad Hussain Kolachi for Appellants.

S. Zaheer Hassan for Respondents.

Private Respondents in three appeals are present in person.

Date of hearing; 26th October, 2001.

2002 P L C (C.S.) 1497

[Sindh Service Tribunal]

Before (Retd.) Abdul Ghani Shaikh, Chairman, Bahauddin Sirhindi, Member‑I and

Abdul Rasheed Memon, Member‑II

PROFESSOR Dr. M. FAHEEMUDDIN

Versus

GOVERNMENT OF SINDH through Secretary Ministry

of Education, Sindh Secretariat, Karachi and 2 others

Appeal No.38 of 2000, decided on 12th April, 2001.

Sindh Service Tribunals Act (XV of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Sindh Board of Intermediate and Secondary Education Ordinance (VI of 1972), Ss. 12, 14(2) & 15(1)‑‑‑Appointment on deputation for fixed period‑‑‑Removal from such post‑‑‑Appeal‑‑‑Appellant prior to his retirement was appointed as Chairman of Board of Intermediate and Secondary Education for a fixed period of three years‑‑‑Appellant, on attaining the age of superannuation was removed from the post and instead respondent was appointed in his place‑‑‑Appellant had challenged, his removal alleging the same to be illegal, unjust, discriminatory and against ‑law‑‑‑Validity‑‑­Appellant was appointed during his service on deputation basis for a period of three years, but on attaining age of superannuation he was retired from service because he was working against the said post on deputation basis which could' only be for the period he did not attain the age of superannuation ‑‑‑Such terms and conditions were accepted by the appellant a: the time of appointment and no contract was offered to the appellant beyond that date‑‑‑Appellant, m circumstances, was rightly removed from the post.

1982 CLC 515; 2000 SCMR 489; 1975 SCMR 457; 1976 SCMR 48; 1999 SCMR 197, 1999 PLC (C.S.) 602; 1998 PLC (C.S.) 419 and 1998 SCMR 1930 = 1998 PLC (C.S.) 1345 ref.

Akhtar Hussain for Appellant.

Muhammad Qasim Mirjat, A.A.‑G. for Official Respondents.

M.M. Aqil Awan for Respondent No.3.

Date of hearing: 21st February, 2001.

2002 P L C (C.S.) 1534

[Sindh Service Tribunal]

Before Ghulam Sarwer Khero, Member‑I

and Muhammad Iqbal Kazi, Member‑II

ASHFAQ ALI

Versus

PRINCIPAL POLICE TRAINING CENTRE, SAEEDABAD, KARACHI and 2 others

Appeal. No. 104 of 1998, decided on 4th October, 2001.

Sindh Police (Efficiency and Discipline) Rules, 1988‑‑‑--

‑‑‑‑R.12.8‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Discharge from service‑‑‑Civil servant appointed as Assistant Sub‑Inspector of Police was sent for training during mandatory probationary period, but during course of training he remained absent for total period of 118, days without intimation and he was discharged from service‑‑‑Civil servant chose to remain absent during training period for a substantial period of 118 days which act of civil servant could not, justify his continuance in Police Department‑‑‑Civil servant could not, by any standard be considered as part of disciplined force‑‑‑Action taken against civil servant by Competent Authority was in accordance with rules.

M.M. Aqil Awan for Appellant.

Choudhry Muhammad Iqbal, A.A.‑G. for Respondents.

Date of hearing: 29th August, 2001.

2002 P L C (C.S:) 1607

[Sindh Service Tribunal]

Before Ghulam Sarwar Khero, Member‑I

and Muhammad Iqbal Kazi, Member‑II

SHERAZ GUL THEBO

Versus

THE SECRETARY EXCISE AND TAXATION DEPARTMENT GOVERNMENT OF SINDH, KARACHI and another

Appeal No.419 of 2000, decided on 17th November, 2001.

Sindh Civil Servants (Efficiency and Discipline) Rules, 1973)‑‑‑

‑‑‑‑Rr. 3(b), 4(b)(iv), 5, 6 & 7‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Dismissal from service‑‑‑Reinstatement‑‑‑Secretary as Authorised Officer issued show‑cause notices to civil servant on allegations of misconduct‑‑‑Reply submitted. by civil servant to show‑cause notices was considered unsatisfactory, incorrect and unconvincing and said Authorised Officer in capacity of "Authority" imposed major penalty of dismissal from service on civil servant‑‑‑ "Authorised Officer" and "Authority" could not be one and. same person and Secretary being Authorised Officer, had illegally assumed powers of Authority‑‑‑Dismissal order passed by Authorised Officer assuming power of Authority, was illegal and liable to be set aside‑‑‑Order of dismissal passed unauthorisedly was set aside and civil servant was ordered to he reinstated.

Ghulam Sarwar Chandio for Appellant.

Muhammad Qasim Mirjat, A.A.‑G. for Respondents.

Date of hearing: 25th October, 2001.

2002 P L C (C.S.) 1614

[Karachi Service Tribunal]

Before Muhammad Ghulam Sarwar Khero, Member‑I

and Muhammad Iqbal Kazi, Member‑II

MUJEEB‑UR‑REHMAN HASHMI

Versus

THE INSPECTOR‑GENERAL OF POLICE, SINDH and 3 others

Appeal No.25 of 2000, decided on 9th October, 2001.

Police Rules, 1934‑‑‑

‑‑‑‑R.12.21‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Discharge from service‑‑‑Reinstatement‑‑‑Entitlement of financial emoluments ,for intervening period‑‑‑Civil servant appointed as Police Constable, was discharged from service after about two years taking action against him under R.12.21 of Police Rules, 1934‑‑‑Civil servant, after more than 9 years of his discharge from service, filed mercy petition for his reinstatement and Authority after conducting inquiries accepted mercy petition and civil servant was reinstated in service‑‑‑Soon after reinstatement, civil servant filed application for payment of financial emoluments for intervening period in which he remained out of service which application was rejected and civil servant had filed appeal against rejection of application before Service Tribunal‑‑‑Validity‑‑‑Discharge of civil servant was resorted to within stipulated period of three years‑‑‑No personal grudge against concerned Authority had been indicated by civil servant and even that Authority had not been made party in appeal which amounted to establish that discharge orders, alongwith service allegations against civil servant had a tacit acceptance on part of civil servant‑‑‑Was not believable that civil servant merely sat at home and doing nothing .to earn his bread and butter for such a long period of nine years‑‑‑Civil servant who was not available for duty during passage of nine long years was not entitled to emoluments, as claimed by him.

Abid Hussain for Appellant.

Muhammad Qasim Mirjat, A.A.‑G. for Official Respondents.

Date of hearing: 13th August, 2001.

2002 P L C (C.S.) 1621

[Sindh Service Tribunal]

Before Abdul Ghani Shaikh, Chairman

and Ghulam Sarwar Khero,, Member‑I

SHAFQAT MAHMOOD

Versus

INSPECTOR‑GENERAL OF POLICE and 2 others

Appeal No. 284 of 1999, decided on 31st January, 2002.

Sindh Police (Efficiency and Discipline) Rules, 1988‑‑‑

‑‑‑‑R.6‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑‑Dismissal from service on ground of registration of criminal case‑‑‑Civil servant against whom a criminal case was registered was dismissed from service after serving him show‑cause notice but without holding inquiry against him simply on basis of report of fact finding Inquiry Committee‑‑‑Report of fact finding Committee was based upon investigation conducted by police in which civil servant was not allowed to participate‑‑‑Such inquiry could not be termed as a regular inquiry as contemplated under Sindh Police (Efficiency and Discipline) Rules, 1988‑‑‑Civil servant otherwise was acquitted of charges against him by Court of competent jurisdiction, but Authorities had ignored finding of competent Court and passed dismissal order against civil servant relying on investigation which had been turned down by the Court‑‑‑Judgment of Court should have been given due consideration while considering Departmental appeal of civil servant‑‑­Order dismissing civil servant from service passed by Authority was, set aside with direction to reinstate him in service from date of his dismissal.

Malik Azharul Haq v. Director of Food, Punjab, Lahore and another 1991. SCMR 209 and Rashid Mehmood v. Additional Inspector ­General of Police and 2 others 2002 SCMR 57 ref.

Abdul Sattar Mughal for Appellant.

Muhammad Qasim Mirjat, Asst. A.‑G. for Official Respondents.

Date of hearing: 25th January, 2002.

2002 P L C (C.S.) 1628

[Sindh Service Tribunal]

Before Justice (Retd.) Abdul Ghani Shaikh, Chairman

and Ghulam Sarwar Khero, Member

MEHAR ALI

Versus

THE DIRECTOR GENERAL EXCISE AND TAXATION and another

Appeal No. 117 of 2000, decided on 7th November, 2001.

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

‑‑‑‑S. 4‑‑‑Appeal‑‑‑Civil servant aggrieved by any final order, whether original or appellate, had a right of filing only one appeal before Service Tribunal‑‑‑Civil servant, however, had two options and it was for him to choose one of the two options and could either wait for final order on his Departmental appeal or if Departmental Authority had not passed final order on his appeal, he could file appeal within 30 days of expiry of statutory waiting period of 90 days.

Qadir Bux v. Province of Sindh and another 1982 SCMR 582 ref

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

‑‑‑‑S. 4‑‑‑Second appeal‑‑‑Maintainability‑‑‑Civil servant after rejection of his Departmental appeal, had filed appeal before Service Tribunal which appeal was withdrawn by civil servant without obtaining permission to file fresh appeal and same was dismissed‑‑‑Version of civil servant that he had withdrawn earlier appeal with the condition to file fresh appeal after obtaining final order, was not borne out from the record‑‑‑Matter in circumstances had finally been decided and once matter had been adjudicated upon same cause of action, it could not be reconsidered for same cause‑‑‑If proceedings were withdrawn without permission to institute, further proceedings in same cause of action then fresh proceeding on same issue were barred‑‑‑Second appeal filed by civil servant, in circumstances, was not maintainable.

PLD 1990 Lah. 352 and Nazir Ahmed v. Secretary Government of Punjab and others 1986 PLC (C.S.) 774 ref.

Syed Zafar Ali Shah for Appellant.

Muhammad Qasim Mirjat, Asstt. A.‑G. for Official Respondents.

Date of hearing: 22nd August, 2001.

2002 P L C (C. S.) 15

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

JAVED IQBAL KHAN

versus

FEDERAL EMPLOYEES BENEVOLENT AND GROUP INSURANCE FUNDS and 2 others

Civil Petition No. 1976 of 2000, decided on 8th October, 2001.

(On appeal from the judgment, dated 26‑10‑2000 of Federal Service Tribunal, Islamabad passed in Appeal No.88 (R)/C.E./2000).

Civil Servants act (LXXI of 1973)‑‑‑

‑‑‑‑S.8(4)‑‑‑Civil Servants (Seniority) Rules, 1993, R.3(c)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority list‑‑‑Expression 'beyond control' as mentioned in R.3(c) of the Civil Servants (Seniority) Rules, 1993‑‑­Applicability‑‑‑Civil servant conveyed willingness to forego his promotion in the existing appointment and opted for his promotion in another post‑‑­Grievance of the civil servant was that he was to be declared senior to the respondent civil servant‑‑‑Departmental appeal as well as the appeal before Service Tribunal were dismissed‑‑‑Validity‑‑‑General rule was that a civil servant promoted to higher post on an earlier date would be senior to those who were promoted later on‑‑‑Exception to the rule was provided in R.3(b) & (c) of the Civil Servants (Seniority) Rules, 1993, and R.3(b)(c) was not attracted to the facts of the case‑‑‑Where the civil servant, on his own opted for his promotion in another post, such fact took away his case from the ambit of R.3(b)(c) of the Civil Servants (Seniority) Rules,. 1993 ‑‑‑ Neither his case was governed by the expression "beyond control" nor it was a case of deferment‑‑Striking down Government letters dated 30‑11‑1999 and 6‑12‑1999 on the subject would mean to declare the civil servant senior to the respondent civil servant, which the former was not entitled‑‑‑Judgment of Service Tribunal was in accordance with the rules and was not open to any criticism, nor any interference was warranted‑‑‑Leave to appeal was refused.

Hafiz S.A. Rehman, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 8th October, 2001.

2002 P L C (C.S.) 18

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

G.M., NATIONAL BANK OF PAKISTAN and others

versus

ABDUL AZIZ and others

Civil Appeals Nos. 1126 to 1133 of 2001 and Civil Petitions for Leave to Appeal Nos.745‑L to 755‑L, ‑805‑L and 812‑L to 840‑L of 2001, decided on 28th September, 2001.

(On appeal from judgment, dated 25‑1‑2001 of the Federal Service Tribunal, Lahore in Appeals Nos.440‑L of 1998, 636‑L, 697‑L, 698‑L, 699‑L, 1079‑L, 1080‑L, 1340‑L, 1707‑L of 1998, 1339‑L, 1340‑L, 1341‑L, 1342‑L, 1343‑L, 1344‑L of 1999, 633‑L, 634‑L, 638‑L, 644‑L, 650‑L, 652‑L, 656‑L, 653‑L, 658‑L, 662‑L, 664-L and 697‑L of 1997).

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

‑‑‑Ss.2‑A, 4 & 6‑‑‑Constitution of Pakistan (1973) Art. 212(3)‑‑‑Insertion of S.2‑A in Service Tribunals Act, 1973‑‑‑Effect‑‑‑Abatement of proceedings‑‑­Contention of the petitioner was that S.6 of Service Tribunals, Act, 1973, clearly provided that as a consequence of abatement proceedings of any suit or other proceedings in respect of any matter within the jurisdiction of Service Tribunal, the aggrieved party could approach the Service Tribunal without any discrimination as to whether the party was civil servant or the employer, therefore, S.6 of Service Tribunals Act, 1973, would override S.4 of Service Tribunals Act, 1973, and being a special remedy created as a consequence of abatement of proceedings, the appeal should have been entertained by the Service Tribunal and in those proceedings, the question of legality or otherwise of original order of termination of service of the employees could have been gone into and in case the same was found to have been legally passed, the appeal could be accepted and that proceedings before Service Tribunal would be on appeal against the judgment of Labour Court‑‑­Plea raised by the petitioner was whether in such a situation, the Service Tribunal was vested with the jurisdiction to go into the question of legality or otherwise of orders of the Labour Court‑‑‑Such question could arise in future in many other cases and was a question of law of public importance relating to jurisdiction of Service Tribunal, leave to appeal was granted by Supreme Court to consider the same.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Effect of insertion of S.2‑A in the Service Tribunals Act, 1973‑‑‑Scope‑‑‑Appeal‑‑‑Maintainability‑‑‑Jurisdiction of Service Tribunal‑‑‑Matter was decided by Labour Court and appeal was pending before Labour Appellate Tribunal‑‑‑By insertion of S.2‑A in the Service Tribunals Act, 1973, the appeal pending before the Labour Appellate Tribunal had abated and the matter was taken, to the Service Tribunal‑‑‑Appeal before the Tribunal was dismissed for lack of jurisdiction on the ground that the appeal before the Tribunal would be an appeal against the judgment of the Labour Court‑‑‑Validity‑‑‑Effect of S.2‑A of the Service Tribunals Act, 1973, was that notwithstanding any judgment rendered by the Labour Court, or any other forum, all such matters covered under S.2‑A of the Service Tribunals Act, 1973, stood abated‑‑‑Service Tribunal alone had the exclusive jurisdiction to examine the grievance of such persons‑‑‑Judgment passed by the Service Tribunal was based on erroneous assumption of law that the appeal filed by the appellants was bereft of jurisdiction in the matter‑‑­Service Tribunal failed to appreciate the judgment passed by Supreme Court in the case titled Federation of Pakistan v. Muhammad Siddiq, reported as PLD 1981 SC 249, and fell in error by dismissing appeals of the appellants on the ground of maintainability and lack of jurisdiction‑‑‑Judgment passed by the Service Tribunal was set aside and appeals were remanded to the Service Tribunal for decision afresh‑‑‑Petition for leave to appeal was converted into appeal and the same was allowed.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 ref.

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

‑‑‑‑Ss. 4 & 6‑‑‑Abatement of proceedings‑‑‑Procedure‑‑‑Provisions of S.6 of the Service Tribunals Act, 1973, has overriding effect vis‑a‑vis S.4 of the Service Tribunals Act, 1973, as the former has envisaged a special procedure to be followed after abatement of proceedings.

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

‑‑‑‑Ss. 4 & 6‑‑‑Abatement of proceedings pending before other forums‑‑­Procedure to be followed by Service Tribunal‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Once such appeals are filed, it is the duty of Service Tribunal to determine afresh as to whether the original order passed by the Authorities against the employees were lawful or otherwise on the basis of the Service Rules or any other Rules applicable to the employees.

Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249 ref.

M. Nawaz Bhatti, Advocate Supreme Court for Appellant (in all Appeals).

M. Munir Peracha, Advocate Supreme Court for Respondents (in C. A. No. 1126 of 2001).

Sardar Liaquat Ali, Advocate Supreme Court for Respondents (in C. As. Nos. 1127, 1129, 1131 an 1132 of 2001).

M. Aslam Uns, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Respondent (in C. As. Nos. 1128, 1130 and 1133 of 2001).

Mian Abdur Rashid, Advocate Supreme Court for Petitioner (in C.Ps. Nos.745 to 755‑L of 2001).

Mian Muhammad Saleem, Advocate Supreme Court for Petitioner (in C.Ps. No.805‑L of 2001).

Malik Sher Bahadur, Advocate . Supreme Court for Respondent (in C. P. No. 805‑L of 2001).

Javaid Altaf, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Petitioners (in C.Ps. Nos. 812‑L to 840‑L of 2001).

M. Rafique Rajwana, Advocate Supreme Court for Respondent (in C.P. No.812‑L of 2001).

Date of hearing: 26th September, 2001.

2002 P L C (C. S.) 25

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Qazi Muhammad Farooq and Javed Iqbal, JJ, FEDERATION OF PAKISTAN

versus

Syed MUMTAZ AHMED BURNEY and another

Civil Petition for Leave to Appeal No. 1161 of 1999, decided on 21st June, 2001.

(On appeal from the judgment dated 10‑6‑1999 of the Federal Service Tribunal in Appeal No. 1613(K)/1998).

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

‑‑‑‑S. 4‑‑‑Government Servants (Efficiency and Discipline) Rules, 1973, R.4(1)(b)(ii)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Compulsory retirement‑‑‑Reinstatement in service‑‑‑Scrutiny of entire record by Service Tribunal‑‑‑Civil servant was compulsorily retired from service as a result of departmental inquiry‑ ‑‑Charge against the civil servant was that he released on bail a criminal involved in case under S.17(3) of the Offences, Against Property (Enforcement of Hudood) Ordinance, 1979‑‑‑Evidence on record showed that the criminal was not under the investigation with the civil servant, rather the investigation was carried on by some other official who was subordinate to the present civil servant‑‑‑Investigating Officer was not penalized but major .punishment of compulsory retirement was imposed on the civil servant‑‑‑Service Tribunal, after indepth scrutiny of entire record including the charge‑sheet, statements of allegations, show‑cause notice and inquiry report, reached the conclusion that the allegations as levelled against the civil servant could not be proved‑‑‑Appeal against the order passed by the Authorities was accepted by the Service Tribunal and the civil servant was reinstated in, service‑‑‑Validity‑‑‑Findings of Service Tribunal were unexceptionable and did not warrant any interference‑‑‑Leave to appeal could only be granted by Supreme Court if the cage involved a substantial point of law and was of public importance‑‑‑Leave to appeal was refused.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Miss Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262 and M.A. Majid v. Government of Pakistan 1976 SCMR 311 ref.

(b) Constitution of Pakistan (1973)

‑‑‑‑Art. 212(3)‑‑‑Re‑appraisal of evidence‑‑‑Jurisdiction of Supreme Court‑‑­Concurrent findings of fact by Departmental Authorities and Service Tribunal‑‑‑Effect‑‑‑Supreme Court does not ordinarily interfere with such concurrent finding of fact‑‑‑Where Service Tribunal had based its decision on report of Inquiry Officer after considering defence of the civil servant at length, such case was not fit to be interfered with by the Supreme Court in exercise of jurisdiction‑under Art.212(3) of the Constitution‑‑‑Re‑appraisal of evidence cannot be made in every case without sufficient justification.

Muhammad Binyamin v. W‑APDA 1991 SCMR 382; Faiz Ahmad v. Deputy Postmaster General, Lahore 1991 SCMR 368; Muhammad Munir Ahmad v. WAPDA 1990 SCMR 907; Munir Ahmed v. Punjab Service Tribunal 1990 SCMR 1005; Barkat Ali v. Punjab Service Tribunal 1990 SCMR 1469; Muhammad Jaffar Toor v. Superintending Engineer, Headquarters, Irrigation, Sargodha 1989 SCMR 1740; Munawar Tahir Hussain v. Government of the Punjab 1990 SCMR 1470 and Najib Ullah v. Assistant Commissioner/Collector 1989 SCMR 679 ref.

Muhammad Nawaz Bhatti, Deputy Attorney‑General and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 21st June, 2001.

2002 P L C (C.S.) 37

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ

Mst. NAHEED RASHEED and 68 others

versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education, Government of Pakistan, Islamabad and another

Civil Petition No.754 of 2000, decided on 7th September, 2001.

(On appeal from judgment, dated 2‑3‑2000 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi in Writ Petition No. 1062 of 1999).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑New plea‑‑‑Where the plea raised in the petition was neither made subject‑matter of any proceedings by the petitioners nor the petitioners availed of the favourable observations made by the High Court‑‑‑Supreme Court declined to allow the petitioners to raise such plea.

(b) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 185(3)‑‑‑Petition for leave to appeal‑‑‑Past and closed transaction‑‑­Failure to bring mala fides of the officials before appropriate forum at the relevant time‑‑‑Effect‑‑‑Petitioners referred to the alleged mala fides on the part of the then official responsible for carrying into effect the process of law without any fear or favour but were not brought by the petitioners before the relevant/appropriate forum at that juncture‑‑‑Validity‑‑‑Supreme Court declined to upset that which was made the subject‑matter of appropriate proceedings by the aggrieved persons/individuals in the past.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.185(3)‑‑‑Appointment to Government department‑‑‑Allegation of discrimination‑‑‑Grievance of petitioners was that the Government instead of regularising their services for the post advertised in newspapers appointed fresh candidates for the posts‑‑‑Such act of the Government was assailed by the petitioners before High Court in Constitutional petition which was dismissed‑‑‑Petitioners contended that they were discriminated by the Government in making the appointments as their services would have been regularized much before the issuance of advertisement in newspapers‑‑­Validity‑‑‑Government with a view to put an end to the uncertain conditions of service of a number of employees in the Department took the following steps viz. advertisement was issued; cases of all concerned directed to be processed; favourable consideration of cases of employees who had crossed the upper age limit of 25 years and petitioners were allowed a chance to compete with others on the basis of their appointment in the Department during the period under consideration‑‑‑Petitioners were themselves to be blamed for the predicament in which they found themselves, thus they were not discriminated‑‑‑Leave to appeal was refused.

Sahibzada Ahmad Raza Khan Qasuri, Advocate Supreme Court and Ch. Karam Ellahi Bhatti, Advocate‑on‑Record (absent) for Petitioners.

M. Nawaz Bhatti, D.A.‑G., Salahuddin Khan, D.A.‑G. with Ch. Akhtar Ali, Advocate‑on‑Record for Respondents.

Dates of hearing: 13th and 14th June, 2001.

2002 P L C (C.S.) 47

[Supreme Court of Pakistan]

Before Sh. Riaz Ahmed and Javed Iqbal, JJ

GHULAM RASOOL and others

versus

GOVERNMENT OF BALOCHISTAN and others

Civil Petitions Nos.97 and 98‑Q of 2000, decided on 26th July, 2001.

(On appeal from the judgment, dated 14‑9‑2000 passed by Balochistan Service Tribunal, Quetta in Service Appeals Nos. 18 and 19 of 1991).

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

‑‑‑‑S.8‑‑‑Seniority‑‑‑Fixation of seniority with retrospective effect ‑‑‑Scope‑‑­Seniority cannot be conferred with retrospective effect unless such right is established‑‑‑Seniority cannot be determined without reference to continuous appointment in a particular grade.

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

‑‑‑‑S.8‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑‑Fixation of‑‑‑Services of the civil servants were terminated during their initial training‑‑‑Review Board reinstated the civil servants and the seniority was fixed from the date of their reinstatement‑‑‑Contention of the civil servants was that their seniority be fixed from the date of their initial appointment‑‑‑Validity‑‑‑Civil servants, in the present case, had remained out of service, during the years from 1973 to 1978 having no concern whatsoever with the cadre of their service and the said period was never taken into consideration by the Review Board and the civil servants were treated on duty by granting extraordinary leave without pay‑‑‑Omission on the part of the Review Board was not accidental, but the same was deliberate and calculated action which had attained finality and the civil servants could not claim any benefit for the intervening period‑‑‑Had the civil servants been reinstated with retrospective effect, such fact could have been mentioned in the order passed by the Review Board‑‑‑Service Tribunal, after in‑depth scrutiny of entire record, had dismissed the appeals preferred by the civil servants and the findings of the Tribunal being unexceptionable did not warrant any interference‑‑‑Supreme Court declined to fix seniority retrospectively in view of the orders passed by the Review Board‑‑‑Leave to appeal was refused.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185(3) & 212(3)‑‑‑Grant of leave to appeal by Supreme Court=­Scope‑‑‑Leave to appeal can only be granted by Supreme Court if the case involved a substantial point of law of public importance.

Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1; Karamat Hussain v. Province of the Punjab 1982 SCMR 897; Miss Razia Sultana v. Government of Punjab 1981 SCMR 715; M. Yasmin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22; Irtiqa Rasool Hashmi v. WAPDA 1980 SCMR 722; Dilbar Hussain v. Province of Punjab 1980 SCMR 148; Dilbar Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; Muhammad Azhar Khan v. The Service Tribunal, Islamabad 1976 SCMR 262; M.A. Majid v. Government of Pakistan 1976 SCMR 311 and Muhammad Azam v. Chief Irrigation 1991 SCMR 255 ref.

Mohsin Javed, Advocate Supreme Court and W.N. Kohli, Advocate‑on‑Record (in C.P. No.97‑Q of 2000) for Petitioner.

Basharatullah, Senior Advocate Supreme Court (in C.P. No. 98‑Q of 2000) for Petitioner.

Nemo for Respondents.

Date of hearing; 26th July, 2001.

2002 P L C (C.S.) 53

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Rana Bhagwandas, JJ

IRSHAD HUSSAIN

versus

SECRETARY, MINISTRY OF FINANCE and others

Civil Appeal No. 943 of 1996, decided on 20th September, 2001.

(On appeal from judgment of Federal Service Tribunal dated 26‑6‑1995 passed in Appeal No. 59‑L/1995).

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

‑‑‑‑Ss. 17, 18 & 19‑‑‑Revised Leave Rules, 1980, R.32(3)‑‑‑Pay during leave‑‑‑Provisions of S. 32(3) of the Revised Leave Rules, 1980 from 21‑9‑1994‑‑‑Effect‑‑‑Applicability‑‑‑Amendment in the Rules‑‑‑Whether prospective or retroactive‑‑‑Amendment in the Rules certainly guarantees the right of a civil servant to the leave pay at the revised rate if a general revision in pay of civil servant takes place and annual increment accruing due during the period of leave, as such the amendment is prospective in nature and has no retroactive effect.

(b) Fundamental Rules‑‑‑

‑‑‑‑ F.R. 26(a)‑‑‑Increment, award of‑‑‑Counting of service ‑‑‑Conditions‑‑­Civil servant after return from medical leave was retired from service‑‑­Annual increments during the period of leave were denied to the civil servant‑‑‑Service Tribunal maintained the decision of the Authorities and dismissed the appeal of civil servant‑‑‑Validity‑‑‑Where the case of the civil servant squarely fell under R.26(a) of the Fundamental Rules, he was entitled to earn annual increment during the period of leave sanctioned to him, which could not be denied arbitrarily and/or in a whimsical manner‑‑‑Authorities conceded that the civil servant was entitled to the relief asked for‑‑‑Judgment passed by the Service Tribunal was set aside and the civil servant was entitled to annual increments with all consequential benefits for the period when he was on medical leave.

M. Tahir Chaudhry, Advocate Supreme Court and Tanvir Ahmed, Advocate‑on‑Record (absent) for Appellant.

M. Nawaz Bhatti, D.A.‑G., M.S. Khattak, Advocate‑on‑Record.

Muhammad Hanif Bhatti, Director Legal, N.S.O. for Respondents.

Date of hearing: 20th September, 2001.

2002 P L C (C.S.) 100

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J., Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

HUMAYUN IQBAL SHAMI

versus

PRIME MINISTER OF PAKISTAN through Secretary, Establishment Division, Islamabad and another

Civil Appeal No.893 of 1996, decided on 15th May, 2001.

(On appeal from the judgment dated 4‑9‑1995 of the Federal Service Tribunal, Islamabad, passed in Appeal No. 219‑R/95).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Penalty of censure‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider; whether the Establishment Secretary had on a fresh probe on charge of creating a situation of law and order and indiscipline, which had been dropped by the then Establishment Secretary, found the civil servant guilty of the same and illegally awarded penalty of censure which was not sustainable in law.

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

‑‑‑‑S.4‑‑‑Exoneration from charge‑‑‑Proof‑‑‑Penalty of censure was awarded by Competent Authority and the same was maintained by Service ‑Tribunal‑Plea raised by civil servant was that the charge on the basis of which the penalty was imposed had already been dropped‑‑‑Civil servant, in proof o1 the plea raised referred to issuance of release certificate in case of his selection for job under UNEP‑‑‑Validity‑‑‑Mere issuance of release certificate in case of selection of civil servant or his nomination to participate in the course would not be sufficient to infer that the civil servant had been exonerated‑‑‑Exoneration from a charge could not be inferred by implication in disciplinary matter against civil servants under the relevant Efficiency and Discipline Rules‑‑‑Exoneration from such charge warranted a clear order of Competent Authority‑‑‑Findings of Competent Authority or those of the Tribunal did not suffer from any legal infirmity‑‑‑Supreme Court declined to interfere with the orders passed by the Authority or the Tribunal.

Appellant in person.

Salahuddin Khan, Deputy Attorney‑General for Respondents.

Date of hearing: 15th May, 2001.

2002 P L C (C.S.) 128

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

WAPDA through Chairman

versus

ZULFIQAR ALI

Civil Petition No. 947 of 2001, decided on 7th June, 2001.

(On appeal from the judgment dated 30‑1‑2001 passed by Federal Service Tribunal, Islamabad in Appeal No. 1062(R) of 1999).

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

‑‑‑‑S. 17(1‑A)‑‑‑Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979‑‑‑Premature retirement ‑‑‑Maxim‑‑­Principles of natural justice‑‑‑Applicability‑‑‑Right of hearing has not been conferred on an employee who is retired prematurely under the provisions of S.17(1‑A) of Pakistan Water and Power Development Authority Act, 1958‑‑­Effect‑‑‑Such retirement always carries with it repercussions of detrimental nature namely that either the retired person was inefficient or there were allegations of misconduct etc., which persuaded his employer to retire him from service even before completing the minimum period of qualifying service prescribed under the rules for retirement of a person‑‑‑Employee who is being retired prematurely is being deprived to serve the Department till the completion of qualifying service for retirement, therefore, having attained a vested right to serve in the Department either till the completion of qualifying service for retirement or reaching the age of superannuation he was eligible to remain in service‑‑‑Right of hearing though has not been incorporated in S.17(1‑A) of Pakistan Water and Power Development Authority Act, 1958, but same being a principle of natural justice enshrined in Maxim: "Audi alteram partem" is to be read in every statute as one of its integral part notwithstanding the fact that whether such right has expressly been conferred upon an individual or not.

(b) Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979‑‑‑

‑‑‑‑R. 3‑‑‑Pakistan Water and Power Development Authority Act (XXXI of 1958), S.17(1‑A)‑‑‑Premature retirement‑‑‑Failure to provide opportunity of hearing to employee‑‑‑Validity‑‑‑Where premature retirement is ordered, right of employee to continue in service in terms of R.3(b) & (c) of Pakistan Water and Power Development Authority Employees (Retirement) Rules, 1979, is curtailed‑‑‑Where an employee is deprived from a vested right he is entitled for a right of hearing before passing order of premature retirement by the Authorities under S.17(1‑A) of Pakistan Water and Power Development Authority Act, 1958.

Pakistan and others v. Public‑at‑Large and others PLD 1987 SC 304 ref.

(c) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑‑

‑‑‑‑S.17(1‑A)‑‑‑Premature retirement‑‑‑Providing opportunity of hearing‑‑­Scope‑‑‑Authority enjoys a right to retire any person employed for its service without assigning any reason‑‑Where the record spelled out that such action was being taken against the employee in exercise of jurisdiction in a colourful manner with mala fide intention it became necessary to extend right of hearing to an affected employee.

Shah Imroze's case 1986 SCMR 840; Sheikh Abdul Waheed and 2 others v. WAPDA PLD 1988 SC 35; WAPDA v. Sheikh Zulfiqar Ali PLD 1988 SC 693 and Aijaz Nabi Abbasi v. Water and Power Development Authority and another 1992 SCMR‑774 ref.

(d) Pakistan Water and Power Development Authority Act (XXXI of 1958)‑‑

‑‑‑‑S. 17(1‑A)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Premature retirement‑‑‑Employee was condemned unheard‑‑‑Allegation of mala fides and bias‑‑‑Employee was prematurely retired from service by Authority under the provisions of S.17(1‑A) of Pakistan Water and Power Development Authority Act, 1958‑‑‑Appeal before Service Tribunal was allowed and the civil servant was reinstated in service ‑‑‑Validity‑‑­Contention of the Authority was that under the provisions of S.17(1‑A) of Pakistan Water and Power Development Authority Act, 1958, there was no need of providing opportunity of hearing to the civil servant‑‑‑Where there was allegation of mala fides and bias and such allegations were not rebutted the Service Tribunal in exercise of ‑jurisdiction under S.4 of Service Tribunals Act, 1973, was competent to look into the actual controversy between the parties and in view of such allegations interference of Service Tribunal was justified‑‑‑Supreme Court declined to interfere with the order passed by Service Tribunal‑‑‑Leave to appeal was refused.

WAPDA v. Sikandar Ali Abro 1998 SCMR 137 and Pakistan International Airlines (PIAC) through its Chairman v. Nasir Jamal Malik and others 2001 SCMR 934 = 2001 PLC (C.S.) 890 ref.

Sh. Zamir Hussain, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Petitioner.

Sh. Riazul Haque. Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 7th June, 2001.

2002 P L C (C.S.) 160

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

BABER GUL and another

versus

SOHAIL AHMAD SHEIKH and others

Civil Petition No: 2610 of 2001, decided on 19th October, 2001.

(On appeal from the judgment dated 9‑8‑2001 passed by the Balochistan Service Tribunal, Quetta, in S.A. No. 17/1998).

(a) Balochistan Service Tribunals Act (V of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Tribunal‑‑‑Limitation‑‑‑Delay condoned by Service Tribunal‑‑‑Validity‑‑‑Sufficiency of cause for condonation of delay being a question of fact was within the exclusive jurisdiction of Service Tribunal‑‑­Discretion in condoning the delay once exercised by Service Tribunal could neither be interfered with nor disturbed by Supreme Court subject to certain exceptions.

Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Services Tribunal, Islamabad 1976 SCMR 262; Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar 1976 SCMR 268; WAPDA v. Abdul Rashid Dar 1990 SCMR 1513; Sher Bahadur v. Government of N.‑W.F.P. 1990 SCMR 1519 and Zahida v. Deputy Director 1990 SCMR 1504 ref.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑­Appeal to Supreme Court would be competent, when case involved a substantial question of law of public importance‑‑‑Service Tribunal had, dilated upon all controversial questions in a comprehensive manner after having scrutinized entire record and relevant laws‑‑‑Service Tribunal had exercised its discretion judiciously, which was neither arbitrary nor capricious‑‑‑Conclusion drawn by Service Tribunal was in accordance with law and settled norms of justice‑‑‑Judgment of Service Tribunal was no suffering from any ambiguity or illegality warranting interference by Supreme Court‑‑‑Petition for leave to appeal was dismissed being devoid o merits.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑Petition for leave to appeal to Supreme Court from order of Service Tribunal is competent where the case involves a substantial question of law of public importance and in absence whereof, leave to appeal may not be granted.

1986 SCMR 1; 1982 SCMR 897; 1981 SCMR 715; PLD 1980 SC 22; 1980 SCMR 722; 1980 SCMR 148; 1976 SCMR 268; 1976 SCMR 262; 1976 SCMR 311; 1990 SCMR 1446; 1990 SCMR 560; 1989 SCMR 330; 1989 SCMR 1677; 1989 SCMR 748; 1980 SCMR 876 and 1987 SCMR 1354 ref.

Ibadur Rehman Lodhi, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Petitioners.

Respondent No.5 in person.

Date of hearing: 19th October, 2001.

2002 P L C (C.S.) 168

[Supreme Court of Pakistan]

Before Nazim Hussain Siddiqui and Javed Iqbal, JJ

AUDITOR‑GENERAL OF PAKISTAN and another

versus

IKRAMULLAH KHAN

Civil Petition N,o.2182 of 2001, decided on 12th October, 2001.

(On appeal from the judgment dated 25‑4‑2001/28‑4‑2001 of Federal Service Tribunal, Islamabad, passed in Appeal No.243(P) C.S. of 2000).

Government Servants (Efficiency and Discipline) Rules, 1973‑‑‑

‑‑‑‑R.4(a)(ii) & (b)(ii)‑‑‑Federal Treasury Rules, Vol. 1, R.546‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Compulsory retirement‑‑‑Civil Servant was compulsorily retired from service on charge of inefficiency as .he being Divisional Accounts Officer had failed to detect and point out irregularity in issuance and drawing of cheques without approval of Cheque Drawing Authority‑‑‑Service Tribunal partially allowed appeal by reinstating civil servant modifying the penalty to the extent of withholding his promotion for 3 years ‑‑‑Validity‑‑­Findings of Inquiry. Officer, showed that several functionaries had failed to discharge their duties efficiently, whereas major responsibility devolved upon District Accounts Officer and his staff, but except the civil servant, no disciplinary action had been taken against any other incumbent‑‑‑During tenure of civil servant's service, it was the first charge of inefficiency, for which he was not primarily responsible‑‑‑Punishment should always be commensurate to the guilt proved‑‑‑Case was not that of fraud, forgery or embezzlement, but on the contrary, it was that of inefficiency and that too of lower category emanating from the instinctive possibility of human error and definitely not prompted by any motive‑‑‑Penalty imposed upon civil servant was definitely excessive, which had rightly been modified by Tribunal‑‑­Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

M. Yawar Ali, Deputy Attorney‑General and Ch. Akhtar Ali. Advocate‑on‑Record for Petitioners.

Muhammad Asghar Khan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent.

Date of hearing: 12th October, 2001

2002 P L C (C. S.) 182

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Javed Iqbal, JJ

PUNJAB SMALL INDUSTRIES CORPORATION

versus

AHMAD AKHTAR CHEEMA

Civil Appeal No. 1220 of 1997, decided on 16th October, 2001.

(On appeal from the judgment dated 22‑4‑1997 passed by Lahore High Court, Lahore, in Writ Petition No. 19573 of 1996).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope ‑Decision of Constitutional petition without its admission for regular hearing was, to be in haste without affording proper opportunity of hearing to the respondent.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of High Court‑‑‑Scope‑‑­Complicated/disputed questions of fact‑‑‑Superior Courts should not undertake to investigate disputed questions of fact necessitating taking of evidence, which can more 'appropriately be done in a suit‑‑­Constitutional, jurisdiction is intended primarily for providing an expeditious remedy, where illegality of action of executive or other authority can be established without elaborate inquire, into the complicated or disputed fact.

1971 SCMR 110: 1970 SCMR 853; PLD 1964 SC 636; PLD 1983 SC.280; Arshad & Company v. Capital Development Authority 2000 SCMR 1557 and Mian Muhammad v. Government of West Pakistan 1968 SCMR 1935 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction‑‑‑Scope‑‑‑Constitutional jurisdiction of High Court would be declined, where petitioner had not exhausted all remedies available to him‑‑‑Where law provides a remedy by appeal or revision to another Tribunal fully competent to give any relief, any indulgence to the contrary by High Court is bound to produce a sense of distrust in statutory Tribunals.

1989 CLC 1938; P1LD 1989 Kar. 157; PLD 1990 Quetta 41; 1987 CLC 1229; PLD 1988 Pesh. 9; PLD 1967 Dacca 6; PLD 1967 Dacca 708 and Zafar‑ul‑Ahsan v Republic of Pakistan PLD 1960 SC 113 ref.

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

‑‑‑‑Rr.10, & 4(1)(b)(ii)‑‑‑Constitution of Pakistan (1973), Art.199‑‑­Constitutional petition‑‑‑Civil service‑‑‑Non‑filing of departmental appeal‑‑­Effect‑‑‑Without filing departmental appeal, civil servant challenged penalty of his retirement from service through Constitutional petition, which was accepted by High Court without deciding the objection raised with regard to its maintainability‑‑‑Validity‑‑‑Constitutional jurisdiction could not be invoked without availing remedy available under the statute‑‑‑Civil servant had violated prescribed procedure by not filing departmental appeal‑‑‑High Court had ignored such objection without any lawful justification resulting in serious miscarriage of justice‑‑‑Impugned judgment was set aside by Supreme Court in circumstances.

(e) Mala fides‑‑

‑‑‑‑Allegation of mala fides can be asserted easily, but difficult to prove.

M.N. Beg, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑on‑Record (absent) for Appellant.

Ahmad Awais, Advocate Supreme Court and Ch. Talib Hussain, Advocate‑on‑Record (absent) for Respondent.

Date of hearing: 16th October, 2001.

2002 P L C (C.S.) 199

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

HAJI KHAN LASHARI and others

versus

GOVERNMENT OF PAKISTAN and others

Civil Petitions Nos. 575 to 685 and 697 to 701‑K of 2000, decided on 26th December, 2000.

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Payment of ad hoc salary‑‑‑Service Tribunal admitted appeal of civil servants for regular hearing, but declined them interim relief‑‑‑Civil servants filed petitions before Supreme Court against said order claiming that similar interim relief with regard to payment of ad hoc salary had been granted by it to another civil servant while disposing of his petition with consent of parties ‑‑‑Held that was a consent order, and since Authority was not willing to consent in the present proceedings, the relief given to another civil servant could not be given to petitioners‑‑‑Court further observed that petitioners were entitled to receive their final dues lying with the Authority on completion of legal formalities‑‑‑Supreme Court directed Service Tribunal to dispose of the appeals of civil, servants on the date fixed or on subsequent date not later than three weeks thereafter‑‑‑Petitions for leave to appeal were disposed of accordingly.

Petitioners in person.

A.A. Siddiqui, Advocate‑on‑Record and Shah Nawaz, Incharge Law, Pakistan Steel Mills for Respondents.

Date of hearing: 26th December, 2000.

2002 P L C (C.S.) 203

[Supreme Court of Pakistan]

Before Rana Bhagwandas and Javed Iqbal, JJ

Dr. REHMAT IBAD KHAN---Petitioner

versus

EMPLOYEES' OLD-AGE BENEFITS INSTITUTION (EOBI) through its Chairman and 3 others---Respondents

Civil Petition for Leave to Appeal No. 128-K of 2000, decided on 24th July, 2000.

(On appeal from the order, dated 10-12-1999 of the High Court of Sindh, Karachi, passed in Constitutional Petition No.D-1593 of 1999).

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

----Ss. 4 & 2-A---Constitution of Pakistan (1973), Arts.212, 185(3) & 199---Constitutional petition---Seniority---Civil servant impugned order of Authority through Constitutional petition before High Court, which directed him to approach Service Tribunal as dispute related .to enforcement. of terms and conditions of his service observing that the Service Tribunal will consider the question of delay and benefits of S.14 of the Limitation Act sympathetically---Validity---Supreme Court upheld the view of High Court that all related questions could only be gone into by Service Tribunal by virtue of Art.212 of the Constitution---Leave to appeal was refused with observations that civil servant might seek his remedy before Service Tribunal, if so advised.

Aish Muhammad v. Pakistan 1985 SCMR 774; Aqeela Asghar Ali v. Khalida Khatoon PLD 1991 SC 1118; Muhammad Karim v. Director, Health Services 1987 SCMR 295 and Agricultural Development Bank of Pakistan v. Imtiaz Ahmed Gill 1999 SCMR 650 rel.

Petitioner in person.

Akhlaq Ahmad Siddiqui, Advocate-on-Record for Respondent.

M. Sarwar Khan, Addl.A.-G.

Sh. Barkatullah, Chairman, EOBI (on Court's Notice).

Date of hearing: 24th July, 2000.

2002 P L C (C.S.) 211

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

AHMAD NAWAZ SHAH, SENIOR INTELLIGENCE OFFICER, DIRECTOR GENERAL, INTELLIGENCE AND INVESTIGATION (CUSTOMS AND EXCISE), ISLAMABAD‑‑‑Appellant

versus

THE CHAIRMAN, CENTRAL BOARD OF REVENUE Islamabad and 10 others‑‑‑Respondents

Civil Appeal No.972 of 1996, decided on 4th June, 2001.

(On appeal from, the judgment of the Federal Service Tribunal, Islamabad dated 24‑7‑1995 passed in Appeal No.207(R) of 1995).

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑

‑‑‑‑R.3(2)‑‑‑S.R.O. No.249(1)/79, dated 15‑3‑1979‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the civil servant was entitled to ante‑dated promotion from the date he was recommended and became eligible for the appointment as Deputy Superintendent I in the light of S.R.O. No.249(1)/79, dated 15‑3‑1979 and promotion of other persons in pursuance of subsequent instructions issued by the Central Board of Revenue, were wholly without jurisdiction as the same could not amend the S,R.O. No.249(1)/79, dated 15‑3‑1979.

(b) Rules of Business, 1973‑‑‑

‑‑‑‑R.11(d)(e)&(i)‑‑‑Amendment in Rules‑‑‑Failure to consult with Establishment Division‑‑‑Effect‑‑‑Mandatory provision of consultation with the Establishment Division was not complied with for the issuance of telexes/letters whereby amendment in the Rules was made‑‑‑Such documents, having been issued without consultation of the Establishment Division, were of no legal effect.

(c) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑‑‑

‑‑‑‑R.3(2)‑‑‑Amendment .in Rules‑‑‑Failure to‑ consult with Establishment Division‑‑‑Effect‑‑‑Rule 3(2) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, envisages concurrence and in absence of such consultation with the Establishment Division no amendment in the Rules can be made.

(d) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973‑

‑‑‑‑R.3(2)‑‑‑Notification S R.O. No.249(1)/79, dated 5‑3‑1979 ‑‑‑ S.R.O. No.409(1)/86, dated 23‑4‑1986‑‑‑Amendment in Rules‑‑‑Failure to consult with Establishment Division‑‑‑Effect‑‑‑Notification S.R.O. No.249(1)/79, dated 15‑3‑1979 as amended by S.R.O. 409(1)/86, dated 23‑4‑1986 provided that against 5 % quota for ministerial staff, Stenotypists, Office Superintendents and Head Clerks with 5 years' continuous service, were eligible for promotion and that the incumbents of the eligible senior posts were not available‑‑‑Civil servant was Office Superintendent (B‑13) and Departmental Promotion Committee on the basis of seniority‑cum‑fitness placed him at Serial No.5 on the list of selectees for the post of Deputy Superintendent (B‑14)‑‑‑Incumbents of the junior posts were promoted in preference to the incumbents of the senior posts and provisions of the Notifications were not adhered to‑‑‑Civil servant was denied promotion by the Authorities and Service Tribunal dismissed the appeal filed by the civil servant for the reason that the rules were amended by telex and letters issued by Central Board of Revenue‑‑‑Contention of the civil servant was that the amendment in the Rules was .made without, consultation with the Establishment Division and the same had no legal effect ‑‑‑Validity‑‑­Although 20% posts of Stenotypists were granted selection grade in the year 1988 but the determining factor for inter se seniority of the ministerial staff was their regular appointment to a respective post‑‑‑Post of Office Superintendent (B‑13) was senior to that of the Stenotypist (B‑12) and Head Clerk (B‑10), therefore, the civil servant had a prior right to be promoted first in preference to the incumbents holding junior post‑‑‑Telex and letters amending the Rules for promotion were without any lawful authority and of no legal effect, thus order passed by Service Tribunal was set aside‑‑­Supreme Court directed the Authorities to promote the civil servant against first vacancy which would become available after promotion of first four recommendees, as the civil servant, was senior and was recommended earlier by the Departmental Promotion Committee‑‑‑Appeal was allowed.

Prof. Dr. Badshah Gul and others v. Prof. Dr. Shafiq Ahmad and others 1995 SCMR 1859 ref.

(e) Words and phrases‑‑‑

‑‑‑ ‑"Post and grade" ‑‑‑Meaning elaborated.

Shah Abdul Rashid, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents Nos. 1 to 4.

Dates of hearing: 30th May and 4th June, 2001

2002 P L C (C.S.) 225

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Munir A. Sheikh and Rana Bhagwandas, JJ

ABDUL GHAFOOR, SUPERVISOR/INSPECTOR, N,H.A.

versus

NATIONAL HIGHWAY AUTHORITY and 12 others

Civil Appeal No. 1464 of 1997, decided on 22nd October, 2001.

(On appeal from judgment of Federal Service Tribunal, dated 11‑7‑1996 passed in Service Appeal No. 138(R) of 1996).

(a) National Highway Authority (Appointment and Promotion) Rules, 1995‑‑‑

‑‑‑‑R.20(2)‑‑‑Seniority‑‑‑Service of work‑charge employees, after their induction in regular service, would be counted towards qualifying service only for consideration of promotion, pay and pension, but not for purposes of seniority.

(b) National Highway Authority (Appointment and Promotion) Rules, 1995‑--

‑‑‑‑Rr. 8, 9, 10, 11 & Third Sched‑‑‑Eligibility for promotion‑-‑Respondent though not possessing prescribed qualification, was promoted as Assistant Director (BS‑17) on work‑charge basis by Departmental Selection Committee, whereas appellant possessing such qualification was not even considered for such promotion‑‑‑Appellant's appeals against his supersession filed before Department and Service Tribunal were dismissed‑‑‑Validity‑‑‑Prescribed qualification for eligibility to such promotion was Diploma in Civil Engineering from a recognised Institute with 10 years' service experience‑‑‑Departmental Selection Committee was vested with discretion and Authority might be competent to promote an employee on acting charge basis by relaxing the prescribed length of service, but there was no such discretion with the Authority to dispense with or relax the prescribed academic qualifications‑‑‑Respondent did not possess such qualifications, whereas appellant was eligible for consideration for promotion‑‑‑Supreme Court accepted the appeal and declared the promotion of respondent as illegal and directed the Authority to process the promotion cases of Diploma‑Holders against available vacancies on an early date.

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

‑‑‑‑S. 4(l)(b)‑‑‑Promotion‑‑‑Appeal‑‑‑Maintainability‑‑‑Appeal to Service Tribunal would not be competent against an order of departmental Authority determining fitness of a civil servant to be promoted to a higher post or grade or to be appointed to or hold a particular post‑‑‑Where, however, a civil servant although eligible for consideration for promotion was ignored and other ineligible were promoted, then his appeal to Service Tribunal asking for enforcement of his such legal right would be competent.

Civil Appeals Nos. 1237 to 1253, 1255 to 1257, 1333 and 1338 of 1999; Abdul Malik v. Sabir Zameer Siddiqui 1991 SCMR 1129; Muhammad Anis v Abdul Haseeb PLD 1994 SC 539; Z.A. Javed Raja, Administrative Officer v. Secretary, Establishment Division 1996 SCMR 329 and Government of N.‑W.F.P., Health and Social Welfare Department. v. Muzaffar Iqbal 1990 SCMR 1321 ref.

(d) Civil Services--

----Promotion on acting charge basis‑‑‑Authority may be competent to promote a civil servant on acting charge basis by relaxing the prescribed length of service, but no such discretion vests in the Authority to dispense with or relax the prescribed academic qualifications.

Habibul Wahab Al‑Khairi, Advocate Supreme Court and Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellant.

K.M.A. Samdani, Advocate Supreme Court and Mehr Khan, Advocate‑on‑Record for Respondent No. 1.

Respondents Nos.2 to 13: Ex parte.

Respondent No. 13 (present in person).

Date of hearing: 22nd October, 2001.

2002 P L C (C.S.) 231

[Supreme Court of Pakistan]

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

SIBTE AKHTAR

versus

PAKISAN 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 refuse.

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.

2002 P L C (C.S.) 233

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

SHABBIR AHMAD

versus

GOVERNMENT OF SINDH through Chief Secretary and another

Civil Petition No.318‑K of 2000, decided on 16th February, 2001

(On appeal from the judgment dated 30‑3‑2000 passed in Constitutional Petition No.D‑2311/1997 of the High Court of Sindh, Karachi).

(a) Sindh Public Service Commission Act (XI of 1989)

‑‑‑‑Ss. 4 & 6‑‑‑Chairman or Member of the Commission, removal of ­Person once appointed as Member or Chairman of the Commission could not be removed except in accordance with the provisions of S.6 of Sindh Public Service Commission Act, 1989.

(b) Sindh Public Service Commission Act (XI of 1989)‑‑‑

‑‑‑‑Ss. 4, 6 & 5‑A [as amended by Sindh Public Service Commission (Amendment) Ordinance (I of 1998)]‑‑‑General Clauses Act (X of 1897), S.24‑‑A‑‑‑C010aiution of Pakistan(1973), Art. 185(3)‑‑‑Notification No.SO II CS & GAD)/11‑32‑1997 dated 15‑12‑1997‑‑‑Removal of Member of Public Service Commission ‑‑‑Petitioner was appointed as Member of the Commission for a period of three years and joined his service‑‑‑Petitioner by virtue of subsequent notice was removed from service under S.6 of Sindh Public Service Commission Act, 1989‑‑‑Contention of the petitioner was that the notification of his removal from service was illegal and without lawful authority‑‑‑Validity‑‑‑Order of appointment issued by the Authorities had already taken legal effect and certain rights were created in favour of the petitioner‑‑‑Notification of withdrawal of the earlier notification of appointment of the petitioner was without lawful authority and of no legal effect ‑‑‑Since the period of tenure of the petitioner had already expired, he could not be allowed the relief of reinstatement‑‑‑Supreme Court, however, observed that the petitioner might seek any other legal remedy available to him according to law if so advised‑‑'Petition for leave to appeal was disposed of accordingly.

Hitachi Limited v. Rupali Polyester and others 1998 SCMR 60; 1998 SCMR 68; 1998 SCMR 1618; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973; Ch.Mazhar Ali Gill v. The District Magistrate, Faisalabad and others 1997 CLC 1311 and Pakistan v. Muhammad Himayatullah Farukhi PLD 1969 SC 407 ref.

Mazhar Ali B. Chohan, Advocate, Supreme Court for Petitioner.

Suleman Habibullah, Additional Advocate‑General, Sindh for Respondents.

Date of hearing: 21st December, 2000

2002 P L C (C.S.) 238

[Supreme Court of Pakistan

Present: Rashid Aziz Khan, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

COTTON EXPORT CORPORATION OF PAKISTAN 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 tiling 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.

2002 P L C (C.S.) 241

[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 Authroities 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

2002 P L C (C.S.) 243

[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(3)‑‑‑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.

2002 P L C (C.S.) 255

[Supreme Court of Pakistan]

Before Nazim Hussain Siddiqui, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

MUHAMMAD ISMAIL SOLANGI

versus

DEPUTY INSPECTOR‑GENERAL, PAKISTN RAILWAYS POLICE, HQS. OFFICE LAHORE and another

Civil Appeal No. 1831 of 1997, decided on 26th May; 2000.

(On appeal from the judgment, dated 20-2‑1997 of the Federal Service Tribunal, Karachi passed in Appeal No.79‑K of 1996).

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

‑‑‑‑S.4‑‑‑Police Rules, 1934, para. 16.24(iv)‑‑‑Dismissal from service converted into compulsory retirement‑‑‑Non‑framing of charge during departmental proceedings‑‑‑Civil servant was dismissal from service as a result of departmental inquiry‑‑‑Formal charge having been framed against the civil servant during departmental proceedings, Service Tribunal, while deciding the appeal, converted the dismissal from service into compulsory retirement‑‑‑Validity‑‑‑Charge was to be framed in writing and given to the delinquent official calling upon him to answer the same‑‑‑Under the provisions of para. 16.24(iv) of Police Rule, 1934, where the Authorities had proceeded with inquiry without framing a charge against civil servant, the entire proceedings were in violation of the Rules‑‑‑Mere fact that the civil servant belonged to a disciplined force, the same would not authorise the Authorities to violate or ignore the provisions of Rules‑‑‑Orders passed by the Authorities were set aside and the civil servant was reinstated in service‑‑‑Appeal was allowed.

Basharat Ali v. Director, Excise and Taxation 1997 PLC (C.S.) 817; Mukhtar Ali v. Deputy Director 1998 PLC (C.S.) 648 and Shamimuddin v. Superintendent of Post Office PLD 1994 SC 275 ref.

(b) Pakistan Railways Police Rules, 1980‑‑‑

‑‑‑‑R.18‑‑‑Police Rules, 1934‑‑‑Applicability‑‑ Provisions of Police Rules, 1934, are applicable in the matter of departmental punishment to the members of Pakistan Railways Police, as also in respect of terms and conditions of service.

(c) Administration of justice‑‑‑

‑‑‑‑ Laws and Rules are to be applied even‑handedly.

Abdul Mujeeb Pirzada, Advocate Supreme Court for Appellant.

Respondent No. 1:Ex parte.

A.A. Siddiqui, Advocate‑on‑Record for Respondent No.2.

Date of hearing: 26th May, 2000.

2002 P L C (C.S.) 265

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Tanvir Ahmed Khan, JJ

DIRECTOR‑GENERAL, SOIL SURVEY OF PAKISTAN

versus

MUHAMMAD YASIN

Civil Petition No. 1693‑L of 1998, decided on 18th October, 2000.

(On appeal from the order dated 17‑8‑1998 of the Federal Service Tribunal passed in Appeal No. 1064(L)/97).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Re‑employment‑‑‑Conversion of period of dismissal from service into extraordinary leave (without pay)‑‑‑Civil servant, after remaining dismissed from service for 570 days, was re‑appointed‑‑‑Break of 570 days in the service was condoned by the Service Tribunal and the same was converted into extraordinary leave (without pay)‑‑‑Termination of the civil servant was not simpliciter and the same was tainted with the allegations of misconduct‑‑‑Authorities failed to provide the civil servant opportunity of hearing to controvert the allegations‑‑‑Where the civil servant had already retired and there was no question of public importance involved, Supreme Court declined to interfere with the judgment passed by the Service Tribunal‑‑‑Leave to appeal was refused.

Muhammad Saeed Akhtar, Deputy Attorney‑General and S. Inayat Hussain, Advocate‑on‑Record (absent) for Petitioner, Muhammad Naazar Khan, Senior Advocate Supreme Court and S. Abul Asim Jafri, Advocate‑on‑Record for Respondent.

Date of hearing: 18th October, 2000.

2002 P L C (C. S.) 268

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Mian Muhammad Ajmal and Hamid Ali Mirza, JJ

GOVERNMENT OF N.‑W.F.P. and others

versus

MALIK AMAN

Civil Appeals Nos. 108, 698,699,701 to 712, 849 to 861, 951 to 967, 971 to 975 and 1012 to 1017 of 2000, decided on 11th June, 2001.

(On appeal from the judgments of the N.‑W.F.P. Service Tribunal, Peshawar dated 24‑9‑1998 passed in Appeal No.340/96, dated 26‑1‑2000 passed in Appeals Nos.348 and 349/98, dated 2‑3‑2000 passed in Appeals Nos.692 to 695 and'697 to 703 of 1998, dated 5‑1‑2000 passed in Appeal No.2740 of 1997, dated 7‑2‑2000 passed in Appeals Nos. 16, 20, 21, 42 to 51 of 1999, dated 18‑1‑2000 passed in Appeals Nos.261 to 265, 267 to 272, 274, 276 to 279 and 281 of 1999 and dated 8‑3‑2000 passed in Appeals Nos.420, 421, 425, 427, 433 and 434 of 1999).

(a) North‑West Frontier Province Civil Servants Act (XVIII of 1973)‑‑‑

‑‑S. 2(1)(e)‑‑‑Qanun‑e‑Shahadat (10 of 1984); Art.114‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Claim of civil servants to graded pay from date of initial appointment‑‑‑Service Tribunal accepted appeals of civil servants holding them entitled to get graded pay from date of their appointments and arrears of pay from date of filing of departmental appeals‑‑‑Validity‑‑‑Civil servants were appointed on fixed pay basis as they did not possess basic qualifications at that time‑‑‑Civil servants never raised any objection with regard to their fixed pay when they were employed or till the time they were awarded graded pay on acquiring requisite qualification‑‑­Having once accepted fixed pay for lack of requisite qualifications, civil servants were estopped by their conduct to claim graded pay from date of their initial appointments and they could not be allowed to contend set after a considerable long time‑‑‑Supreme Court allowed the department's appeals.

Muhammad Riasat SET (Science) and others v. The Secretary of Education, Government of N.‑W.F.P., Peshawar and 2 others 1997 SCMR 1626; Province of Sindh through the Secretary, Education Department, Karachi and 2 others v. Ghulam Rasul and 35 others 1976 SCMR 297 and N.‑W.F.P. Government through Secretary Education, Peshawar and others v. Muhammad Qavi Khan 1996 SCMR 1011 ref.

(b) North‑West Frontier Province Service Tribunals Act (I of 1974)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Limitation‑‑­Condonation of delay‑‑‑Contention was that respondents' appeals filed before Service Tribunal were liable to be dismissed being hopelessly time‑barred‑‑­Supreme Court condoned the delay, which was in some cases more than ten years, in the interest of justice and in view of the similarity of point involved in other cases.

Imtiaz Ali, Addl. A.‑G., N.‑W.F.P. for Appellants (in C.As. Nos. 108, 698, 699 and 701 to 712, 849 to 861, 951 to 967 and 1012 to 1017 of 2000).

Jan Muhammad Khan, Advocate‑on‑Record for Appellants (in C.As. Nos.971 to 975 of 2000).

Jan Muhammad, Advocate‑on‑Record for Respondents (in C.As. Nos. 701 to 711 of 2000).

Fateh Muhammad Khan, Advocate‑on‑Record for Respondents (in C.As. Nos. 108, 698 and 699 of 2000).

Khushdil Khan, Advocate Supreme Court for Respondents (in C.As. Nos.849 to 861 of 2000).

Muhammad Asif, Advocate Supreme Court for Respondents (in C.As. Nos. 951 to 967 of 2000).

Imtiaz Ali, Addl. A.‑G., N.‑W.F.P. for Respondents (in C.As. Nos. 971 to 975 of 2000).

Muhammad Asif, Advocate Supreme Court for Respondents (in C.As. Nos.. 1012 to 1017 of 2000).

Respondent in‑person (in C.A. No.712 of 2000).

Date of hearing: 11th June, 2001.

2002 P L C (C.S.) 306

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C. J., Munir A. Sheikh and Rana Bhagwandas, JJ

MUHAMMAD RIAZ

versus

SECRETARY MINISTRY OF KASHMIR AFFAIRS AND NORTHERN AREAS, GOVERNMENT OF PAKISTAN and others

Civil Appeal No. 48 of 2001, decided on 11th October, 2001.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 9‑12‑2000 passed in Appeal No: 770(R)CS/2000).

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

‑‑‑‑S. 2(1)(b)‑‑‑Employees of Northern Areas‑‑‑Such employees not covered under the definition of "civil servant" as given under S.2(1)(b) of the Civil Servants Act, 1973‑‑‑Merely because the residents of Northern Areas according to the judgment passed by Supreme Court in the case of Al‑Jehad Trust reported as 1999 SCMR 1379, had been given the rights at par with the, citizens of Pakistan to invoke the judicial forums for enforcement of their right, would not by itself constitute employees of the Northern Areas as "civil servants" within the meaning of the expression as defined in Civil Servants Act, 1973.

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

‑‑‑‑S. 2(1)(b)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Employees of Northern Areas‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Remedy for employees of Northern Areas‑‑‑Appellant was employee of. Northern Areas and he being dissatisfied with the seniority assailed the order before Service Tribunal‑‑Appeal before Service Tribunal was dismissed on the ground that the appellant was not a "civil servant", therefore, jurisdiction of Service Tribunal could not be invoked‑‑‑Validity‑‑‑Civic rights of citizens in general ordered to be governed by laws and creation of judicial forums for enforcing the same was altogether different matter and did not have nexus with the status of any person employed in the service of Northern Areas for the purposes of jurisdiction of Federal Service Tribunal‑‑‑Civil servant as defined in S.2(l)(b), Civil Servants Act, 1973 could invoke jurisdiction of Service Tribunal under the provisions of S.4 of the Service Tribunals Act, 1973 in respect of terms and conditions of his service against the original or appellate order of the Departmental Authority‑‑‑Departmental Authority of the appellant as employee of the Northern Areas Administration was not the "Federal Government" as he was not employed by it (Federal Government), as such‑‑‑Employee of administration of Northern Areas was not a "civil servant" of the Federal Government, his terms and conditions were governed by the rules and regulations of the Northern Areas‑‑‑Supreme Court recommended that till such time any such forum was created like the. Service Tribunal, the servant of Northern Areas as the appellant was, might invoke jurisdiction of the Courts, of the general jurisdiction established for deciding civil disputes‑‑‑Area where no Service Tribunal was created, jurisdiction of the Civil Courts was not barred under Art. 212 of the Constitution.

AI‑Jehad Trust through Habibul Wahab Al‑Khairi, Advocate and 9 others v. Federation of Pakistan through Secretary, Ministry of Kashmir Affairs, Islamabad and 3 others 1999 SCMR 1379 ref.

Sh. Riazul Haque, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Appellant.

Yawar Ali Khan, D.A.‑G. for Ijaz M. Khan, Advocate‑on‑Record for Respondents.

Respondents Nos.2 and 4 to 16: Ex parte.

Date of hearing: 11th October, 2001.

2002 P L C (C.S.) 310

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

GHULAM ABBAS and 11 others

versus

SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS, GOVERNMENT OF PAKISTAN, ISLAMABAD and others

Civil Appeals Nos. 127‑K to 138‑K of 1999, decided on 31st July, 2000.

(On appeal from the judgment dated 27‑4‑1998 of the Federal Service Tribunal, passed in Appeals Nos. 2661 to 2672(K) of 1997).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑­Permanent workman‑‑‑Status‑‑‑Failure to treat workers as permanent employees‑‑Employees of Pakistan Railways, were terminated orally on the ground that they were not workers/workmen‑‑‑Contention of the employees was that they had worked for Pakistan Railways for various periods ranging up to ten years or more on record but they were treated as temporary workers and to avoid the employees acquiring status of permanent workman, break was created in their employment‑‑‑Documents relied upon by the employees were denied by the Authorities and alleged the same as unauthentic and forged‑‑‑Validity‑‑‑To resolve the factual controversy, judgment passed by Service Tribunal was set aside and the matter was remanded for fresh decision on merits after taking into consideration relevant evidence 4dduced by pies.

Miss Wajahat Niaz, Advocate‑on‑Record for Appellants.

Shaikh Anwar‑ul‑Haq, Advocate Supreme Court and A.A. Siddiqui, Advocate‑on‑Record for Respondents.

Respondents Nos. l and 3 to 6: Ex parte.

Date of hearing: 31st July, 2000.

2002 P L C (C.S.) 312

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

GOVERNMENT OF SINDH and 2 others

versus

LIAQAT ALI and another

Civil Petitions Nos.531‑K and 532‑K of 2000, decided on 19th December, 2000.

(On appeal from the judgment dated 27‑6‑2000 passed by Sindh Service Tribunal, Karachi in Appeals Nos. 102 and 103/99).

Sindh Civil Service Tribunals (Procedure) Rules, 1974‑‑‑

‑‑‑‑R. 23(c)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal‑‑‑Dismissal from service‑‑‑Civil servant contended that according to R.23 of Sindh Service Tribunals (Procedure) Rules, 1974, their appeals had to be heard by Full Bench of the Service Tribunal consisting of three members, whereas their appeals were heard and decided by a Single Member without any general or special order of the Chairman to that effect‑‑‑Supreme Court converted the petitions into appeals and accepted the same, and remanded the matters to Service Tribunal for deciding appeals afresh according to law.

Suleman Habibullah, A.A.‑G. and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

2002 P L C (C.S.) 526

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif, Qazi Muhammad Farooq, and Mian Muhammad Ajmal, JJ.

Dr. ANWAR ALI SAHTO and others

versus

FEDERATION OF PAKISTAN and others

Civil Appeals Nos. 366 to 378, 613 to 637, 648 to 655, 985, 986, 1113 to 1124 and Civil Petitions Nos.745 to 760, 1263 to 1341, 1877 to 1921, 1926, 1934 to 2067 of 2001, Civil Appeal No. 120 of 1999 and Civil Petitions Nos. 1381, 1459, 2112 and 1515 of 2001.

(On appeal from judgment dated 17‑2‑1999, 27‑5‑2000, 6‑6‑2000, 16‑11‑2000, 17‑4‑2000, 19‑4‑2000, 29‑5‑2000, 3‑6‑2000, 24‑5‑2000, 27‑4‑2000 and 13‑4‑2001 passed by the Federal Service Tribunal, Islamabad and Camp at Karachi in Appeals Nos.161(R)/1998, 573(k)/99 to 575(k)/99, 578(k)/99, 618(k)/99, 765(k)/99, 1266(k)/99, 577(k)/99, 526(k)/99, 1160(k)/99, 1159(k)/99, 1168(k)/99, 1169(k)/99, 1171(k)/99, 1166(k)/99, 1239(k)/99, 1238(k)/99, 1162(k)/99, 550(k)/99, 641(k)/99, 1161(k)/99, 1174(K)/99, 1176(k)/99, 1172(k)99, 711(k)/99, 69(k)/98, 2464(k), 2465(k) to 2474(k)/97 and judgment dated 25‑5‑2000, 1‑6‑2000, in Appeals Nos.1067(K) to 1073(k)/99 and 1209(k)/99 and judgment dated 23‑9‑2000 in Appeals Nos.2178(R)/99, 2166(R)/99 and judgment dated 29‑1‑2001 in Appeals Nos.2325(R). to 2336(R)/99, 70(R)/2000, 71(R)/2000, and judgment dated 23‑1‑2001 in Appeals Nos.229(K)/99, 231(k) to 234(k)/99, 236(k), 237(k). 241(k), 246(k). 247(k), 251(k), 254(k), 255(k), 257(k) 245(k)/99 and judgment dated 21‑3‑2001 in Appeals Nos. 553(R) (CE) to 631(R) (CF)/2000 and judgment dated 12‑5‑2000 in Appeals Nos.855(R)/99, 2267(R) to 2286(R)/99, 2390(R)/99, 2291 to 2298(R)/99, 2301(R) to 231R(R)/99, 2377(R)/99, 771(R)/99, 791, 766, 827, 794, 861, 818, 765, 2388, 2300, 1214, 1255, 634, 1193, 1211, 1203, 1213, 1201, 1241, 1209, 835, 770, 811, 793, 798, 831, 819, 796, 809, 862, 856, 768, 821, 824, 2331, 1207, 814, 2290, 789, 763, 2287, 806, 1256, 820, 815, 2278, 817, 1115, 1118, 1111, 1218, 1210, 1248, 1198, 1217, 1240, 1244, 1202, 834, 2333, 1250,.1212, 2097, 2313, 1252, 1267, 1190, 1216, 1205, 1194, 1249, 633, 1116, 773, 2305, 859, 2332, 1208, 1243, 637, 1200, 1196, 1195, 1239, 783, 790, 822, 839, 1215, 636, 1191, 1114, 1117, 1120, 1112, 1119, 1192, 1189, 1113, 635, 632, 1242, 1246, 1204, 1259, 1260, 1258, 1247, 1251, 2334, 1257, 1262, 842, 803, 875, 833, 854. 2299, 828, 1245, 1188, 1266, 1199, 1197, 1206, 2289, 804, 808, 790, 826, 853, 816, 777(R)/99 and judgment dated 28‑7‑1998 in Appeals Nos. 190(K)/98 and judgment dated 23‑9‑2000 in Appeals Nos.2308(R)/99, 2240(R)/99, 2237(k)/99 and 798(k)/99).

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

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Contract employees of. a Corporation‑‑‑Termination of services of such employees‑‑‑Neither the' contract was terminated nor the same was renewed on expiry of stipulated period of six months‑‑‑Services ‑of employees were however, terminated when all of them .had, more or less, served the employer‑Company for 1‑1/2 to 2‑1/2 years on the ground that their services were on contract basis‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether services of the employees had been rightly terminated by the employer‑Company in view of the fact that they had accepted their appointments on contract basis for a period of six months; that whether the employees had attained status of confirmed employees after completion of initial period of six months because after this period the contract of their service was not terminated and no letter of fresh contract was issued by the employer, if so, to what effect; that whether for non‑termination of services of the employees exactly after the expiry of initial period of six months their services were to be governed by the Company's Service Rules; that what would be the effect of judgments of Supreme Court in cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleern Mustafa Shaikh PLD 2001 SC 176, Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82, Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555.

Managing Director; Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 ref.

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

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Civil service‑‑­Contract employees of a Corporation‑‑‑Termination of services of such employees‑‑‑Neither the contract was terminated nor the same' was renewed on expiry of stipulated period of six months‑‑‑Services of employees were however, terminated when all of them had, more or less, served the employer‑Company for 1‑1/2 to 2‑1/2 years on the ground that their services were on contract basis‑‑‑Validity‑‑‑Contractual appointments of employees were not transformed into regular appointments through any formal order/s‑‑‑Contract assignment could not become permanent by efflux of time‑‑‑Continuation of the contract of employment was the result of the continuation of the project beyond the period of six months for which the employees were initially inducted into service‑‑‑Period of six months being the mainstay of the contracts in question, could not be equated with "probationary period" by any stretch of imagination‑‑‑"Contract period" and "probationary period" have distinct connotation altogether‑‑‑Employees having been :appointed on contract basis for a specific project and their services having been terminated on the completion of the projects in question, they could be dealt with by terminating their contracts of service within the contemplation of their respective appointment letters‑‑‑Contract period of the employees having not been extended, Service Rules of the, employer-­Company would not take over the matter and the contract appointments continued to hold the field throughout.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR. 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.

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

‑‑‑‑S. 2‑A‑‑‑Contract employees of a Corporation/Company‑‑­Termination of services of such employees‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Principles‑‑‑Where the grievance of such employees flows from ‑a contract of service not governed by any statutory rules or departmental rules having the force of law, the jurisdiction of Service Tribunal is confined' to examination of the grievance of the dismissed/terminated employee on the touchstone of the terms and conditions of the contract of service/letter of appointment‑‑‑If the letter of appointment envisages termination of employee on one month's notice, Service Tribunal has no jurisdiction to alter the terms and conditions mutually agreed upon between the employer and the ‑employee while exercising its jurisdiction in terms of S.2‑A of Service Tribunals Act, 1973 which has been intended to provide a forum even to those employees of a Corporation/Statutory Body etc. who are recruited on contract basis and in appropriate case such employees could be reinstated in service in accordance with the terms of their contract of service or the rules applicable to them, as the case may be.

Prior to incorporation of section 2‑A, in the Service Tribunals Act, 1973, it was settled law that an employee of a Corporation, in the absence of violation of law or any statutory rule, could not press into service Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service. His remedy against wrongful dismissal/termination or reduction in rank, etc., was to claim damages.

However, after insertion of section 2‑A an employee of Corporation/Company covered thereunder can approach the appropriate Service Tribunal for redress of his grievance against wrongful dismissal/termination etc. even in the absence of violation of law or any statutory or non‑statutory rule in that regard. The Tribunal, seized of the matter, can go into all questions of facts and law for determining whether the order passed by Department/Corporation is justified on facts as well as on law. In case of violation of a statutory/non‑statutory rule or instruction having the force of law, appropriate orders can be passed by the Tribunal rectifying the wrong done to the employee. However, where the grievance flows from a contract of service not governed by any statutory rules or departmental rules having the force of law, the jurisdiction of the Tribunal is confined to examination of the grievance of the dismissed/terminated employee on the touchstone of the terms and conditions of the contract of service/letter of appointment. If in a given case the letter of appointment envisages termination of an employee on one month's notice the Tribunal has no jurisdiction to alter the terms and conditions mutually agreed upon between the employer and the employee while exercising its jurisdiction in terms of section 2‑A which has been intended to provide a forum even to those employees of a Corporation/Statutory Body, etc. who are recruited on contract basis and in appropriate cases they could be reinstated in service in accordance with the terms of their contract of service or the rules applicable to them, as the case may be.

The intention of the Legislature appears 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 Corporations adversely affecting their terms ‑and conditions of service. Where the employees were not civil servants within the meaning of the Civil Servants Act, 1973 and where no statutory or service rules were framed by the employer/Corporation, the terms and conditions of service of such employees were wholly regulated by their contracts of employment and after insertion of section 2‑A, such employees had a right to approach the appropriate Service Tribunal for protection of their rights of employment flowing from such contracts of service.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.

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

‑‑‑‑S. 2‑A‑‑‑Constitution .of Pakistan (1973), Art.212(3)‑‑‑Temporary employees of a Corporation/Company‑‑‑Termination of services of such employees who had served the Company for more than an aggregate period of three/four years‑‑‑Service Tribunal dismissed appeals of the employees holding that they were appointed on temporary basis for a temporary assignment in the Company's project on fixed emoluments, therefore, their services could be terminated on completion of the particular project‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider as to whether services of the employees had been rightly terminated by the Company in .view of the fact that they had accepted appointments as temporary employees of the Company's particular project; that whether employees had attained status of permanent employees after serving the Company for more than a period of 3/4 years because during such period their services were not terminated nor fresh letters of appointment as temporary employees were issued by the Company, if so, to what effect; that whether in view of the fact that employees had served for a continuous period of more than 3/4 years, their services will be governed by the Service Rules of the employer‑Company and that what would be the effect of the judgments delivered by Supreme Court in the cases of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82, Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71, decided on 28th March, 2001 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555.

Managing Director. Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82: Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 ref.

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

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Temporary employees of a Corporation/Company‑‑‑Termination of services of such employees‑‑‑Leave to appeal was granted to see whether the cases being identical with the cases of Engineer Narain Das v. Sui Southern Gas Co. Ltd. 2002 SCMR 82 and The Managing Director, SNGC Ltd. v. Saleem Mustafa Sheikh PLD 2001 SC 176, the Executive Service Rules would apply to them as well.

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

‑‑‑‑S. 2‑A‑‑‑Temporary employees of a Corporation/Company‑‑­Termination of services of such employees who had served the Company for more than an aggregate period of three/four years‑‑‑Service Tribunal dismissed appeals of the employees holding that they were appointed on temporary basis for a temporary assignment in the company's project on fixed emoluments, therefore, their services could be terminated on completion of the particular project‑‑‑Validity‑‑‑Mere fact that the Corporation/Company's employees could competently invoke the jurisdiction of the appropriate. Tribunal under S.2‑A, Service Tribunals Act, 1973 would not ipso facto, have the effect of applicability of all laws relating to Government servants to such employees‑‑‑Employee aggrieved by any order passed by the Corporation/Company adversely affecting his terms and conditions of service had to show, as to which of his service rights had been violated and what was its nature i.e. whether such right flawed from statutory or non‑statutory rules and departmental instructions or a 'contract of service simpliciter‑‑‑If the terms and conditions of such employees of a Corporation/Company were governed by statutory rules, the Service Tribunal had jurisdiction to enforce the right through appropriate order‑‑‑Even a right accruing to an employee of a Corporation/Company under non‑statutory rules, which had attained the status of rules, if violated, could be enforced depending upon the facts and circumstances of each case‑‑‑Where, however, an employee was neither governed by statutory rules nor by non‑statutory rules, but by his letter of appointment/contract of service, Service Tribunal was bound to determine the rights and obligations of the parties strictly in accordance with the terms thereof‑‑‑First question, in such cases would be as to whether there was any binding contract between the parties and if so, the same had to be given effect to accordingly.

Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 55.5 distinguished.

(g) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Temporary assignments given to employees by a Corporation/Company‑‑‑Termination/recalling of assignments of such employees on completion of particular projects for which such employees were engaged‑‑‑Validity‑‑‑Nature of the assignment given to the employees being what it was, the company was within the domain of its authority/and jurisdiction under the very charter of its incorporation to take an action with regard to the termination/recalling of their assignments whenever the Company thought feasible/appropriate on account of closure/completion of the project/s against which they were employed temporarily‑‑‑Mere fact that the project/s for which the employees were engaged for a specific period could not be completed within the specified time and the employees continued in service till completion of such projects, would not entitle the employees to be permanently absorbed in service of the Company‑‑‑Continuing in service due to delayed completion of the project/s for a longer period than the initial period of temporary assignments, would not be a determining factor of the nature of the employment; as soon as the particular project/s, for which the employees were engaged, came to a close, their services also came to an end.

WAPDA v. Khanimullah 2000 SCMR 879 fol.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Sheikh PLD. 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82 and Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 distinguished.

(h) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Contract employees or employees engaged for temporary assignments by a Corporation/Company for a project for a specified period‑‑‑Termination of services of such employees or dismissal from; service‑‑‑Rule of master and servant ‑‑‑Applicability‑‑‑Principles‑‑­Services of temporary employees/contract employees could be dispensed with at any time in terms of their respective contract/s of temporary assignment‑‑‑Each case was to be decided in the light of its own peculiar circumstances with reference to the applicable law‑‑‑Precedent law was also to be kept in view in order to avoid contradictory decisions.

An employer/Corporation may have the power to terminate the services of its employees in the exigencies of, service without issuing a show‑cause notice. Clearly, an employer has two distinct rights one to take action against its employee simply by terminating his service and other to dismiss him from service for misconduct. In the latter case, before passing the order of dismissal from service against an employee, the prescribed procedure is to be adopted by the employer/Corporation under the relevant law/rules by issuing him a show‑cause notice and if such procedure is not followed by the employer/Corporation, an order of reinstatement may be passed. .But if the employer/Corporation is obliged to issue show‑cause notice with reasons for taking adverse action in a case of termination simpliciter, which might not sustain before a Court of law if such reasons are found to have stigmatized the employee, the result would be that the power of the employer/Corporation to terminate the services of its employees would be taken away. No doubt such a course is not advisable vis‑a‑vis the rule of master and servant, which is still applicable in certain cases of employment. The above findings would bring to the definite conclusion that the master and servant rule .is applicable in these cases. The services of the temporary employees could be. dispensed with at any time in terms of their respective contract/s of temporary assignment. Each case is to be decided in the light of its own peculiar circumstances with reference , to the applicable law. However, precedent law is also to be kept in view in order to avoid contradictory decisions.

United Bank Ltd. v. Ahsan Akhtar 1998 SCMR 68 and Ms Zeba Mumtaz v. First Women Bank Ltd. PLD 1999 SC 1106 ref.

(i) Civil service‑‑

Appeal to Service Tribunal ‑‑‑Limitation‑‑‑Condonation of delay‑‑­Service Tribunal has to press into service question of limitation strictly ‑‑­Delay in filing of proceedings cannot be condoned lightly because limitation creates a right in favour of one of the parties‑‑‑Sufficient reasons are to be shown or that the impugned order is coram non judice or void for any strong reasons, then the delay can be condoned.

Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division PLD 1990 SC 692; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 and Ali Muhammad v. Chief Settlement Commissioner 2001 SCMR 1822 ref.

(j) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Trainee Engineers engaged by a Corporation/Company initially for a period of six months and later terminated from service when they had served the Company for more than two years‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether the case of employees was identical with other cases, decided by the Supreme Court, and if so, there was no particular justification to hold otherwise.

Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82 and Managing Director, Sui Southern Gas Co.‑Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176 ref.

(k) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Trainee Engineers engaged by a Corporation/Company initially for a period of six months and later terminated from service when they had served the company for more than two years‑‑‑Validity‑‑‑Question raised in the matter had been considered and adjudicated upon in identical cases by the Supreme Court in the case of Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176 and Engineer Narain Das and others v. Sui Southern Gas Company 2002 SCMR 82:‑­Striking feature of the said decided cases was to the effect that after the absorption of the employees the Company may make them to take IBA Test and in the light of the result thereof, proceed with the retention or otherwise of the employees in accordance with law‑‑‑Supreme Court, in view of the decisions in the said cases converted the petitions into appeals and by allowing the same set aside the impugned judgments of the Service Tribunal therein with the direction to the employer‑Company to reinstate 'the employees in their respective disciplines and thereafter put them to IBA Test and consider their further retention in the light of the results thereof‑‑‑ "Reinstatement" and "absorption" for all intents and purposes, are synonymous expressions‑‑‑Expression "absorbed" as used in Abdul Samad v. Federation of Pakistan 2002 SCMR 71 by Supreme Court has to be construed accordingly and to that extent the Supreme Court's judgment in Abdul Samad's case also stands revisited.

(l) Civil service‑‑

‑‑‑‑‑‑ Reinstatement" and "absorption" ‑‑‑Synonymous expressions.

"Reinstatement" and "absorption" for all intents and purposes, are synonymous expressions,' in that, "reinstatement" in service involves an element of "absorption", therefore, the expression "absorbed" used in Abdul Samad .v. Federation of Pakistan 2002 SCMR 71 by Supreme Court is to be construed accordingly and to that extent the case of Abdul Samad v. Federation of Pakistan 2002 SCMR 71 also stands revisited. The findings in this case shall not, however, affect the transactions past and closed.

(m) Words and phrases‑‑

‑‑‑‑Terms "reinstatement" are "absorption" are synonymous expressions.

(n) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Tetuporary employee of a Corporation/Company engaged till the completion of a particular project‑‑‑Service Tribunal, on appeal, reinstated such employee into service on the ground that his services were terminated without issuing show‑cause notice and affording him opportunity of hearing‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether in view of the decision of Supreme Court dated 9‑7‑1998‑passed in Civil Petitions Nos.391‑K to 456‑K of 1998, etc., the Service Tribunal could not set aside the termination order of the employee and reinstate him into service.

(o) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Employee was appointed against a 'temporary assignment' for a particular project‑‑‑Termination of services of such employee‑‑­Contention of the employee was that since the projects commenced by the Company were of on‑going nature, therefore, services of the employee could be utilized for some other project‑‑‑Validity‑‑Held, in the absence of violation of any provision of law or statutory rules, no exception could be taken to the termination of service of the employee on one month's salary in lieu of notice plus other dues, if any, payable under the terms of the appointment or internal rules of the company‑‑‑If, however, the employee had been reinstated into service pursuant to the impugned judgment of the Service Tribunal, his services may be dispensed with by the Company but no recovery of the emoluments/ salaries paid to him from the date of his reinstatement into service till disposal of appeal by the Supreme Court shall be made from him in any manner whatsoever.

(p) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 2‑A‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal to Service Tribunal barred by limitation ‑‑‑Condonation‑‑‑Appointment of management trainee by a Company/Corporation initially for a period of six months‑‑‑Such employee served the Company for three/four years and his services were terminated without issuing any show‑cause notice to him‑‑‑Employee, aggrieved by the termination of his service approached the Service Tribunal for redress of his grievance‑‑‑Service Tribunal dismissed his appeal being time‑barred observing that though the employee was terminated from service by order dated 20‑9‑1997 but he filed the appeal on 23‑7‑1999‑‑‑Record showed that the employee, before approaching the Service Tribunal had filed a Constitutional petition before the High Court wherefrom he was directed to approach the Service Tribunal for redress of his grievance after which the employee filed appeal to the Service Tribunal which showed that employee had not only approached the High Court but also filed appeal before the Service Tribunal and Service Tribunal in such‑like‑cases had condoned the delay‑‑‑Such being a clear case of misreading of evidence, Supreme Court converted the petition into appeal and remitted the case to the Service Tribunal for decision afresh after discussing the case on merits and sympathetically considering the delay, if any, in filing appeal before the Tribunal by the employee.

(q) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Plea of poverty of the party does not constitute a valid ground for condoning the delay.

(r) Civil service‑‑

‑‑‑‑ Contract assignment could not become permanent by efflux of time.

(s) Civil service‑‑

‑‑‑‑‑‑ Contract period of employment" and "probationary period" have distinct connotation altogether‑‑‑Principles.

Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; Engineer Narain Das and others v. Sui Southern Gas ' Co. 2002 SCMR 82; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71 and Sui Southern Gas Company v. Narain Das and others PLD 2001 SC 555 distinguished.

Engineer Narain Das and others v. Sui Southern Gas Co. 2002 SCMR 82; Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh PLD 2001 SC 176; WAPDA v. Khanimullah 2000 SCMR 879; R v. Secretary to State for the Home Department Ex parte Khan (1985) 1 All ER . 40; Messrs Pakistan State Oil Co. Ltd. v. Muhammad Tahir Khan PLO 2001 SC 980; Sui Southern Gas Company Ltd. v. Engineer Narain Das PLD 2001 SC 555; Council of Civil Service Unions and others v. Minister for the Civil Service (1984) 3 All ER 950: PIAC v. Koural Channa 1999 PLC (C. S.) 1539; Agha Salim Khurshid v. Federation of Pakistan 1998 SCMR 1930; Abdul Samad and others v. Federation of Pakistan and others 2002 SCMR 71; Kishu Mal v. Sui Southern Gas Co. Ltd. C.Ps. .Nos.401‑K, 407‑K, 408‑K and 406‑K of 2000; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Ahmad Ali and others v. Government of N.‑W . F. P. through Chief Secretary and others 1998 SCMR 183; Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle‑I, Gujranwala v. Government of the Punjab through Services, General Administration, and Information Department, Punjab Secretariat, Lahore 1996, SCMR 645; Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104; Syed Aftab Ahmed v. K.E.S.C, and others 1999 SCMR 197; Azimullah, Ex‑Inspector v. Chairman, Board of Trustees, Abandoned Properties . Organization, Cabinet Secretariat, Cabinet Division; Islamabad and 2 others 2001 PLC (C.S.) 358; Nazeer Ahmed v. Managing Director, Sui Southern Gas Company Limited, Karachi Appeal No.253‑K of 1999; Barkat Ali Shah v. Regional Chief Executive, decided .on 25‑10‑2000; Zahir Ullah v. Chairman, WAPDA, Lahore 2000 SCMR 826; Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly AIR 1986 SC 1571; Mrs. Anisa Rehman v. PIAC 1994 SCMR 2232; Habib Bank Ltd. v. Syed Zia‑ul‑Hasan Kazmi 1998 SCMR 60; United Bank Ltd. v. Ahsan Akhtar 1998 SCMR 68; Ms. Zeba Mumtaz v. First Women Bank Ltd. PLD 1999 SC 1106; Fazal Elahi Siddiqi v. Pakistan through Secretary, Establishment Division PLD 1990 SC 692; Chairman, PIAC v. Nasim Malik PLD 1990 SC 951; Samiullah, Managing Director, Sui Southern Gas Co. Ltd. (Judgment dated 13‑10‑2000); Pakistan Railways through General Manager v. Ghulam Rasul 1997 SCMR 1581 and Maqbool Ahmed v. Hakoomat‑e‑Pakistan 1991 SCMR 2063 ref.

Wasim Sajjad, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellants (in C.As. Nos.367 to 378/2001, 1113 to 1124/2001) and for Petitioners (in CPs. 'Nos. 745 to 760/2001, 1263.to 1341/2001, 1877 to 1921/2001, 1926, 1934 to 2067/2001, 1381/2001) and for Respondent No. l (in C.A. No.120/99).

Abdul Hafiz Pirzada, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellant (in C:A. No.366 of 2001).

Muhammad Akram Sheikh, Senior Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record and M.A. Zaidi, Advocate‑on‑Record for Appellants (in C.As. Nos.613 to 637, 985 and 986/2001).

Hafiz S.A. Rahman, Senior Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellants (in C.As. Nos.648 to 655/2001 and for Petitioner (in C.Ps. No.2112, 1459 and 1515/2001).

Ch. Muhammad Jamil, Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record and A.S.K. Ghori, Advocate‑on‑Record for‑Respondents (in all Appeals/Petitions) and for Appellant (in C.A. No. 120/ 1999).

Makhdoom Ali Khan, Attorney‑General for Pakistan, Muhammad Nawaz Bhatti, Deputy Attorney‑General and Raja Abdul Ghafoor, Advocate‑on‑Record for the Federation.

Dates of hearing: 17th, 18th, 19th and 26th September, 2001.

2002 P L C (C.S.) 732

[Supreme Court of Pakistan]

Present: Abdur Rehman Khan and Nazim Hussain Siddiqui, JJ

RASHID MEHMOOD

versus

ADDITIONAL INSPECTOR‑GENERAL OF POLICE and 2 others

Civil Appeal No. 95 of 1999, decided on 5th July, 2001.

(On appeal from the judgment dated 7‑10‑1998 of the Punjab Service Tribunal, passed in Appeal No. 694 of 1994).

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

‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the effect of dismissal of the civil servant from service after he was acquitted of criminal charge.

Malik Azharul Haq v. Director of Food, Punjab, Lahore 1991 SCMR 209 ref.

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

‑‑‑‑S. 4‑‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975. Rr.3, 4 & 6‑‑‑Police Rules, 1934, 8.12.21‑‑‑Dismissal from service‑‑­Acquittal from criminal charge‑‑‑Civil servant was acquitted by the Trial Court‑‑‑Departmental Authority dismissed the civil servant from service only on the charge of being involved in criminal case‑‑‑Service Tribunal" maintained the decision of the Departmental Authority and appeal was dismissed‑‑‑Validity‑‑‑Regular inquiry having not been conducted by the Departmental Authority, petitioner could plead that having been exonerated by the Criminal Court, the Departmental Authority was not competent to discharge/remove him from service‑‑‑Where the Departmental Authority failed to conduct any regular inquiry against the civil servant, it had, therefore, no basis to hold the civil servant guilty of misconduct‑‑‑Judgment passed by the Service Tribunal was set aside and Supreme Court directed the Authorities to reinstate the civil servant in service with back benefits .for the period he had not been gainfully employed elsewhere‑‑‑Appeal was allowed.

Malik Azharul Haq v. Director of Food, Punjab, Lahore 1991 SCMR 209; Dr. Muhammad Islam v. Government of N.‑W.F.P. through Secretary, Food, Agriculture, Livestock arid Cooperative Department, Peshawar and 2 others 1998 SCMR 1993; Muhantmad Sardar Khan. Senior Member (Establishment), Board of Revenue, Purjab,. Lahore 1985 SCMR 1483; Muhammad Iqbal Zaman, Vernacular Clerk, Marwat Canal Division, Bannu v. Superintending Engineer. Southern Irrigation Circle, Bannu and 4 others 2000 PLC (C.S.) 331; Province of the Punjab v. Abdul Aziz Qureshi.' 1994 SCMR 247; Secretary, Government of the Punjab through Secretary, Health Department. Lahore and others v. Riaz‑ul‑Haq 1997.SCMR 1552 and Amiad v. The Chief Engineer, WAPDA and another 1998 PSC 337 ref.

Hafiz Tariq Nasim, Advocate Supreme Court and M. Aslam Chaudhry, Advocate‑on‑Record (absent) for Appellant.

Dil Muhammad Tarar, Advocate Supreme Court and Rao M. Yousaf Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 19th April, 2001.

2002 P L C (C.S.) 740

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Qazi Muhammad Farooq and Javed Iqbal, JJ

COMMISSIONER, SINDH EMPLOYEES' SOCIAL SECURITIES INSTITUTION and another

versus

Messrs E.M. OIL MILLS AND INDUSTRIES LTD., S.I.T.E., KARACHI and 2 others

Civil Appeals Nos.879, 880 and 882‑‑of 2000 and 346 to 357 of 2001, decided on 27th July, 2001.

(On appeal from the judgments, dated 28‑9‑1999 and 11‑12‑2000 of the High Court of Sindh, Karachi passed in Miscellaneous Appeals Nos.5, 14 and 45 of 1996 (in the first judgment) and 3 of 1999, 4 of 1999, 5 of 1995, 6 of 1995, 12 of 1995, 13 of 1997, 18 of 1997, 27 of 1997, 48 of 1996, 49 of 1996 and 29 of 1995 (in the second judgment)).

(a) Provincial Employees' Social Security Ordinance (V of 1965)‑‑‑

‑‑‑‑S.2(8)(f)‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Leave to appeal was granted by Supreme Court to examine the scope of S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965, with reference to the object of the Ordinance and whether the dictum laid down by Supreme Court in case titled Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. reported as PLD 1988 SC 1 was attracted to the circumstances of the case.

Sindh Employees' Social Security Institution v. Dawood Cotton Mills Ltd. PLD 1988 SC 1 ref.

(b) Provincial Employees' Social Security Ordinance (V of 1965)‑‑‑

‑‑‑: Ss.2(8)(a), 2(8)(f) & 20(4)(a)‑‑‑Term 'employee'‑‑‑Scope‑‑‑Payment of contribution‑‑‑Principles‑‑‑Definition of term 'employee' as mentioned in S.2(8) of Provincial Employees' Social Security Ordinance, 1965, refers to initial appointment at wages exceeding the ceiling mentioned in the definition of the term, as well as the employees whose wages exceed the ceiling during the course of employment‑‑‑While applying formula for payment of the contribution envisaged by S.20(4)(a), Provincial Employees' Social Security Ordinance, 1965, the ceiling is to be kept in view‑‑‑Provisions of S.2(8)(f) & S.2(8)(a) of Provincial Employees' Social Security Ordinance, 1965, are to be interpreted harmoniously.

(c) Provincial Employees' Social Security Ordinance (V of 1965)‑‑‑

‑‑‑‑Ss.2(8)(f) & 20(4)(a)‑‑‑Collection of contribution‑‑‑Amendment made in the provisions of Ss.2(8)(f) & 20(4)(a) of Provincial Employees' Social Security Ordinance, 1965‑‑‑Nature and effect‑‑‑Construction‑‑‑Mode‑‑‑Scope of the unamended Ss.2(8)(f) & 20(4)(a) of Provincial Employees' Social Security Ordinance, 1965, is comparatively limited and cannot be enlarged by giving retrospective effect to the amendments made therein on the grounds that the same are remedial in nature‑‑‑Proviso added to S.2(8)(f) of Provincial Employees' Social Security Ordinance, 1965, being a part of definition section is declaratory and the Ordinance being a beneficial statute, its provisions must be construed liberally.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Retrospective effect of a statute‑‑‑Every statute, as a. general rule, is deemed to be prospective unless by express provision or necessary implication it is given retrospective effect‑‑‑Acid test for ascertaining whether a statute or an amendment operates prospectively or retrospectively is the legislative intent.

(e) Interpretation of statutes‑--

‑‑‑‑ Declaratory statute‑‑‑Purpose‑‑‑Such statute either resolves doubts on a particular point or restates the law on a particular subject ‑‑‑Declaratory provision does not purport to change the law.

Halsbury's Laws of England, Vo1.44, 4th Edn. ref, (f) Provincial Employees' Social Security Ordinance (V of 1965)‑‑‑

‑‑‑‑Ss.2(8)(f) & 20(4)(a)‑‑‑Contribution of social security‑‑‑Statutory increase in wages‑‑‑Failure to incorporate increase in Provincial Employees' Social Security Ordinance, 1965‑‑‑Dictum laid down by Supreme Court in case titled Dawood Cotton Mills reported as PLD 1988 SC 1.‑‑Applicability‑‑?Dispute between the parties related to collection of contribution whereby the institution intended to apply ;the amendment in the statute retrospectively‑‑?Validity ‑‑‑Amendments in question could not be termed as declaratory for the simple reason that they had created new obligations and changed the existing law considerably‑‑‑Statutory increase in wages, was though not incorporated in Provincial Employees' Social Security Ordinance, 1965, yet the existing law did not suffer from any legal defect in view of the law laid down in case titled Dawood Cotton Mills reported as PLD 1988 SC 1‑‑?Amendments made in the law were not purely remedial and the same could not be held to be retroactive in operation even if the same were presumed to be remedial because they tend to affect vested rights‑‑‑Giving retrospective effect to the amendments would tantamount to nullifying the binding effect of the dictum laid down in case titled Dawood Cotton Mills reported as PLD 1988 SC 1, which squarely applied to the facts and circumstances of the cases.

Khalid Habibullah, Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record (absent) for Appellants (in C.As. Nos.879, 880 and 882 of 2000 and for Respondent (in C.As. Nos.346 to 357 of 2001).

Abdul Karim Khan Kundi, Advocate Supreme Court, M.S. Khattak and Raja Abdul Ghafoor; Advocates‑on‑Record for Appellants (in C.As. Nos.346 to 357 of 2001).

Muneeb Ahmed, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record (absent) for Respondents (in C.As. Nos.879 and 880 of 2000).

Abdus Samad, Advocate Supreme Court and Ahmadullah Faruqi, Advocate‑on‑Record (absent) for Respondents (in C.A. No.882 of 2000).

Date of hearing: 20th June, 2001.

2002 P L C (C.S.) 752

[Supreme Court of Pakistan]

Present: Saiduzzaman Siddiqui, C.J., Wajihuddin Ahmed and Kamal Mansur Alam, JJ

GOVERNMENT OF SINDH through Advocate‑General, Sindh, Karachi

versus

MASOOD HUSSAIN and others

Civil Petitions Nos.342‑K to 349‑K of 1999; decided on 3rd August; 1999, (On appeal from a common judgment of Sindh Service Tribunal, dated 6‑4‑1999 passed in Appeals Nos. 13, 17, 19, 15, 14, 22, 21. and 18 of. 1997 respectively).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Re‑instatement in service‑‑‑Condonation of delay by Service Tribunal‑‑‑Perverse findings of Service Tribunal‑‑‑Onus to prove‑‑‑Civil servants' appeals were time‑barred and Service Tribunal while considering the order of termination as being void and mala fide condoned the delay and allowed the appeals ‑‑‑Validity‑‑­Authorities had to produce material before Supreme Court to demonstrate that the findings of the Service Tribunal were either perverse or based on no evidence‑‑‑No such plea had been raised in the memo. of petition filed before Supreme Court‑‑‑Question agitated by the Authorities was purely a question of fact which had been decided against the Authorities and the Authorities had not been able to show that the findings of Service Tribunal suffered from any perversity‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Leave to appeal was refused.

Muneer‑ur‑Rehman, Addl A.‑G. and Akhlaq Ahmad Siddiqui, Advocate‑on‑Record for Petitioners, Nemo for Respondents.

Date of hearing:, 3rd August, 1999.

2002 P L C (C.S.) 755

[Supreme Court of Pakistan]

Present: Ch. Muhammad Arif, Qazi Muhammad Farooq and Mian Muhammad Ajmal, JJ

MUHAMMAD AMJAD ALI KHAN and others

versus

SHAFIQ AHMED and others

Civil Appeal No. 1947 of 2000, decided on 19th September, 2001.

(On appeal from the judgment dated 5‑10‑2000 of the Punjab Subordinate Judiciary Service Tribunal, Lahore High Court, Lahore, passed in Service Appeal No.5 of 1‑993).

(a) West Pakistan Civil Servants (Judicial Branch) Rules, 1962‑‑‑

‑‑‑‑R.9‑‑‑Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991), S.5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appointment in subordinate judiciary‑‑‑Contention of the petitioners was that the prayer made by the contesting respondents in the Intra‑Court Appeal that they be adjusted against the additional 50 posts would be deemed to have been rejected in view of the direction that their appointment be made against‑the future vacancies; the contesting respondents had accepted the offer of their appointment against future posts, therefore, the matter had become past and closed and the Tribunal had no jurisdiction to re‑open the same; the 50 posts against which the contesting respondents had sought appointment were filled in before the disposal of the Intra‑Court appeal, therefore, in view of the judgment rendered therein they were entitled to appointment against future vacancies i.e. the vacancies becoming available after the judgment and their seniority was to be determined accordingly and the appointees against the 50 posts ought to have been heard before making an order prejudicial to their interest qua seniority‑‑‑Leave to appeal was granted by Supreme Court to consider the contentions of the petitioners.

(b) West Pakistan Civil Servants (Judicial Branch) Rules, 1962‑‑‑

‑‑‑‑R.9(a)‑‑‑Punjab Subordinate Judiciary Service Tribunals Act (XII of 1991), S.5‑‑‑Seniority list‑‑‑Objection to‑‑‑Appointment against additional posts‑‑‑Vacancies of 28 Civil Judges were filled by the Public Service Commission in the year 1987, respondents were also declared successful but they were not appointed‑‑‑While the competitive examination for the 28 posts was being held, another requisition for recruitment against 50 posts of Civil Judges was sent to the Commission‑‑‑Respondents approached the High Court for their appointment and finally they were appointed as Civil Judges against future posts for which requisition had already been placed before the Commission‑‑‑Respondents, in the seniority list prepared after the appointment of the parties were placed below the appellants who were appointed as a result of competitive examination held in the year 1988, against requisition for recruitment of 50 Civil Judges‑‑‑Respondents assailed the seniority list before the Punjab Subordinate Judiciary Service Tribunal‑‑­Appeal‑of the respondents was allowed and the seniority list was directed to be corrected‑‑‑Validity‑‑‑Respondents were not candidates in the competitive examination held in the years 1988 and 1989 and were taken from the merit list prepared as a result 'of competitive examination held in the year 1987, therefore, they belonged to 1988 batch and their seniority was to be determined accordingly.

Farooq Amjad Meer, Advocate Supreme Court and Mahmudul Islam, Advocate‑on‑Record (absent) for Appellants.

Sheikh Ziaullah, Advocate Supreme Court and Syed Abul Aasim Jafri, Advocate‑on‑Record for Respondents Nos. 1 to 5.

Malik Ainul Haq, Advocate Supreme Court .for Respondents Nos. 58 and 59.

Date of hearing: 19th September, 2001.

2002 P L C (C.S.) 802

[Supreme Court of Pakistan]

Before Sh. Riaz Ahmad, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUHAMMAD SALEEM

Versus

DEPUTY COLLECTOR (CUSTOMS), CHAMAN ROAD, QUETTA and 2 others

Civil Appeal No.952 of 1998, decided on 30th January, 2002

(On appeal from the judgment dated 8‑12‑1997 of the Federal Service Tribunal, Islamabad, passed in Appeal No.25(Q) of 1997).

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

‑‑‑‑R.4(b)(iv)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑‑Leave to appeal was granted by Supreme Court to consider; whether in the circumstances of the ease, shorter procedure could be resorted to for awarding major penalty and whether the circumstances of the case justified awarding of major penalty.

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

‑‑‑‑Rr.4, 5 & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Dismissal from service‑‑‑Civil servant was working in Customs Department and was found guilty of misappropriation of Government property‑‑‑Show‑cause notice was issued to the civil servant and after departmental inquiry, the Authorities dismissed the civil servant from service‑‑‑Departmental appeal as well as appeal before Service Tribunal, were dismissed‑‑‑Validity‑‑‑No detailed injury was called for m view of the offence alleged‑‑‑No illegality or irregularity had been committed by the Tribunal while disposing of the appeal‑‑‑No question of public importance was involved in the case justifying grant of leave‑‑‑Justification of ‑ the penalty of dismissal was for the Service Tribunal to determine considering circumstances of case and necessity of meeting the ends of justice which had been overlooked by the Tribunal‑‑‑Supreme Court observed that the penalty of dismissal from service appeared to be somewhat harsh and accordingly the same was modified to that of removal from service‑‑‑Appeal was dismissed accordingly.

The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riazul Haq 1997 PLC (C.S.) 873 and Ali Muhammad v. Commissioner Afghan Refugees, N.‑W.F.P., and another 1995 SCMR 1675 ref.

Sh. Riaz‑ul‑Haq, Advocate Supreme Court for Appellant.

Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents.

Date of hearing: 30th January, 2002.

2002 PLC (C.S) 806

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

Syed ABDUL QADIR SHAH

Versus

GOVERNMENT OF SINDH through Secretary, Communication and Works Department, Government of Sindh, Karachi and others

Civil Petitions for Leave to Appeal Nos. 868‑K and 870‑K of 2001, decided on 13th December, 2001.

(On appeal from the judgment of the Sindh Service Tribunal at Karachi, dated 7‑9‑2001, passed in Appeal No.71 of 1998).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Judgment passed by Service Tribunal ‑‑‑Question of public importance, failure to raise‑‑‑Service Tribunal reinstated the civil servant in service with back benefits but refused to reinstate the civil servant on the post where he was working at the time of termination for the reason that the said post had been upgraded ‑‑‑Validity‑‑­Judgment passed by the Service Tribunal was based on law laid down by Supreme Court as well as equity, fair play and justice and the same did not call for interference by Supreme Court‑‑‑No illegality, irregularity or misconstruction of law was found in the judgment passed by the Service Tribunal while the civil servant failed to raise any question of public importance‑‑‑Petition was dismissed.

Shabbir Ahmed Awan, Advocate Supreme Court and Izhar Alam Farooqui, Advocate‑on‑Record for Petitioner (in C.P. No. 868‑K of 2001).

Manzoor Ahmed Khan, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent No.5.

Suleman Habibullah, A.A.‑G. and Akhlaq A. Siddiqui, Advocate-­on‑Record for Petitioners (in C. P. No. 870‑K of 2001).

Shabbir Ahmed Awan, Advocate Supreme Court and Izhar Alam Farooqui, Advocate‑on‑Record for Respondent No. 1.

Manzoor Ahmad Khan, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent No.5.

Date of hearing: 13th December, 2001.

2002 P L C (C.S.) 811

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

GHULAM MUSTAFA

Versus

GENERAL MANAGER, WESTERN TELECOMMUNICATION REGION, TELEPHONE HOUSE, QUETTA and others

Civil Petition for Leave to Appeal No.473‑K of 2001, decided on 12th December, 2001.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, Session at ‑Quetta dated 21‑4‑2001, passed in Appeal No.90(Q)(CS) of 2000):

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

‑‑‑‑Rr. 3, 4(1)(b)(iv)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service ‑‑­Malpractice and illegal activities‑‑‑Responsibility of a supervisor‑‑‑Civil servant was dismissed from service on the charge of tampering with telephone cable and providing illegal connections to many persons‑‑‑Civil servant had tried to shift his liability to some other staff members during departmental proceedings‑‑‑Department having found the civil sees involved in the activities, dismissed him from service‑‑‑Service Tribunal also dismissed the appeal for the reason that the shifting of the burden to other staff members would not lessen the responsibility of the civil servant who was very much part of the entire illegal and unauthorized activity in his capacity as supervisor‑‑‑Validity‑‑‑No illegality or irregularity was found in the judgment passed by the Service Tribunal and the same was based on the proper appreciation of material available with the Tribunal‑‑‑Civil servant failed to raise any question of public importance, Supreme Court declined to interfere with the judgment passed by the Service Tribunal‑‑‑Petition was dismissed in circumstances.

Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

M. Muneer Qureshi, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record for Respondents.

Date of hearing: 12th December, 2001.

2002 P L C (C.S.) 814

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Hamid Ali Mirza, JJ

Haji KHAN LASHARI and others

Versus

GOVERNMENT OF PAKISTAN and others

Civil Petitions Nos. 575 to 685 and 697 to 701‑K of 2000, decided on 26th December‑ 2000.

Constitution of Pakistan (1973)‑‑‑-

‑‑‑‑Art. 212(3)‑‑‑Ad hoc salaries, payment of‑‑‑Civil servants were terminated from service‑‑‑Review Committee constituted by the Authorities gave interim relief to the terminated civil servants and allowed ad hoc salaries up to May, 2000‑‑‑Service Tribunal admitted appeals filed by the civil servants but declined interim relief‑‑‑One of the civil servants was extended such relief by consent order passed by Supreme Court‑‑­Authorities, in the present case were not willing to extend such concession to the civil servants‑‑‑Contention of the civil servants was that similar relief be allowed to them as was given to the other civil servant‑‑‑Validity‑‑‑Order passed by the Supreme Court in the case of the civil servant was a consent order and since the Authorities were not willing to consent in the present petitions the relief given to the other civil servant could not be given to the present civil servants‑‑‑Petition was disposed of accordingly.

Petitioners in person.

A.A. Siddiqui, Advocate‑on‑Record for Respondents.

Date of hearing: 26th December, 2000.

2002 P L C (C. S.) 819

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Abdul Hameed Dogar, JJ

MAHMOOD AKHTAR

Versus

SECRETARY TO THE GOVERNMENT OF PAKISTAN, ESTABLISHMENT DIVISION and 2 others

Civil Petition No.529-K of 2000, decided on 20th December, 2000.

(On appeal from the judgment dated 25-9-2000 passed by Federal Service Tribunal in Appeal No.775-K of 1998).

West Pakistan Rangers Act (XIV of 1959)-----

---Ss. 15 (1) & 20(4)---West Pakistan Rangers (Efficiency and Discipline) Rules, 1974, R.4---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art.212(3)---Dismissal from service---Civil servant being employee of Pakistan Rangers, was involved an act of motorcycle snatching---Departmental inquiry was conducted, charge was framed and the civil servant was convicted and was also dismissed from service--­Departmental appeal as well as appeal before Service Tribunal were dismissed---Contention of the civil servant was that opportunity of fair trial was not given to him---Validity---Civil servant was caught red-handed by police alongwith robbed motorcycle ---Co-accused in the case had absconded and was still at large---Finding of the Service Tribunal was in consonance with the facts available on record, Supreme Court declined to interfere--­Leave to appeal was refused.

Akhlaq Ahmed Siddiqui, Advocate-on-Record for Petitioner.

Nemo for Respondent.

Date of hearing: 20th December, 2000.

2002 P L C (C.S.) 832

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

S.A.M. WAHIDI

Versus

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

Civil Petition No.6 of 2001, decided on 10th January, 2002.

(On appeal form the judgment of Federal Service Tribunal dated 30‑10‑2000 passed in Appeal No. 2093(R)/99).

Constitution of Pakistan (1973)‑‑---

‑‑‑‑Ari.212(3)‑‑‑Government of .Pakistan Finance Division Memorandum O.M. No.F.4(I)R. 6/99, dated 23‑7‑1999, Para. 7‑‑‑Re‑employment‑‑­Pension benefits‑‑‑Increase .in pension benefits were claimed by the person who was re‑employed after his retirement from Government service‑‑‑‑Claim was rejected by Service Tribunal‑‑Contention of the employee was that he was wrongly deprived of the benefit in question‑‑‑Employee after retirement from Government service, was employed by the Capital Development Authority, an autonomous body, on the terms and conditions contained in his appointment letter and, therefore, he would not be entitled to the benefits made available to Government servants under Finance Division Memorandum O.M. NO.F.4(1)R. 6/99, dated 23‑7‑1999‑‑‑Where there was no substance in the petition for leave to appeal and even no question of law of public importance was involved in the matter, Supreme Court declined to interfere with the judgment passed by the Service Tribunal‑‑‑Leave to appeal was refused.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 10th January, 2002.

2002 P L C (C.S.) 834

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

ABDUL FATEH BHUTTO

Versus

GOVERNMENT OF SINDH through Chief Secretary and others

Civil Petition No.491‑K of 2001, decided on 26th November, 2001.

(On appeal from the judgment dated 22‑5‑2001 passed by Sindh Services Tribunal, Karachi in Appeal No.141/98).

Sindh Civil Servants Act (XIV of 1973)‑‑

‑‑‑‑Ss. 8 & 24‑‑‑Sindh Service Tribunals Act (XV of 1973), S.4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑‑Civil servant was working in executive cadre of Police Department‑‑‑After his change in cadre to Anti‑Corruption Department, civil servant was placed at the bottom of seniority list of Inspectors on the date of joining it‑‑‑Civil servant's case was decided by Authority according to policy and rules, and was not . considered to be a case of hardship‑‑‑No case for‑discrimination was made out‑‑‑Civil r servant was placed at the bottom of seniority list of Inspectors on his joining in 1996, but he agitated his grievance in 1999 by filing appeal, which was time‑barred‑‑‑Supreme Court refused to grant leave to appeal in circumstances.

Akhlaq Ahmed Siddiqui, Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 26th November, 2001.

2002 P L.C (C.S.) 838

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

UNITED BANK LIMITED

Versus

RASHEED AHMED MEMON

Civil Petition for Leave to Appeal No.678‑K of 2001, decided on 14th December, 2001.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad, dated 14‑7‑2001, passed in Appeal No.435(K) of 1997), Service Tribunal Act (LXX of 1973)‑‑‑---

‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑­Reinstatement in service‑‑‑Two departmental inquiries conducted by same inquiry Officer‑‑‑Bank employee was charged for 'availing house building loan in unauthoried manner in excess of his entitlement‑‑‑Authorities having been dissatisfied with the first inquiry ordered for fresh inquiry into the matter‑‑‑Same officer was appointed to hold the second inquiry against the employee‑‑‑Employee, on the report of the Inquiry Officer was dismissed from service‑‑Service Tribunal allowed the appeal and reinstated the employee in service and directed the Authorities to conduct fresh inquiry against him‑‑‑Validity‑‑‑Where the Authorities had turned down the findings and report of the first inquiry for the reason that it was held in ex pane manner, the Bank Authorities did not act in proper and legal manner while getting the second inquiry conducted by the same Inquiry Officer‑.‑‑Judgment passed by the Tribunal was based on the principles laid down by Supreme Court and there was no illegality, or‑ irregularity, or misconstruction of law‑‑‑Leave to appeal was refused.

Nafees Ahmed Siddiqui. Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Petitioner.

M.L. Shahani, Advocate Supreme Court and N.C. Motiani, Advocate‑on‑Record for Respondent.

Date of hearing: 14th December, 2001.

2002 P L C (C. S. 841

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

Dr. SHAHID AMIN HYDER

Versus

SECRETARY, MINISTRY OF HEALTH, GOVERNMENT OF PAKISTAN and another

Civil Petition No‑563 of.2001, decided on 8th January, 2002.

(On appeal from the judgment/order, dated 11‑1‑2001 passed by era] Service Tribunal, Islamabad in Appeal No.362(R)CS of 2000).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Adverse remarks in Annual Confidential Report—Expunction—Matter related to terms and condition of service---Jurisdiction of Service Tribunal ----Department was dismissed against the adverse remarks entered in Annual Confidential Report of civil servant and Service Tribunal declined to exercise jurisdiction vested in it on the ground that the matter was not related to terms and conditions of service‑‑‑Validity‑‑‑Approach of the Service Tribunal was not correct because recording of adverse remarks in ACR of an employee was one of the term and condition of his service and if adverse remarks had been recorded the civil servant enjoyed a right to initially challenge the same before the next higher authority of the Department on the grounds available to him including the one that the adverse remarks had been recorded on subjective reasons and if his grievance was not redressed, then the civil servant could approach the Tribunal for redressal of his grievance‑‑‑Service Tribunal was empowered to examine the remarks on the basis of available material and if the Tribunal came to the conclusion that Annual Confidential Report had not been recorded property or it was based on extraneous consideration or the allegation was not supported by the material, then the Tribunal was competent to accept the appeal.

Inspector‑General of Police, Punjab, Lahore and another v. Masood Ahmed Khan 1981 SCMR 840 ref.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 8th January,2002.

2002 P L C (C.S.) 858

[Supreme Court of Pakistan]

Before Munir A. Sheikh, Qazi Muhammad Farooq and Rana Bhagwandas, JJ

KHALID MEHMOOD and others

versus

COMMISSIONER, SARGODHA and others

Civil Appeals Nos. 1370 and 1416 of 2001, decided on 23rd January, 2002.

(On appeal from the judgment, dated 18‑5‑2001 of the Punjab Service Tribunal passed in Appeal No.2984 of 1999).‑

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212‑‑‑Appointment through promotion‑‑‑Interference by Service Tribunal in exercise of jurisdiction under S.4 of the Service Tribunals Act, 1973‑‑‑Validity‑‑‑Where the civil servant was at Serial No.4 in the merit list, the Service Tribunal was not justified in law to interfere with his appointment through promotion--Judgment passed by the Service Tribunal was set aside.

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

‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212‑‑‑Appointment through promotion‑‑‑Objection to merit list‑‑‑Appellant did not come on the merit, therefore, he was not appointed for post‑‑‑Merit list was objected to by the appellant and plea raised was that as the list was prepared by a particular office and some of the appointees belonged to that office, therefore, element of pick and choose was reflected in the list and was based upon mala fides‑‑­Validity‑‑‑Merit position had been transparently determined on the basis of criteria according to which marks were allocated to the candidates qua their Annual Confidential Reports, written test and interview ‑‑‑Merely because on merit, the officer belonging to a particular office obtained more marks would not by itself be sufficient to hold that the selection was either mala fide or element of pick and choose was involved‑‑‑Even if the marks of the appellant given in written test and interview were brought at par with the selected candidate the appellant would still not improve his qualification qua selected candidates‑‑‑Supreme Court declined to interfere with the appointment made by the Authorities‑‑‑Appeal was dismissed.

(c) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185 & 212‑‑‑Appellate jurisdiction of Supreme Court‑‑‑Amendment of rules‑‑‑Scope‑‑‑Not the function of Supreme Court to make amendment in rules.

Hafiz Tariq Nasim, Advocate Supreme Court for Appellant (in C.A. No. 1370 of 2001).

Dr. Mohy‑ud‑Din Qazi, Advocate Supreme Court for Respondent (in C.A. No. 1370 of 2001).

Ihsanul Haq Ch., Advocate Supreme Court for Respondents Nos.2, 4 and 6 (in C. A. No. 1370 of 2001).

Syed Alamdar Hussain Shah with record for D.C.O. on Notice.

Dr. Mohy‑ud‑Din Qazi, Advocate Supreme Court for Appellant (in C. A. No. 1416 of 2001).

Hafiz Tariq Nasim, Advocate Supreme Court for Respondent No.2 (in C.A. No. 1416 of 2001).

Ihsanul Haq Ch., Advocate Supreme Court for Respondents Nos.3 to 6.

Syed Alamdar Hussain Shah with record for D.C.O. on notice.

Date of hearing: 23rd January, 2002.

2002 P L C (C.S.) 866

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PROVINCE OF SINDH through A.‑G., Sindh, Karachi

versus

Kazi SIRAJ AHMAD

Leave to Appeal No. 171‑K of 2001, decided on 6th April, 2001.

(On appeal from the judgment, dated 6‑2‑2001, passed by the Sindh Service Tribunal, Karachi, in Appeal No.94 of 1998).

Sindh Service Tribunals Act (XV of 1973)‑‑‑

‑‑‑‑S.4‑‑‑West Pakistan Inspector of Revenue and City and Revenue Surveyors (Southern Zone) Service Rules, 1963‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Promotion‑‑‑Civil servant was appointed as City Surveyor (BS‑7) and after having worked as such for thirty years, he was allowed move‑over from BS‑7 to BS‑13‑‑‑Competent Authority promoted the civil servant as Assistant City Survey Officer (BS‑16), but later on, cancelled his promotion without affording him any opportunity of hearing and issuing show‑cause notice on the ground that he could not be promoted from BS‑7 to BS‑16 i.e. nine steps up‑‑‑Service Tribunal accepted the appeal filed by civil servant‑‑‑Validity‑‑‑Civil servant on account of length of service and unblemished record had been promoted on the recommendations of Departmental Promotion Committee and Competent Authority had issued the notification, which was not in violation of any rules‑‑‑Authority in its written statement had admitted the case of civil servant‑‑‑Tribunal had rightly considered the case of civil servant while allowing his appeal and its judgment was in consonance with law and Rules‑‑‑No misreading or non­-reading of evidence or misconstruction of law was found‑‑‑Supreme Court declined leave to appeal and dismissed the petition in circumstances.

M. Sarwar Khan, Additional A.‑G., Sindh and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 6th April, 2001.

2002 P L C (C.S.) 869

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

SARDAR KHAN

versus

MANAGING DIRECTOR (POWER), WAPDA and another

Civil Petition No.2208 of 2001, decided on 14th January, 2001.

(On appeal from the judgment of Federal Service Tribunal, Islamabad, dated 19‑5‑2001 passed in Appeal No.22(Q)/CS/2000).

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

‑‑‑‑Rr. 3(c), 4(1)(b)(iv) & 5‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Dismissal from service‑‑­Findings of fact by Service Tribunal‑‑‑Interference by Supreme Court‑‑­Scope‑‑‑Civil servant was found guilty of fraud and was dismissed from service as a result of departmental inquiry‑‑‑Departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Plea raised by the civil servant was that since the co‑accused had been reinstated in service, therefore, he was also entitled to be reinstated‑‑‑Validity‑‑‑Reinstatement by the Service Tribunal of co‑accused who were proceeded against by the Department for the same charge, would not provide a valid ground to the civil servant to be treated in the same manner and further the Inquiry Officer had found civil servant involved in the fraud and held him guilty and the Service Tribunal without taking any exception rightly dismissed his appeal‑‑­Neither the finding of facts recorded by the Service Tribunal could be assailed before Supreme Court through appraisal of evidence nor any question of law of public importance was involved in the petition to call for interference by the Supreme Court‑‑‑Leave to appeal was refused.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Petitioner.

M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 14th January, 2001.

2002 P L C (C.S.) 876

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

WAZIR KHAN

versus

GOVERNMENT OF N.‑W.F.P. through Secretary Irrigation, Peshawar and 4 others

Civil Appeal No. 648 of 2000, decided on 16th January, 2002.

(On appeal from the judgment of N.‑W.F.P. Service Tribunal, Peshawar, dated 13‑11‑1999 passed in Appeal No. 2704/97).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to examine, whether the petitioner who was appointed earlier than the contesting respondents and was placed senior to them in seniority list dated 13‑5‑1979, could vide latter seniority list dated 24‑3‑1997 be placed junior to the contesting respondents.

(b) North‑West Frontier Province Civil Servants Act (XVIII of 1973)‑‑‑

‑‑‑‑S. 8‑‑‑Seniority‑‑‑Fixation‑‑‑Appointees of same batch‑‑‑Appointments made as a result of selection in one combined competitive examination would be deemed to be belonging to the same batch and notwithstanding recommendation made by .the Public Service Commission in parts, the seniority inter se; the appointees, of the same batch, would be determined in the light of merit assigned to them by the Public Service Commission

(c) North‑West Frontier Province Civil Servants Act (XVIII of 1973)‑‑‑

‑‑‑‑S. 8‑‑‑Seniority‑‑‑Fixation‑‑‑Past and closed transaction, principle of‑­Applicability‑‑‑Re‑agitating seniority list after 15 years‑‑‑Civil servants party to the appeal were appointees of the same batch‑‑‑Appellant was placed senior to the respondents in the list prepared in the year 1979, while in the subsequent list prepared in the year 1981, the appellant was placed junior‑‑­Appellant did not object the seniority list issued periodically‑‑‑Appellant, after lapse of 15 years, re‑agitated the matter‑‑‑Contention of the appellant was that incorrect publication of seniority lists periodically would be the continuous wrong and the same every time would give rise to fresh cause of action, hence the appeal was wrongly dismissed by the Service Tribunal as time‑barred‑‑‑Validity‑‑‑Where the appellant did not raise any objection to the seniority list issued periodically in the intervening period, it would be deemed that the appellant had accepted the seniority assigned to him in the revised seniority list published in the year 1981‑‑Matter relating to the seniority of the parties having attained finality would be deemed as past and closed transaction and the same could not be reagitated after lapse of a period of about 15 years through a fresh representation‑‑‑Seniority, in the present case, was neither determined in departure to the principle embodied in S.8 of the North‑West Frontier Province Civil Servants Act, 1973, nor the same was in violation of any rule framed thereunder‑‑‑Mere fact that the appellant was placed senior to the respondents in the seniority list published in the year 1979 would not be a valid ground to declare him senior to the respondents by undoing the merits assigned to the parties by the Public Service Commission‑‑‑Initial placement of the appellant senior to the respondents in the list published in the year 1979, being not in accordance with the order of merits assigned to them by the Commission, would not create any right in favour of the appellant to claim seniority over the respondents‑‑‑Supreme Court repelled the contention of the appellant that incorrect publication of seniority lists periodically would be the continuous wrong and every time the same would give rise to fresh cause of action to challenge the seniority list‑‑‑Appellant having accepted the junior position assigned to him in the revised seniority list published in the year 1981, would be estopped to re‑open the same and agitate it at the belated stage in the year 1997‑‑‑Appeal before the Service Tribunal was rightly dismissed as barred by time.

Musa Wazir v. N.‑W.F.P. Service Commission 1993 PLC. (C.S.) 1188; Muhammad Jafar Hussain v. Chairman, C.B.R. 1993 PLC (C.S.) 52; Tahir Rasheed v. Secretary, Establishment Division 1993 PLC (C.S.) 116; Ziaul Haq v. Ministry of Education 1991 SCMR 1632 and Sabir Zameer Siddiqui v. Abdul Malik 1991 SCMR 1130 ref.

Atiqur Rehman Qazi, Advocate Supreme Court and Zahoor Qureshi Azad, Advocate‑on‑Record (absent) for Appellant.

Hamid Farooq Durrani, Additional Advocate‑General for Respondent No. 1.

Abdul Aziz Kundi, Advocate Supreme Court and M.S. Khattack Advocate‑on‑Record for Respondents Nos.2 to 5.

Date of hearing: 16th January, 2002.

2002 P L C (C.S.) 887

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Qazi Muhammad Farooq, JJ

GOVERNMENT OF PUNJAB and others

versus

PUNJAB APPELLATE TRIBUNAL, LAHORE and others

Civil Appeals Nos. 1412 to 1414 of 1999, heard on 1st October, 2001.

(On appeal from judgment dated 15‑6‑1998 passed by Lahore High Court, Lahore in W.Ps. Nos. 11061 to 11063/1998).

West Pakistan Industrial and Commercial 'Employment (Standing Orders) Ordinance (VI of 1968)‑‑‑

‑‑‑‑S.Os.1(b) & 12‑‑‑Permanent workman‑‑‑Status‑‑‑Determination of‑‑­Labour Court as well as Labour Appellate Tribunal of exclusive jurisdiction had recorded concurrent finding of fact that employees who continued in service for more than ninety days in posts of permanent nature, after expiry of said ninety days, had assumed the status of permanent workmen, not liable to be terminated without conforming with provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that 70 permanent posts were still lying vacant in the Department‑‑‑Such concurrent findings of fact were upheld by High Court‑‑‑Fact that the salaries of the employees were not deducted for Fridays and other holidays showed uninterrupted continuity of their services making them distinguishable from the "work‑charged employees "‑‑‑Employees, in circumstances, could not be said to be ad hoc or temporary‑‑‑In absence of any misreading or non‑reading of evidence on record, judgment of High Court not suffering from any legal infirmity could not be interfered with by Supreme Court in appeal.

Ch. Arshad Ali, Advocate Supreme Court with Maroof Ahmed Assistant Executive Engineer and Rao Muhammad Yousaf Khan, Advocate On‑Record for Appellants.

Farooq Zaman Qureshi, Advocate Supreme Court for Respondents.

Date of hearing: 1st October, 2001.

2002 P L C (C.S.) 893

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Javed Iqbal and Muhammad Nawaz Abbasi, JJ

GOVERNMENT OF ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Finance Division, Islamabad and 2 others

versus

MUHAMMAD YASEEN

Civil Appeal No.585 of 1998, decided on 1st February, 2002.

(On appeal from the judgment of Federal Service Tribunal, Lahore, dated 24‑7‑1996 passed in Appeal No.47(L)/96).

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

‑‑‑‑Rr. 3(a) & 4(1)(a)(iii), (b)(i)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Negligence in discharge of duty‑‑‑Punishment of reversion in rank awarded to the civil servant by the Competent Authority was converted into stoppage of two increments for three years by Service Tribunal‑‑‑Contention of the Authorities was that there was no discrimination nor any malice involved as all the civil servants were proceeded against and punished and as such reduction in the penalty was based on non‑existing ground‑‑‑Leave to appeal was granted by Supreme Court to consider the contention of the Authorities.

Pakistan Railways through General Manager v. Ghulam Rasul 1997 SCMR 1581 ref.

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

‑‑‑‑Rr. 3 (a), 4 & 5‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Negligence and carelessness‑‑­Loss to Government property‑‑‑Civil servant did not comply with the instructions regarding transportation of cash and instead of using vehicle and armed escort had sent cash amount of Rs.503,500 on foot, to be deposited in Bank‑‑‑On the way to Bank the subordinate of the civil servant was intercepted by unknown culprits who snatched the cash on gun‑point‑‑‑Cash was required to be carried in official vehicle and in case of non‑availability of official vehicle, the alternate arrangement was to be made to the satisfaction of the Regional Director/Officer Incharge‑‑‑Authorities failed to show that despite availability of armed escort and official vehicle, the civil servant allowed his subordinates to take the cash to Bank on foot in violation of Government instructions‑‑‑Reason of non‑observance of the instructions by the civil servant, as incharge of a Savings Centre was due to the non‑provision of adequate security arrangements by the Department it movement of cash from one place to another place under the instructions­-Authorities imposed punishment of reversion in rank to the civil servant whereas, the Service Tribunal allowed the appeal and converted the punishment into stoppage of two increments‑‑‑Validity‑‑‑Department was also at fault in sharing the negligence of the civil servant which caused loss to the Government ‑‑‑Discretion exercised by the Service Tribunal was not questionable and the punishment awarded to the civil servant by the Tribunal was adequate to meet the ends of justice‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal.

Sultan Mansoor, Deputy Attorney‑General Pakistan and Rao M. Yousaf Khan, Advocate‑on‑Record (absent) for Appellants.

Raja Abdul Ghafoor, Advocate Supreme Court/Advocate‑on‑Record for Advocate‑General, Punjab.

Sh. Masood Akhtar, Advocate‑on‑Record for Respondent.

Date of hearing: 1st February, 2002.

2002 P L C (C.S.) 898

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

MUSLIM COMMERCIAL BANK LIMITED through President and another

versus

MOMIN KHAN and 2 others

Civil Appeal No. 1085 of 1998, decided on 11th February, 2002.

(On appeal from the judgment of Peshawar High Court, Abbottabad Bench, dated 5‑3‑1998 passed in W.P. No. 122/97).

(a) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Employee of nationalized Bank which was privatized later on‑‑‑Dismissal from service‑‑‑Respondent after 11 years of his dismissal from service approached 'Review Board, which recommended his reinstatement in service‑‑‑Bank did not implement the ,recommendations‑‑‑Respondent approached Wafaqi Mohtasib, who affirmed said recommendations‑‑‑Review petition, filed by Bank was dismissed by Wafaqi Mohtasib‑‑‑Bank filed Constitutional petition before the Sindh High Court challenging the validity of order of Wafaqi Mohtasib for want of jurisdiction‑‑‑Respondent being contesting party in said Constitutional petition without disclosing pendency thereof, filed Constitutional petition before Peshawar High Court for implementation of recommendations of Review Board, which was allowed‑‑‑Contention of Bank was that Constitutional jurisdiction of Peshawar High Court could not be invoked during pendency of Constitutional petition filed by Bank before Sindh High Court; Review Board had no jurisdiction to entertain the application of respondent, who was neither dismissed under Martial Law Regulation nor on political grounds nor Review Board had found his dismissal on account of political victimization; Wafaqi Mohtasib though not having jurisdiction in the matter, had admitted that Bank had been privatized and had yet passed order of his reinstatement with all back benefits; such order could not be passed and ordered to be implemented in exercise of Constitutional jurisdiction; and that order of dismissal from service could not be interfered with by invoking Constitutional jurisdiction after two decades‑‑‑Supreme Court granted leave to appeal to examine said contentions.

(b) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction of different High Courts cannot be invoked on the same subject‑matter seeking the same relief either on the same grounds or on different grounds.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Jurisdiction of Wafaqi Mohtasib‑‑‑Matters relating to terms and conditions of employees of financial institutions controlled by the Government ‑‑‑Wafaqi Mohtasib had no jurisdiction to interfere in such matters.

(d) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (I of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Constitution of Pakistan (1973),. Arts 185(3) & ‑199‑‑­Constitutional petition‑‑‑Employee of nationalized Bank, but privatized later on‑‑‑Dismissal from service‑‑‑Respondent/employee after 11 years of his dismissal from service approached Review Board, which recommended his reinstatement in service‑‑‑Bank did not implement recommendations, over which respondent approached Wafaqi Mohtasib, who affirmed said recommendations‑‑‑Review petition filed by Bank was dismissed by Wafaqi Mohtasib‑‑‑Bank filed Constitutional petition before Sindh High Court challenging the validity of order of Wafaqi Mohtasib for want of jurisdiction, wherein respondent was a contesting party, but he without disclosing pendency thereof filed Constitutional petition before Peshawar High court for implementation of recommendations of Review Board on the strength of recommendations of Wafaqi Mohtasib, which was allowed‑‑ Validity‑‑‑Review Board was set up to revise cases in which dismissal from service was either for political reasons or in consequence to convictions awarded by Military Courts‑‑‑Review Board was neither competent to entertain the matter in issue and enlarge its jurisdiction to make a recommendation in the case of respondent nor said recommendations had created any right in his favour to be implemented by Bank or enforced through Constitutional jurisdiction of High Court‑‑Wafaqi Mohtasib had no jurisdiction in the matters relating to terms and conditions of employees of financial institutions controlled by Government‑‑‑Respondent being in contest with Bank in Constitutional petition pending before Sindh High Court on the same subject, could not maintain an independent/similar petition before Peshawar High Court‑‑‑Since the matter was sub judice before Sindh High Court, respondent either should have agitated the implementation of recommendations or should have filed a separate Constitutional petition before the Sindh High Court, which had already taken cognizance of the matter ‑‑‑Sindh High Court later on allowed the Constitutional petition filed by Bank, which had attained finality for want of challenge either through an Intra‑Court Appeal or a petition before Supreme Court‑‑‑Review Board and Ombudsman had no lawful authority to entertain representation/complaint of the respondent, thus, their recommendations having no legal sanction were not enforceable through Constitutional jurisdiction of High Court‑‑‑Supreme Court allowed the appeal and set aside impugned judgment in circumstances.

Yawar Ali Khan, Advocate Supreme Court and Mahmud‑ul‑Islam, Advocate‑on‑Record (absent) for Appellants.

Qazi Ghulam Rauf, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record (absent) for Respondents.

Date of hearing: 11th February, 2002.

2002 P L C (C.S.) 907

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

KHUSHAL KHAN

versus

MUSLIM COMMERCIAL BANK LTD. and others

Civil Petition No.735 of 2001, decided on 9th January, 2002.

(On appeal from the judgment/order dated 21‑11‑2000 passed by Peshawar High Court, Circuit Bench, Abbottabad in Writ Petition No. 130 of 2000).

(a) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Muslim Commercial Bank Limited (Staff) Service Rules, 1981, Item No. 12(b)‑‑‑Constitution of Pakistan (1973), Arts. 185(3) & 199‑‑‑Non­-service of grievance notice before filing of grievance petition ‑‑‑Effect‑‑­Termination of service‑‑‑Petitioner being in employment of Muslim Commercial Bank Limited filed appeal before next higher Authority against his dismissal order, but the same was dismissed‑‑‑Labour Court dismissed his grievance petition‑‑‑Labour Appellate Tribunal dismissed his appeal on the ground that he had not served grievance notice on his employer, and that his departmental appeal could not be treated and equated as grievance notice, which was a statutory requirement to be fulfilled by the worker under S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Constitutional petition filed by petitioner was also dismissed by, High Court‑‑‑Validity‑‑‑Petitioner had not served grievance notice upon his employer against his dismissal order‑‑­Appellate Authority was always considered to‑ be distinct and different entity from the original Authority competent to make appointment‑‑‑Petitioner was appointed by Regional Manager being Competent Authority, whereas he had addressed appeal to the President of the Bank, who was not his Appointing Authority‑‑‑Petitioner being a Cashier was a Category‑II official, thus, according to Muslim Commercial Bank Limited (Staff) Service Rules, 1981, President of the Bank could not be his appointing Authority, but Regional Manager would be the employer of petitioner for purposes of S.25‑A of Industrial Relations Ordinance, 1969‑‑‑Appeal filed by petitioner before President of the Bank could not be treated as grievance notice within the meaning of S. 25‑A of Industrial Relations Ordinance, 1969‑‑‑Petitioner had initiated incompetent proceedings against the respondent as no grievance notice under S.25‑A had been issued, as such High Court had rightly declined him the relief‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

1984 PLC 89 and C.P.S.L.A. No. 138‑P of 1985 ref.

(b) Civil Service--

---“Appointing Authority" and "Appellate Authority"‑‑‑Distinction‑‑­is always considered to be distinct and different entity from the original Authority competent to make appointment.

Petitioner in person

Qazi Muhammad Anwar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing : 9th January, 2002

2002 P L C (C.S.) 911

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and Hamid Ali Mirza, JJ

HOUSE BUILDING FINANCE CORPORATION through Managing Director; Head Office At Karachi and another

versus

Malik MUHAMMAD ASHRAF

Civil Petition No.423 of 2001, decided on 11th January, 2002.

(On appeal from the judgment order dated ‑19‑12‑2000 passed by Federal Service Tribunal, Islamabad in Appeal No.56‑R/CE/2000)

House Building Finance Corporation Services Regulation, 1957‑‑‑

‑‑‑‑Regln. 11‑‑‑Civil Servants Act (LXXI. of 1973), S.19‑‑‑‑Service Tribunals Act (LXX of 1973), Ss. 2‑A & 4‑‑‑Constitution of Pakistan (1973), Art .212(3).‑‑Premature retirement from service‑‑‑Respondent being employee of House Building Finance Corporation made application for premature retirement but before its acceptance, he made written request for its withdrawal, which was turned down by the Corporation‑‑‑Service Tribunal accepted the respondent's appeal‑‑Supreme Court granted leave to appeal, inter alia to examine whether employees of Corporation were not entitled to get benefit from instructions issued by Government of Pakistan from time to time particularly in respect of matters relating to retirement from service and such instructions on the basis of which, an application for premature retirement could be withdrawn; that whether respondent had submitted application to withdraw his request for premature retirement before passing of final order, if so to what effect; and that whether respondent in view of O.M. No. OB2/12/63 (Imp)(1), dated 18‑8‑1966 as amended by Ministry of Finance, Government of Pakistan vide O.M. No.OB.2/12/63(Imp)(1), dated 14‑12‑1967, could withdraw his request of premature retirement, because according to this O.M. once such request was made, that could neither be modified nor withdrawn.

PLD 1973 Quetta 4 and AIR 1956 All. 153 ref.

Raja Muhammad Asghar Khan, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Sh. Riaz‑ul‑Haq, Advocate Supreme Court and Ch. Muhammad Akram, Advocate‑on‑Record for Respondent.

Date of hearing: 11th January, 2002.

2002 P L C (C.S.) 917

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Faqir Muhammad Khokhar, JJ

MUHAMMAD IQBAL

versus

WAPDA through Chairman, WAPDA and 2 others

Civil Petition No. 1720 of 2001, decided on 7th March, 2002.

(On appeal from the order dated 14‑4‑2001 passed by the Federal Service Tribunal, Islamabad in Appeal No. 161(R) CS of 2001).

Pakistan Water and Power Development Authority Act (XXXI of 1958)‑

‑‑‑‑S. 20‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Delegation of powers‑‑‑Major penalty of reduction of pay three steps down in time pay scale for three years‑‑‑Appeal against the penalty was dismissed by Service Tribunal‑‑‑Contention of the civil servant was that the Chief Executive had not been delegated any powers by the Chairman under the provisions of S.20 of the Pakistan Water and Power Development Authority Act, 1958, that the Service Tribunal should not have dismissed the appeal of the civil servant in limine in which complicated facts and law were involved; and that the holding of regular inquiry could not be dispensed with in facts and circumstances of the case‑‑‑Leave to appeal was granted by Supreme Court to consider contentions of the civil servant.

Sheikh Riaz‑ul‑Haque, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 7th March, 2002.

2002 P L C (C. S.) 919

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

MUHAMMAD HAYAT SALEEM

versus

GOVERNMENT OF SINDH through Secretary, Excise and Taxation Department, Karachi and others

Civil Petition for Leave to Appeal No. 151‑K of 2001, decided on 19th June, 2001.

(On appeal from the judgment/order, dated 15‑1‑2001, of the Sindh Service Tribunal, at Karachi, passed in Appeal No.36/2000).

Sindh Service Tribunals Act (XV of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑‑Appeal before Service Tribunal‑‑‑Delay, condonation of‑‑­Authority passed final order against civil servant on 17‑12‑1999 but he filed appeal before Service Tribunal after 60 days alongwith application under S.5 of Limitation Act, 1908‑‑‑Tribunal was not convinced with the grounds advanced for condonation of delay, because civil servant was in full knowledge of the facts‑‑‑Civil servant also failed to satisfy the Tribunal on the point that order dated 17‑12‑1999 was received by him on 18‑t‑2000 i.e. with one month's delay‑‑‑Tribunal dismissed the appeal being time,‑barred‑‑­Validity‑‑Impugned order would show that Service Tribunal was right in dismissing the appeal being time‑barred‑‑‑Supreme Court refused to grant leave to appeal in circumstances.

Akhlaq A. Siddiqui, Advocate‑on‑Record for Petitioner.

Date of hearing: 19th June, 2001.

2002 P L C (C.S.) 921

[Supreme Court of Pakistan]

Present: Irshad Hasan Khan, C. J., Ch. Muhammad Arif and Munir A. Sheikh, JJ

PROVINCE OF SINDH through Advocate‑General, Sindh

Versus

PETER JOHN KHOKHAR

Civil Petition for Leave to Appeal No. 497‑K of 2001, decided on 31st July, 2001.

(On appeal from the order dated 22‑5‑2001 of the Sindh Service Tribunal, Karachi in Appeal No. 91/2000).

Sindh Service Tribunals Act (XV of 1973)‑‑

‑‑‑‑S. 4‑‑‑Police Rules, 1934, R.12.21‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Discharge from service‑‑‑Involvement of civil servant in a criminal case‑‑‑Civil servant was discharged from service on such ground‑‑­During pendency of departmental appeal, civil servant was acquitted by Trial Court, but Departmental Authority dismissed his appeal‑‑‑Civil servant filed appeal before Service Tribunal and submitted that he would not claim back benefits, if his appeal was allowed to the extent of reinstatement in service‑‑­Additional Advocate‑General representing the Department stated no objection to suggested course; whereupon Service Tribunal accepted the appeal in said terms‑‑‑Contention of Department was that instead of allowing the appeal on the basis of concession made by Additional Advocate‑General, the Service Tribunal should have applied its independent mind to the law on the subject and facts of the case, and noted that appeal was barred by time‑‑‑Validity‑‑‑Concession made by Additional Advocate‑General on behalf of the Department for reinstatement of civil servant without back benefits was binding on the Department‑‑‑Supreme Court declined to interfere with such concession‑‑‑Petition for leave to appeal was dismissed.

Suleman Habibullah, Additional Advocate‑General and Akhlaq A. Siddiqui, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 31st July, 2001.

2002 P L C (C.S.) 923

[Supreme Court of Pakistan]

Present: Munir A. Sheikh and Rana Bhagwandas, JJ

CHAIRMAN, STATE LIFE INSURANCE CORPORATION OF PAKISTAN and another

versus

ALI MUHAMMAD BANGASH

Civil Petition for Leave to Appeal No. 1920 of 2000, decided on 7th January, 2001.

(On appeal from judgment of Federal Service Tribunal dated 6‑10‑2000 passed in Appeal No‑6(P) of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Termination of service‑‑‑Respondent employed as Area Manager in State Life Insurance Corporation of Pakistan, after termination of his service on account of unsatisfactory performance, was reinstated in service through compromise with an undertaking given by him that he would try his level best to achieve the business target, if his old staff was made available to him‑‑‑Petitioners after evaluating the performance of respondent for one year found the same unsatisfactory, thus, terminated his services‑‑‑Service Tribunal accepted the appeal of respondent on the ground that according to undertaking given by him, old staff had not been made available to him; he had been subjected to victimization; he had not been paid other entitlements, due to which the could not work 'with peace of mind; and that according to petitioners' Board decision performance of Area Manager had to be adjudged on the basis of three years' evaluation and not one year's performance as had been done in the present case‑‑‑Validity‑‑‑Previous termination of services of respondent was got published by petitioners in newspapers informing public at large that they should not deal with him as employee of the petitioners, which obviously had consequence to render him helpless to earn the business, unless through another publication, the public was notified that he had been reinstated‑‑‑Publication of such notice in newspaper was an implied condition of the terms of reinstatement of the respondent‑‑‑Petitioners did not do so in spite of respondent's requests made in this behalf‑‑‑No question of law of public importance was either involved or made out in the petition, which was a case of personal grievance‑‑‑Question of fact had been decided by Service Tribunal, to which no exception could be taken ‑‑‑Petitioners undertook that respondent would be provided those available members of staff, out of the staff originally attached with him; and that public notice would be issued in newspapers throughout the country that respondent was an employee of the petitioners and he could deal with its business‑‑‑If said conditions were fulfilled and other dues of respondent were paid during the service, then petitioners might according to rules and regulations, evaluate his performance of three years hereafter and then if necessary, proceed against him in accordance with Law‑‑‑Supreme Court dismissed the petition subject to said observations.

Abdur Rashid Awan, Advocate Supreme Court for Petitioners.

Respondent in person.

Date of hearing: 7th January, 2002

2002 P L C (C.S.) 928

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui and Mian Muhammad Ajmal, JJ

PROVINCE OF SINDH

versus

Malik GHULAM HUSSAIN

Civil Petition No.445‑K of 2001, decided on 8th August, 2001.

(On appeal from the judgment dated 25‑4‑2001 of Sindh Service Tribunal at Karachi passed in Appeal No.387 of 2000).

Sindh Service Tribunals Act (XV of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Retirement from service on the basis of wrong entry of date of birth‑‑‑Date of birth of civil servant as recorded in his service book was 1‑3‑1941, and on its basis date of superannuation was 28‑2‑2001‑‑‑Departmental record showed his date of birth as 1‑3‑1939, thus, he was retired from service on 28‑2‑1999‑‑‑Civil servant challenged notification of his retirement and claimed consequential benefits of promotion and revised pay/pension etc., by way of filing departmental appeal, but the same was dismissed‑‑‑Service Tribunal accepted the appeal of civil servant, when Assistant Advocate‑General conceded that civil servant had been wrongly retired due to bona fide mistake and not due to any mala fide intention‑‑‑Contention of Department was that after retirement from Government service, civil servant was not entitled to any relief and that dues of such a civil servant could not be settled by Service Tribunal‑‑‑Validity‑‑‑Civil servant had been deprived of his legal dues/benefits due to mistake committed by Department, which could not be allowed now to take advantage of its own unjustified act of omission and commission‑‑‑Order passed by Service Tribunal was just and proper, which did not warrant any interference‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Suleman Habibullah, Additional Advocate‑General and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioner.

Imran Ahmed, Advocate Supreme Court and Faizanul Haq, Advocate‑on‑Record for Respondent. .

Date of hearing: 8th August, 2001.

2002 P L C (C.S.) 930

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

BADSHAH HASSAN

versus

INTERIOR MINISTRY through Secretary, Government of Pakistan and another

Civil Petition for Leave to Appeal No. 860 of 2000, decided on 10th January, 2002.

(On appeal from the judgment of the Federal. Service Tribunal. Islamabad, dated 9‑3‑2000 passed in Appeal No.330‑P of 1998).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Service Tribunal finding of‑‑‑Leave to appeal by Supreme Court, grant of‑‑‑Principle‑‑‑When no substantial law, muchless question of law of public importance, had been raised in the appear a finding of Service Tribunal being a finding of fact would not call for any interference by Supreme Court.

Ch. Muhammad Azim v. The Chief Engineer Irrigation and other 1991 SCMR 255 ref.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Finding of fact recorded by Tribunal on the basis of record and evidence before it, could not be interfered by Supreme Court.

Muhammad Nawaz v. Divisional Forest Officer, Jauharabad and 2 others 1982 SCMR 880 ref.

(c) Government Servants (Efficiency and Discipline) Rules, 1973‑

‑‑‑‑Rr. 3(d), 4(1)(b)(ii), 5 & 6‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Compulsory retirement from service on account of unsatisfactory performance and wilful absence from duty‑‑‑Departmental appeal as well as appeal preferred by civil servant before Service Tribunal against such penalty were dismissed ‑‑‑Validity‑‑­Callous, careless and indifferent attitude of civil servant towards official duties was demonstrative of the fact that he had never performed his duties seriously and remained absent on different occasions without intimation to the quarters concerned, which amounted to misconduct‑‑‑After having a proper enquiry and completion of all mandatory legal formalities as envisaged in Government Servants (Efficiency and Discipline) .Rules, 1973 ,end affording him proper opportunity of hearing, civil servant had been leniently dealt with and retired compulsorily being habitual absentee, deserter and on account of lack of interest in official duties, after payment of commutation with monthly pension and no injustice had been done‑‑‑Action taken by Competent Authority was neither whimsical nor arbitrary, but was based on sound reasoning, concrete and worthy of credence and being unexceptionable hardly called for any interference‑‑‑Service Tribunal had rightly declined to interfere‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Khushdil Khan; Advocate Supreme Court for Petitioner.

Nemo for Respondent.

Date of hearing: 10th January, 2002.

2002 P L C (C.S.) 933

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Tanvir Ahmed Khan, JJ

MUHAMMAD SIDDIQUE

versus

INSPECTOR‑GENERAL, FRONTIER CORPS, N‑W.F.P., PESHAWAR and others

Civil Petition No. 536 of 2001, decided on 8th January, 2002.

(On appeal from the judgment/order dated 4‑1‑2001 passed by Federal Service Tribunal, Islamabad in Appeal No. 211 (P)/CS of 2000).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Removal from service for disobeying lawful orders‑‑‑Petitioner being employee of Frontier Corps, was awarded such punishment, against which his departmental appeal as well as appeal before Service Tribunal were dismissed‑‑‑Validity‑‑‑Inquiry Committee had collected sufficient material to establish that petitioner was guilty of not obeying lawful orders of his command, which conduct was against the good order of service‑‑‑Petitioner being a member of disciplinary force was bound to have carried out lawful orders issued by his command, but he had been reluctant to do so‑‑‑Petitioner had bycotted the departmental examination and instigated other members of the force not to appear in examination‑‑‑Petitioner wanted to have examiner of his own choice, which was not permissible on any principle of law‑‑‑When Inquiry Committee was constituted, petitioner did not accept its composition and prayed that its members might be taken from some other units‑‑‑Such conduct of petitioner was sufficient to prove that he had no care about the orders of the command and had intentionally violated lawful orders‑‑‑Such conduct of the petitioner was not only unbecoming for a member of Disciplinary Force, but was seriously objectionable being a servant of Government‑‑‑Judgment passed by Service Tribunal was not open to any exception‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Petitioner in person.

Nemo for Respondents.

Date of hearing: 8th January, 2002.

2002 P L C (C.S.) 947

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, Javed Iqbal and Muhammad Nawaz Abbasi, JJ

SABOOR AHMAD

versus

MANAGING DIRECTOR, SUI SOUTHERN COMPANY LIMITED, UNIVERSITY ROAD, KARACHI and another

Civil Petition for Leave to Appeal No.859‑Q of 2000, decided on 10th January, 2002.

(On appeal from the judgment/order of the Federal Service Tribunal, Islamabad, dated 8‑3‑2000 passed in Appeal No.25(Q) of 1998).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Concurrent finding of facts‑‑‑Supreme Court ordinarily does not interfere with concurrent finding of facts given by Departmental Authority and Service Tribunal.

Muhammad Munir Ahmad v. Water arid Power Development Authority 1990 SCMR 907; Munir Ahmad v. Punjab Service Tribunal 1990 SCMR 1005; Faiz Ahmad v. Deputy Postmaster‑General, Lahore and others 1991 SCMR 368 and Muhammad Binyamin v. Water and Power Development Authority 1991 SCMR 383 ref.

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

‑‑‑‑Ss. 2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Petitioner being employee of Sui Northern Gas Company was terminated from service on account of absence from duty due to his involvement in a criminal case‑‑­Petitioner was reinstated in service after his acquittal from criminal case, but the period of his absence was treated as special leave without pay‑‑­Departmental appeal as well as appeal preferred by the petitioner‑ before Service Tribunal were dismissed‑‑‑Contention of petitioner was that period of his absence could not have been treated as 'special leave without pay, because he was involved in a false case, wherein he was acquitted and that performance of official duties during the period of his detention was not possible for him‑‑‑Validity‑‑‑Perusal of reinstatement order would show that reinstatement of petitioner was conditional‑‑‑Period of his absence had been rightly treated as "Special leave without pay" as the petitioner had no casual or earned leave to his credit, thus the question of salary and other benefits for such period did not arise‑‑‑Finding of facts recorded by Departmental Authority and upheld by Service Tribunal did not suffer from any legal infirmity or non‑consideration of any material piece of evidence‑‑‑No question of public importance was involved in the case‑‑‑Supreme Court did not interfere with concurrent finding of facts given by Departmental Authority and Service Tribunal‑‑‑Supreme Court dismissed the petition being devoid of merit.

Petitioner in person.

Barrister Ch. Muhammad Jameel, Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent.

Date of hearing: 10th January, 2002.

2002 P L C (C.S.) 950

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Qazi Muhammad Farooq and Rana Bhagwandas, JJ

C.P.L.A. No. 1162 of 2001

Ch. MUHAMMAD ASHRAF

Versus

STATE LIFE INSURANCE and others

(On appeal from judgment of Federal Service Tribunal dated 6‑2‑2001 passed in Appeal No. 8(P)(CE)/2000).

C.P.L.A. No. 1163 of 2001

MUMTAZ SHAHID ‑‑‑Petitioner

Versus

STATE LIFE INSURANCE and others‑‑‑Respondents

(On appeal from judgment of Federal Service Tribunal dated 5‑2‑2001 passed in Appeal No. 102(P)(CE)/2000).

C.P.L.A. No. 1164 of 2001

MIROZ KHAN‑‑‑Petitioner

Versus

STATE LIFE INSURANCE and others‑‑‑Respondents

(On appeal from judgment of Federal Service Tribunal dated 6‑2‑2001 passed in Appeal N. 103(P)(CE)/2000).

Civil Petitions for Leave to Appeal Nos. 1162, 1163 and 1164 of 2001, decided on 15th January, 2002.

State Life Insurance Employees (Service) Regulations, 1973‑‑‑

‑‑‑‑Part II, S.4‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑­Constitution of Pakistan (1973), Art.212(3)‑‑‑Termination of service‑‑­Services of the petitioners employed as Area Managers in State Life Insurance Corporation were terminated on account of unsatisfactory performance for not achieving the requisite amount of business‑‑‑Service Tribunal dismissed the petitioners' appeals on the ground that they were not permanent employees, thus, their services could be terminated as contract employees, if their performance was not found to be satisfactory‑‑­Contention of petitioners was that their services could not be terminated at the whims of the officers; according to State Life Insurance Employees (Service) Regulations, 1973, such action could betaken, which might be prescribed generally and specially by the Board; and that respondents had not referred to any decision mane by the Board for taking action against an Area Manager in such circumstances‑‑‑Validity‑‑‑Appointment letters of petitioners as Area Managers showed that it was not an. appointment on, contract basis‑‑‑Order of dismissal from service was made on the basis of terms and conditions of their appointment, which did not contain any condition for securing business to a particular limit‑‑‑Service Tribunal had failed to appreciate the petitioner's case on merits on the assumption that they were contract employees‑‑‑Supreme Court granted leave to appeal to further examine the case in the light of submissions made by the petitioners.

Javed A. Khan, Advocate Supreme Court and M. Zahoor Qureshi, Advocate‑on‑Record for Petitioner.

M.S. Khattak, Advocate‑on‑Record for Respondents.

Date of hearing: 15th January, 2002.

2002 P L C (C.S.) 953

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, C. J., Sh. Riaz Ahmed and Syed Deedar Hussain Shah, JJ

Pir NAZIR AHMAD SHAH

Versus

GOVERNMENT OF PAKISTAN through Secretary, States and

Frontier Regions Division, Islamabad and 2 others

Civil Petition No. 1309 of 1999, decided on 8th January, 2002, (On appeal from the judgment dated 8‑8‑1997 of the Federal Service Tribunal, Islamabad passed in Appeal No. 123(P)/1997).

Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997)] & 4‑‑‑Limitation Act (IX of 1908), S.5‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Respondent‑Corporation removed the petitioner from service on 29‑8‑1994 on charge of embezzlement‑‑‑Petitioner's departmental appeal was dismissed on 4‑6‑1997, but he challenged the same before Service Tribunal in time‑barred appeal, which was accompanied with application for condonation of delay showing the reasons for approaching the Tribunal belatedly‑‑‑Service Tribunal dismissed the application for condonation of delay as well as the appeal on the" ground that S.2‑A of Service Tribunals Act, 1973, came into force on 10‑6‑1997, which was not retrospective in operation, thus, petitioner was not a civil servant on the dates when the two impugned orders were passed‑‑‑Validity‑‑‑Service Tribunal should have taken a lenient view while considering the application for condonation of delay in appeal‑‑‑Supreme Court, in circumstances, converted the petition into appeal and accepted the same, set aside the impugned judgment and remanded the case to Service Tribunal with directions to reconsider the application for condonation of delay rather leniently in the light of observations of Supreme Court made in Muhammad Yaqoob's case (2000 SCMR 830) and unreported judgment in Civil Appeals Nos.882 to 890 of 1999 and simultaneously decide the appeal on merits so to obviate the eventuality of remand of the case again.

Azimullah, Ex‑Inspector v. Chairman, Board of Trustees, Abandoned Properties Organization and others 2001 PLC (C.S.) 358; Muhammad Yaqoob v. Pakistan Petroleum Ltd. and another 2000 SCMR 830 and Civil Appeals Nos. 882 to 890 of 1999 ref.

Khush Dil Khan Mohmand, Advocate Supreme Court for Petitioner.

Haji Muhammad Zahir Shah, Advocate Supreme Court for Respondents Nos.2 and 3.

Date of hearing: 8th January, 2002.

2002 P L C (C.S.) 956

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza

and Tanvir Ahmed Khan, JJ

MUHAMMAD NAWAZ

Versus

PRESIDENT, NATIONAL BANK OF PAKISTAN and others

Civil Petition No.270 of 2001, decided on 10th January, 2002.

(On appeal from the judgment/order dated 21‑10‑2000 passed by Federal Service Tribunal, Quetta in Service Appeal No.98(K) C.E./2000).

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

‑‑---S.4 ‑‑‑ Service Tribunals (Procedure) Rules, 1974, R.21 ‑‑‑ Supreme Court Rules, 1980, O.XIII, R.1‑‑‑General Clauses Act (X of 1897), S. 27‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Presumption‑‑‑Petition for leave to appeal barred by 23 days ‑‑‑Condonation of delay‑‑‑Contention of petitioner was that judgment was passed on 21‑10‑2000, but after waiting for its certified copy from Service Tribunal, he himself applied for its copy on 6‑12‑2000 and after obtaining the same filed the present petition‑‑‑Validity ‑­Tribunal after signing the judgment was bound to send certified copy thereof to parties concerned under registered cover as provided by R. 21 'of Service Tribunals (Procedure) Rules, 1974‑‑‑As per endorsement on copy of the judgment annexed with memo. of appeal the Tribunal had issued its copy to petitioner on 6‑11‑2000 and it would be deemed that its copy having been sent under registered cover had been duly received by him‑‑‑If petitioner contended otherwise, then burden shifted on him to satisfy that Tribunal had not sent copy of the judgment under registered cover and he had not received the same‑‑‑Ground urged by petitioner that in spite of said endorsement on Judgment, he had not received the same, was not legally acceptable because under S.27 of General Clauses Act, 1897, presumption was that service had been effected upon him under a registered cover envelope containing the judgment and had been received by him‑‑‑Supreme Court dismissed the petition being‑ barred by time.

Muhammad Aslam Uns, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Petitioner.

Nemo for Respondent.

Date of hearing: 10th January, 2002.

2002 P L C (C.S.) 958

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, QaziMuhammad Farooq and Rana Bhagwandas, JJ

MUHAMMAD HASSAN, STENOGRAPHER, FINANCE DIVISION, ISLAMABAD

Versus

SECRETARY, PRIVATIZATION COMMISSION, ISLAMABAD

Civil Petition for Leave to Appeal No. 1500 of 2000, decided on 10th January, 2002.

(On appeal from judgment of Federal Service Tribunal dated 25‑7‑2000 passed in Appeal No. 167(R) of 1999).

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

‑‑‑‑Rr. 3(a) & 4(1)(b)(ii)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑­Constitution of Pakistan (1.973), Art. 212(3)‑‑‑Compulsory retirement from service on charge of wilful absence from duty‑‑‑Departmental appeal filed by civil servant was accepted and said major penalty was converted into stoppage of two increments without cumulative effect‑‑‑Appeal filed by civil servant before Service Tribunal was dismissed‑‑‑Contention of civil servant was that two increments without cumulative effect had been stopped, but he had not been granted move‑over after two years, though at the time of inflicting penalty of stoppage of increments, he was drawing maximum pay of the post, which he was holding‑‑‑Validity‑‑‑No question of law of public importance was involved‑‑‑Civil servant had no case even on merits as he could not justify absence from duty for such a long time‑‑‑Service Tribunal had already taken a lenient view‑‑‑Civil servant might agitate the matter of grant of move‑over before Departmental Authorities, and if he failed to get such relief, he might approach the Service Tribunal that being an independent matter‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition having no merits.

Petitioner in person.

Nemo for Respondent.

Date of hearing: 10th January, 2002.

2002 P L C (C. S.) 960

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq, Abdul Hameed Dogar

and Tanvir Ahmad Khan, JJ

PAKISTAN INTERNATIONAL AIRLINES CORPORATION

through Chairman

versus

Captain M.S.K. LODHI

Civil Appeal No. 1003 of 2001, decided on 28th March, 2002.

(On appeal from the judgment dated 24‑11‑2000 of the Federal Service Tribunal. Islamabad, passed in Appeal No.77(K)(CE) of 2000).

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

‑‑‑‑S.4‑‑‑Martial Law Regulation 52 (C.M.L.A.s.), 1981‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Supreme Court granted leave to appeal to consider as to whether Service Tribunal was legally justified to condone the delay of 9 years in preferring appeal; whether respondent having failed to join the service and having remained absent without any permission could claim any lump sum compensation; and whether in view of removal of respondent under Martial Law Regulation 52, the Review Board could hold his dismissal as illegal.

(b) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑Ss. 5 & 14‑‑‑Fault in approaching wrong forum for redressal of grievance would not at all be a reasonable cause to condone the delay.

(c) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983)‑‑‑

‑‑‑‑Art. 9‑‑‑Martial Law Regulation 52 (C.M.L.A.'s), 1981‑‑‑Service Tribunals Act (LXX of 973), S.4‑‑‑Jurisdiction of Wafaqi Mohrasib‑‑­Removal from service under Martial Law Regulation 52‑‑‑Employee of Pakistan International Airlines Corporation‑‑‑Review Board directed his reinstatement in service‑‑‑Claim for lump sum compensation in lieu of reinstatement‑‑‑Employee approached Wafaqi Mohtasib for grant of such claim ‑‑‑Validity‑‑‑Wafaqi Mohtasib had no jurisdiction in the matter.

Shafatullah Qureshi v. Federation of Pakistan Civil Petition No.23‑K of 2000 fol.

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

‑‑‑‑S.4‑‑‑Martial Law Regulation 52 (C.M.L.A.'s.), 1981‑‑‑Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (1 of 1983), Arts. 9 & 32‑‑‑Limitation Act (IX of 1908), Ss. 5 & 14‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Employee serving as Cadet Pilot. in Pakistan International Airlines was removed from service on 11‑9‑1981 under Martial Law Regulation 52‑‑‑National Industrial Relations Commission and Review Board directed his reinstatement in service‑‑‑Corporation through letter, dated 13‑12‑1990 gave an option to employee to get lump sum compensation in lieu of reinstatement, but he submitted joining report on 1‑2‑1990 Employee joined another Airlines on 12‑2‑1990 under a contract with an intimation to Corporation that he would report for assignment of his duty in Corporation thereafter‑‑‑Corporation granted such time to employee and required him to pay secondment charges @ 25 % of his basic pay‑‑‑Employee after expiry, of lump sum compensation in lieu of his reinstatement in service from date of his removal under M.L.R. 52 till 31‑1‑1990, which dismissed his claim on 29‑6‑1994 and his appeal before President of Pakistan too was dismissed‑‑‑employee on 18‑1‑2000 filed appeal before Service Tribunal against order of Wafaqi Mohtasib, which was accepted‑‑‑Validity‑‑‑Wafaqi Mohtasib had no jurisdiction in the matter‑‑‑Appeal filed before Service Tribunal was time‑barred‑‑‑Fault in approaching wrong forum for redressal of grievance would not at all be a reasonable. cause to condone the delay‑‑­Employee was offered two options through leter, dated 13‑12‑1990, but he accepted the offer for re‑employment and reported for same on 1‑2‑1990 as such he had waived his right to claim the compensation‑‑‑Cut‑ date for availing an option for compensation as affectee of M.L.R. 52 was 31‑12‑1990‑‑‑Corporation had been asking the employee to join its service on terms of secondment, but on his failure to do so, his services were terminated and his request for compensation had rightly been disallowed‑‑­Employee had not paid requisite contribution towards his self‑arranged secondment‑‑‑Employee had not approached the Court with clean hands as he had concealed the fact of being already in employment on contractual basis with another Airlines at the time of submitting joining report in Corporation‑‑‑Supreme Court accepted the appeal and set aside the impugned judgment.

Fazal‑i‑Ghani, Advocate Supreme Court for Appellant.

Respondent in person.

Date of hearing: 28th March, 2002.

2002 P L C (C.S.) 970

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Abdul Hameed Dogar

and Tanvir Ahmed Khan, JJ

NIAZ AKBAR

Versus

ATOMIC ENERGY COMMISSION through Chairman and another

Civil Petition for Leave to Appeal No.230 of 2001, decided on 27th March, 2002.

(On appeal from the judgment, dated 11‑11‑2000 of the Federal Service Tribunal, Islamabad, passed in Appeal No.399(R) (C.E.) of 2000).

(a) Pakistan Atomic Energy Commission Employees (Service) Regulations, 1974‑‑‑

‑‑‑‑Regln. 3.2‑‑‑Pakistan Atomic Energy Commission Ordinance (XVII of 1965), Ss. 13, 20 & 21‑‑‑General Financial Rules, Rr. 116 & 117‑‑‑Bye­Laws of Pakistan Atomic Energy Council, Bye‑Law No.20‑‑‑Employees of Pakistan Atomic Energy Commission‑‑‑Change in date of birth‑‑‑Scope‑‑‑No regulation m this regard has been made in Pakistan Atomic Energy Commission Employees (Service) Regulations, 1974‑‑‑Federal Government has been empowered under S.13 of Pakistan Atomic Energy Commission Ordinance, 1965, to control the power of Commission in respect of appointment of its officers and employees including their terms and conditions‑‑‑Rule 116 of General Financial Rules of Federal Government, thus, would be applicable to employees of the Commission, whereunder date of birth once recorded in service record could not be altered except only in the case of a clerical error.

(b) Pakistan Atomic Energy Commission Employees, (Service) Regulations, 1974‑‑‑

‑‑‑‑Regln. 3.2‑‑‑Pakistan Atomic Energy Commission Ordinance (XVII of 1965), Ss. 13, 20 & 21‑‑‑General Financial Rules, Rr. 116 & 117‑‑‑Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.42‑A [incorporated on 31‑7‑2000]‑‑‑Specific Relief Act (I of 1877), S.42‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Change in date of birth‑‑‑Suit for declaration by employee of Pakistan Atomic Energy Commission‑‑‑Employee on the basis of decree of Civil Court passed in such suit got revised Matriculation Certificate and national identity card, and then applied to the Commission for change of his date of birth from 13‑6‑1964 to 11‑3‑1967, which accordingly made necessary amendments in his service record‑‑‑Commission on re­consideration of the matter, withdrew its earlier order‑‑‑ Departmental appeal as well as appeal filed before Service Tribunal were dismissed‑‑‑Contention of employee was that since Commission on his application had corrected his date of birth, thus, a valuable right had accrued to him and principle of locus poenitentiae was not available in circumstances‑‑‑Validity‑‑‑Employee after a period of 13 years of issuance of his Matriculation Certificate had filed a declaratory decree which he had procured without. impleading the Commission as a party, wherein he had taken a job on the basis of such document‑‑‑Sanctity would be given to employee's date of birth given by him 13 years prior to the date of securing decree in this regard at the time of his appointment in the Commission‑‑‑According to R. 116 of General Financial Rules of Central Government, only clerical error in birth certificate could be rectified‑‑‑No right could accrue to a party on the basis of an order passed in oblivion of the rules‑‑‑Supreme Court refused to grant leave to appeal and dismissed the petition in circumstances.

Syed Iqbal Haider v. Federation of Pakistan and another 1998 SCMR 1494; Haq Nawaz Kiani v: Province of Punjab through Chief Secretary, Government of Punjab, Civil Secretariat, Lahore and others 1998 SCMR 801; M.R. Khalid v. Chief Secretary, Punjab and another 1994 SCMR 1633 and PLD 1992 SC 207 ref.

Fazal Ellahi Siddiqui, Advocate Supreme Court with Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner.

Raja Muhammad Ibrahim Satti, Advocate Supreme Court with M.S. Khattak, Advocate‑on‑Record for Respondents.

Imitaz Ali, Additional Advocate‑General, N.‑W.F.P. (on Court's Notice)

Date of hearing: 14th November, 2001.

2002 P L C (C.S.) 982

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, C.J., Syed Deedar Hussain Shah and

Khalil‑ur‑Rehman Ramday, JJ

GENERAL MANAGER/CIRCLE EXECUTIVE MUSLIM COMMERCIAL

BANK LIMITED and another

Versus

MEHMOOD AHMED BUTT and others

Civil Review Petition No.55/L, Criminal Original Petition No. 32‑L of 1999 and Civil Miscellaneous Appeal No. 36 of 2001, decided on 29th January, 2002.

(On review from the judgment of this Court dated 22‑4‑1999 passed in C. P. No. 1773‑L of 1998).

(a) Civil service‑‑‑

‑‑‑‑Re‑instatement‑‑‑Service benefits, grant of‑‑‑Principle‑‑‑Grant of service benefits to an employee, who had been illegally kept away from his employment, was the rule, and denial of service benefits to such a reinstated employee was an exception on the proof of such a person having remained gainfully employed during such a period.

(b) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XXVI, R.1‑‑‑Review petition‑‑‑Delay of 102 days in filing of review petition‑‑‑Absence of explanation‑‑‑Effect‑‑‑Ground for review was that respondent had practised fraud on the Court, which had led the Court into the passing of the judgment under review, thus, limitation did not run against the petitioners‑‑‑Validity‑‑‑Neither proof of any fraud having been played on the Court nor any explanation about delay of 102 days in filing the review petition, was available on record‑‑‑Review petition was dismissed in circumstances.

PLD 1954 Lah. 745; 1993 SCMR 618;1994 SCMR 782; PLD 1975 SC 331 and 1986 SCMR 1496 ref.

(c) Supreme Court Rules, 1980‑‑‑

‑‑‑‑O.XXVI, R.1 & O.XXXIII‑‑‑Review petition‑‑‑Court directed the petitioners to pay service benefits to respondent from 12‑12‑1988 to 9‑9‑1997‑‑‑Petitioners sought review of said judgment on the ground that respondent had played fraud on the Court by concealing the fact of his having migrated to another country in year 1989 and settled there with no plan to return to Pakistan, thus, he was not entitled to service benefits for said period‑‑‑Validity‑‑‑Except for the petitioners' word of mouth, there was nothing on record to establish or even to indicate that respondent had been living abroad during all these years or had settled there and had no intention to return to Pakistan‑‑‑Declaration to said effect could not be given on mere oral statement of petitioners‑‑‑Mere fact that respondent had left the country and had gone abroad without any proof of his being gainfully employed somewhere during said period, was neither sufficient to deprive him of service benefits nor in absence of such proof, it could be held that he had committed any fraud on Court‑‑‑Review petition was dismissed in circumstances.

Raja Muhammad Akram, Senior Advocate Supreme Court instructed by Mehmood A. Qureshi, Advocate‑on‑Record for Petitioners.

M.A. Zafar, Advocate Supreme Court instructed by Syed Abul Asim Jaffari, Advocate‑on‑Record for Respondents, Date of hearing: 29th January, 2002.

2002 P L C (C.S.) 1002

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry and

Javed Iqbal, JJ

ZAFAR ULLAH BALOCH

Versus

GOVERNMENT OF BALOCHISTAN and others

Civil Petition No.6‑Q of.2002, decided on 27th February, 2002.

(On appeal from the judgment dated 6‑12‑2001 passed by Balochistan Service Tribunal in Service Appeal No.64/1998).

(a) Balochistan Civil Servants Act (IX of 1974)‑‑‑--

‑‑‑‑S. 9‑‑‑Balochistan Service Tribunals Act (V of 1974), S.4‑‑‑Promotion‑‑­Eligibility‑cum‑fitness‑‑‑Promotion policy‑‑‑Service Tribunal, jurisdiction of‑‑‑Scope‑‑‑Promotion is not a vested right of a civil servant because it depends on eligibility-cum‑fitness‑‑‑If a person is eligible for promotion being senior in rank in the grade but is not fit to share higher responsibilities, such civil servant would hot be promoted to the next grade‑‑‑Eligibility for promotion of aggrieved civil servant can he subjected to judicial scrutiny by the Service Tribunal because it relates to terms and conditions of his service‑‑‑Fitness of a civil servant to hold next higher post depends upon his performance which he has been showing during the period prescribed for promotion to next grade which is to be determined on the basis of material placed before Competent Authority including Annual Confidential Reports‑‑‑Performance of civil servant is to be evaluated on quantifying the marks secured by him as per the invogue formula‑‑‑Where a right to consider the civil servant for promotion has been claimed on the ground that he has been bypassed in violation of the Promotion Policy, the Service Tribunal can examine the question of fitness of such civil servant.

Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Has and others PLD 1994 SC 539 and Muhammad Rahim Khan v. The Chief Secretary, N.‑W.F.P. and 4 others 1999 SCMR 1605 ref.

(b) Balochistan Civil Servants Act (IX of 1974)‑‑‑--

‑‑‑‑S. 9‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑promotion‑‑‑Entry in Annual Confidential Report‑‑‑Objection‑‑‑Civil servant on account material discrepancies in one of his to the year 1997, had been deprived civil servant was that if the entry in that Annual Confidential treated to be as "very good" instead of good, he would have secured requisite marks‑‑‑Report as far back as in the year 1997, therefore, questioned at such a late stage firstly for the reason that it was not an adverse entry and secondly on having come to know that the second countersigning officer had ranked him to be a good officer instead of servant did not challenge the entry before any forum according to Leave to appeal was refused.

Mehra W.N. Kohli, Advocate‑on‑Record for Petitioner.

Haji Akhtar Zairian, Additional, Advocate‑General for Nos. 1 and 2.

Nemo for Respondent No.3.

Date of hearing: 27th February, 2002.

2002 P L C (C.S.) 1009

[Supreme Court of Pakistan]

Present: Qazi Muhammad Farooq and

Syed Deedar Hussain Shah, JJ

STATE LIFE INSURANCE CORPORATION OF PAKISTAN through

Executive Director, Karachi and another

Versus

Doctor WASEEM IMRAN SHEIKH and another

Civil Petition for Leave to Appeal No. 1877 of 2000, decided on 17th April, 2002.

(On appeal from judgment dated 27‑10‑2000 passed by the Federal Service Tribunal, Islamabad in Appeal No. 104(R)(CE)/2000).

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

‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑State Life Employees (Service) Regulations, 1973, Reglns.27 & 33‑‑‑Termination from service‑‑­Departmental remedy, non‑availing of‑‑‑Appeal before Service Tribunal was filed without filing of appeal before the Departmental Authorities‑‑­Validity‑‑‑Where appeal against termination from service was not provided in Reglns. 27 & 33 of the State Life Employees (Service) Regulations, 1973, the employee had correctly approached the Service Tribunal for redressal of his grievance‑‑‑Service Tribunal, after considering each and every aspect of the case, had rightly allowed the appeal of the employee and reinstated him in service with back benefits‑‑‑Judgment passed by the Service Tribunal was well‑reasoned and based on the law laid down by Supreme Court and was not open to exception‑‑‑Question of public importance as contemplated under Art.212(3) of the Constitution was not involved in the case‑‑‑Leave to appeal was refused.

Pakistan International Airlines Corporation through its Chairman, Head Office Karachi and others v. Koural Channa and others 1999 PLC (C.S.) 1539 and Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197 ref.

Abdur Rashid Awan, Advocate Supreme Court with M.A. Zaidi, Advocate‑on‑Record for Petitioners.

Nasir Saeed Shaikh, Advocate Supreme Court with Ejaz Muhammad Khan,, Advocate‑on‑Record for Respondent No. 1.

Date of hearing: 17th April, 2002.

2002 P L C (C.S ) 1016

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Tanvir Ahmed Khan

and Faqir Muhammad Khokhar, JJ

AZHAR MAJEED KHALID

Versus

FORCE COMMANDER AIRPORT SECURITY FORCE QUAID‑E‑AZAM

INTERNATIONAL AIRPORT HQ KARACHI and 2 others

Civil Appeal No. 152 of 1999, decided on 29th January, 2002.

(On appeal from the Judgment dated 1‑7‑1998 of Federal Service Tribunal, Islamabad passed in Appeal No.477(K) of 1998).

(a) Airport Security Force Act (LXXVII of 1975)‑‑‑--

‑‑‑‑S. 7‑A(4)‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider, whether the Service Tribunal had correctly applied the ratio decidendi of the judgment of Supreme Court in the case titled Force Commander, ' Airports Security Force, Karachi and others v. Haji Muhammad Rashid and another reported as 1996 SCMR 1614.

Force Commander, Airport Security Force, Karachi and others v Haji Muhammad Rashid and another 1996 SCMR 1614 rel.

(b) Airport Security Force Act (LXXVII of 1975)‑‑‑--

‑‑‑‑Ss. 7‑A(4) & 7‑F(1)(2)‑‑‑Pakistan Army Act (XXXIX of 1952), Ss.2 & 5‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Dismissal from service‑‑‑Jurisdiction of Service Tribunal ‑‑‑Civil servant was working as Sub‑Inspector in the Airports Security Force and on account of absence from duty he was dismissed forthwith by the Chief Security Officer‑‑‑Appeal filed by civil servant was dismissed for want of jurisdiction‑‑‑Validity‑‑‑Service Tribunal or for that matter any Authority, except as mentioned in S.7(A) of the Airports Security Force Act, 1975, had no jurisdiction to vary, modify, alter,. annul, set aside, revise or review any order passed by officer of the force authorised under the Pakistan Army Act; 1952‑‑‑Chief Security Officer being an officer of the force within the meaning of , Pakistan Army Act, 1952, the Tribunal had rightly declined to entertain the appeal for want of jurisdiction‑‑‑Supreme Court declined to interfere with the order passed by the Service Tribunal‑‑‑Appeal was dismissed.

Gul Muhammad v. The Force Commander and another 1999 SCMR 2935 and Fasihuddin v. Khawar Latif. Butt and others 1993 SCMR 1 distinguished.

Kunwar Mukhtar Ahmad, Advocate Supreme Court for Appellant.

Ch. Sultan Mansoor, Deputy Attorney‑General and Mehr Khan Malik, Advocate‑on‑Record for Respondents.

Muhammad Munir (Legal Officer), ASF.

Muhammad Ishaque, Security Officer, ASF.

Respondent No.3: Ex parte.

Date of hearing: 29th January, 2002.

2002 P L C (C.S.) 1019

[Supreme Court of Pakistan]

Present Iftikhar Muhammad Chaudhry and

Hamid Ali Mirza, JJ

PAKISTAN INTERNATIONAL AIRLINES‑‑‑Petitioner

Versus

OMAR SAEED NAZI‑‑‑Respondent

Civil Petition No. 131‑K of 2001, decided on 18th April, 2002.

(On appeal from the judgment/order dated 6‑12‑2000 passed by Federal Service Tribunal, Islamabad in Appeal No. 1322‑K of 1998).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Reinstatement in service‑‑‑Illegal appointment‑‑‑Service of employee of Pakistan International Airlies Corporation were terminated for the reason that his appointment was the result of favouritism and nepotism shown to him‑‑‑Service Tribunal allowed the appeal filed by the employee and he was reinstated in service‑‑­Leave to appeal was granted by Supreme Court to consider, whether appointment of the employee as Officer Marketing had been made contrary to the principle laid down by Supreme Court in the case of Abdul Jabbar Memon reported as 1996 SCMR 1349 or otherwise.

Abdul Jabbar Memon and other's case 1996 SCMR 1349 ref.

Fazal‑e‑Ghani, Senior Advocate Supreme Court for Petitioner

Nemo for Respondent

Date of hearing: 18th April, 2002

2002 P L C (C.S) 1027

[Supreme Court of Pakistan]

Present: Javed Iqbal, Hamid Ali Mirza

and Tanvir Ahmed Khan, JJ

Syed SIKANDAR ALI SHAH‑‑‑Appellant

Versus

AUDITOR‑GENERAL OF PAKISTAN and others‑‑‑Respondents

Civil Appeal No. 32 of 2001, decided on 1st April, 2002.

(On appeal from the judgment of the Federal Service Tribunal, Karachi, dated 27‑7‑2000 passed in Appeal No. 163(K)/1998).

(a) Civil Servants (Confirmation) Rules, 1993--------

‑‑‑‑R. 6(2)‑‑‑Civil Servants Act (LXXI of 1973), S.11(1)(i)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Supreme Court granted leave to appeal to consider, whether petitioner had acquired a right to revert to his parent organization having already retained his lien by Competent Authority or whether in view of R.6(2) of Civil Servants (Confirmation) Rules, 1993 read with cl. (i) of subsection (i) of S.11 of Civil Servants Act, 1973, he had ceased to hold the lien.

(b) Civil Servants (Confirmation) Rules, 1993‑‑‑

‑‑‑‑R. 6(2)(3)(4)‑‑‑Civil Servants Act (LXXI of 1973), S.11(1)(i)‑‑­Government Servants (Efficiency and Discipline) Rules, 1973, RA(1)(b)(iv)­‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Termination of service during subsistence of lien period‑‑‑Civil servant joined other Organization after obtaining prior approval of Competent Authority of his parent department for retaining his lien for two years vide order dated 7‑5‑1996‑‑‑Civil servant after termination of his services by other Organization submitted joining report to his parent department on 4‑2‑1998, which remained pending for 3‑1/2.rnonths; whereafter his services were terminated vide order dated 13‑5‑1998 w.e.f. 7‑5‑1996 i.e. the date on which he was relieved to join other Organization‑‑­Service Tribunal dismissed the appeal of civil. servant relying on R.6(2) of Civil Servants (Confirmation) Rules, 1993‑‑‑Validity‑‑‑Termination order could not be issued with retrospective effect unless Competent Authority was expressly empowered in this regard by some statute or rules made thereunder‑‑‑Termination order dated 13‑5‑1998 was vague, wherein no specific rule of Civil Servants (Confirmation) Rules, 1993 had been mentioned on the basis whereof services of civil servant were terminated‑‑‑Removal of civil servant with retrospective effect was unlawful‑‑‑Civil servant had submitted joining report to parent department on 4‑2‑1998 i.e. within a period of two years for which his lien was retained‑‑­Civil servant had never been absorbed permanently in other Organization, thus, his lien could not be terminated‑‑‑Department could not show any plausible explanation as to how services of a civil servant having eleven years' service to his credit, could be terminated without adhering to prescribed procedure as enumerated in Civil Servants Act, 1973, Government Servants (Efficiency and Discipline) Rules, 1973 and Civil Servants (Confirmation) Rules, 1993‑‑‑Service Tribunal had erred while relying exclusively on R.6(2) of Civil Servants (Confirmation) Rules, 1973, which could not be read in isolation arid provisions of sub‑rules (3) & (4) thereof could not be ignored‑‑‑Various extraneous considerations having no nexus with controversy had prevailed upon Service Tribunal while deciding appeal, which being artificial and superfluous hardly deserved any consideration‑‑‑Supreme Court accepted the appeal and set aside impugned judgment directing reinstatement of civil servant .with back benefits w.e.f. 4‑2‑1988, when he had submitted his joining report.

Secretary Education v. Viqar‑ul‑Haq 2000 SCMR 1978 and Mazhar Ali v. Federation of Pakistan 1992 SCMR 435 ref.

(c) Civil service‑‑

‑‑‑‑Termination of service with retrospective effect‑‑‑Validity‑‑‑Termination of service could not be with retrospective effect unless Competent Authority was expressly empowered in this regard by sortie statute or‑ rules made thereunder.

Noor Muhammad v. Member Election Commission 1985 SCMR 1178; Noor Muhammad v. Muhammad Abdullah 1984 SCMR 1578; Dr. Muhammad Abdul Latif v. The Province of East Pakistan PLD 1964 Dacca 647 and Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 ref.

(d) Civil service‑‑‑

‑‑‑‑ Competent Authority, power of‑‑‑Rectification of wrong‑‑‑Competent Authority could not rectify a wrong after lapse of considerable period and that too without following the prescribed procedure.

(e) Civil service‑‑‑

‑‑‑‑‑Political ‑‑‑‑Political influence‑‑‑Effect‑‑‑Duty of Competent Authority‑‑‑Competent Authority should be bold enough to face political influence‑‑‑Obeying capricious and arbitrary directions of political bosses without raising slightest protest by Competent Authority depicts a cowardly and condemnable trend.

M.M. Aqil Awan, Advocate Supreme Court and Miss Wajahat Niaz, Advocate‑on‑Record (absent) for Appellant.

Sardar M. Aslam, Deputy Attorney‑General for Respondents.

Date of hearing: 1st April, 2002.

2002 P L C (C.S.) 1050

[Supreme Court of Pakistan]

Present: Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ

PAKISTAN STEEL MILLS CORPORATION

Versus

MUHAMMAD AZAM KATPER and others

Civil Petitions for Leave to Appeal Nos.840‑K and 841‑K of 2001, decided on 30th November, 2001.

(On appeal from the judgment dated 1‑8‑2001 passed by the Federal Service Tribunal, Camp at Karachi in Appeal Nos.739 and 740(K)(CE) of 2000).

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

‑‑‑‑Preamble & S.4‑‑‑Service Tribunal has exclusive jurisdiction in respect of matters relating to terms and conditions including disciplinary proceeding against civil servants.

(b) Interpretation of statutes‑‑

‑‑‑‑ Retrospectivity of legislation‑‑‑Scope‑‑‑Legislation concerning procedural matters would operate retrospectively‑‑‑Legislation not concerning mere procedure, but more than a matter of procedure and touching a right in existence at the time of its passing would not operate retrospectively unless Legislature either by express enactment or by necessary intendment gave such legislation retrospective effect‑‑‑Dispute having become past and closed transaction creating a right in one's favour could not be taken away by giving retrospective operation to the amended statutory provision.

Commissioner of Income‑tax, Karachi v. Eastern Federal Union Insurance Co. PLD 1982 SC 247; Kumir Mondal and others v. Paramatha Nath Chowdhury and others PLD 1963 Dacca 886; Mian Rafi‑ud‑Din and others v. The Chief Settlement and Rehabilitation Commissioner PLD 1971 SC 252; Hassan and others v. Fancy Foundation PLD 1975 SC 1; Pir Bakhsh and another v. The State PLD 1965 (W.P.) Lah. 308; Sakhi Muhammad v. Wajid Ali and others PLD 1964 (W.P.) Lah. 426; Nagina Silk Mill, Lyallpur v. The Income‑tax Officer and another PLD 1963 SC 322; Commissioner of Income Tax (West), Karachi v. Messrs Kruddsons Ltd. PLD 1974 SC 180; Adrian Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Central Exchange Bank v. Ch. Dilawar Ali Khan and others PLD 1965 (W.P.) Lah. 628; State v. Manlvi Muhammad Jamil and others PLD 1965 SC 681; Works Cooperative Housing Society and another v The Karachi Development Authority PLD 1969 SC 430; Indraj Singh and others v. Smt. Savitri Kunwar AIR 1966 All. 234; Maxwell on Interpretation of Statutes, 1962 Edns. pp.217, 219; AIR 1950 East Punj. 25; AIR 1942 Mad. 262; AIR 1944 All. 15 and Lemn v. Mitchell LR 1912 AC 400 ref.

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

‑‑‑‑S.2‑A‑‑Object and scope of S.2‑A of Service Tribunals Act, 1973 and its effect on vested rights/past and closed transactions‑‑‑Employees of a Corporation on promulgation of S.2‑A of Service Tribunals Act, 1973, became civil servants for limited purpose of providing remedy by way of appeal against an order of departmental authority of which civil servant was aggrieved‑‑‑ Provision of S.2‑A of Service Tribunals Act, 1973, could not he said to be only procedural in nature, but would be more than the matter of mere procedure, therefore, it could not be given retrospective operation unless legislation by express enactment or by necessary intendment gave it retrospective effect‑‑‑Provision of S.2‑A of the Act would not take away/impair/nullify or destroy a vested right of an employee (who subsequently became a civil servant), which had attained finality and the lis had become past and closed transaction on the basis of judgments passed by competent forum at the relevant time.

Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 ref.

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

‑‑‑‑Ss. 2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997) w.e.f 10‑6‑1997], 4 & 6‑‑‑Industrial Relations Ordinance (XXIII of 1969), Ss.25‑A, 37 & 38‑‑‑Constitution of Pakistan (1973), Arts. 199 & 212(3)‑‑‑Jurisidction of Service Tribunal‑‑‑Scope‑‑‑Respondents/employees as a result of transfer from another Mill joined the petitioner Corporation on 19‑6‑1989 and were informed through order, dated 18‑7‑1989 that their seniority would be counted from their joining the service of Corporation‑‑­Respondents challenged such order before Labour Court, which set aside the same on 19‑2‑1994‑‑‑Appeals filed by petitioner before Labour Appellate Tribunal were also dismissed on 14‑12‑1995 maintaining the order of Labour Court‑‑‑Constitutional .petitions filed by petitioner challenging both the orders of Labour hierarchy stood abated after promulgation of S.2‑A of Service Tribunals Act, 1973‑‑‑Petitioner thereafter filed appeals before Service Tribunal which were dismissed‑‑‑Validity‑‑‑After Constitutional petitions having abated the judgments of Labour hierarchy remained in the field as legal, valid and effective orders having attained finality, thus, determination of seniority of respondents became a past and closed transaction‑‑‑Vested right had been created in favour of respondents on the basis of said judgments, which could not be taken away or impaired by insertion of S.2‑A ins Service Tribunals Act, 1973‑‑‑Service Tribunal having been vested to exercise jurisdiction in appeal of civil servant against the original or appellate order passed by Departmental Authority' would have no jurisdiction to nullify/set aside orders/judgments of Labour hierarchy, which had attained finality having also become past and closed transaction creating vested right in favour of the respondents, particularly when the orders of Labour hierarchy could not be termed to be orders of the Departmental Authority‑‑‑Order of Labour hierarchy, which had attained the finality could not be said to have been made ineffective, inoperative and unexecutable unless and until those were set aside by competent forum under the law‑‑­Service Tribunal had no jurisdiction to determine the legality or propriety of order, dated 18‑7‑1989 passed by petitioner, which had been set aside by Labour hierarchy through its legal and valid judgments at relevant time creating a vested right in favour of the respondents‑‑‑Supreme Court declined to grant leave to appeal and dismissed the petitions in circumstances.

Alvia Tableeghi Trust and others v. Mujeebur Rahman Alavi and others 1984 CLC 796; Imtiaz Ahmad v. Ghulam Ali and others PLD 1963 SC 382 and Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 ref.

(e) Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss. 25‑A, 37 & 38‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A [as inserted by Service Tribunals (Amendment) Act (XVII of 1997) w.e.f 10‑6‑1997] & 6‑‑‑Constitution of Pakistan (1973), Arts.199 & 212(3)‑‑­Constitutional petition‑‑‑Respondents/employees challenged the decision of petitioner/Corporation with regard to their seniority before Labour Court, which set aside the same‑‑‑Appeals filed by petitioner before Labour Appellate Tribunal were dismissed‑‑‑Constitutional petitions filed by petitioner challenging both the orders of Labour hierarchy stood abated after promulgation of S.2‑A of Service Tribunals Act, 1973‑‑‑Validity‑‑‑Both the competent forums in Labour hierarchy had arrived at concurrent finding, wherein no misreading or non‑reading of evidence or misapplication of law was found‑‑‑Abatement of proceedings before High Court took place forthwith i.e. on 10‑6‑1997, while appeals before Supreme Court were filed in November, 2000‑‑‑Supreme Court declined to grant leave to appeal and dismissed the petitions in circumstances.

Munib Ahmed Khan, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 30th November, 2001.

2002 P L C (C.S.) 1083

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, Hamid Ali Mirza and Abdul Hameed Dogar, JJ

ABDUL HAFEEZ ABBASI and others

Versus

MANAGING DIRECTOR, PAKISTAN INTERNATIONAL AIRLINES CORPORATION; KARACHI and others

Civil Appeals Nos.2117 to 2134 of 2001 and 12 of 2002, decided on 12 February, 2002.

(On appeal from the judgments/orders dated 29‑5‑2001 and 26‑6‑2001 passed by Federal Service Tribunal, Karachi in Appeals Nos.928(K)/1998 to 936(K)/1998 and 1191(K)/1998)‑

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

‑‑‑‑Ss.2‑A, 4, 5 & 6‑‑‑Constitution of Pakistan (1973), Art.212(3)---Supreme Court Rules, 1980, O.XIII, R.1‑‑‑Employees of Pakistan International Airlines Corporation‑‑‑Supreme Court granted leave to appeal to consider, whether the appeals filed by the employees before Service Tribunal were not competent for‑want of making departmental appeals; whether they were reinstated into service on correct premises, whether they were entitled to back benefits and that the Tribunal was not justified in law in treating the period of their termination as leave without pay‑‑‑Petitions tiled by the employer were barred by one day, wherein Supreme Court granted leave subject to determination of the question of limitation.

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

‑‑‑‑S. 2‑A‑‑‑Object and scope of S.2‑A, Service Tribunals Act, 1973‑‑­Section 2‑A of Service Tribunals Act, 1973 has extended a right to all the employees of the category falling within its ambit to have a forum of Federal Service Tribunal for redressal of their grievances expeditiously instead of approaching the Civil Courts‑‑‑Such employees have been treated/declared to be in the service of Pakistan only for said limited purpose, otherwise for all practical purposes, they cannot be treated in the service of Pakistan nor they enjoy rights/obligations available to a civil servant under Civil Servants Act, 1973.

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal‑‑‑Re­instatement‑‑‑Back benefits‑‑‑Service Tribunal. ordered re‑instatement of appellants, but treated the period during which they remained out of job as leave without pay‑‑‑Validity‑‑‑Employee in order to become entitled to back benefits had to demonstrate before the original forum that during the pendency of appeal, he had not made any earnings by engaging himself into profit oriented activity either by accepting an employment or doing some business‑‑‑Such prayer necessarily had to be made in the pleadings‑‑­Appellants in the present case had, not mentioned in memo. of appeals filed before Service Tribunal about their engagement in commercial activities during the period, when they had remained out of job, thus, Service Tribunal had no jurisdiction to grant them back benefits‑‑­Assertions so made by the appellants before Supreme Court about non‑making of earnings during such period being a statement of fact could not be accepted on the plea that appeal was the continuation of original proceedings‑‑‑Supreme Court disposed of the appeals with observations that appellants could make a representation to Competent Authority for redressal of their grievance, and if such request was made, the same would be disposed of within specified time keeping in view the above principle.

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

‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Constitution of Pakistan (1973). Art. 212(3)‑‑‑Appeal‑‑­Limitation‑‑‑Suit filed by the employees against order of termination of their service stood abated after insertion of S.2‑A in Service Tribunals Act. 1973‑‑‑Employees then filed appeals before Service Tribunal within 30 days of passing of abatement order, which were accepted‑‑­Contention of the employer was that said appeals were time‑barred as the employees should have approached Service Tribunal within 90 days from date of insertion of S.2‑A in Service Tribunals Act, 1973 i.e. 10‑6‑1997‑‑‑Validity‑‑‑Since the question of limitation had not been taken up before Service Tribunal, Supreme Court declined to entertain the same.

PLD 1981 SC 249 ref.

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Appeal‑‑‑Termination of service‑‑‑Service Tribunal ordered the re‑instatement of employees, but employer did not take them on duty thus, deprived them from salary for such period‑‑‑Validity‑‑‑Employer had an obligation to honour the Judgment of Service Tribunal and reinstate the employees or if employer had any reservation in not implementing the judgment, then a stay order should have been obtained from the Supreme Court‑‑‑Employer had not obtained any stay order, thus, judgment of Service Tribunal remained operative‑‑­Supreme Court directed that employees be reinstated with effect from the date of passing of judgment of Service Tribunal with all back benefits.

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

‑‑‑‑Ss. 2‑A, 4 & 5‑‑‑Constitution of Pakistan (1973)‑‑‑Art. 212(3)‑‑­Employees of Pakistan International Airlines Corporation‑‑‑Master and servant, relationship of‑‑‑Termination of service without show‑cause notice‑‑­Service Tribunal ordered the re‑instatement of employees‑‑‑Contention of the Corporation was that services of the employees were governed by the principle of Master and Servant, thus, Service Tribunal had no jurisdiction to grant the relief of re‑instatement, but in such situation at the best, employees would have claimed damages ‑‑‑Supreme Court repelled the contention while holding that it was wrong to contend that on the theory of master and servant relationship, Service Tribunal had no jurisdiction to re‑instate an employee, whose services had been illegally terminated.

Sui Southern Gas Company v. Narain Das PLD 2001 SC 555 fol.

(g) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A & 4‑‑‑Pakistan International Airlines Corporation Act (XIX of 1956), S.5(2)‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Employees of Pakistan International Airlines Corporation‑‑‑Termination of service/retrenchment without show‑cause notice under the directives issued. by the Prime Minister Secretariat on 4‑3‑1997 requiring termination of all illegal appointments made during previous Government against merit/in violation of rules and regulations‑‑‑Service Tribunal ordered the reinstatement of employees‑‑‑Contention of the Corporation was that in case of simpliciter termination of services without any stigma, the employees could not have been re‑instated on mere violation of principles of natural justice‑‑­Validity‑‑‑Principle enshrined in maxim "Audi alteram partem" had to be applied in all judicial and non judicial proceedings notwithstanding the fact that right of hearing had not been expressly provided by the statute governing the proceedings‑‑‑Employer might terminate the service of its employee without show‑cause notice in the case of exigency of service‑‑­Corporation had terminated the services of the employees under the directives issued by the Prime Minister Secretariat under the heading "Retrenchment" ‑‑‑Recognised principle of retrenchment was not to remove all the employees from service except to a limited extent by following the principle last come first go‑‑‑Such directives could not be equated with an exigency of service to remove the employees from service‑‑‑Federal Government under S.5(2) of Pakistan International Airlines Corporation Act, 1956, might issue directives to the Corporation on matter of policy, which would be binding on the Corporation‑‑‑Office of Prime Minister alone did not constitute the Federal Government and thus, said directives were not strictly covered by S.5(2) of Pakistan International Airlines Corporation Act, 1956‑‑‑Employees had been made victim of the Prime Minister's directive alone‑‑‑Issuance of show cause notice in such circumstances, to the employees before terminating their services was incumbent upon the Corporation‑‑‑If the appointments of employees were presumed to be in violation of the Rules and Regulations and not on merits, even then they had acquired a right for having served the Corporation from 1995 onward during the course whereof, they had been confirmed, which would mean that they had attained status of permanent employee having a right to remain in service until their appointments had been proved to be contrary to Regulations of the Corporation‑‑‑Supreme Court dismissed the appeals m circumstances.

Mrs. Anisa Rehman v. PIAC and others 1994 SCMR 2232; 1998 SCMR 60; Civil Appeals Nos.366 of 2001 to 378 of 2001 and Pakistan International Airlines Corporation v. Nasir Jamal Malik and others 2001 SCMR 934 ref.

(h) Service Tribunals Act (LXX of 1973)‑‑‑

‑‑‑‑Ss. 2‑A, 4 & 6‑‑‑Civil Servants Act (LXXI of 1973), Ss. 2 & 22(2)‑‑­ Constitution of Pakistan (1973), Art. 212(3)‑‑‑Pakistan International Airlines Corporation Act (XIX of 1956), Ss. 29, 30 & 31‑‑‑Pakistan International Airlines Corporation Rules, 1985, R.22(e)‑‑‑Termination of service‑‑­Employees of Pakistan International Airlines Corporation challenged termination order by filing civil suits, which after insertion of S.2‑A in Service Tribunals Act, 1973, stood abated‑‑‑Employees then filed appeals before Service Tribunal, which were accepted‑‑‑Contention of the Corporation was that appeals filed by the employees before Service Tribunal were not competent without exhausting departmental remedy ‑‑‑Validity‑‑Civil servant under Civil Servants Act, 1973, by virtue of S.4 of Service Tribunals Act, 1973, was obliged to file departmental appeal under statutory rules meant for seeking departmental remedy before invoking the jurisdiction of Service Tribunal‑‑‑Where no such rules had been framed, then civil servant had to appeal to the next higher authority under S.22(2) of Civil Servants Act, 1973‑‑‑Employees were civil‑servants for the purposes of Civil Servants Act, 1973 under S.2(2) thereof ‑‑‑Neither there was any statutory rules nor forum created by a statute to entertain such appeals/revisions‑‑­Departmental Authorities did not enjoy statutory power to entertain departmental appeals filed by aggrieved employees being members of the Corporation, which was being run by the Board of Governors---Regulations framed by Board of Governors had not been authenticated by Federal Government‑‑‑Employees, in absence of statutory rules governing the affairs of their services could not be legally compelled to file appeals/review/representation to the Authority or next higher Authority before approaching the Service Tribunal for redressal of their grievance, but they could directly approach the Service Tribunal for having been treated civil servants for limited purpose i.e. to seek redressal of their grievance relating to terms and conditions of their services from Tribunal‑‑‑Departmental Authorities had contested the suit filed by the employees and had got knowledge about their grievance against the order of termination of their services, thus, alternatively plaints filed by them could be treated as departmental appeals without prejudice to the rule laid down by the Supreme Court in the case of Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others (C.A. No.947 of 1999)‑‑‑Supreme Court dismissed the appeals in circumstances.

1992 SCMR 1789; 2002 SCMR 82; 1997 SCMR 197; Syed Aftab Ahmad and others v. K.E.S.C. and others 1999 SCMR 197 and Muhammad Mushtaq Akbar Abbasi v. House Building Finance Corporation and others C.A.No.947 of 1999 ref.

(i) Civil service‑‑‑

‑‑‑‑Reinstatement‑‑‑Entitlement to back benefits of service ‑‑‑Principle‑‑­Employee on the eve of his re‑instatement by a judicial forum or Departmental Authority can get back benefits, if he succeeds in establishing that he had not been making earnings during the period, when he remained out of job‑‑‑Employee has to demonstrate such facts before the original forum‑‑‑Such prayer necessarily has to be made in the pleadings‑‑‑If during such period, employee has accepted other employment or engaged in profitable business, then any amount earned by way of salary from employment or as profits of such business would have to be set of: against the salary due for two reasons, firstly, because a Government servant cannot without permission of Government serve any other master or engage in any other business and secondly, because on general principle too that a person cannot be allowed to reap a double advantage.

PLD 1981 SC 249; Pakistan through General Manager, P.W.R., Lahore v. Mrs. AN. Issacs PLD 1970 SC 415 and Qadeer Ahmad v. Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787 fol.

(j) Civil service---

‑‑‑‑Retrenchment‑‑‑Recognised principle of retrenchment is not‑to remove all the employees from service except to a limited extent by following the principle last come first go.

(k) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 185 & 212(3)‑‑‑Plea/point/objection,/question not raised before lower Court/forum‑‑‑Effect‑‑‑Objection not raised before the forum, whose order had been assailed before Supreme Court, would not be entertained unless it had been shown that adjudication of such question was necessary as it involved question of public importance or decision of such point would go to the root of the case.

(l) Constitution of Pakistan (1973)‑‑‑

‑‑‑Arts. 185 & 212(3)‑‑‑Appeal to Supreme Court‑‑‑Question of limitation‑‑­Proper forum for raising such question‑‑‑Normally, question of limitation is considered a mixed question of fact and law, and is required to be decided at the first instance by the Court seized of the matter keeping in view the material available on record, because appreciation of facts is not undertaken by Supreme Court in exercise of its Constitutional jurisdiction.

(m) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Appointments made by Departmental Authorities on the directives of the persons at the helm of affairs/governing the country‑‑­Subsequent termination of services on the ground that such appointments were contrary to law as well as prevailing Rules and Regulations ‑‑‑Effect‑‑­Besides proceeding in such situation against the beneficiaries of so‑called illegal appointments the officers responsible for implementing such illegal directives should also be held equally responsible and sever action should be taken against them, so that in future, it may serve as a deterrent for other like‑minded person.

Secretary to Government of N.‑W.F.P. 1996 SCMR 413; Civil Petition for Leave to Appeal No.1062 of 1998 and Sui Southern Gas Company v. Narain Das PLD 2001 SC 555 ref.

(n) Interpretation of statutes‑‑‑

Duty of Court‑‑‑Court/Tribunal seized of the matter was competent to Minterpret the law liberally with the object to extend its benefits largely to the aggrieved persons, provided such interpretation would not violate the spirit of law.

(o) Maxim‑‑‑

----“Audi alteram partem"‑‑‑Application‑‑‑Principle enshrined in maxim "Audi alteram partem" has to be applied in all judicial and non­ judicial proceedings notwithstanding the fact that right of hearing has not been expressly provided by the statute governing the proceedings.

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Appellants (in C.As. Nos.2117 to 2125 of 2001).

Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate­-on‑Record for Respondents (in C. As. Nos.2117 to 2125 of 2001.

Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate­-on‑Record for Appellants (in C. As. Nos. 2126 to 2134 of 2001).

Wasim Sajjad, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate‑on‑Record for Respondents (in C. As. Nos.2117 to 2125 of 2001).

Javed Iltaf, Advocate Supreme Court and Sh. Slahauddin, Advocate­-on‑Record for Appellants (in C.A. No. 12 of 2002).

Nemo for Respondent (in C. A. No. 12 of 2002).

Date of hearing: 12th February, 2002.

2002 P L C (C.S.) 1181

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ

MUHAMMAD SIDDIQUE

Versus

GENERAL MANAGER, PAKISTAN RAILWAYS and 2 others

Civil Petition No. 1981‑L of 2000, decided on 18th April, 2002.

(On appeal from the judgment dated 7‑6‑2000 of the Federal Service Tribunal, Lahore, passed in Appeal No.445‑L of 1998).

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑S.25‑A‑‑‑Service Tribunals Act (LXX of 1973), S.2‑A‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Removal from service‑‑‑Grievance notice‑‑­Delay of six years in sending the notice and filing appeal' before Labour Court‑‑‑Appeal before the Service Tribunal was also barred by time as S.2‑A, came into existence in the Service Tribunals Act, 1973, on 10‑6‑1997‑‑‑Appeal before Service Tribunal was dismissed being time­barred‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal and leave to appeal was refused.

Rana Maqbool Ahmed Khan, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 18th April, 2002.

2002 P L C (C.S.) 1184

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif and Rana Bhagwandas, JJ

ANWAR FAROOQ SADOZAI, RESEARCH OFFICER, NATIONAL EDUCATION AND TRAINING COMMISSION, (NOW PMLC), ISLAMABAD

Versus

THE CHAIRMAN, NATIONAL EDUCATION AND TRAINING COMMISSION, ISLAMABAD (NOW PMLC) and 2 others

Civil Appeal No.79 of 1997, decided on 15th June, 2001.

(On appeal from judgment dated 31‑10‑1996 passed by the Federal Service Tribunal, Islamabad in Appeal No. 14‑P of 1993).

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

‑‑‑‑S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Seniority‑‑‑Re­appointment in service‑‑‑Petitioner and respondent were appointed in a project which was disbanded and for the new project senior most four persons were to be appointed‑‑‑Contentions of the petitioner were that no seniority list was issued by the Competent Authority at the time of disbandment of the project and, therefore, the order of appointment of respondent was based on erroneous assumption of facts and that in any case, the petitioner was senior to the respondent before disbandment of the project; that with the disbandment of the project, the petitioner was appointed afresh on merits as Research Officer with back benefits of his previous service, in view of his rich experience on a high post and length of service and that appointment was lawfully made by the Competent Authority .and, therefore, respondent had neither locus standi to challenge the appointment nor lie had acquired arty vested right to hold the office of Research Officer in place of the petitioner‑‑‑Leave to appeal was granted by Supreme. Court ~to consider the contentions of the petitioner.

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

‑‑‑‑S.4‑‑‑Seniority‑‑‑Reappointment in service‑‑‑Disbandment of previous project and appointment in new project‑‑‑New appointment was made; on the basis of seniority list prepared during the previous project‑‑‑Dispute was with regard to the seniority of the parties‑‑‑Respondent was at Serial No. 17 and the appellant was at Serial No.20 of the seniority .position and the recommendations of the Selection Committee were approved according to the Notification fixing their inter se seniority‑‑‑Appellant was appointed .by the Authorities despite the fact that the respondent was senior in the list‑‑­Respondent filed appeal before Service Tribunal which was allowed and respondent was appointed in place of the petitioner‑‑‑Validity‑‑‑Service Tribunal was right in allowing the appeal of the respondent as he was a Serial No. 17 of the seniority list prepared while the appellant was at No.20 of the list‑‑‑Appellant had not denied determination of inter se seniority o1 the employees on 23‑7‑1985 and the same was not objected to by him at any time between the years 1985 and 1992‑‑‑Supreme Court declined to interfere with the judgment passed by the Service Tribunal and appeal was dismissed.

Federation of Pakistan and others v. Rats. Khan 1993 SCMR 609 distinguished.

Ziaul Haq and others v. Secretary, Ministry of Education, Islamabad and others 1991 SCMR 1632: Federation of Pakistan through Secretary, Establishment. Islamabad and another v. B.A. Tabassum and 11 others 1995 SCMR 1229 and Abdul Hamid Khan v. Secretary, Establishment Division and others 1994 SCMR 543 ref.

Bashir Ahmed Ansari. Advocate Supreme Court with Mehr Khan Malik, Advocate‑on‑Record for Appellant.

Salahuddin Khan, Deputy Attorney‑General, Punjab on Court's Notice:

Nemo for Respondents Nos. l and 2.

Shah Abdur Rashid, Advocate Supreme Court with M.A. Zaidi. Advocate‑on‑Record for Respondent No.3.

Date of hearing: 15th June, 2001.

2002 P L C (C.S.) 1193

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar and Faqir, Muhammad Khokhar, JJ

MUHAMMAD FAROOQ

Versus

GOVERNMENT OF PUNJAB through Secretary, Agriculture Department eand another

Civil Petition No.881‑L of 2002, decided on 18th April, 2002.

(On appeal from the judgment dated 11‑3‑2002 of‑the Punjab Service Tribunal, Lahore Passed in Service Appeal No. 1067 of 1993).

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

‑‑‑‑S. 4‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Adhoc appointment Termination of service‑‑‑Discrimination‑‑Although civil servant was appointed ‑on ad hoc basis yet he continued in service and had completed about 13 years without any break‑‑‑Civil servant was terminated from service and his departmental appeal as well as appeal before the Service Tribunal were futile‑‑‑Contention of the civil servant was that he had been discriminated against other's who though in the same category were regularized‑‑‑Leave to appeal was granted by Supreme Court to consider such contention of the civil servant.

Muhammad Abbas v. Executive Engineer and others C. P. No.570‑L of 1998 fol.

Abdul Wahid Chaudhry, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 18th April, 2002.

2002 P L C (C.S.) 1301

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. CJ

Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

MUHAMMAD MUSADAQ KH. ASSISTANT EXECUTIVE

ENGINEER and 14 others

versus

MUHAMMAD AKRAM KHAN RAO and 80 others

Civil Appeal No. 1263 of 1995, decided on 15th May, 2001.

(On appeal from judgment dated 19‑3‑1995 passed by the Federal Service Tribunal, Islamabad in Appeal No.245(R) of 1994).

(a) Central Engineering Service Class‑I Rules, 1951‑‑‑

‑‑‑‑R.21 [as amended on 11‑10‑1984 and 12‑5‑1988]‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Civil Servants Act (LXXI of 1973), S.9‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Promotion‑‑‑Appeal to Service Tribunal‑‑­Limitation‑‑‑Contention of petitioner was that appeal before Service Tribunal was barred by time as representation made on 23‑6‑1992 remained undecided for more than 120 days and respondent did not invoke jurisdiction of Tribunal in time, but manoeuvred to get reply on 10‑7‑1994 about rejection of his representation, which would not enlarge the time for tiling of appeal; that since initial promotion, on account of failure of respondent to qualify departmental examination, was violative of Central Engineering Service Class‑I Rules amended on 11‑10‑1984, he was not eligible to be considered for further promotion in B‑17 as Assistant Executive Engineer; that Service Rules amended on 11‑10‑1984 did not provide for promotion of Assistant Engineer B‑16 to the post of Assistant Executive Engineer B‑17, but Service Rules as amended on 12‑5‑1988 contained provisions for such promotion subject to passing of departmental examination, enforcement of which would be prospective and not retrospective w. e. f. 11‑10‑1984; that since Service Rules amended on 11‑10‑1984 did'‑not provide for such promotion, Service Tribunal was wrong to conclude the same to be an omission and that Service Tribunal had not considered the effect of quota system‑‑‑Supreme Court granted leave to appeal to further consider the matter.

(b) Central Engineering Service Class‑I Rules, 1951‑‑

‑‑‑‑R.21 [as amended on 11‑10‑1984 and 12‑5‑19881‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Civil Servants Act (LXXI of 1973), Ss.9 & 22‑‑­Constitution of Pakistan (1973), Art. 212(3)‑‑‑Appeal to Service Tribunal‑‑­Limitation‑‑‑Promotion‑‑‑Contention of appellant was that appeal before Service Tribunal was barred by time as the representation of respondent‑civi; servant remained undecided for more than 120 days, who after that manoeuvred to get reply about rejection of his representation, which would not enlarge the time for tiling of appeal; that since initial promotion on account of failure of respondent‑civil servant to qualify departmental examination was violative of Central Engineering Service Class‑I Rules as amended on 11‑10‑1984, he was not eligible to be considered for further promotion in B‑17 as Assistant Executive Engineer; and that Service Rules framed on 11‑10‑1984 did not provide for promotion of Assistant Engineer B‑16 to the post of Assistant Executive Engineer B‑17, thus, Service Tribunal was wrong to conclude the same to be an omission ‑‑‑Validity‑‑­Appeal was beyond time‑‑‑Service Tribunal had erred in holding that after alleged rejection of representation by respondent (Secretary, Works Division), the appeal was within time without noticing that Secretary, Works Division was not the competent Authority in case of respondent civil servant, thus, he could not link such rejection of representation with his appeal before Service Tribunal to mitigate the rigours of law of limitation‑‑‑Effect of the Rules requiring respondent‑civil servant to pass departmental examination for promotion as Assistant Engineer B‑16 and Assistant Executive Engineer B‑17 had not been brought to bear upon the case of parties before Tribunal and that too without considering the respondent's failure to pass departmental examination respectively in accordance with the provisions of office Memo. dated 16‑I1‑1974, Gazette Notification dated 18‑3‑1979 and Notification dated 15‑8‑1955‑‑‑Tribunal had not considered the plea raised by appellant that case of respondent fell within ambit of R.21 of .Central Engineering Service Class‑I Rules, 1951‑‑­Supreme Court allowed the appeal, set aside the impugned judgment and remanded the case to Service Tribunal to hear , the parties on specified questions.

Dr. Habibur Rehman v. The West Pakistan Public Service Commission Lahore and 4 others PLD 1973 SC 144 ref.

(c) Service Tribunal Act (LXX of 1973)‑‑‑

‑‑‑‑S.4‑‑‑Civil Servants Act (LXXI of 1973), S.22‑‑‑Appeal before Service Tribunal‑‑‑ Limitation‑‑‑Rejection of departmental appeal representation of civil servant before an authority other than competent Authority would not mitigate the rigours of the law of limitation.

Shah Abdur Rashid, Advocate Supreme Court and M. A. Zaidi, Advocate‑on‑Record for Appellant.

Respondent: Ex parte.

Date of hearing: 15th May, 2001.

2002 P. L C (C.S.) 1313

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Ch. Muhammad Arif

and Rana Bhagwandas, JJ

Ch. MAHMOOD AKBAR, SUPERINTENDENT JAIL, DISTRICT

JAIL, FAISALABAD

versus

Ch. MUHAMMAD AFZAL, SUPERINTENDENT JAIL, SIALKOT and 2 others

Civil Petition No. 1789 of 1996, decided on 13th June; 2001.

(On appeal from judgment dated 20‑1I0‑1996 passed by the Punjab Service Tribunal, Lahore in Appeal No. 267 of 1995).

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

‑‑‑‑R. 8(1)(b), Expln. I‑‑‑Punjab Civil Servants Act (VIII of 1974), Ss. 7,8 & 9‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑ Promotion‑‑‑Seniority‑‑‑Respondent while serving as Deputy Superintendent Jail was transferred and posted on 21‑12‑1989 as Superintendent Jail on his own pay and scale, and was promoted as Superintendent on 1‑9‑1994‑‑‑Respondent claimed promotion w.e.f. 21‑12‑1989 for having been working as Superintendent since then, but department dismissed his representation‑‑‑Service Tribunal accepted respondent's appeal by granting him pay and allowances, privileges and status of the post of Superintendent w.e.f. 21‑12‑1989‑‑‑Petitioner's contention was that he being senior to respondent was not made party in appeal; and that Tribunal had erred in conferring the status and privileges of the post of Superintendent on respondent w.e.f. 21‑12‑1989, which had amounted to granting him promotion from said date‑‑‑Supreme Court granted leave to appeal to consider said contentions of petitioner.

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

‑‑‑‑R. 8(1)(b), Expln. I‑‑‑Punjab Civil Servants Act (VIII of 1974), Ss. 7, 8 & 9‑‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑ Promotion‑‑‑Seniority‑‑‑Respondent while serving as Deputy Superintendent Jail was transferred and posted on 21‑12‑1989 as Superintendent Jail on his own pay and scale, and was promoted as Superintendent on 1‑9‑1994‑‑‑Respondent claimed promotion w.e.f. 21‑12‑1989 for having been working as Superintendent since then, but department dismissed his representation‑‑‑Service Tribunal accepted respondent's appeal in view of the concession made by District Attorney that respondent was entitled to pay and allowances, privileges and status of the post of Superintendent w.e.f. 21‑12‑1989‑‑‑ Validity‑‑‑Appellant had not been impleaded as party by respondent before Tribunal‑‑‑Explanation I to proviso to cl. (b) of sub‑rule (1) of Rule 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 was not brought to bear by Tribunal upon facts and circumstances of present case‑‑‑Tribunal had not considered the concession made on respondent regarding out of turn promotion and relaxation of rules being not applicable to his case‑‑‑District Attorney had no authority to make any such concession, which had all the potentialities of adversely affecting the rights of a substantial number of employees contrary to R 8 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974‑‑‑Tribunal had erred in law in sanctifying said concession of District Attorney‑‑‑Supreme Court accepted the appeal and partially set aside impugned judgment by declaring that grant of the status and privileges of the post of Superintendent Jail (B‑17) w.e.f. 21‑12‑1989 to respondent would not adversely affect the rights of appellant and other Superintendents Jail in B‑17, who were senior to respondent.

Muhammad Ramzan and others v. Member (rev.)/CSS and others 1997 SCMR 1635 ref.

Ch. Mushtaq Masood, Advocate Supreme Court and Sh. Masud Akhtar, Advocate‑ on‑Record for Appellant.

Respondents: Ex parte.

Date of hearing: 13th June, 2001.

2002 P L C (C.S.) 1358

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Javed Iqbal and Sardar Muhammad Raza, JJ

ZAFAR IQBAL QURESHI

versus

MUHAMMAD ALI

Civil Petition for Leave to Appeal No.3186 of 2001, decided on 25th April, (On appeal from the judgment dated 12‑9‑2001 of the Lahore High Court Mutlan Bench, Multan in Civil Petition No. 591‑D of 2001).

(a) Civil Services---

‑‑‑‑Suit for damages‑‑‑Plaintiff, a Government servant, for almost five months was made to face hardship due to unreasonable, unjustified and sadistic attitude of the District Accounts Officer by not passing his pay bills against the Rules‑‑‑Plaintiff brought a suit for damages for Rs.10,00,000 which was decreed to the extent of Rs.50,000 by the First Appellate Court as well as the High Court‑‑‑Validity‑‑‑Documentary evidence on record was more than sufficient to prove the high‑handedness of the judgment‑debtor who in his capacity as District Accounts Officer should have refrained from being adamant when policy letter on the subject was brought to his notice and he had no authority to raise objection challenging the very authority of the competent officer‑‑‑Two Courts below having rightly arrived at the conclusion about the quantum of damages which was a question of fact, Supreme Court, in circumstances, declined interference and dismissed the petition for leave to appeal against the judgment of High Court‑‑‑Supreme Court observed that the Government officials dealing with the rights of the people and other Government officials were not supposed to have a negative and sadistic attitude merely to satisfy their false egos‑‑‑Supreme Court deprecated the conduct of the judgment‑debtor on account of which a Government servant drawing small salary was forced to face monetary loss as well as mental torture ‑‑‑Civic sense of the aggrieved civil servant who did not feel contented upon the sanction of the bill and initiated to ask for damages was appreciated by the Supreme Court with the remarks that it was healthy sign to make others realise the consequences of their omissions to perform, an act which they were legally as well as morally bound to perform.

(b) Civil service‑‑‑

‑‑‑‑ Leave preparatory to retirement‑‑ ‑Once the competent Authority had cancelled the leave preparatory to retirement and the civil servant had continued in service, the Accounts Officer had no authority to raise objection challenging the very authority of the competent officer.

Ch. Afrasiyab Khan, Advocate Supreme Court and Anwar H. Mir Advocate‑on‑Record for Petitioner.

Date of hearing: 25th April, 2002.

2002 P L C (C.S.) 1361

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Qazi Muhammad Farooq and Abdul Hameed Dogar, JJ

IMDAD MAGSI and others

versus

KARACHI WATER AND SEWERAGE BOARD and others

Civil Appeals Nos. 1232 to 1235 of 2000, decided on 14th May, 2002.

(On appeal from the judgment of the High Court of Sindh, dated 4‑6‑1999 passed in C.P. No. D‑1151 of 1998).

(a) Karachi Water and Sewerage Board Employees (Probation, Confirmation) Rules, 1987‑‑‑

‑‑‑‑Rr.4(a) & 6(b)(c)‑‑‑Karachi Water and Sewerage Board Employees (General Conditions of Services) Rules, 1987, R.78(1)(2)(3)‑‑‑Karachi Water and Sewerage Board Resolution No.1 of 1991, dated 15‑6‑1991‑‑‑Sindh Service Tribunals Act (XV of 1973), S.2‑A‑‑‑Constitution of Pakistan (1973), Arts. 199, 212 & 185(3)‑‑‑Retrenchment of the employees of Karachi Water and Sewerage Board before the completion of probation period‑‑‑Chief Minister of the Province ordered reinstatement of such employees‑‑­Validity‑‑‑Constitutional petition before High Court for implementation of the orders of the Chief Minister‑‑‑Maintainability‑‑‑Applicability of S.2‑A, Sindh Service Tribunals Act, 1973‑‑‑Scope‑‑‑Leave to appeal was granted by the Supreme Court to consider the points to the effect as to whether writ of mandamus or writ of certiorari could be issued by the High Court to get the order of Chief Minister implemented who himself was Chief Executive of the Province but his orders were not complied with by the Karachi Water and Sewerage Board; whether employees of Karachi Water and Sewerage Board whose services were terminated could be reinstated by the Chief Minister on his own by taking suo motu action and by ignoring the prescribed procedure as enumerated in S.143, Sindh Local Government Ordinance, 1979; whether the downsizing/retrenchment policy had been implemented with the prior approval of Government of Sindh which resulted in an en bloc termination of the employees of the Board; and whether the controversy related to the terms and conditions of service and fell within the jurisdictional domain of Sindh Service Tribunal in view of S.2‑A of the Sindh Service Tribunals Act, 1973.

(b) Karachi Water and Sewerage Board Act (X of 1996)‑‑‑

‑‑‑‑Ss. 4 & 6(2)‑‑‑Retrenchment of employees of the Karachi Water and Sewerage Board during their probationary period‑‑‑Order of reinstatement of such employees by the Chief Minister of the Province‑‑‑Vice‑Chairman of the Board who was member of the Provincial Assembly, intervened in the matter of reinstatement of such employees and did not allow the functionaries of the Board to comply with or implement the orders of the Provincial Government or the Chief Minister‑‑‑Chairman of the Board being unable to perform functions as envisaged by S.6(2) of the Karachi Water and Sewerage Board Act, 1996, orders or directions issued on the matter by the Vice-­Chairman were without lawful authority and of no legal effect and also lacked bona fides and suffered from not only lack of power but also malice‑‑‑Vice‑Chairman, while issuing the directions for not implementing the orders of the Chief Minister/Provincial Government, used the name of the Chairman as if he was directed by the Chairman of the Board to issue the orders in question, which again was contrary to the order of the Appellate Authority Le the i Provincial Government.

(c) Karachi Water and Sewerage Board Employees (Probation, Confirmation and Seniority) Rules, 1987‑‑

‑‑‑‑Rr. 3, 4, 5, 6 & 7‑‑‑Termination of services of probationers‑‑­Procedure‑‑‑Extension of period of probation‑‑‑Principles‑‑‑Initial period of probation, in the present case was extended for another period of one year and employees continued as such till 1997‑‑‑If no order had been made by the date on which the maximum additional period of probation expired, the employee's probationary period would be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been so extended‑‑‑When the probationary period of the employees had not been extended for another period of one year, the period of probation would have stood extended by force of R.6(1)(b) of the Rules, for another period of two years‑‑‑Period of probation of employees having been terminated in the year, 1997 they were eligible for confirmation against the posts, held by them by virtue of R.7 of Rules‑‑‑ If employee who had become eligible by force of the said Rules for confirmation but no order was passed by the Authority concerned, he could not be treated a probationer, for the probation period by operation of the said Rules, stood terminated‑‑‑Such an employee would be deemed to have been confirmed.

(d) Karachi Water and Sewerage Board Act (X of 199)‑‑‑

‑‑‑‑S.13‑‑‑Retrenchment of employees of the Board‑‑ Appeal ‑‑‑Maintain­ability‑‑‑Appeal under S.13, Karachi Water and Sewerage Board Act, 1996 against the decision of the Board would be heard and disposed of in such a manner as may be prescribed ‑‑‑Decision of retrenchment of its employees by the Board treating them as probationers was appealable before the Provincial Government and the Chief Minister being the Chief Executive of the province was competent and vested with the power to set aside the same to which no exception could betaken.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Arts. 199‑‑‑Karachi Water and Sewerage Board Act (X of 1996), S.13‑‑­Constitutional jurisdiction of High Court under Art. 199 of the Constitution‑­Scope‑‑‑Constitutional petitions were filed by the retrenched employees of Karachi Water and Sewerage Board seeking direction in the nature of mandamus for implementation of the order of the Chief Minister/Provincial Government passed in their appeals wherein they were ordered to be reinstated‑‑‑Maintainability‑‑‑Constitutional petitions were filed by the employees who were the beneficiaries of the order passed by the Provincial Government/Chief Minister in their appeals which were not allowed to be implemented by the Vice‑Chairman of the Board which was absolutely without lawful authority‑‑‑High Court, therefore, was under the law obliged to declare toe act of Vice‑Chairman as without lawful authority and direct the Board to give effect to the orders of the Chief Minister as it was not a case of enforcement, of any of the terms and conditions of the employees, they having already been reinstated by the Chief Minister in appeal‑‑‑View of the High Core that the employees should have approached the Service Tribunal against the order passed in appeal was not sustainable.

(f) Civil Services---

‑‑‑‑Probation‑‑‑Non‑extension of period of probation‑‑‑Effect‑‑‑If no order had been made by the date on which the maximum additional period of probation expired, the employee's probationary period would be deemed to have been terminated with effect from the date on which the period of probation was last extended or deemed to have been so extended.

Abdul Hafeez Pirzada, Senior Advocate Supreme Court, Abdul Qadir Khan, Advocate Supreme Court and Mehr Khan Malik, Advocate‑on­-Record for Appellants (in C.As. Nos. 1232 and 1235 of 2000).

Appellant in erson (in C.A. No. 1233 of 2000).

M. Bilal, Senior Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑ Record for Appellants (in C.A. No. 1234 of 2000).

Fazal‑e‑Ghani Khan, Advocate Supreme Court, M.S. Khattak, Advocate‑on‑Record and Raja Abdul Ghafoor, Advocate‑on‑Record for Respondents.

Date of hearing: 14th May, 2002.

2002 P L C (C.S.) 1548

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah

and Faqir Muhammad Khokhar, JJ

ABDUL WALI

Versus

PAKISTAN WATER AND POWER DEVELOPMENT

AUTHORITY and others

Civil Petition for Leave to Appeal No.276 of 2002, decided on 6th June, 2002.

(On appeal from judgment of Federal Service Tribunal dated 10‑12‑2001 passed in Appeal No. 285(P)/C.S./2000).

Pakistan Water and Power Development Authority Employees (Efficiency & Discipline) Rules, 1978‑‑‑

‑‑‑‑R. 6‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Art .212(3)‑‑‑Disciplinary proceedings‑‑‑Retirement of civil servant on attaining age of superannuation ‑‑‑Plea raised by the civil servant was that the Service Tribunal could not permit the authorities to proceed against him afresh after he had retired on attaining the age of superannuation ‑‑‑Validity‑‑‑Leave to appeal was granted by Supreme Court to consider whether after the normal retirement of an employee on attaining the age of superannuation ‑‑‑Authorities could be permitted to proceed afresh under disciplinary rules against him.

State of Punjab v. Khemi Ram AIR 1970 SC 214 ref.

Qazi Muhammad Anwar, Advocate Supreme Court and Fateh Muhammad Khan, Advocate‑on‑Record for Petitioner.

M. A. Zaidi, Advocate‑on‑Record for Respondents.

Date of hearing: 6th June, 2002.

2002 P L C (C.S.) 1639

[Supreme Court of Pakistan]

Present: Munir A. Sheikh, Tanvir Ahmed Khan

and Faqir Muhammad Khokhar, JJ

NATIONAL BANK OF PAKISTAN and others

Versus

GHULAM RASOOL

Civil Petition for Leave to Appeal No. 1902‑L of 2001, decided on 25th February, 2002.

(On appeal from the judgment dated 24‑3‑2001 of the Federal Service Tribunal, Camp at Lahore, in Appeal No.676‑L of 1997).

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

‑‑‑‑Ss.2‑A & 4‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Question of fact‑‑‑Jurisdiction of Supreme Court under Art.212(3) of the Constitution‑‑­Scope‑‑‑Reinstatement in service‑‑‑Break in service‑‑‑Civil servant had been serving in the Bank since 1974, and was terminated from service on the ground that he was employed on stop a gap arrangement‑‑‑Gap shown in his service appeared to be artificial as the civil servant had remained continuously in the service of the Bank‑‑‑Service Tribunal allowed the appeal filed by the civil servant and he was reinstated in service ‑‑‑Validity‑‑­Question of break in service was a pure question of fact which could not be gone into by Supreme Court in the present petition as contemplated under Art.212 of the Constitution‑‑‑Appeal lay to Supreme Court only if a substantial question of law of public importance was involved‑‑‑Neither any question of public importance had been raised by the petitioner nor the same was involved‑‑‑Judgment of Service Tribunal was maintained by Supreme Court‑‑‑Leave to appeal was refused.

Zafar Iqbal Chaudhary, Advocate Supreme Court for Petitioners.

Ch. Ghulam Qadir, Advocate Supreme Court with Faizur Rehman, Advocate‑on‑Record for Respondent.

Date of hearing: 25th February, 2002.

2002 P L C (C.S.) 1641

[Supreme Court of Pakistan]

Present: Muhammad Bashir Jehangiri, Actg. C.J., Ch. Muhammad Arif and Mian Muhammad Ajmal, JJ

M.A. GHAFOOR, SENIOR MECHANICAL OFFICER, HEADQUARTERS OFFICE, PAKISTAN RAILWAYS, LAHORE

Versus

ISLAMIC REPUBLIC OF PAKISTAN through Secretary Establishment Division, Government of Pakistan, Islamabad and 24 others

Civil Appeal No.939 of 1996, decided on 29th May, 2001.

(On appeal from judgment dated 29‑4‑1995 passed by the Federal Service Tribunal, Islamabad in Appeal No.44(L) of 1995).

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

‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973). Art.212(3)‑‑‑Seniority‑-‑Effect of earlier absorption of the petitioner and the question of his seniority as against the respondent needed examination‑‑‑Leave to appeal was granted by Supreme Court.

(b) Service Tribunal Act (LXX of 1973)‑‑‑--

‑‑‑‑S.4‑‑‑Appeal before Service Tribunal ‑‑‑Maintainability‑‑‑Departmental appeal barred by time‑‑‑Effect‑‑‑When appeal before department was time‑barred, the appeal before the Service Tribunal was also incompetent on that account.

Chairman, PIAC v. Nasim Malik PLD 1990 SC 951 rel.

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

‑‑‑‑S.4‑‑‑Promotion to next higher grade‑‑‑Date of promotion‑‑­Determination ‑‑‑Moveover to next higher grade‑‑‑Grievance of civil servant was that his promotion was not considered from the date of occurrence of the vacancy, therefore, move‑over to the next grade was not given to him accordingly ‑‑‑Departmental remedy as well as appeal before Service Tribunal proved to be futile‑‑‑Service Tribunal, after having attended to all the facts of the case came to the conclusion that the civil servant had not shown due vigilance in making a move before the Authorities and/or the Tribunal under S.4 of the Service Tribunals Act, 1973‑‑‑Validity‑‑‑Supreme Court declined to interfere with the judgment passed by Service Tribunal‑‑‑Appeal was dismissed.

Federation of Pakistan v. Raees Khan 1993 SCMR 609 ref.

(d) Limitation Act (IX of 1908)‑‑‑

‑‑‑‑S.5‑‑‑Condonation of delay‑‑‑Wrong calculation of period of limitation due to confusion‑‑‑Validity‑‑‑Such explanation was not plausible to offer in condoning the delay‑‑‑Delay was not condoned in circumstances.

Khan A. Hameed, Advocate Supreme Court with Ch. Mehdi Khan Mehtab, Advocate‑on‑Record (absent) for Appellant.

M. Nawaz Bhatti, Deputy Attorney‑General with Ch. Akhtar Ali, Advocate‑on‑Record for Respondents Nos. 1 and 2.

Respondents Nos.3 to 25: Ex parte.

Date of hearing: 29th May, 2001,

2002 P L C (C.S.) 1647

[Supreme Court of Pakistan]

Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ

MUMTAZ ALI SHAH

Versus

CHAIRMAN, PAKISTAN TELECOMMUNICATION COMPANY LTD., H.Q., ISLAMABAD and 6 others

Civil Appeal No.636 of 1998, decided on 23rd May, 2002.

(On appeal from the judgment dated 30‑6‑1997 of the Federal Service Tribunal, Islamabad in Appeal No.218(R) of 1997).

(a) Criminal Procedure Code (V of 1898)‑‑‑--

‑‑‑‑S. 494‑‑‑Withdrawal from prosecution‑‑‑Honourable acquittal ‑‑‑Scope‑‑­When the charge was withdrawn by the Competent Authority or by the Public Prosecutor under S.494, Cr.P.C. it would be presumed that the acquittal was without any benefit of doubt‑‑‑Honourable acquittal or otherwise was totally immaterial and out of place‑‑‑Honourable acquittal was a phenomenon totally alien to the Criminal Procedure Code, 1898 as such the same was as self‑coined terminology not supported by the Code‑‑‑Effect of withdrawal under S.494, Cr.P.C. was only that if the withdrawal occurred before the framing of charge, it entailed upon the discharge of accused and if it occurred after the framing of charge, it entailed upon the acquittal; it was as good an acquittal as it would have been under any other circumstance‑‑­Acquittal due to withdrawal of prosecution was placed on a better footing because the prosecution was of the view that there were no chances of conviction and the charge was groundless‑‑‑To coin and import a term like 'honourable acquittal' was not at all justified and was nowhere provided in the Criminal Procedure Code, 1898.

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

‑‑‑‑S. 9‑‑‑Criminal Procedure Code (V of 1898), S.494‑‑‑Promotion‑‑­Withdrawal of criminal case‑‑‑Criminal case was registered against the civil servant and he was not promoted whereas civil servants junior to him were promoted ‑‑‑As‑the prosecution against the civil servant was withdrawn by the Authorities, he claimed his promotion‑‑‑Authorities refused promotion to the civil servant on the ground that withdrawal of prosecution against him was not honourable acquittal‑‑‑Order passed by the Authorities was maintained by Service Tribunal‑‑‑Validity‑‑‑Civil servant, in the present case, was wrongly denied his promotion when juniors to him were got promoted‑‑‑Such withholding of promotion was glaring discrimination because without there being any evidence on record of criminal case, nobody could presume, as to, whether it was a clean acquittal or acquittal through benefit‑of doubt‑‑‑Order passed by the Authorities and judgment passed by the Service Tribunal were set aside by the Supreme Court and appeal was allowed.

(c) Criminal trial‑‑

‑‑‑‑Acquittal‑‑‑Clean acquittal and acquittal through benefit of doubt amounting to honourable acquittal‑-‑Differentiation‑‑‑Clean acquittal and acquittal through benefit of doubt is self‑coined proposition having no nexus with the provisions of Criminal Procedure Code, 1898‑‑‑Acquittal is an acquittal simpliciter and must entail upon all consequences of pure acquittal.

Appellant in person.

Hafiz S.A. Rehman, Senior Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondents Nos. 1 to 4.

Respondents Nos. 5 and 7: Ex parte

Nemo for Respondent No.6.

Date of hearing: 23rd May, 2002.

2002 P L C (C.S.) 1650

[Supreme Court of Pakistan]

Present: Rana Bhagwandas, Syed Deedar Hussain Shah and Abdul Hameed Dogar, JJ

JAMSHED AKHTAR

Versus

PAKISTAN AGRICULTURAL STORAGE AND SERVICES CORPORATION LIMITED (PASSCO) through Managing Director and another

Civil Appeal No. 1266 of 2001. decided on 29th May, 2002.

(On appeal from the judgment dated 22nd January, 2001 of the Federal Service Tribunal, Islamabad, passed in Appeal No.1275(L) of 1999).

(a) West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968)‑‑

‑‑‑‑S.O. 15(4)‑‑‑Pakistan Agricultural Storage and Services Corporation Ltd. (Efficiency and Discipline) Regulations, 1977‑‑‑Constitution of Pakistan (1973), Art.212(3)‑‑‑Leave to appeal was granted by, Supreme Court to consider whether the petitioner was a workman having certain valuable rights protected under S.O.15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, and Federal Service Tribunal, without assigning any reason dismissed the appeal arbitrarily holding that the petitioner was governed by Pakistan Agricultural Storage and Service Corporation Ltd. (Efficiency and Discipline) Regulations, 1977.

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

‑‑‑‑S. 2‑A‑‑‑West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(4)‑‑‑Dismissal from service‑‑­Pakistan Agricultural Storage and Service Corporation‑‑‑Status of employees‑‑ ‑Provisions of Service Tribunals Act, 1973‑‑‑Applicability‑‑­Employee was dismissed from service on the charge of illegal and unauthorised retention of official record‑‑‑Employee was dismissed from service after departmental inquiry‑‑‑Appeal against the order of dismissal was filed before the Service Tribunal which was also dismissed‑‑‑Employee raised the plea that he was civil servant only for the limited purpose and provisions of S.0.15(4) of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, were attracted in his case‑‑‑Validity‑‑‑Corporation (Employer) was registered under the Companies Act, 1913, as a private limited Company wherein the Federal Government had 25 % shares, whereas the remaining shares were with other nationalized scheduled Banks‑‑‑Corporation being administratively controlled by the Federal Government, employees of the Corporation were deemed to be civil servants within the meaning of S.2‑A of Service Tribunals Act, 1973, only for the limited purpose to avail the remedy of appeal before the Service Tribunal‑‑‑Simply by insertion of S.2‑A in the Service Tribunals Act, 1973, the status of the employee would not be affected but the terms and conditions of his service would be governed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑‑‑Judgment passed by the Service Tribunal did not suffer from any illegality and the same was maintained by Supreme Court‑‑‑Appeal was dismissed.

United Bank Limited through President v. Shahmim Ahmed Khan and 41 others PLD 1999 SC 990 and Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 distinguished.

Muhammad Zaman Qureshi, Advocate Supreme Court instructed by Syed Abul Aasim Jafri, Advocate‑on-Record (absent) for Appellant.

Kh. Muhammad Akram, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents.

Date of hearing: 29th May, 2002.

2002 P L C (C.S.) 1655

[Supreme Court of Pakistan]

Present: Sh. Riaz Ahmed, C.J., Mian Muhammad Ajmal and Muhammad Nawaz Abbasi, JJ

FEDERAL GOVERNMENT EMPLOYEES' HOUSING

FOUNDATION through Director‑General, Islamabad and another

Versus

MUHAMMAD AKRAM ALIZAI, DEPUTY CONTROLLER, PBC, ISLAMABAD

Civil Appeal No. 899 of 1998, decided on 18th June, 2002.

(On appeal from the order dated 5‑4‑1997 passed by Federal Service Tribunal, Islamabad, in Appeal No.35(R) of 1997).

(a) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212(3)‑‑‑Leave to appeal was granted by Supreme Court to consider the question whether the allotment of plot claimed by the respondent in the housing scheme of the Housing Foundation fell within the terms and conditions of service so as to attract the jurisdiction of Federal Service Tribunal established under Service Tribunals Act, 1973.

(b) Federal Government Employees Housing Foundation‑‑‑

‑‑‑‑Object and role of the Foundation‑‑‑Allotment of plots‑‑‑Remedy against allotment‑‑‑Federal Government Employees Housing Foundation having assigned the role of an agency of Federal Government was‑working for the benefit of employees of Federal Government including the employees of the Institutions, Corporations and Organizations controlled by the Federal Government ‑‑‑Housing Foundation would stand on different footing to that of the private companies incorporated under the Companies Ordinance, 1984‑‑‑Grievance of a person relating to the policy of allotment of plots by Housing Foundation or an act done by its functionaries in breach of its policy or infringement of any right of any individual under the policy, would be justiciable be an appropriate forum‑‑‑Notwithstanding non‑statutory status of Housing Foundation, it being an official body while following its Rules in the conduct o: its business, must act fairly, justly and in accordance with law‑‑‑Acquisition of land by Housing Foundation through Land Acquisition Collector, preparation of Schemes, allotment of residential plots and conducting ancillary and incidental matters, must be dealt with by the functionaries of Housing Foundation strictly in accordance with law—­Housing Foundation was initially established on the directive of Prime Minister and to all intents and purposes, its control was given to Ministry of Housing and Works, Government of Pakistan and thus while acting as an official agency of Federal Government it was indirectly discharging the function in connection with affairs of the Federation and by implication would be a part of Ministry of Housing and Works Government of Pakistan‑‑‑In case of any breach, an aggreived person can bring a suitable action against the Federal Government Housing Foundation by invoking the jurisdiction of an appropriate forum.

Gulshan Hussain and others v. The Collector; Islamabad Capital Territory and the Federal Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 ref.

(c) Land Acquisition Act (I of 1894)‑‑‑

‑‑‑‑S.4‑‑‑Acquisition of private land‑‑‑Validity‑‑‑Acquisition of private land for a purpose other than public purpose is not legal and such acquisition for personal benefit of a particular class of employees would not be in the public interest.

Gulshan Hussain and others v. The Collector, Islamabad Capital Territory and the Federal Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711 ref.

(d) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Companies Ordinance (XLVII of 1984), S.13‑‑‑Constitutional petition‑‑‑Maintainability‑‑‑Judicial review‑‑‑Acts done by Companies registered under the provisions of Companies Ordinance, 1984‑‑‑Federal Government Employees Housing Foundation‑‑‑Status‑‑‑Ordinarily a company registered under Companies Ordinance, 1984, if is not controlled by the Government and its status and character is not that of an agency of Government, would not be amenable to the Constitutional Jurisdiction of High Court‑‑‑Company like Federal Government Employees Housing Foundation which is functioning under the direct control of the Federal Government and its affairs are being run by the functionaries of the Government cannot claim immunity from judicial scrutiny of a decision made by its functionaries, if the same is found against its declared policy or infringes the rights of its beneficiaries‑ ‑‑Housing Foundation by virtue of its character and functions and distinguishable features having assumed the role of an official agency of Federal Government, does not stand at par to that of the private companies registered under the Companies Ordinance, 1984‑‑­Federal Government Employees Housing Foundation for all practical purposes is deemed to be an official body of Ministry of Housing and Works, Government of Pakistan, therefore, its acts and deeds are subject to the judicial review of superior Courts‑‑‑In the matter arising out of acquisition of land by the Foundation through Land Acquisition Collector; preparation of schemes, allotment of residential and commercial plots or ancillary and incidental matter, an aggrieved person can avail the remedy of civil suit or invoke the Constitutional jurisdiction of High Court‑‑‑Person being aggrieved of an action of the Housing Foundation either in relation to his right and entitlement of allotment of a plot or in any other matter of public importance, can maintain a Constitutional petition‑‑‑Immunity can be claimed by an official body for violation of Rules framed by such body on the plea that non‑statutory rules cannot be assailed but the departmental instructions/non‑statutory rules framed by such official bodies become enforceable in law without any prohibition in case of breach of non‑statutory rules/instructions being continuously and consistently acted upon by such an official agency‑‑‑Constitutional petition is maintainable in circumstances.

Maqsood Ahmed Toor v. Federation of Pakistan through Secretary, Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928; Gulshan Hussain and others v. The Collector, Islamabad Capital Territory and the Federal Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194 ref.

(e) Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art.199‑‑‑Constitutional petition‑‑‑Locus poenitentiae, principle of‑‑­Cancellation of allotment of plot‑‑‑Federal Government Employees Housing Foundation while acting as an official Organization, has framed a policy to regulate its business as per its declaration made in the Memorandum and Articles of Association‑‑‑Despite the fact that the policy framed by the Foundation. has no statutory force, still the Organization is bound by its policy which is being implemented and followed as departmental instructions of the controlling ministry and mandatory rules‑‑‑Violation of the policy is challengeable in High Court in its Constitutional jurisdiction‑‑­Notwithstanding any procedural defect in the allotment of plots to the different categories of the employees of Federal Government, the Housing Foundation after making such allotments has no power to rescind the same in the light of principles of locus poenitentiae‑‑‑Once an allotment is made and taken effect, the same would have legal protection and if in consequence to a subsequent act, Housing Foundation the right of an allottee is affected, such allottee can invoke the Constitutional jurisdiction of High Court to protect his right in the allotment‑‑‑Entitlement of a person for allotment of plot in the Scheme of Housing Foundation or a right of allotment if already created is undone, on any ground, the aggrieved person can maintain a Constitutional petition in the High Court as the remedy of civil suit in such cases is not efficacious.

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

‑‑‑‑S.4‑‑‑Allotment of plot to a civil servant‑‑‑Appeal to Service Tribunal‑‑­Maintainability‑‑‑Matter relating to terms and conditions of service‑‑‑Federal Government Employees Housing Foundation floated a housing scheme for Federal Government employees‑‑‑Respondent, being employee of Pakistan Broadcasting Corporation, applied for allotment of a plot in the category of civil servants‑‑‑Housing Foundation declined allotment of plot to the respondent in category of civil servants and considered his application subject to his entitlement from the quota reserved for employees of autonomous bodies‑‑‑Respondent assailed the act of the Housing Foundation before Service Tribunal in exercise of jurisdiction under S.4 of Service Tribunals Act, 1973‑‑‑Service Tribunal allowed the appeal and directed the Housing Foundation to consider the application of the respondent in the category of civil servants‑‑‑Plea raised by the Housing Foundation was that allotment or refusal of plot was not a matter relating to terms and conditions of service, hence jurisdiction of Service Tribunal could not be invoked‑‑­Validity‑‑‑Allotment of plot in housing scheme established by Federal Government Employees Housing Foundation could not be claimed as term: and conditions of service and not such right could be enforced, through tht remedy of appeal under S.4 of Federal Service Tribunals Act, 1973‑‑‑Service Tribunal had no jurisdiction to entertain and adjudicate the matter which had no nexus with the terms and conditions of service of a civil servant‑‑­Housing Foundation was established under the directive of Prima Minister/Federal Government as a welfare organization to establish residential colonies for its employees in Islamabad on ownership basis‑‑­Employees of Federal Government could seek allotment of a residential plot in the scheme of the Housing Foundation as per their entitlement as of right but such right could not be claimed as "terms and conditions" of service as there was no rule under which a civil servant‑ could claim allotment of a house or a residential plot on ownership basis as part of his terms and conditions of service in an official or semi‑official scheme‑‑‑Appeal before Service Tribunal would lie under S.4 of Service Tribunals Act, 1973, against an order passed by a Competent Authority in relation to terms and conditions of service of a person and not otherwise and thus neither the allotment of residential plot in the housing scheme of Federal Government Employees Housing Foundation could be claimed as terms and conditions of service nor such claim could be enforced through the remedy of appeal before the Service Tribunal‑‑‑Appeal filed by respondent before the Service Tribunal in the present case was not maintainable and the Service Tribunal had no jurisdiction to adjudicate upon the matter‑‑ ‑Supreme Court set aside the judgment passed by the Service Tribunal.

Abdul Rahim v. Pakistan Broadcasting Corporation 1992 SCMR 1213; Maqsood Ahmed Toor v. Federation of Pakistan through Secretary, Government of Pakistan, Ministry of Housing and Works, Islamabad and others 2000 SCMR 928 and Gulshan Hussain and others v. The Collector, Islamabad Capital Territory and the Federal, Government Employees Housing Foundation, Government of Pakistan through Secretary, Housing and Works 2000 YLR 1711 ref.

Syed Asghar Hussain Sabzwari, Advocate Supreme Court instructed by Ejaz Muhammad Khan, Advocate‑on‑Record for Appellants.

Nemo for Respondent.

Date of hearing: 11th April, 2002.

2002 P L C (C.S.) 178

[Supreme Court of (Azad J&K)]

Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J

DIRECTOR‑GENERAL, HEALTH SERVICES

versus

MUHAMMAD TARIQ AZIZ and 2 others

Civil Appeal No. 110 of 1999, decided on 14th January, 2000.

(On appeal from the judgment of the High Court dated 17‑5‑1999 in Writ Petition No. 308 of 1998).

Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑

‑‑‑‑R. 17‑‑‑Civil Procedure Code (V of 1908), Ss.35 & 35‑A‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Appointment‑‑‑ Special costs‑‑‑Imposition of‑‑‑Petitioner in his writ petition had challenged appointment order of pro forma respondents passed by the Authority‑‑‑High Court accepting writ petition declared disputed appointments to have been made without lawful authority‑‑‑Finding of High Court was based on three grounds; firstly that disputed posts were not advertised as required by R.17 of Azad Jammu and Kashmir Civil Servants (Appointment arid Conditions of Service) Rules, 1977; secondly that recommendations of Selection Committee had no legal vale because Selection Committee had to make choice from among the candidates who filed applications in response to the advertisement; thirdly that said appointments had been‑made to do favour to the appointees which assertion had not been rebutted through a counter‑affidavit‑‑‑Appointment order of pro forma respondents was quashed by High Court ordering Authority to pay Rs.10,000 as costs to petitioner which was challenged in appeal before Supreme Court' ‑‑‑Held: Order passed by Authorities being totally insupportable and frivolous, High Court had rightly passed order imposing costs on respondent‑Authorities which having been competently passed could not be interfered with by Supreme Court in appeal.

Zaighum Saleem Khan v. Muhammad Saleem Khan and another 1992 SCR 344; Azad Government and 4 others v Dr. Syed Abadain Haider and 8 others 2000 PLC (C.S.) 9; Inayatullah v Sh. Muhammad Yousaf and 19 others 1997 SCMR 1020 and Mst. Masoom Bibi v. Deputy Administrator, (R.P.), Sialkot and others 1988 CLC 2317 ref.

Raja Muhammad Hanif Khan, Advocate for Appellant.

Ch. Muhammad Ibrahim Zia, Advocate for Respondents.

Date of hearing: 12th January, 2000.

JUDGMENT

BASHARAT AHMAD SHAIKH, J.‑‑‑Respondent Muhammad Tariq Aziz filed a writ petition in the High Court to challenge the appointment orders of pro forma‑respondents Muhammad Mushtaq and Imtiaz Ahmad as Junior Clerk and Sanitary Patrol respectively made by the Director‑General Health. The writ petition has been accepted and Director General Health as well as members of the Selection Committee have been ordered to pay Rs.10,000 as costs to the successful writ petition. Director General Health filed this appeal, by leave of the Court, to challenge that part of the judgment in which Rs.10,000 have been ordered to be paid as costs.

2002 P L C (C.S.) 246

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

AZAD GOVERNMENT OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and 2 others

versus

Raja MUHAMMAD BASHIR KHAN, S.D.O., and 2 others

Civil Appeal No. 56.of 2000, decided on. 26th July, 2000.

(On appeal from the judgment of the High Court, dated 12-2-2000 in Writ Petitions Nos.222 and 223 of 1999).

Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977---

----Rr. 4, 5 & 7---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44---Dismissal from service---Issuance of fresh show­-cause notice---Requirement---Civil servants, who were proceeded against for certain allegations, were called upon by Inquiry Officer to submit their reply to charge-sheets against them within 14 days and they submitted their written reply accordingly---Two Inquiry Officers were appointed one after the other to conduct inquiry against civil servants in place of first Inquiry Officer also served identical charge-sheets upon civil servants whereas civil servants had already filed reply to charge-sheets which were served- upon them by first Inquiry Officer---Said Inquiry Officers submitted their reports long after expiry of ninety days and Authority dismissed civil servants from service on basis of the delayed reports after about five years, from service of charge-­sheet on civil servants---Delay in finalizing inquiry against civil servants was against Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, according to which same was to be completed at the most within ninety days---Inquiry report which was submitted after expiry of about three years from initiation of prosecution against civil servants was without holding any inquiry---Report merely stated that as the civil servants did not appear before Inquiry Officer, charges against- them stood proved, whereas under S.7(2) of the Rules, Inquiry Officer was bound to record evidence against civil servants---Validity---Reply of civil servants to show­-cause notices earlier issued by first Inquiry Officer was sufficient and subsequent Inquiry Officers were not legally justified to issue fresh show-­cause notice---Subsequently Inquiry Officers should have considered reply which civil servants had already submitted--Authorised Officer having proceeded to initiate proceedings against civil Servants without approval of Authority as envisaged under R.5(1) of Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 said proceedings stood vitiated being unlawful.

Muhammad Shafique Mughal v. Accountant-General and another 1996 SCR 127 ref.

Raja Shiraz Kayani, Advocate-General for Appellants.

Ch. Muhammad Ibrahim Zia, Advocate for Respondents Nos.1 and 2.

Date of hearing: 20th July, 2000.

2002 P L C (C.S.) 252

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunus Surakhavi, JJ

Syed ZAREEN SHAH

versus

INSPECTOR‑GENERAL OF POLICE and 3 others

Civil Appeal No‑38 of 1999, decided on 3rd November, 1999

(On appeal from the judgment of the Service Tribunal dated 15‑12‑1998 in Service Appeal No.92 of 1997).

(a) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S.4‑‑Appeal‑‑‑Limitation‑‑‑Period available to a civil servant to challenge original adverse order was one hundred twenty days from date of filing appeal before Departmental Authority‑‑‑If an adverse order was passed against a civil servant and he filed appeal, revision etc., he could not wait till the outcome of appeal or revision and he had to challenge original order within a period of one hundred twenty days.

Shabir Ahmad v. Azad Jammu and Kashmir Government and another 1996 SCR 82 ref.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑

‑‑‑‑S.4‑‑‑Appeal‑‑‑Limitation‑‑‑Where before the expiry of limitation prescribed by law, Appellate Authority dismissed appeal, aggrieved civil servant could file appeal against the appellate order and it was not necessary to challenge the original order.

Ch. Muhammad Ibrahim Zia Advocate, for Appellant.

Kh. Attaullah, Additional Advocate‑General for Respondents.

Date of hearing: 4th October, 1999.

2002 L C (C.S.) 274

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhamamd Yunus Surakhvi, JJ

Raja MUHAMMAD ASGHAR KHAN, GENERAL MANAGER, AKLASC, MIRPUR

versus

MIJHAMMAD HAFIZULLAH, MANAGER, TECHNICAL AKLASC, UPPER CRATER HOUSING SCHEME, MUZAFFARABAD and 5 others

Civil Appeal No. 172 of 1999, decided on 28th July, 2000.

(On appeal from the judgment of the High Court dated 1‑11‑1999 in Writ Petition No. 558 of 1998).

(a) Azad Jammu and Kashmir Logging and Sawmills Corporation Employees Service Rules, 1977‑‑‑

‑‑‑‑‑Rr. 21, 22, 23 & 27‑‑‑Azad Jammu and Kashmir (Appointment anti Conditions of Service) Rules, 1977, R.9‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VITI of 1974), S.44‑‑‑Appointment‑‑‑Promotion‑‑‑Writ of quo warranto‑‑‑Doctrine of lathes‑‑‑Applicability‑‑‑Scope‑‑‑While deciding question as to whether a writ petition was hit by doctrine of laches, facts of each case had to be kept in view‑‑‑In cases where appointment of civil servant or employee of a corporation, which was amenable to writ jurisdiction was involved, question of laches had to be liberally construed in favour of the objector i.e. petitioners filing writ of quo warranto‑‑‑Doctrine of laches was not applicable to writ of quo warranto and any person could, at any stage, move High Court that a person holding or purporting to hold a public office might be called upon to show under what authority of law he was holding a public office‑‑‑Principle of law that doctrine of laches was not applicable to writ in nature of quo warranto was subject to just exception that no mala fides should be shown in filing the application for quo warranto‑‑­Even if a person had riot filed a petition for writ of quo warranto, but had filed petition for writ of mandamus or certiorari, it was always open to him to file a petition for writ of quo warranto if his writ of mandamus or certiorari was dismissed on ground of lathes‑‑‑While all other restrictions which were attached to exercise of writ jurisdiction would apply, question of laches should be liberally construed in cases of writ of quo warranto‑‑‑On basis of principle that doctrine of laches was not applicable to writ of quo warranto, it could be said, subject to just exceptions, that illegal appointment or promotion of a person, was always open to challenge.

Muhammad Rashid Chaudhry v. Chairman AKLASC and others 1993 PLC (C.S.) 1201; Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan and others 1995 MLD 1350; Abdul Qadir v. Government of West Pakistan through Home Secretary, Lahore. PLD 1967 SC 506; Pakistan v. Sheikh Abdul Hamid PLD 1961 SC 105; Pakistan through Secretary, Ministry of Finance, Rawalpindi v. A.P. Hassumani and another PLD 1962 SC 409; Muhammad Khan v. Shamsuddin and others 1969 SCMR 212; Municipal Committee Lalamusa through Chairman v. Punjab Labour Appellate Tribunal, Lahore and 2 others 1987 PLC (C.S.) 497; Gouranga Mohon Sikdar v. Controller of Imports and Exports and others PLD 1968 Dacca 23; Mst. Rashda Parveen v. Deputy Settlement Commissioner (Plots) and 8 others PLD 1982 Lah. 250 and Shaheen Asad v. Azfar Yaseen and others Civil Appeal No. 44 of 1999 ref.

(b) Writ‑‑‑

‑‑‑‑‑Quo warranto‑‑‑Doctrine of lathes‑‑‑Applicability‑‑‑Scope.

Muhammad Rashid Chaudbry v. Chairman AKLASC and others 1993 PLC (C.S.) 1201; Azad Government of the State of Jammu and Kashmir and others v. Haji Summandar Khan and others 1995 MLD 1350; Abdul Qadir v. Government of West Pakistan through Home Secretary, Lahore PLD 1967 SC 506; Pakistan v. Sheikh Abdul Hamid PLD 1961 SC 105; Pakistan through Secretary, Ministry of Finance, Rawalpindi V. A.P. Hassumani and another PLD 1962 SC 409; Muhammad Khan v. Shamsuddin and others 1969 SCMR 212; Municipal Committee Lalamusa through Chairman v. Punjab Labour Appellate Tribunal, Lahore and 2 others 1987 PLC (C.S.) 497; Gouranga Motion Sikdar v. Controller of Imports and Exports and others PLD 1968 Dacca 23; Mst. Rashda Parveen v. Deputy Settlement Commissioner (Plots) and 8 others PLD 1982 Lah. 250 and Shaheen Asad v. Azfar Yaseen and others Civil Appeal No. 44 of 1999 ref.

(c) Azad Jammu and Kashmir Logging and Sawmills Corporation Employees Service Rules, 1977‑‑‑

‑‑‑‑R. 27‑‑‑ Azad Jammu and Kashmir (Appointment and Conditions of Service) Rules, 1977, R.9‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44‑‑‑Employee of statutory corporation‑‑­Promotion of such employee could not be ordered by Competent Authority unless case had been processed by Selection Committee‑‑‑Mandatory condition was that promotion of employee of such Corporation would be made only if case had been processed by Selection Committee‑‑‑Selection Committee and Board of Directors were two different entities and they performed functions which were vastly different in nature‑‑‑Selection Committee had to function independently while formulating its recommendation‑‑‑Selection Committee, in forming its opinion, had to act independently and its recommendations had to be based on uninfluenced assessment of the merits of each candidate‑‑‑Function which was to be performed by Selection Committee was not to be performed by persons who were not members of the Committee.

(d) Administration of justice‑‑‑

‑‑‑‑Principle‑‑‑If a decision was to be taken under a statute, it must be taken in the discretion of person who was authorised to take decision and if it was taken under influence of outside authority, result of such action would stand vitiated.

Abdul Rashid Abbasi, Advocate for Appellant.

M. Tabassum Aftab Ali, Advocate for Respondent No. 1.

Date of hearing: 6th June, 2000.

2002 P L C (C.S.) 338

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Basharat Ahmad Shaikh, J

Ms. TAHIR‑UN‑NISSA

versus

Ms. IMRANA RAFEE and 5 others

Civil Appeal No. 190 of 1998, decided on 11th March, 1999.

(On appeal from the order of the Service Tribunal dated 3‑11‑1998 in Service Appeal No. 185 of 1998).

Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑

‑‑‑‑S. 9‑‑‑Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4‑‑‑Posting in higher grade‑‑‑Transfer to lower grade‑‑‑Status quo, grant of‑‑‑Appellant serving as "Assistant Professor" at place "B" was transferred at place "M" while the respondent serving as lecturer at place "M" was transferred to place "B" where appellant was serving‑‑‑Transfer of respondent serving in lower post as Lecturer in higher post of appellant was in violation of law‑‑‑Transfer order should not have the effect of varying the terms and conditions of a civil servant‑‑‑Service Tribunal on application of appellant granted interim stay order, but later on the stay order was cancelled‑‑‑Supreme Court restored the interim order till disposal of appeal before Service Tribunal.

Mubasherul Haque v. Azad Government of the State of Jammu and Kashmir and 2 others PLD 1990 SC (AJ&K) 66; Muhammad Rashid Choudhry v. Chairman, AKLASC and others 1993 PLC (C.S.) 1201; Doctor Khawaja Mushtaq Ahmad v. Azad Government and others 1995 PLC (C.S.) 410; Muhammad Yaqoob Khan v. Secretary Forest/Tourism, AJK and another 1999 MLD 1862; Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle‑1, Gujranwala v. Government of Punjab through Services, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645 and Mirajud Din v. Director, Health Service, Lahore Region and others 1969 SCMR 4 ref.

Abdul Rashid Abbasi, Advocate for Appellant.

Kh. Shahad Ahmad, Advocate for Respondent No .1

Respondents Nos.2 to 6: Ex parte.

Date of hearing: 3rd March, 1999.

2002 P L C (C.S.) 348

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

FAZAL HUSSAIN

versus

AZAD GOVERNMENT and 4 others

Civil Appeal No. 52 of 1999, decided on 10th February, 2000.

(On appeal from the judgment of the High Court dated 10‑2‑1999 in Writ Petition No. 92 of 1998).

Azad Jammu and Kashmir Police (Efficiency and Discipline) Rules, 1992‑‑‑

‑‑‑‑‑R. 6(5)‑‑‑Jurisdiction of Authority to conduct inquiry against civil servant or to seek his explanation‑‑‑Rule 6(5) of Azad Jammu and Kashmir Police (Efficiency and Discipline) Rules, 1992, vested authority with the jurisdiction either to conduct enquiry against accused/civil servant or to seek his explanation‑‑‑Once the Authority decided to seek explanation of the civil servant, only then it would imply that personal hearing would be given to the civil servant to substantiate his explanation, but where mode of inquiry was adopted, civil servant in that case would get sufficient time and opportunity before Inquiry Officer to put all relevant material and facts on which he relied.. .

Syed Makadar Hussain Shah v. Board of Intermediate and Secondary Education, Mirpur through its Chairman and 5 others 1995 CLC 1594; Manzoor Hussain Shah v. Superintendent of Police, Sahiwal and another 1986 PLC (C.S.) 192; Amir Khan v. Superintendent of Police, Jhelum District and another 1986 PLC (C.S.) 512 and Shaukat Mahmood, Prosecuting Inspector v. Secretary Home, Azad Jammu and Kashmir 1999 PLC (C. S.) 349 ref.

Ghulam Mustafa Mughal, Advocate for Appellant.

Date of hearing: 8th February, 2000.

2002 P L C (C.S.) 355

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ. and Muhammad Yunus Surakhvi, J

MUHAMMAD SHAFI and another

versus

FOREST DEPARTMENT and 4 others

Civil.Appeal No. 164 of 1999, decided on 13th March, 2000.

(On appeal from the judgment of the Service Tribunal dated 16‑11‑1999 in Service Appeal No. 102 of 1998).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S. 4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47‑‑‑Appeal before Service Tribunal‑‑‑Two separate appeals were pending before Service Tribunal filed by employees of Forest Department against promotion of respondent challenging his seniority‑‑‑During pendency of appeals two appellants filed three different applications seeking amendments in their respective appeals‑‑‑Such amendments were opposed by respondent on the ground that in the garb of amendments the applicants actually wanted to challenge some previous orders of the Department which, due to lapse had become time‑barred‑‑‑Held, orders sought to be challenged by way of amendments were independent orders and were appealable before Departmental Authorities and thereafter before Service Tribunal within the prescribed time and such orders having not been passed daring the pendency of appeal before Service Tribunal, were rightly not allowed to be challenged by way of amendments in appeals pending before Service Tribunal.

Ashfaque Hussain Kiani, Advocate for Appellants.

Raja Shiraz Kayani, Advocate‑General for Respondents Nos. 1 to 4.

Abdul Rashid Abbasi, Advocate for Respondent No. 5.

Date of hearing: 8th March, 2000.

2002 P L C (C.S.) 687

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan and Muhammad Yunus Surakhvi, J

Sardar MUHAMMAD ASHRAF KHAN, CHIEF ENGINEER, P.W.D., MUZAFFARABAD and others

versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary at Muzaffarabad and others

Civil Appeals‑Nos. 118 and 117 of 2000, decided on 9th August, 2001.

(On appeal from the judgment of the Service Tribunal dated 24‑4‑2000 in Appeal No: 772 of 1994).

Azad Jammu and Kashmir Civil Servants Act, 1976‑‑‑

‑‑‑‑Ss. 8 & 22‑‑‑Anti‑dated promotion‑‑‑Entitlement‑‑‑If it was found by the Service Tribunal that concerned civil servant was eligible for promotion and the post was vacant, but he was not promoted without any fault on his part, the Service Tribunal could give anti‑dated effect to the promotion of such a civil servant‑‑‑Where civil servant had failed to challenge the appointment and promotion orders of opposing civil servants before the Service Tribunal within the period of limitation, the Service Tribunal did not commit any illegality in refusing him relief of giving anti‑dated effect to his promotion.

Muhammad Aslam Khilji v. Azad Government of Jammu and Kashmir 1991 PLC (C.9.) 128; Nisar Ahmad Kayani v. Azad Government 1999 PLC (C.S.) 1002; Ch. Abdul Latif v. Secretary, AJ&K Council 2000 PLC (C.S.) 210; Ch. Abdul Karim v. Raja Muhammad Nisar 1999 PLC (C.S.) 624; Ghulam Mustafa Qureshi v. Azad Government 1994 SCR 227; Muhammad Azad Khan v. The Secretary AJ&K Council 1999 PLC (C.S.) 122; Mrs. Nargis Shaheen v. Sh. Manzoor Ahmad Civil Review Petition No.9 of 1994; Muhammad Ilyas Khan v. Sardar Muhammad Hafeez Khan 2001 SCR 179; Muhammad Ilyas Khan v. E;ardar Muhammad Hafeez Khan 2001 PLC (C.S.) 445; Abdul Khaliq v. Zaheer Ahrnad 2000 PLC (C.S.) 706; Raja Muhammad Ashraf Kayani v. The Azad Jammu and Kashmir Government 1989 PLC (C.S.) 561; Muhammad Javaid v. Secretary Nome Civil Appeal No.200 of 1999 and Inayatullah Chaudhry v. Azad Jammu and Kashmir Government 1990 PLC (C.S.) 598 ref.

M. Tabassum Aftab Ali and Fareoq Hussain Kashmiri, Advocates for Appellant (in Civil Appeal No. 118 of 2000).

Gulam Mustafa Mughal, Advocate for Appellant (in Civil Appeal No. 117 of 2000).

Kh. Shahad Ahmad Advocate for Respondent.

Date of hearing: 24th July, 2001.

2002 P L C (C.S.) 714

[Supreme Court (AJ&K)]

Before Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

SULEMAN AHMED

versus

TANVEER AHMED MIR and 3 others

Civil Appeal No. 98 of 2000, decided on 29th March, 2001.

(On appeal from the judgment of the High Court dated 9‑5‑2000 in Writ Petition No. 366 of 1997).

Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Twenty‑four posts were advertised by the Public Service Commission for Animal Husbandry and out of them six posts were reserved for District 'M'‑‑‑Advertisement had further indicated that in case suitable candidates from District M were not available selection would be made on basis of merits out of other candidates‑‑‑Commission after conducting test and interview declared seven persons as selected, out of them six belonged to District M, but selection of seventh candidate was made on‑basis of open merits stating that no candidate from District M could qualify for same‑‑­Selection of seventh candidate was challenged on ground that it should have not been filled on basis of open merits but same should have been re­advertised‑‑‑Plea of opposing candidate, who could not qualify in test and interview and was not aggrieved person could not be accepted As the vacancy could not be left vacant for an indefinite period‑‑‑When Commission itself offered that if suitable candidates from District M were not available vacancy would be filled on basis of open merits, selected candidates could not have been penalized for fault if any on the part of Commission.

Khurshid‑ul‑Hassan v. Azad Government and others 1996 SCR 327 and Umar Hayat v. Azad Government and others 1999 PLC (C.S.) 78 ref.

M. Riaz Tabassum, Advocate for Appellant.

Muhammad Azeem Dutt, Advocate for Respondent No. 1.

Ch. Muhammad Mushtaq, Additional Advocate‑General for Respondents Nos.2 to 4.

Date of hearing: 26th March, 2001.

2002 P L C (C.S.) 769

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ.

Qazi MUHAMAMD SULEMAN and 5 others

versus

AZAD JAMMU AND KASHMIR GOVERNMENT and 2 others

Civil Appeal No.39 of 2001, decided on 16th July, 2001.

(On appeal from the judgment of the High Court dated 18‑11‑2000 in Writ Petition No. 361 of 1998).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S. 4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 44 & 47‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Any matter which fell within ambit of terms and conditions of civil servant could not be resolved by any Court including High Court in exercise of its writ jurisdiction except Service Tribunal‑‑‑Service Tribunal could competently resolve dispute as to whether notification issued by Authority was or was not bad in law‑‑‑Writ of prohibition could not be issued by High Court in respect of matter relating to terms and conditions of service‑‑‑Competent Authority could not be deprived from amending, cancelling or rescinding any order, notification earlier issued‑‑‑Jurisdiction of ordinary Civil Courts and even superior Courts after establishment of Service Tribunal, stood ousted‑‑­High Court could not issue writ of prohibition against Competent Authority directing not to withdraw or amend any order or notification.

Azad Government and another v. Abdul Kabir Quresh and others 1994 SCR 402; Ejaz Ahmed Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.). 1439; Ghiasul Haq and others v. Azad Government of the State of Jammu and Kashmir and others PLD 1980 SC (AJ&K) 5; Dr. Muhammad Sarwar v. Dr. Muhammad Sharif Chatter and others 1995 SCR 292; Raja Naveed Ahmed v. Qazi Khalilur‑Rehman and others 1994 SCR 267; Engineer‑in‑Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaludin 1989 SCMR 441 ref.

Ghulam Mustafa Mughal, Advocate for Appellants.

Kh. Attaullah, Additional Advocate‑General for Respondents

Date of hearing: 2nd July, 2001.

2002 P L C (C.S.) 777

[Supreme Court (AJ&K)]

Present: Khawaja Muhammad Saeed, J

ASHFAQ AHMED

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 3 others

Civil Petition for Leave to Appeal No. 187 of 2001, decided on, 18th January, 2002.

(On appeal from the judgment of the Service Tribunal dated 29‑9‑2001 in Service Appeal No.290 of 1999).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑--

‑‑‑‑SA(1)(b) [as amended on 1‑2‑1999]‑‑‑Appeal before Service Tribunal‑‑­Limitation‑‑‑Civil servant, after amendment in S.4, Azad Jammu and Kashmir Service Tribunal Act, 1975 could invoke the appellate jurisdiction of the Service Tribunal directly without first availing the departmental remedy against his grievance‑‑‑Civil ‑servant despite same amendment, wasted considerable period by availing the departmental remedy and invoked appellate jurisdiction of Service Tribunal after more than five years from his grievance‑‑Excuse expressed by the civil servant for said inordinate delay was that he was unaware that any amendment had been effected in the Act‑‑­Validity‑‑‑Service Tribunal had rightly ignored said explanation on the ground that ignorance of law was no excuse‑‑‑Service Tribunal had rightly dismissed appeal being barred by time.

Imdad Ali Mallick, Advocate for Petitioner.

Date of hearing: 18th January, 2002.

2002 P L C (C.S.) 785

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

INSPECTOR‑GENERAL OF POLICE and 3 others

versus

AURANGZEB and 4 others

Civil Appeal No.22 of 2001, decided on 18th October, 2001.

(On appeal from the judgment of the High Court dated 23‑10‑2000 in Writ Petition No.375 of 1998).

Civil service‑‑‑

‑‑‑‑‑Termination of service‑‑‑Principle of audi alteram partem, violation of‑‑­Civil servants who were appointed vide different orders had been rendering their services for a. pretty long time and had been receiving emoluments from concerned departments but all of a sudden their services were terminated without affording them an opportunity of hearing by violating unnecessarily recognized principle of audi alteram partem‑‑‑Validity‑‑‑Before passing adverse order against a person or imposing penalty upon him it was essential to give him notice for personal hearing and same could not be dispensed with unless there was a special provision in the relevant law that services of civil servant could be terminated without serving any notice upon him‑‑­Contention that orders of appointment of civil servants being ab initio void there was no necessity of giving them a notice, was repelled because there was vast difference between an order which was ab initio void and one which was violative of some rules‑‑‑Case of Authorities was not that appointment of civil servants was made by an Authority who had no jurisdiction to appoint them‑‑‑Orders of appointment of civil servants even if illegal, could not be regarded to be ab initio void.

Azad Jammu and Kashmir Government v. Muhammad Siddique Haidri 2000 PLC (C.S.) 714; Azad Government and others v. Muhammad Munsaf and others C.P.L:A. No.65 of 1998; Malik Zaffar Ali v. Inpector­General of Police 1995 SCR 234; Karachi Port Trust v. Altaf Ahmed and another 1996 SCMR 1205; Muhammad Siddique Javed Chaudhry v. The Government of West Pakistan PLD 1974 SC 393; Hussain Ahmed Islahi v. Azad Government and another 1992 SCR 370 and Abdul Khalil v. Manzoor Ahmed and 5 others 1998 PLC (C.S.) 1396 ref.

Riaz Navid Butt, Additional Advocate‑General for Appellants.

Sardar Muhammad Yasin Khan, Advocate for Respondents.

Date of hearing; 16th October, 2001.

2002 P L C (C.S.) 797

[Supreme Court (AJ&K)]

Present: Sardar Muhammad Khan, C.J. and Muhammad Yunus Surakhvi, J

Mst. SAIQA BIBI

Versus

SECRETARY EDUCATION and 7 others

Civil Appeal No. 123 of 2001, decided on 23rd November, 2001.

(On appeal from the judgment of the Service Tribunal dated 12‑6‑2001 in Service Appeal No. 190 of 1999).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑--

‑‑‑‑R.17‑‑‑Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), Ss 4 & 5(2)‑‑‑Appointment‑‑‑Jurisdiction of Service Tribunal‑‑‑Civil servant in response to advertisement submitted application for appointment and got first position in merit list and on recommendation of Selection Committee was appointed after issuing him appointment letter in accordance with relevant service law and rules‑‑‑Civil servant after submitting .her joining report started performing her duties on assuming charge of the post‑‑‑While civil servant was performing her duties, Authority/Director without first cancelling her appointment, issued appointment order of another person without any lawful authority‑‑‑On filing appeal against order of Authority, Service Tribunal though set aside order, of Authority but appointment of civil servant was also set aside with direction for readvertisement of the post occupied by civil servant‑‑Civil servant challenged order passed by Service Tribunal before Supreme Court, contending that her appointment order having never been impugned before Service Tribunal by way of appeal and by setting aside appointment order of appellant/civil servant, Service Tribunal had travelled beyond its jurisdiction‑‑‑Validity‑‑‑Service Tribunal had rightly pointed out that neither the post was advertised nor the mode was determined by Government‑‑‑Service Tribunal had committed no illegality in accepting appeal and remanding case with direction that post should be filled in by inviting fresh applications as provided in R.17 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑Service Tribunal empowered under S.5(2) of Azad Jammu and Kashmir Service Tribunal Act, 1975, was not debarred from issuing directions that post in question should be filled in by re‑advertising same and inviting fresh applications.

Abdul Khaliq, Primary Teacher, Rajkot v. Zaheer Ahmed and 4 others 2000 PLC (C.S.) 706‑ref.

(b) Civil Service------

----Appointment----In female institutions preference should be given to appointment of female unless there could be some compelling reason-----was not a good precedent to appoint male members in female institutions.

Farooq Hussain Kashmiri, Advocate for Appellant.

Abdul Rashid Karnahi, Additional Advocate‑General for Respondent.

Date of hearing: 21st November, 2001.

2002 P L C (C.S.) 821

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

AZAD JAMMU AND KASHMIR GOVERNMENT and others

Versus

Syed SHAKIR SHAH and others

Civil Appeals Nos. 169 and 170 of 2000, decided on 13th June, 2001.

(On appeal from the judgment of the High Court dated 29‑6‑2000 in Writ Petition No. 511 of 1998).

(a) Azad Jammu and Kashmir Rules of Business, 1985‑‑---

‑‑‑‑Civil service‑‑‑Law Department a part of Government Secretariat‑‑­Certain qualifications had been laid down for the posts in Law Department for those who wanted their induction in the said Department‑‑‑Post of Draftsman of Law Department was in BPS‑20 and no person from Secretariat could ask for promotion against the said post merely on basis of his seniority, because people serving in Law Department were required to possess professional and technical qualifications in order to meet requirements of job in the Department in the performance of their duties, which were special in nature‑‑‑Government was legally competent to appoint any person in Law Department through transfer from any other branch of Civil Secretariat if in its wisdom he could fulfil requirement of job in the Law Department‑‑‑Even direct induction could be made in the Law Department and prerogative "' of Government to fill in vacancy in Law Department could not be questioned‑‑‑Only criteria was that a person sent to serve in Law Department through transfer or by promotion must possess technical qualification to meet .requirements of post.

Azad Jammu and Kashmir Government through Chief Secretary Muzaffarabad and another v. Syed Zaman Ali Shah and 3 others PLD 1991 SC (AJ&K) 57; Habibullah Gannaie v. Wajahat Rashid Baig and 3 others 1999 PLC (C.S.) 615; Nusrat Fatima v. Azad Government of the State of Jammu and Kashhmir and 2 others PLD 1985 SC (AJ&K) 93; Azad Government of the State of Jammu and Kashmir v. Haji Sammandar Khan and others 1995 MLD 1350 and Ferhat Ali Mir. v. Azad Jammu and Kashmir Government, Writ Petition No.96 of 1997 ref.

(b) Civil service‑‑‑

----Transfer and posting‑‑‑Transfer and posting were to be made by those who were legally competent in that regard‑‑‑Requirement of public interest was that a person who was suitable and capable to meet requirement of that post should be adjusted against that post.

(c) Azad and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑Ss. 44 & 47‑‑‑Writ of mandamus‑‑‑Scope‑‑‑Writ of mandamus was to be issued to compel holder of public office to act in discharge of legal duty and such power had been given to the High Court which it could exercise under S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974‑‑‑Writ jurisdiction available to High Court in Azad Kashmir was a discretionary jurisdiction which was to be exercised within limits laid down by said Interim Constitution Act, 1974‑‑‑Prohibition contained in any other provisions of said Act like S.47(2) of said Act would not be violated by High Court while exert writ jurisdiction.

(d) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S. 47‑‑‑Azad Jammu and Kashmir Service Tribunal Act, 1975‑‑­Establishment and jurisdiction of Administrative Tribunal and Courts‑‑‑Both Council and Legislative Assembly of Azad Jammu and Kashmir had jurisdictional competence to legislate for and establish one or more Administrative Tribunals and Courts in respect of matters to which their jurisdiction was recognized by AJ&K Constitution Act, 1974‑‑‑Service Tribunal in Azad Jammu and Kashmir had been established in 1975 and after its establishment jurisdiction of ordinary civil Courts including High Court had been excluded in respect of matters failing within jurisdiction of Service Tribunal‑‑‑Matters which had been given in exclusive jurisdiction of Service Tribunal had been clearly mentioned in Azad Jammu and Kashmir Service Tribunal Act 1975, but civil servant aggrieved by an order passed in respect terms and conditions of his service before 1st day of July, 1969 could not ail appellate jurisdiction of Service Tribunal‑‑‑Service Tribunal had not en vested with powers to issue such directions to a person performing actions in connection with affairs of Azad Jammu and Kashmir to do such he was required by law to do or refrain from doing that which was not ‑matted by the law to do‑‑‑Such directions could be issued by High court‑‑‑Any provision of law which sought to take away jurisdiction of High court available to it under Interim Constitution Act, 1974, must be construed idly‑‑‑Jurisdiction of High Court could be taken away through some press provisions otherwise presumption would be in favour of jurisdiction High Court‑‑‑Service Tribunal had got no jurisdictional competence to direct any authority holding public office to implement any order which (let law such authority was bound to implement.

Accountant‑General and others v. Zaman Hussain Khan and another 98 PLC (C.S.) 431; Ejaz Ahmad Awan and 5 others v. Syed Manzoor Ali Shah and another 1999 PLC (C.S.) 1439; Azad 'Jammu and Kashmir Government v. Syed Zaman Ali Shah PLD 1991 SC (AJ&K) 57: Mrs. Iffat a Saleem v . Sardar Muhammad Khurshid and 36 others 1996 SCR 254 and M. Rizvi and 5 others v. Maqsood Ahmed and 6 others PLD 1981 SC 612 ref.

(e) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44‑‑‑Civil service‑‑‑Writ petition‑‑‑Question of lathes‑‑‑Point of laches not attracted in the case where writ was filed by petitioners for enforcement of law and they had not challenged legality and correctness of Government orders rather they wanted that directions be issued to Authority consider them for further promotion alongwith other‑ eligible persons in accordance with law.

Farooq Hussain Kashmiri, Advocate for Appellants (in Civil Appeal No.169 of 2000.

M. Tabassum Aftab Alavi, Advocate for Respondents (in Civil Appeal No. 169 of 2000).

Imdad Ali Mallick, Advocate for Appellants (in Civil Appeal No.170 of 2000)

M. Tabassum Aftab Alavi, Advocate and Kh. Atta Ullah, Advocate‑General for Respondent (in Civil Appeal No. 170 of 2000).

Date of hearing: 10th May, 2001.

J

2002 P L C (C.S.) 862

[Supreme Court (AJ&K)]

Before Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

AJK GOVERNMENT and 3 others

versus

FEHMIDA ABDUL HUSSAIN and 8 others

Criminal Appeal No. 11 of 2001, decided on 2nd August, 2001

(On appeal from the judgment of the High Court dated 1‑2‑2001 in Criminal Miscellaneous Nos.74, 75, 78, 87, 88, 166 of 2000 and Writ Petitions Nos.584, 267 end 576 of 2000).

Civil Service‑

‑‑‑‑Appointment‑‑‑No material was available on record to prove that by induction of civil servants in service, quota or merits determined by Public Service Commission would be disturbed‑‑‑Presumption in circumstances would be, that civil servants on account of their merit and quota were entitled to be accommodated in service as was claimed by them‑‑‑Civil servants who had availed remedy well in time and otherwise deserved relief, must be given preference.

Abdul Qadeer v. Azad Government 2000 SCR 22 ref.

Abdul Rashid Karnahi, Assistant Advocate‑General for Appellants.

Farooq Hussain Kashmiri, Advocate for Respondents Nos. l to 4 and 6 to 9.

Ghulam Mustafa Mughal, Advocate for Respondent No.5.

Khawaja Shahad Ahmad, Advocate for Respondent No.7.

Date of hearing: 3rd July, 2001.

2002 P L C (C.S.) 889

[Supreme Court (AJ&K)]

Before Muhammad Yunus Surakhvi and Khawaja Muhammad Saeed, JJ

MUHAMMAD SULEMAN AWAN

versus

AZAD GOVERNMENT and 5 others

Civil Appeal No. 16 of 2001, decided on 11th June, 2001.

(On appeal from the order of Service Tribunal dated 7‑12‑2000 in service Appeal No.440 of 2000).

(a) Civil Procedure Code (V of 1908)‑‑‑

‑‑‑‑O.XXXIX, Rr.1 & 2‑‑‑Temporary injunction, grant of‑‑‑Guiding principles‑‑‑Principles for allowing or refusing stay order were, whether party applying for stay had got a good arguable case; whether balance of convenience was on its side; in case stay was not allowed to party, would it suffer irreparable injury‑‑‑Granting of injunction was purely within discretion of Court or Tribunal seized of the case, but said discretion required by law to be exercised in judicial manner which means that same must be exercised on sound judicial principles.

(b) Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑

‑‑‑‑S. 4‑‑‑Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977, Rr. 4, 5 & 6‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47‑‑Awarding of major punishments‑‑­Interim injunction, grant of‑‑‑Civil servant was awarded major penalties of compulsory retirement from service arid recovery of alleged amount of loss‑‑­Said order was assailed by civil servant before Service Tribunal through appeal and civil servant alongwith appeal moved an application seeking ‑suspension of said order ‑‑Service‑ Tribunal rejected application through telegraphic order merely on ground that Department would suffer loss‑‑­Validity‑‑‑Tribunal was required to decide; as to whether it would be necessary to preserve status quo until appeal filed by appellant was finally disposed of‑‑‑Service Tribunal, had failed to exercise jurisdiction in accordance with established norms of law and had given no reason for order rejecting application‑‑‑Order rejecting, application for stay order passed by Service Tribunal was. set aside and case was remanded to Service Tribunal to decide afresh after providing right of hearing to the parties.

Abdul Rashid Abbasi, Advocate for Appellant.

Ch. Muhammad Latif, Advocate for Respondents.

Date of hearing: 7th June, 2001.

2002 P L C (C. S.) 996

[Supreme Court (AJ&K)]

Present: Muhammad Yunus Surakhvi

and Khawaja Muhammad Saeed, JJ

JAVED HUSSAIN SHAH

Versus

AZAD GOVERNMENT and 3 others

Civil Appeal No. 127 of 2001, decided on 7th December, 2001.

(On appeal from the judgment of the High Court dated 14‑6‑2001 in Writ Petition No. 718 of 1999).

(a) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑According to advertisement only those candidates were entitled to apply for the post in question who were graduates and preference was to be given to graduates in Commerce, Economic and Agriculture‑‑­Candidate who had all the said qualifications was placed at Serial No. 1 and was inducted in service whereas candidate who was B.Sc. (Hons.) was placed at Serial No.2 and was not selected for the post‑‑‑Candidate who was not appointed had obtained more marks in written examination than the candidate who was selected; Selection Committee had rightly recommended him for appointment‑‑‑Candidate who was appointed though was said to be a good player of football, hockey, badminton and other games, but there was no legal sanction under which Selection Committee was required to grant additional marks to said candidate for being a good sportsman.

(b) Counsel and client‑‑‑

‑‑‑‑ Wrong mention of party name in Vakalatnama‑‑‑Effect‑‑‑Appellant had prayed that counsel for contesting respondent could not be allowed to argue the case because "Vakalatnama" available on record and signed by counsel, bore name of appellant instead of contesting respondent and counsel was not justified to appear on behalf of contesting respondent‑‑‑Case of appellant was not that counsel was ever engaged by him in present case‑‑‑Mere fact that in the body of "Vakalatnama" name of appellant was entered, was not sufficient to deprive counsel from appearing on behalf of contesting respondent, particularly when it was proved that it was due to inadvertence arid result of human error amounting to an irregularity which could be cured at any time and contesting respondent had acknowledged him as his counsel in the case.

Muhammad Riaz Khan v. Sardar Rahim Dad and 12 others PLD 1990 SC (AJ&K) 13 ref.

(c) Precedent‑‑‑

‑‑‑Precedent would be authority only if facts of two cases were common‑‑‑If facts of case were different and had nothing common with facts of cases referred by party in support of his case, precedent, would fall to distinct cadres‑‑‑Authorities on question of law would need no reference of facts of a particular case or authority which must necessarily be honoured.

(d) Interpretation of statutes‑‑‑

‑‑‑‑ Courts cannot add or substract anything from relevant law.

Trustees of the Port of Karachi v. Muhammad Saleem 1994 SCMR 2213 ref.

Mujahid Hussain Naqvi, Advocate for Appellant.

Riaz Naveed Butt, Additional Advocate‑General for Respondent Nos. 1 to 3.

Ghulam Mustafa Mughal, Advocate for Respondent No.4.

Date of hearing: 28th November, 2001.

2002 P L C (C.S.) 1138

[Supreme Court (AJ&K)]

Present: Muhammad Yunas Surakhvi

and Khawaja Muhammad Saeed. JJ

Raja MUHAMMAD SOHRAB, DEPUTY DIRECTOR PLANNING

versus

AZAD JAMMU AND KASHMIR GOVERNMENT Through Chief Secretary and 6 others

Civil Appeal No.66 of 2001, decided on 4th December, 2001.

(On appeal from the judgment of the High Court dated 6‑2‑2001 in Writ Petition No. 176/2000).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974) ‑‑‑

‑‑‑‑S. 42‑‑‑Appeal to Supreme Court‑‑‑New point‑‑‑Point neither argued before High Court nor appearing in impugned judgment could not be allowed to be raised for the first time before Supreme Court.

(b) Azad Jammu and Kashmir Small Industries Corporation (Service and Recruitment) Rules, 1991‑‑‑

‑‑‑‑[As amendment through Notification dated 31‑1‑1993]‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss. 42 & 44‑‑‑Post of Joint Director‑‑‑Appointment of respondent against such post was challenged on ground of its being violative of the rules and without considering the appellant by Selection Board‑‑‑High Court dismissed Constitutional petition‑‑‑Validity As per rules, person possessing qualification of Master of Arts Degree not below 2nd class in Economics/Commerce/Business Administration with 7 years experience in Government/Semi‑Government Organization or Business Organization of repute could be appointed by amongst the members of service holding post in BPS‑17‑‑‑Both such provisions must be read together, otherwise it would create anomalous situation, which should be avoided while interpreting a statute‑‑‑Post of Joint Director was basically a post for promotion, which could not be tilled in by initial recruitment, which fact was evident from working paper of Department revealing the title of meeting of Selection Board to be held as "promotion to post of Joint Director" ‑‑‑Promotion of respondent had been ordered by Selection Committee in patent and utter violation of relevant law and the rules‑‑‑Supreme Court set aside the impugned judgment and accepted the Constitutional petition tiled by appellant and declared the promotion of respondent as Joint Director to be null and void with directions to authorities to submit to Selection Committee the case of respondent, appellant and others fulfilling requisite qualifications and merit on the post of Joint Director.

Ch. Qurban Hussain v. Sardar Abdul Latif Khan and another Civil Appeal No.16 of 1996 decided on 8‑6‑1996: Munir Hussain Shah v. Secretary Forest Department 1993 PLC (C.S.) 1153 and Ch. Qurban v. Sardar Abdul Latif Khan Chughtai and another 1996 SCR 317 ref.

(c) Civil service‑‑‑

‑‑‑‑Promotion‑‑‑Department is duty bound to incorporate the exact and full particulars of all the contesting civil servants who deserve promotion.

(d) Civil service‑‑

‑‑‑‑ Promotion‑‑‑Civil servant while serving on deputation within Azad Jammu and Kashmir would be considered for promotion as their lien on parent department was intact‑‑‑Civil servant on deputation abroad could not be considered for promotion unless he came back to his parent department.

(e) Interpretation of statutes‑--

‑‑‑‑ Court has to interpret the law and rules as they are, but not as they should be.

Institute of Engineering, Pakistan Engineering Centre v. Pakistan Engineering Council and another 1996 CLC 129: Fauji Sugar Mills v. Province of Punjab 1996 CLC 592; The State v. Zahid Nadim and others 1996 MLD 506 and Rafique Akhter Chaudhry v. AJ&K Government PLD 1982 SC (AJ&K) 124 ref.

(f) Interpretation of statutes‑---

‑‑‑‑ While interpreting the provisions of a statute or rules, Courts are not supposed to add or subtract anything there from‑‑‑Even no word can be held to be redundant.

M. Tabassum Aftab Alvi, Advocate for Appellant.

Raja Muhammad Hanif Khan, Advocate, for Respondents

Date of hearing: 27th November, 2001

2002 P L C (C.S.) 1246

[Supreme Court (Azad J&K)]

Present: Sardar Said Muhammad Khan, C. J.

and Muhammad Yunis Surakhvi, J

INSPECTOR‑GENERAL OF POLICE, AJ&K MUZAFFARABAD and 2 others

Versus

ZAHEER‑UD‑DIN QURESHI

Civil Appeal No. 184 of 2000, decided on 19th January, 2001.

(On appeal from the judgment of Service‑ Tribunal dated 25‑7‑2000 in Service Appeal No. l l of 2000).

(a) Civil service‑‑‑

‑‑‑‑Demotion‑‑‑Principles of natural justice, violation of‑‑‑Civil servant who initially was appointed as Foot Constable, was finally promoted as Assistant Sub‑Inspector, but was demoted as Constable without holding any inquiry or affording him any opportunity of hearing before said demotion simply on the ground that promotion was trade against the relevant rules‑‑‑On tiling of appeal against the demotion order, Service Tribunal set aside order of &motion holding that principle of natural justice had been violated in demoting the civil servant‑‑‑Justification‑‑‑Before passing an adverse order against the civil servant, it was essential to give him a notice for personal hearing and same could not be dispensed with unless there was a specific provision in the relevant law that the services of civil servant could be terminated or he could be demoted without serving prior notice upon him‑‑­Contention that promotion of the civil servant made during the period of probation was ab initio void and no question was of serving notice on the civil servant before recalling his promotion, orders, was repelled because a vast difference existed between an order which was ab initio void and one which was violative of some rule‑‑‑In absence of allegation that order of promotion of the civil servant was made by Authority which had no jurisdiction, order of promotion of the civil servant could be illegal but same could not be regarded to be ab initio void‑‑‑Orders of promotion having been acted upon, same could not be recalled even if same were suffering from any legal infirmity, without providing the civil servant opportunity of hearing.

Abdul Khalil v. Manzoor Ahmed and 5 others 1998 PLC (C.S.) 1396; Karachi Port Trust v. Altaf Ahmed and another 1996 SCMR 12.05; Malik Zaffar Ali v. Inspector‑General of Police 1995 SCR 234; Azad Jammu and Kashmir Government v. Muhammad Siddique Haidri 2000 PLC (C. S.) 714; Azad Government and other v. Muhammad Munsaf and others Civil P.L.A. No.65 of 1998; Muhammad Siddique Javed Chaudhry v. The Government of West Pakistan PLD 1974 SC 393 and Hussain Ahmed Islahi v. Azad Government and another 1992 SCR 370 ref.

(b) Natural justice, principles of‑‑‑

---Requirement of law is to provide a personal hearing to the person against whom an adverse order is to be passed.

Raja Shiraz Kayani, Advocate‑General for Appellants.

Ghulam Mustafa Mughal for Respondent.

Date of hearing: 17th January, 2001.

2002 P L C (C.S.) 1282

[Supreme Court (AJ&K)]

Present: Sardar Said Muhammad Khan, CJ and Muhammad Yunus Surakhvi, J

MUHAMMAD ILYAS KHAN and 5 others

versus

Sardar MUHAMMAD HAFEEZ KHAN and 4 others

Civil Review Petition No. l of 2001, decided on 16th March, 2001.

(In the matter of review from the judgment of this Court dated 8‑12‑2000 in Civil Appeal No. 119 of 2000).

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977‑‑‑

‑‑‑‑R.8(i), Expin. II‑‑‑Promotion‑‑‑Determination of seniority‑‑‑If a person junior in a lower grade was promoted to higher grade by superseding his senior and subsequently said senior was also promoted, the person promoted first would rank senior to the one promoted subsequently.

Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab through the Secretary to Government of the Punjab Lahore and 2 others PLD 1991 SC 35; Nisar Ahmad Kayani v. Azad Government and 4 others 1999 PLC (C.S.) 1002; Abdul Qadir v. Abdul Karim and 4 others 2000 SCR 97 and Muhammad Arshid Khan and others v. Azad Government of the State of Jammu and Kashmir through its Chief Secretary Muzaffarabad and others 2000 PLC (C.S.) 247 (AJ&K) 88. ref.

(b) Civil service‑‑‑

‑‑‑‑ Seniority, reckoning date of‑‑‑Seniority of a civil servant would be reckoned from the date of his regular promotion.

(c) Review‑‑‑

‑‑‑‑ Point not raised in appeal‑‑‑Point not arrayed at the time of hearing of regular appeal, could not be agitated for the first time by tiling a review petition.

(d) Civil service‑‑

‑‑‑‑ Retrospective promotion‑‑‑Validity‑‑‑Retrospective promotion of civil servant from the year 1987 having not been challenged within the period of limitation, had attained finality‑‑‑Contention that said civil servant could not be promoted prior to year 1990, could not be pressed into service after expiry of period of limitation.

(e) Void order‑‑

‑‑‑‑ Void order adversely affecting the interest of a person, should be challenged within reasonable time and indolence and negligence could not be excused.

Abdul Rashid Abbasi and Ghulam Mustaf Mughal for Petitioners.

Date of hearing: 13th March, 2001.

2002 P L C (C.S.) 1385

[Supreme Court (Azad J&K)]

Present: Sardar Said Muhammad Khan, C. J. and Muhammad Yunus Surakhvi, J

KAUSAR PERVEEN

versus

AZAD GOVERNMENT and 2 others

Civil Appeal No.9 of 2001, decided on 13th March, 2001.

(On appeal from the judgment of the Service Tribunal dated 27‑11‑2000 in Service Appeal No.273 of 2000).

Civil service‑‑‑

‑‑‑‑Transfer‑‑‑No doubt it was the prerogative of the Government to transfer any civil servant from one place of service to another, yet it was desirable that the Government and the concerned Department should also take into consideration a uniform policy for all the Government employees, irrespective of their political background.

Mst. Bibi Zaitoon v. Director. Education Schools and others Civil PLA No.24 of 1999 and Mst. Nasreen Khawaja v. Mst. Kausar Perveen Civil Appeal No.69 of 2000 ref.

M. Tabbasum Aftab Alvi, Advocate for Appellant.

Raja Shiraz Kayani, Advocate‑General for Respondents Nos. l and 2.

Sardar Rafique Mahmood Khan, Advocate for Respondent No. 3.

Date of hearing: 12th March, 2001.

2002 P L C (C.S.) 1398

[Supreme Court (Azad J&K)]

Present: Sardar Said Muhammad Khan, C.J.

and Muhammad Yunus Surakhvi, J

Dr. Khawaja MUSHTAQ AHMAD

versus

AZAD GOVERNMENT and 5 others

Civil Appeal No. 198 of 2000, decided on 16th March, 2001.

(On appeal from the judgment of the Service Tribunal dated 10‑10‑2000 in Service Appeal No.237 of 2000).

(a) Words and phrases‑‑‑

‑‑‑‑"Oblique"‑‑‑Meaning.

Chambers 21st Century Dictionary ref.

(b) Civil service‑‑

‑‑‑‑ Service rules‑‑‑Interpretation of‑‑‑Rules relating to service matter of civil servants could be defective in so many aspects, but the Court would have to interpret the same as they were and not as they should be.

Raja Muhammad Hanif Khan, Advocate for Appellant.

Raja Shiraz Kayani, Advocate‑General for Respondents Nos. l to 5.

Ashfaque Hussain Kiani, Advocate for Respondent No.6.

Date of hearing: 9th March, 2001.

2002 P L C (C. S.) 1425

[Supreme Court (AJ&K)]

Present: Basharat Ahmad Shaikh and Muhammad Yunas Sarakhvi, JJ

PERVAIZ AKHTAR

versus

Shaikh RASHID MAJEED and 3 others

Civil Appeal No. 158 of 1999, decided on 8th March, 2000.

(On appeal from the judgment of the High Court dated 28‑10‑1999 in Writ Petition No.460 of 1998).

(a) Civil service‑‑‑

‑‑‑‑Appointment‑‑‑Domicile Certificate cancellation of‑‑‑Public Service Commission advertised posts of Section Officers in Law Department and two posts were reserved to be tilled in from amongst Jammu and Kashmir refugees settled in Pakistan‑‑‑Candidate who secured second position in the written test and interview, claimed to be refugee of Jammu and Kashmir settled in Pakistan on the basis of Domicile Certificate from Kasur District (Punjab)‑‑‑Candidate who was born in Azad Jammu and Kashmir and was educated there had obtained Domicile Certificate from Pallandri (Azad Kashmir) where he lived‑‑‑Domicile Certificate issued from Kasur District (Punjab) which was based on misrepresentation was cancelled by the District Magistrate, Kasur‑‑‑After cancellation of said Domicile Certificate no basis were left in favour of the candidate which could enable him to get relief as the certificate was an essential requirement before the Public Service Commission for proving his domicile‑‑‑Candidate having failed to prove that he being Jammu and Kashmir refugee was settled in Pakistan, High Court on the basis of evidence on record had rightly found that he was not a domicile of Kasur‑‑.‑Candidate, in circumstances, was not entitled to be recommended for appointment to the post which was to be filled in from among Jammu and Kashmir refugees settled in Pakistan.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)‑‑‑

‑‑‑‑S.44‑‑‑Writ petition ‑‑‑Aggreived person‑‑‑To be an aggrieved person, it was not necessary that one should have a strict juristic right to enforce it by filing a writ petition.

Syed Shaukat Hussain Gillani v. Abdul Rehman Abbasi and others 1992 SCMR 369 = 1992 PLC (C.S.) 438 ref

Abdul Rashid Abbasi, Advocate for appellant.

Kh. Shahad Ahmad, Advocate for Respondent No.1

Date of hearing: 2nd February, 2000.

2002 P L C (C.S.) 1587

[Supreme Court (Azad J&K)]

Present: Sardar Said Muhammad Khan, C. J

and Muhammad Yunus Surakhvi, J

MUHAMMAD FAYYAZ KHAN, ASSISTANT SECRETARY, AJ&K

LEGISLATIVE ASSEMBLY, MUZAFFARABAD

Versus

SPEAKER, AJ & K LEGISLATIVE ASSEMBLY, MUZAFFARABAD and another

Civil Appeal No.50 of 2001, decided on 7th December, 2001.

(On appeal from the judgment of the Service Tribunal dated 28‑11‑2000 in Service Appeal No. 767 of 1994).

Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975)‑‑‑--

‑‑‑‑S. 4(b)‑‑‑Azad Jammu and Kashmir Civil Servants (Appeal) Rules, 1991, R. 4(d)‑‑‑Promotion‑‑‑Entitlement‑‑‑Appeal, competency of‑‑‑Case of the appellant alongwith respondent and three others was considered for promotion by the Selection Committee, respondent was found tit to be promoted and appellant was not found as such‑‑‑Promotion of the respondent was made according to relevant rules which governed the promotion‑‑‑Said rules being statutory rules, and in presence thereof the general rules would have no application‑‑‑Since the question of promotion of respondent was determined by Selection Committee and he was found fit to be promoted for relevant post whereas the appellant was found unfit to be promoted; Service Tribunal had rightly dismissed the appeal filed by the appellant on account of embargo contained in S. 4(b) of Azad Jammu and Kashmir Service Tribunal Act, 1975 and second proviso to cl.(d) of R.4 of the Azad Jammu and Kashmir Civil Servants Appeal) Rules, 1991 which provisions of law had made it abundantly clear that if a civil servant was found unfit to be promoted and the Departmental Authority/Selection Committee determined the fitness of another civil servant to be promoted, any appeal or revision against the order determining the fitness or otherwise of a person would not be competent.

Sarwar Hussain Shah v. Azad Government and another 1997 PLC (C.S.) 302; Syed Shaukat Hussain Gillani v. Abdul Rehman Abbasi and others 1992 PLC (C.S.) 438; 1992 SCMR 369; Secretary, Government of Sindh, Education Department and another v. Syed ' Riaz‑ul‑Hassan Zaidi 1986 SCMR 64; Kh. Ghulam Muhammad v. Azad Government and another 2001 PLC (C.S.) 321; Falak Sher Khan v. Mukhtar Ahmed PLD 1989 SC 262; Dr. Muhammad Tahir Achakzai v. Government of Balochistan 1999 PLC (C.S.) 1360 and Pakistan Diploma Engineers Federation v. Federation of Pakistan 1994 PLC (C.S.) 1105 ref.

Farooq Hussain Kashmiri for Appellant:

Ghulam Mustafa Mughal for Respondents.

Date of hearing: 4th December, 2001.